IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100014122 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of an administrative letter of reprimand (LOR) from his Official Military Personnel File (OMPF).

2.  The applicant, in effect, defers to counsel.

3.  The applicant provides no additional documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the administrative LOR, dated 25 April 2007 (filed on or after 29 May 2007), from the applicant's OMPF.

2.  Counsel states the applicant was serving as the Commanding General,
U.S. Army Special Operations Command (CG, USASOC) at the time a friendly fire incident occurred in Afghanistan, which led to him being issued an administrative LOR.

   a.  On 22 April 2004, the 2nd Platoon, 2nd Battalion, 75th Ranger Regiment, was conducting operations in the vicinity of Magarah, Afghanistan.  The platoon ground assault convoy consisted of 41 Army Rangers, 4 Afghan Military Forces (AMF) Soldiers, and 12 vehicles that were split into two groups or serials.
   
       (1)  Serial 1 traveled down a canyon road without incident and arrived in the vicinity of the village of Manah.  A noncommissioned officer in Serial 2 ordered a change in the planned route and proceeded down the same canyon road as Serial 1 had traveled.
   
       (2)  While traveling down the road, Serial 2 came under enemy attack.  In response, Serial 1 personnel dismounted their vehicles, positioned themselves on an elevated spur overlooking the canyon road, and provided suppressive fire along the canyon walls.  Serial 2 personnel misidentified the suppressive fire for enemy fire and directed fire toward the muzzle flashes.  One Army Ranger [Corporal (CPL) Patrick D. T------] and an AMF Soldier were killed, and an officer and enlisted Soldier were wounded.

   b.  The initial casualty report indicated that the Army Ranger's death was the result of enemy action.

   c.  By the day following the incident, the local command suspected his death was by friendly fire.  However, no action was taken to report the suspicion through the chain of command or to the Army Safety Center.

   d.  In the days following the incident two command investigations were convened, the first by the battalion commander and the second by the regimental commander.
   
   e.  The Department of Defense (DoD) Inspector General (IG) [DoDIG] later found the two command investigations were tainted by the failure to preserve evidence, lack of thoroughness, the failure to pursue logical investigative leads, and conclusions that were open to challenge based on the evidence provided.

       (1)  With the advice of his legal advisor, the first investigating officer (IO) withheld information concerning the suspected fratricide from medical examiners who raised questions based upon anomalies they discovered during the deceased Soldier's autopsy.

       (2)  The first two investigations lacked credibility and contributed to perceptions that Army officials were purposefully withholding key information concerning the Soldier's death.

   f.  A third Army investigation was convened by the applicant at the direction of the Assistant Secretary of the Army (Manpower and Reserve Affairs) [ASA (M&RA)].  After consulting with the Director, Department of the Army Staff, and the Army IG, the applicant appointed a subordinate general officer assigned to his command to conduct an investigation.

       (1)  The IO was to develop a timeline of events when the nature of the fratricide incident became known at various levels of the chain of command, include copies of relevant reports made to and by the chain of command, and determine whether any responsible command knew or was aware of any reluctance to report the true facts of the incident before October 2004.
 
       (2)  A total of 60 interviews were conducted by the IO.  This included 26 of the 40 Army Rangers who were present at the scene on 22 April 2004 and the applicant on two occasions.

	    (3)  The IO's report was completed and reviewed by the applicant's legal advisor who concluded it was legally sufficient.

   g.  Each of the three Army investigations concluded that the Army Ranger died as a result of fire from U.S. Soldiers.  Although the immediate chain of command was aware that fratricide was suspected the day following the incident, the regimental commander kept information concerning the circumstances of the Soldier's death "close hold" until investigative results were finalized.  In addition, no supplemental reports were submitted to correct initial reports that the Soldier's death was caused by enemy fire.
   
   h.  CPL T------'s family was not notified of the investigation and subsequent fratricide determination until 35 days after the Soldier's death.

   i.  Service regulations require that the next of kin (NOK) be advised of additional information concerning a service member's death as that information becomes available.
   
   j.  The applicant retired from the U.S. Army in the rank of lieutenant general (LTG)/pay grade O-9 and was placed on the retired list on 1 February 2006.
   
   k.  The Army IG requested that an additional investigation be conducted by the DoDIG after CPL T------'s family continued to complain about information that they had been provided.
   
       (1)  The investigation sought to determine whether investigations were adequate, the Army's notification of the NOK complied with regulations, and documentation to justify posthumous award of the Silver Star for CPL T------ was accurate.  [The applicant was interviewed on 8 December 2006].
   
   
       (2)  The investigation concluded, in part, that the applicant provided misleading testimony to the third IO and the Office of the DoDIG when "he denied that he knew friendly fire was suspected before the memorial service for 
CPL T------" [3 May 2004].  The DoDIG recommended that the Acting Secretary of the Army (SA) take appropriate action with respect to officials identified in the DoDIG report as accountable for regulatory violations and errors in judgment.
   
   l.  On 26 March 2007, the Acting SA submitted the DoDIG Report to General William S. W------ for disposition of any identified shortcomings requiring disciplinary or administrative action.  The Acting SA directed him to "review the DoDIG Report Related to the Death of CPL P------ D. T------ and take appropriate action, if any with respect to the officers identified therein."

   m.  On 26 April 2007, General W------ provided an administrative LOR, dated
25 April 2005, to the applicant for making a false sworn statement to the IO appointed to conduct an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation when he told the
IO that:
   
       (1)  "the first time [he] had heard about the possibility that CPL T-------'s death may have been by friendly fire was from Colonel (COL) K.K. C---- on or about 3 May 2004 when [they] were both in San Jose, California, for the [deceased Soldier's] memorial service" and

       (2)  "he did not see a 29 April 2004 'Personal For' (P4) message from
LTG (MG [Major General] at the time) Stan M--------- addressed to [him] until sometime after returning from the memorial service after 3 May 2004."

	n.  General W------ asserted that the applicant lied "to avoid personal responsibility for his actions."  The LOR was also imposed for:

       (1)  alleged false statements made to DoDIG investigators on 8 December 2006 confirming what he had told the IO during the earlier investigation;

       (2)  failure to notify the deceased Soldier's family that a fratricide investigation had begun;

       (3)  failure to notify the Acting SA of the content of the P4 message; and

       (4)  asserting that the applicant had a duty to report to the Acting SA that friendly fire "may have" caused the death of the deceased CPL T-----.
   
   o.  On 23 May 2007, the applicant submitted his written response for consideration.  On 29 May 2007, General W------ ordered the administrative LOR filed in the applicant's OMPF.

   p.  On 16 May 2007, the applicant was notified that he was being considered for an Army Grade Determination Review Board (AGDRB) convened by the SA.  

   q.  On 30 July 2007, the SA, based upon the DoDIG Investigation and the administrative LOR, and adopting General W------'s allegation that the applicant intentionally lied to investigators, imposed a Secretarial Censure. 

   r.  The applicant personally appeared before the AGDRB on 6 October 2007.  The AGDRB unanimously recommended the applicant be retired in his current grade on the basis of their conclusion that he had served satisfactorily in the grade of LTG (O-9).
   
       (1)  The SA recommended to the Secretary of Defense (SecDef) that he withdraw the certification of satisfactory service issued by the previous SecDef on 26 January 2006 prior to the applicant's retirement on 31 January 2006.

       (2)  On 16 May 2008, the SecDef sent a memorandum to the President, President of the Senate, and Speaker of the House of Representatives purporting to withdraw the statement of satisfactory service that the previous SecDef signed and approved for the applicant's retirement in the grade of LTG.

       (3)  On 22 August 2008, the General Officer Management Office (GOMO) notified the applicant of the SecDef's decision to remove the certification of satisfactory service, to change his retirement rank/grade to MG [pay grade O-8], and to adjust his retired pay.
   
   s.  Counsel states the administrative LOR should be removed from the applicant's OMPF on the grounds that it is materially inaccurate, there was no lawful authority to file it in the applicant's OMPF, and the due process provisions of AR 600-37 (Unfavorable Information) were violated. 

       (1)  AR 600-37 applies only to "all officer and enlisted personnel in the Active Army, Army National Guard, and the U.S. Army Reserve (USAR)."  The objectives of the regulation make it clear that the regulation is intended to apply only to Soldiers who continue to serve.  None of the objectives are applicable to personnel who have completed their service obligation and been discharged and/or retired from the service.
   
       (2)  The applicant was denied due process because the adverse action related to the conduct of an improper AR 15-6 investigation.  In addition, the findings of an IG investigation were used as the bases for the administrative LOR; however, the applicant was not provided the opportunity to review the entire DoDIG Report of Investigation (ROI).
   
       (3)  The AR requires that an IO appointed to conduct an AR 15-6 investigation must be senior to persons who may be subjects of the investigation.  The applicant was directed to appoint an IO from within his command who was subordinate to him, despite the concerns he expressed to the ASA (M&RA) and Army IG.

       (4)  The Acting SA provided the DoDIG ROI to General W------ and directed that he consider the entire investigation to make a decision concerning administrative or disciplinary action.  However, General W------ only provided selected portions of the report to the applicant for his review prior to imposing the administrative LOR.

       (5)  The allegation the applicant intentionally lied is not supported by the evidence.  At the time, the applicant was the CG, USASOC, with a world-wide mission and responsibility for thousands of Army troops around the world.  The fact that the applicant's recollection may have been faulty is not indicative of an intentional lie.  Counsel adds that a polygraph examination administered to the applicant by a former DoD polygrapher and faculty member of the DoD Polygraph Institute offer evidence in support of this.
   
       (6)  The Board's attention is invited to the testimony of the former SecDef, former Chairman of the Joint Chiefs of Staff, former Commander of Central Command, and former Commander of the Joint Special Operations Command when they were questioned by members of a Congressional Committee concerning when they learned CPL T----- had been killed by friendly fire.  Counsel points out none of them recalled with clarity when they had been informed CPL T----- may have been killed by friendly fire and they avoided giving any specific answer.

3.  Counsel provides 17 exhibits that are identified in his petition (Tabs 1-17) and which are incorporated into this Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  During the processing of this case, a copy of the applicant's OMPF maintained in the Integrated Personnel Electronic Records Management System (iPERMS) was obtained from GOMO.
2.  The applicant graduated from the United States Military Academy and he was appointed as a commissioned officer in the Regular Army, in the grade of second lieutenant, on 3 June 1970.

3.  The applicant was promoted to MG on 1 December 1998.  He was promoted to LTG and assumed command of USASOC on 22 August 2002.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 3 June 1970.  He was honorably retired on 31 January 2006 based on sufficient service for retirement and placed on the retired list effective 1 February 2006.  He had completed 
35 years, 7 months, and 28 days of net active service:

   a.  Item 4a (Grade, Rate or Rank) shows "LTG"; item 4b (Pay Grade) shows "O09"; and item 12 (Record of Service), block h (Effective Date of Pay Grade), shows "2002 08 02" (i.e., 2 August 2002).
   
   b.  Item 9 (Command To Which Transferred) shows "N/A."

5.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 14 August 2008, corrected the applicant's
DD Form 214 as follows:

   a.  item 4a to show "MG" and item 4b to show "O08."
   
   b.  item 18 (Remarks) by adding "PER SECRETARY OF DEFENSE DIRECTIVE, OFFICER IS AUTHORIZED TO RETAIN THE RETIRED PAY HE RECEIVED FOLLOWING RETIREMENT ON 1 FEBRUARY 2006 IN THE GRADE OF LIEUTENANT GENERAL (O-9) UNTIL 16 MAY 08.//NOTHING FOLOWS."

6.  A DoDIG ROI, dated 26 March 2007, shows a review of matters related to the death of CPL T------ was initiated at the request of the Army IG:

   a.  The DoDIG ROI, in pertinent part, found the applicant knew of the suspected fratricide before he departed for the memorial service and misrepresented his knowledge in that regard and that as the commander with administrative control over the 75th Ranger Regiment he was accountable for failing to notify the primary NOK as soon as he reasonably suspected friendly fire.

   b.  Footnote 2 indicates based on the initial Army investigations some of the service members involved in the incident received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction of duty.

   c.  Footnote 15 indicates, "[s]ince completion of BG J----' investigation now required him to examine the conduct of LTG [applicant's name] (a person senior to him and also the appointing authority for the investigation), BG J---- was obliged to bring the matter to the attention of Army leaders at a level of command above LTG [applicant's name].

7.  An Army Special Review Boards, Arlington, Virginia, memorandum, dated
4 May 2010, responded to applicant's counsel regarding his request to remove the General Officer Memorandum of Reprimand (GOMOR), dated 25 April 2007, from the applicant's OMPF.  The President of the Department of the Army Suitability Evaluation Board (DASEB) informed the applicant's counsel that the DASEB only considers appeals and petitions from active Army personnel and Reserve and Army National Guard Soldiers on active duty.  Since the applicant was retired from the Army the removal of the GOMOR no longer falls under the purview of the DASEB.  He was also informed the Army Board for Correction of Military Records had received the applicant's application requesting this relief. 

8.  On 6 May 2010, the Personnel Management Officer, GOMO, The Pentagon, offered information regarding the filing of the GOMOR.  He stated the normal process is for the local Judge Advocate General (JAG) offices to forward a Memoranda of Reprimand (MOR) to the U.S. Army Human Resources Command (USA HRC) or GOMO for filing in the OMPF that is maintained in iPERMS.  In the applicant's case, he was retired and received the GOMOR after his retirement.  He added, "[a]pparently, GEN W------'s local JAG forwarded the document to [USA] HRC - St. Louis (as they should have since he was retired) but the file was never posted."

9.  There is no record of an administrative LOR [GOMOR] in the applicant's OMPF.

10.  There is no evidence the applicant was recalled to military service in the U.S. Army subsequent to the date he was placed on the retired list.

11.  In support of the applicant's application, his counsel provides copies of
17 exhibits, as follows:

   a.  Headquarters, U.S. Army Training and Doctrine Command (TRADOC), Fort Monroe, Virginia, memorandum, dated 25 April 2007, subject:  Administrative Reprimand, issued to the applicant by General William S. W------, Commanding General (CG), U.S. Army TRADOC.
       (1)  He stated "I did not consider the DoDIG report as evidence; instead, I have carefully considered the supporting sworn testimony and documentary evidence collected during the various investigations."

       (2)  General W------ determined the applicant's conduct fell short of that expected and demanded of the Army's General Officer Corps.  General W------ was persuaded by the preponderance of the evidence that at the time the applicant made statements under oath, he [the applicant] did not believe them to be true.  [Specifically, statements on 29 November 2004 and 9 December 2004 relating to when the applicant learned about the possibility that CPL T------'s death may have been by friendly fire.]  Accordingly, General W----- reprimanded the applicant for his course of conduct.

       (3)  General W------ stated the evidence that forms the basis for the reprimand will not be filed with the reprimand.

       (4)  Headquarters, U.S. Army TRADOC, Fort Monroe, Virginia, memorandum, dated 29 May 2007, subject:  Filing Determination - LTG [Applicant's Name], U.S. Army, Retired, issued by General W------ S. W------, CG, U.S. Army TRADOC, directed that the administrative reprimand, dated 25 April 2007, be filed in the applicant's OMPF.  It shows the applicant submitted rebuttal materials.  The filing decision was reached after careful consideration of the basis for the reprimand and all matters submitted in rebuttal.

   b.  Transcripts of the IO's interview with the applicant on 29 November
(11 pages) and 9 December 2004 (5 pages).  

       (1)  The applicant was advised of the purpose of the AR 15-6 investigation and administered the oath on 29 November 2004.  He was reminded that he was still under oath on 9 December 2004.

       (2)  The applicant stated the first time he was told the incident that occurred on 22 April 2004 was a possible fratricide was on the day of the memorial service (4 May 2004) and that COL K.K. C---, the Regimental Deputy Commanding Officer, told him.  The applicant commented, "This should not be given to the family because it's speculative at best at this point."  The applicant also stated he first saw the P4 message was after the memorial service.

   c.  The applicant's declaration in support of his application for removal of the administrative LOR from his OMPF.  He states:
   
       (1)  On both occasions he was interviewed by the IO and he provided answers to the best of his recollection.
       (2)  He was never notified that he was suspected of providing false information and he was never read his rights under Article 31(b), UCMJ.
   
       (3)  A polygraph examination that he was administered demonstrated he was not intentionally lying; but rather, he was sincere in his apparently mistaken belief of when he learned of the P4 message that provided notification of the likelihood of CPL T------'s death by friendly fire.

       (4)  He was denied his right to due process because he was only provided portions of the investigation that supported adverse action and he was not provided the portions of the report that argued against such action.

       (5)  The AGDRB apparently agreed he served satisfactorily in the rank of LTG as they unanimously recommended he retain his retired rank of LTG.

   d.  An undated declaration by Mr. Gary T. S------, the Deputy Director and Chief of Operations in the Army Compartmented Element for USASOC during the time of the incident states he received telephonic notification of the incident and the supporting casualty report on 22 April 2004.  He immediately initiated the sensitive activities operational reporting and casualty reporting processes.  His best recollection is that he first learned the Soldier's death was a suspected fratricide on 24 April 2004 after being informed by his intelligence section.  He queried the joint operational headquarters that provided the initial report for a change in status report; however, none was generated to change the "Inflicting Force" from "Enemy Forces" to either "Allied Forces," "U.S. Forces" or "Unknown."  Therefore, he states the applicant had no official basis on which to advise the NOK that fratricide was suspected.
 
   e.  DoDIG, Tape Transcription of the Interview of the Applicant (11 pages), dated 8 December 2006.  He acknowledged that while he was at the memorial service for CPL T------ he was aware of rumors that the Soldier's death was due to friendly fire; however, he did not discuss the matter with the NOK.  He stated that he was not advised to keep the fact that friendly fire was suspected quiet until the investigation was complete.  He added that we [Army officials] do not talk about ongoing investigations.  He also offered that those involved did not know the public law reporting requirements regarding incidents of friendly fire or the policy to notify the Army Safety Center.  [The interview also discusses processing of the Silver Star award recommendation pertaining to the deceased Soldier.]

   f.  Three memoranda under the signature of Secretary of Defense Donald H. R-------, to the President, President of the Senate, and Speaker of the House of Representatives, all dated 26 January 2006, informing them he had approved the applicant's retirement from the U.S. Army and his advancement to the grade of LTG on the retired list.

   g.  An award of the Distinguished Service Medal to the applicant for exceptionally meritorious service in a duty of great responsibility while serving as Commander, USASOC, from 29 August 2002 through 31 January 2006.

   h.  Office of the ASA (M&RA), Washington, DC, memorandum, dated
27 September 2007 that shows on 30 July 2007 the SA directed the ASA (M&RA) to convene the AGDRB to recommend the highest grade in which the applicant served satisfactorily for the purpose of retirement.

   i.  U.S. Army Legal Services Agency, Arlington, Virginia, memorandum, dated 26 November 2007, subject:  Request for Litigation Division Comment - Litigation Risk of Rescinding LTG (Retired) [Applicant's Name] Retirement Grade Determination and Legal Review of Whether the Secretary of Defense May Rescind LTG (Retired) [Applicant's Name] Final Grade Determination.  This is a
35-page document that is essentially entirely redacted.

   j.  A memorandum under the signature of Secretary of Defense Robert M.
G---- to the President, dated 16 May 2008, informing him that he had withdrawn the previous certification of satisfactory service for the applicant to retire in the rank of LTG.  The SecDef stated that evidence presented after the applicant's retirement shows the applicant committed significant improprieties during his service as a LTG and these improprieties are incongruent with the previously issued certification.  The memorandum shows the President of the Senate and Speaker of the House of Representatives were notified of this action.

   k.  Office of the Chief of Staff, Army Pentagon, Washington, DC, memorandum, dated 22 August 2008, that shows the Chief, GOMO, formally notified the applicant that the SA approved his retirement in the rank of MG after the SecDef withdrew the Title 10, U.S. Code, section 1370, certification on 
16 May 2008 indicating that he had served satisfactorily in the rank of LTG.  The applicant was provided a DD Form 215 and orders amending his retired rank/grade.  [The DD Form 215 did not change/correct the applicant's effective date of pay grade.] 

   l.  Resume of Thomas C. W-----, Polygraph Examiner/Investigator, and Report of Polygraph Examination of the applicant, dated 23 August 2007.  During the polygraph examination the applicant was asked:

       (1)  "Did you deliberately lie to Special Agent G------- regarding when you first saw the P4?"  The applicant responded, "No."
       (2)  "Did you read that 29 April 2004 P4 before T-----'s memorial service?"   The applicant responded, "No."

       (3)  The polygraph examiner's opinion was that the applicant was truthful in his above responses.

       (4)  Mr. Frank B-----------, a certified polygraph examiner, was also present at the time; he reviewed the polygraph charts and related materials and concurred with the examiner's opinion regarding the applicant's responses to the questions.

   m.  A statement from MG Thomas R. C-----, dated 7 July 2009, in which he states that on the evening of 22 April 2004, in Mildenhall, England, in a conversation with General Doug B----, Commander, United States Special Operations Command, he was told it would soon be reported that CPL T------ was killed in Afghanistan and friendly fire was possibly the cause.

   n.  A digital video disk (DVD) that is approximately 10 minutes in length of the House Committee on Oversight and Government Reform held on 24 April 2007 into the events following the death of CPL Patrick D. T------.  Appearing before the committee were the brother of the deceased Soldier, the former SecDef Donald H. R-------, former Chairman of the Joint Chiefs of Staff General Richard M----, former Commander of Central Command General John A------, and former Commander of the Joint Special Operations General Bryan D. B----.

       (1)  The commentator on the DVD states military officials used some variation of the phrase, "I don't recall" a total of 82 times.

       (2)  Towards the end of the video a member of the committee asks "I believe this is appropriately handled and those who made errors were held accountable.  …and these folks were held accountable.  Is that correct General M----, General, all Generals?"  While not visible on the video, a response is heard which sounds like the voice of General M----, "From what I understand, that is correct."

12.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.

   a.  Chapter 2 (Responsibilities of the Appointing Authority), paragraph 2-1 (Appointment), subparagraph c (Who may be appointed), states that investigating officers and board members shall be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service and temperament.
   
   b.  An IO or voting member of a board will be senior to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations may be made, except when the appointing authority determines that it is impracticable because of military exigencies.  Inconvenience in obtaining an IO or the unavailability of senior persons within the appointing authority's organization would not normally be considered military exigencies.

13.  AR 600-37, effective 20 January 1987, applies to all officer and enlisted personnel in the Active Army, Army National Guard (ARNG), and the USAR.

   a.  It sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

   b.  The objectives of this regulation are to:
   
(1)  Apply fair and just standards to all Soldiers.

       (2)  Protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility.

       (3)  Prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity. 

       (4)  Provide a means of correcting injustices if they occur.

       (5)  Ensure that Soldiers of poor moral character are not continued in the service or advanced to positions of leadership, trust, and responsibility.

   c.  Chapter 3 (Unfavorable Information in Official Personnel Files), paragraph 3-2 (Policies), provides that: 
   
       (1)  Except as indicated in paragraph 3-3 (Filing of information exempt from the filing process), unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.

       (2)  Unfavorable information filed in official personnel files must meet Privacy Act standards of accuracy, relevance, timeliness, and completeness.

       (3)  Unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.
   
   d.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

14.  AR 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.

   a.  Only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  

   b.  Table 2-1 (Composition of the OMPF) provides guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It states, in pertinent part, that the letter, referral correspondence, member's reply, and other allied documents (if they are specifically directed for file by the letter or referral correspondence) will be filed on the performance section of the OMPF.  All other allied documents not listed will be filed in the restricted section of the OMPF.

15.  AR 600-8-24 (Officer Transfers and Discharges) provides policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 6 (Retirements), paragraph 6-8 (Retirement status), provides that a Regular Army officer placed on the retired list continues to be an officer of the U.S. Army.

16.  United States Code, Title 10, section 802 (Persons subject to this chapter), provides that retired members of a regular component of the armed forces who are entitled to pay are subject to the UCMJ and, as such, the continuing jurisdiction of the U.S. Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that an administrative LOR, dated
25 April 2007, issued by the CG, U.S. Army TRADOC, should be removed from his OMPF because there was no lawful authority to file it in the applicant's OMPF, the due process provisions of AR 600-37 were violated, and it is factually inaccurate.

2.  The applicant’s and his counsel’s contentions were carefully considered.

   a.  The regulatory guidance in AR 15-6 is that the IO of an investigation must be senior to the persons who may be subjects of the investigation.
   
       (1)  The reason for appointing IOs senior to those whose conduct may fall under scrutiny is to avoid situations where the junior officer, whether out of respect or fear of reprisal, compromises the integrity of the investigation because of the superior-subordinate relationship.
   
       (2)  The evidence indicates, out of respect and deference to the applicant, the IO failed to follow-up on obvious inconsistencies between the applicant's rendition of events and specific renditions by other witnesses to the contrary.  Thus, in this instance, the IO resolved inconsistencies in the applicant's favor.
   
       (3)  Moreover, based on the testimony in evidence regarding the applicant's personal and professional integrity, it is reasonable to conclude the applicant would not have answered the IO's questions any differently had he been asked the same questions by an IO of superior rank.  Therefore, it is concluded that the applicant was not harmed by the fact that the IO was his junior.  

	b.  The contention that there was no lawful authority to file the GOMOR in the applicant's OMPF is not supported by the facts of this case.

	    (1)  The applicant was honorably retired from the U.S. Army in the grade of LTG on 31 January 2006.
	    (2)  The evidence of record shows that General W------, CG, U.S. Army TRADOC, issued an administrative reprimand to the applicant on 25 April 2007; the applicant provided his response; and General W------ directed it be filed in the applicant's OMPF.

	    (3)  The evidence of record shows the applicant personally appeared before the AGDRB on 6 October 2007.  His retirement grade was subsequently changed to MG effective 16 May 2008.

	    (4)  The contention that there was no lawful authority to file the GOMOR in the applicant's OMPF is weakened by both his own written response to the proposed administrative reprimand issued to him by General W------ and his personal appearance before the AGDRB after he retired from active duty.  More importantly, the evidence of record shows that U.S. Code and Army regulations clearly provide that a Regular Army officer placed on the retired list continues to be an officer of the U.S. Army and subject to continuing jurisdiction of the U.S. Army.  Therefore, the evidence of record clearly refutes the applicant's contention that there was no lawful authority to file the GOMOR in his OMPF.

	c.  The contention that the due process provisions of AR 600-37 were violated is not supported by the evidence of record.

	    (1)  On 25 April 2007 General W------, issued an administrative reprimand to the applicant.  General W----- wrote, "I did not consider the DoDIG report as evidence; instead, I have carefully considered the supporting sworn testimony and documentary evidence collected during the various investigations."  The letter also lists the specific documentary evidence and sworn statements as enclosures to the letter.  Thus, it is concluded that the applicant was provided all of the evidence General W------ used as a basis for the letter.

       (2)  The applicant provided his response to the administrative reprimand and, on 29 May 2007, General  W------ directed the administrative reprimand be filed in the applicant's OMPF.

	    (3)  Thus, the evidence shows the applicant was provided an administrative LOR and all the evidence that formed the basis for the reprimand.  In addition, he was afforded the opportunity to submit a rebuttal, his rebuttal was considered, and a filing determination was made.  The evidence also shows this is the correct procedure for processing such a letter.  Therefore, the evidence shows the applicant was afforded due process.

	d.  The contention that the GOMOR is factually inaccurate in that there was no evidence the applicant intentionally lied to investigators was considered.
	    (1)  The opinions [emphasis added] of the two polygraph examiners who administered and reviewed the results of the polygraph examination that the applicant took on 23 August 2007 are acknowledged.

	    (2)  The evidence of record shows that General W------ relied upon the sworn statements of BG Y_____, COL C----, and LTC D---- as a basis for his conclusion that the applicant made statements under oath that he [the applicant] did not believe to be true.

	    (3)  Notwithstanding the opinion rendered based on the results of the polygraph examination, it is concluded that a preponderance of the evidence refutes the claim that the GOMOR is factually inaccurate.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  _____X__  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   XXX_____   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100014122



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ABCMR Record of Proceedings (cont)                                         AR20100014122



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