IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100015108 


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:

   a.  removal of a General Officer Memorandum of Reprimand (GOMOR) and all adverse information pertaining to the same from his Official Military Personnel File (OMPF); and

   b.  an additional 90 days of active service time.

2.  He states:

	a.  the GOMOR was filed and referred to him incorrectly, and it contains uncorroborated and anonymous information which is in violation of multiple Army regulations;

   b.  his early release from active duty (REFRAD) was unjust based on an error in OMPF filing; and

	c.  a negative Officer Evaluation Report (OER) was later filed in his record under similar circumstances.  It is quite clear that the Department of the Army Suitability Evaluation Board (DASEB) failed to appreciate the notion that the GOMOR was based on the words of “others within the command,” but regulatory guidance is clear in mandating that unfavorable information and results of any type of investigation must be referred to the Soldier before filing in the OMPF.


3.  He provided:

* a self-authored statement
* his mobilization orders
* the subject newspaper article from Stars and Stripes
* the GOMOR
* the GOMOR appeal
* several emails from peers
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his application to the DASEB for removal of the GOMOR
* the DASEB results

CONSIDERATION OF EVIDENCE:

1.  His military personnel record shows he was born on 21 April 1957 and was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on
12 July 1978.

2.  He served as an armor officer in the USAR, Regular Army, and again the USAR.  Some of his principle duties included:

* Executive Officer/Force Development Officer
* Company Commander
* Battalion S-1, S-2 and S-3
* Brigade S-4
* Professor of Military Science/Instructor
* Battalion Commander
* Chief of Staff, Standing Joint Forces Headquarters, U.S. Joint Forces Command (USJFCOM)
* Deputy Chief of Staff, USJFCOM
* Branch Chief
* Brigade Commander

3.  His military personnel record shows he was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 3 December 1998.

4.  He provided copies of three different orders from the USAR.  Specifically, Orders 08-161-00013, dated 9 June 2008, show he was ordered to active duty as a member of his USAR unit for the purpose of deploying in support of Operation Iraqi Freedom (OIF).  The length of time published on the orders is 400 days 


unless sooner released or unless extended.  The report date on the orders was
1 June 2008, and early reporting was not authorized.   

5.  An excerpt from the Stars and Stripes, dated 3 February 2009, contains a letter to the editor entitled “A user of ‘mental health card.'"  It appears the applicant wrote a letter to the editor of the Stars and Stripes in response to a previously-published letter that was written by a U.S. Army battalion physician, stationed in Iraq.  The battalion physician stated:

   a.  she sees the much larger problem of Soldiers using the "mental health card" to get out of duty;

   b.  many Soldiers fabricate or exaggerate mental problems to go home or as an excuse for poor performance or criminal behavior;

   c.  there should be few, if any, Soldiers redeployed home for mental reasons, nor should there be anybody receiving monetary compensation via medical evaluation boards;

   d.  she cannot believe any Soldier in this conflict had sustained Post Traumatic Stress Disorder that would cause the Soldier not to be able to function in society or obtain employment; and 

   e.  there are limited funds for military/Veterans Affairs medical care and millions of these dollars are spent on benefits for Soldiers with questionable mental health issues and the monies would be better spent on delivering optimal care for Soldiers actually wounded in combat and retirees.

6.  The applicant's Letter to the Editor of the Star and Stripes in response to the above letter states:

About the ‘mental health card' (letter, January 29) regarding abuse of combat stress is right on.  We had a LTC who was not performing her duties in any acceptable standard for a field grade officer.  When I assigned her to one of my COLs for job oversight, she began complaining about being stressed out and unable to perform her job under this officer.  We had emails from the unit she was supporting as well as co-workers, concerning her performance.  A transfer to another location would have just been transferring the problem and that was not the solution.  When she realized her performance evaluation was due, as well as her extension request, she went to the combat stress 


clinic, saying she was too stressed to do her work and she could not work for the COL, who was only trying to help her learn to do her job properly.  As soon as she got back to the unit, her stress problems were immediately cleared up and she requested a new tour to Kuwait.  She had never been outside of the base camp the entire time she served in theater, more than a year and had the gall to ask for not one, but two BSMs, on for each year in theater.

7.  On 25 March 2009, the Commanding General (CG), U.S. Army Materiel Command – Southwest Asia, issued the applicant a GOMOR for lack of consideration towards one of his subordinates while in Iraq.  The GOMOR noted that the applicant described a subordinate LTC whom he perceived to be abusing claims of combat stress.  While the applicant may have a limited freedom of speech in the military he included enough detailed information about his subordinate that she, as well as others within the command, immediately recognized whom he was writing about. 

8.  The CG also noted:

   a.  the GOMOR was imposed as an administrative measure and not as nonjudicial punishment;

   b.  the GOMOR may be permanently filed in the applicant’s OMPF or unit Military Personnel File for up to 3 years or until the applicant's reassignment to another general court-martial jurisdiction;

   c.  he intended to file the GOMOR in the applicant’s OMPF unless he submitted statements or documents that provided a valid excuse for his conduct;
   
   d.  the documents that formed the basis for the GOMOR were enclosed for his review;
   
   e.  the applicant had the right to consult an attorney at the legal assistance office in Iraq;
   
   f.  the applicant would acknowledge the administrative GOMOR as prescribed by Army Regulation 600-37, paragraph 3-6; and 
   
   g.  the applicant would forward any matters he desired to submit through his chain of command to the CG, not later than 30 days after receipt of the GOMOR.
   
   
   
9.  A memorandum, dated 6 May 2009, shows the applicant requested that the GOMOR not be filed in his OMPF.  He gave the following reasons as justification for his request:

	a.  the identity of the Soldier referenced in his letter had continued to remain confidential; his letter to the Stars and Stripes had not revealed the confidences of any military personnel in his command;

	b.  the letter to the editor was an exercise of his protected free speech right under the First Amendment of the U.S. Constitution, and as such the discipline of a GOMOR was inappropriate in this situation;

	c.  the GOMOR was unduly harsh given that he had not violated any provision of the Uniform Code of Military Justice (UCMJ), or any ethical obligation of confidentiality to the referenced Soldier; 

	d.  the applicant was a dedicated Soldier and he believed he was undeserving of the severe but seemly arbitrary punishment for exercising free speech;

	e.  he was commissioned in the year 1978, in effect, he had been personally selected to serve in some very astute and distinguished military assignments and positions throughout his 30 year career; and

	f.  he acknowledged in hindsight that submitting his letter to the Stars and Stripes was not the most prudent decision he could have made.  However, he stood by his position that he did not commit any wrong by doing so.  He did not believe his letter crossed the line of limited speech as it pertained to safety and operations, and it did not warrant the issuance of a GOMOR. 

10.  The CG acknowledged receipt of the applicant’s response/rebuttal and directed that the GOMOR, the rebuttal memorandum, and the final decision memorandum be filed in the applicant’s OMPF.  The CG also noted that the GOMOR was imposed as an administrative measure and not as punishment under Article 15, UCMJ.

11.  He submitted several personal email transmissions between himself and his peers, pertaining to his performance and the officer [hereafter referred to as unnamed officer] of whom he spoke of in the Stars and Stripes.  The emails show, in pertinent part:

   a.  the commander of the Logistical Civil Augmentation Program (LOGCAP) Support Unit asked the applicant if he would extend his tour because he was doing a great job;
   b.  one fellow officer rated the unnamed officer’s previous job performance as good to average;

   c.  the same officer states she was surprised he was writing the unnamed officer’s evaluation report given the history and how shabbily he was treated;

   d.  the unnamed officer was also described as having a passive/aggressive personality and as taking take credit for others' work;

   e.  the applicant indicated to a fellow officer he would not extend the unnamed officer in theater unless her performance improved; and

   f.  another fellow officer stated that 98 percent of the folks in the command were glad the unnamed officer had departed.

12.  The applicant's record contains U.S. Army Garrison Fort Belvoir, Orders 
103-0004, dated 13 April 2009 which show he was REFRAD, effective 
3 July 2009, and reassigned to the USAR, LOGCAP.

13.  Headquarters, 377th Theater Sustainment Command, Orders 09-163-00026, dated 12 June 2009 show he was further reassigned to the 75th Battle Command Training Brigade, Fort Sheridan, IL effective 11 July 2009.

14.  In his self-authored statement, the applicant provides the following:

   a.  during his last assignment, he walked into a negative command climate, but does not desire to rehash the specifics;

   b.  the command failed to provide him with the names of the “others within the command” who were referred to in the GOMOR;

   c.  any anonymous information used in a GOMOR must be fully supported in order to be in compliance with regulatory guidance;

   d.  anonymous communications will not be filed in a Soldier’s Military Personnel Records Jacket (MPRJ), OMPF, or Career Management Information File (CMIF) unless an investigation has occurred; 

   e.  information must be referred to the Soldier before it is filed in the MPRJ, OMPF, or CMIF.  The GOMOR’s contents, veracity, and filing are contrary to Army Regulation 600-37 (Unfavorable Information) and it should be removed because the command violated Army Regulation 600-37, paragraphs 3-4 through 3-6;
   f.  Army Regulation 600-37 does not include language which states a GOMOR is properly filed based upon the submission of a rebuttal and it states that unfavorable information will be referred to the recipient for information and acknowledgement of his/her rebuttal opportunity;

   g.  the General Officer who wrote the GOMOR never indicated he was basing the GOMOR on his own observations, but that of the fallout from the “others within the command”;

   h.  he was not given proper opportunity to review the sourcing or proof behind the statements made by “the others in the command”;

   i.  he served as an Army officer dutifully and with demonstrable honor and integrity for more than 30 years with an unblemished record between the years 1978 to 2009;

   j.  the GOMOR is just one instance of injustice surrounded by dubious command circumstances which serves to cloud his record;

   k.  the DASEB incorrectly stated that an investigation was unnecessary.  The DASEB based its decision on the fact that the letter to the editor of the Stars and Stripes was cited as evidence against him;

   l.  the DASEB’s findings infer he was reprimanded for providing the Stars and Stripes too much detail about a certain officer in his command.  The DASEB also asserted that the GOMOR was filed correctly because he submitted a rebuttal;

   m.  the DASEB also cited the reasons for leaving the GOMOR in his OMPF is that it had been filed for less than 1 year.  It is now past the 1 year mark and he has since retired from the Army.  The circumstances surrounding the GOMOR have affected his health and caused him not to receive the Bronze Star Medal (BSM) and the Legion of Merit (LOM);

   n.  an injustice was caused by relieving him of his position, forcing him to leave the theater and REFRAD earlier than expected; and

   o.  The erroneous filing of the GOMOR caused a domino effect to the deployment, which was regarded by his fellow senior officers in a very positive manner and at the time, the same senior officers acknowledged he was treated shabbily.  He was REFRAD 90 days earlier than stated on his 400-day deployment orders.
   
15.  He provided copies of emails that pertained to his civilian performance evaluation and a copy of the evaluation for the period April to July 2009.  His performance ratings show he excelled in his position and earned top ratings across the board.  Another email shows in 2010, his supervisors acknowledged him with affirmative compliments and a pay raise.

16.  The applicant also provided a copy of an email transmission in which he made an inquiry to his brigade commander about his retirement award.  In the email, the applicant stated he understood his LOM had been downgraded to a Meritorious Service Medal.  He questioned the justification for downgrading his award.  He also reiterated his concerns about the GOMOR and his years of dedicated service to the Army.  

17.  His brigade commander’s response shows he supported the applicant’s recommendation for award of the LOM and he thought it was possible to resubmit the request, if the outcome of his GOMOR and OER appeals were favorable.  

18.  The applicant's DD Form 214 shows he entered active duty on 1 June 2008, and he was REFRAD on 3 July 2009, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-7, for completion of required active service.  He had completed 1 year, 1 month, and 3 days or 398 days of net active service this period.  This form also shows he completed 
13 years, 4 months, and 14 days of prior active service, and 16 years, 6 months, and 5 days of prior inactive service. 

19.  The applicant provided a copy of the DASEB's Decision Summary that shows he applied for removal of the GOMOR on 1 July 2009.  The DASEB concluded the following:

	a.  the GOMOR was issued by a Brigadier General as the imposing authority, the general signed his name to the GOMOR, therefore, he was not anonymous;

	b.  the GOMOR was imposed due to the applicant's lack of consideration toward one of his subordinates, which was a fact and not an anonymous accusation;

	c.  the letter he submitted to the Stars and Stripes was shown to have been submitted by him; therefore, it could not be described as an anonymous opinion;

	d.  it appears the CG recognized the Soldier whom the applicant spoke about in the article;

	e.  the CG also determined that the applicant had included enough detailed information about the subordinate so that she and others within the command immediately recognized whom he was writing about;

	f.  the CG admonished the applicant on the fact that his conduct was inexcusable, and caused the CG to question the applicant’s judgment and suitability to lead Soldiers;

	g.  the CG exercised his command authority to issue a written GOMOR and the applicant’s publication of the letter in the Stars and Stripes (a public forum) negated the necessity of an investigation; 

	h.  the applicant’s letter to the Stars and Stripes created the supporting documentation for the reprimand;

	i.  the applicant committed an act of indecorum by defaming another Soldier; thus failing to meet the high moral standards expected of an Army officer; and

	j.  administrative reprimands do not require the commission of an offense under the UCMJ; therefore, any conduct evidencing poor judgment is sufficient.

20.  A review of the Army Human Resources Command, Integrated Web Services system shows the GOMOR and its attachments are filed in the performance portion of his OMPF.  

21.  Army Regulation 27-10 (Military Justice) states that commanders have authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment.  It notes that a written administrative admonition or reprimand will contain a statement that it has been imposed as an administrative measure and not as punishment under Article 15.  

22.  Army Regulation 600-37, paragraph 3-4 states a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed on the performance portion.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  A letter to be included in a Soldier's OMPF will: 
	a.  be referred to the recipient concerned for comment according to paragraph 3-6.  The referral will include reference to the intended filing of the letter: 
		(1)  This referral will also include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the letter, providing the recipient was not previously provided an opportunity to respond to information reflected in that documentation. Additionally, documents, the release of which requires approval of officials or agencies other than the official issuing the letter, will not be released to the recipient until such approval is obtained. 
		(2)  Statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing in the OMPF. This will be done before a final determination is made to file the letter.  Should filing in the OMPF be directed, the statements and evidence, or facsimiles thereof, may be attached as enclosures to the basic letter. 
		(3)  If it is desired to file allied documents with the letter, these documents must also be referred to the recipient for comment.  This includes statements, previous reprimands, admonitions, or censure.  Allied documents must also be specifically referenced in the letter or referral document.  Care must be exercised to ensure additional unfavorable information is not included in the transmittal documentation unless it has been properly referred for comment. 
	b.  contains a statement that indicates it has been imposed as an administrative measure and not as a punishment under the UCMJ, Article 15; 
	c.  be signed by an officer authorized to direct such filing; 
	d.  be forwarded for inclusion in the performance portion of the OMPF only after considering the circumstances and alternative nonpunitive measures.  Minor behavior infractions or honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier's OMPF;  
   e.  Only a general officer senior to the recipient, or by direction of an officer having general court-martial jurisdiction over the individual, regardless of the issuing authority, may direct filing of a reprimand in the OMPF.  Once filed in the OMPF such documents are permanent unless removed through the appeal processed; 
   
   f.  Unfavorable information will not be filed in an OMPF unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and given a chance to make a written statement or rebuttal to the unfavorable information, if desired.  The referral will include reference to the intended filing of the letter and include documents that serve as the basis for the letter;
   g.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Memorandums of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted portion of the OMPF.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that such transfer would be in the best interest of the Army.  The DASEB has been established as the appeal and petition authority for unfavorable information entered in the OMPF under this regulation; and

   h.  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 that the document is untrue or unjust, in whole, or in part, thereby warranting its alteration or removal from the OMPF.  

23.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, MPRJ, CMIF, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of the file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  It also states that Army Board for Correction of Military Records decision documents that approve or deny a request will be filed on the restricted section of the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GOMOR was filed and referred to him incorrectly, and that it contains uncorroborated and anonymous information, which is in violation of multiple Army regulations.  To the contrary, the CG presented the opinion letter written in the Stars and Stripes (the one which the applicant wrote) and the GOMOR (in writing) to the applicant and provided him 30 days from receipt of the GOMOR, to provide any evidence, statements, or rebuttals he believed would help his case.  

2.  He also argues that the GOMOR was based on anonymous sources and information, and that it was filed without referred factual support.  The evidence of record shows clearly the CG stated "I am reprimanding you for your lack of consideration towards one of your subordinates when you, while at Camp Victory, Iraq, wrote a letter to the editor published in the 3 February 2009 Stars and Stripes newspaper."  The comment of "as well as others within the 


command" was not used as the basis for the reprimand, which would require an investigation, but as the level of embarrassment his comments caused the officer of whom he had written about.  The factual support was the letter he published in the Stars and Stripes. 

3.  The evidence also shows he was given an opportunity to consult with counsel prior to submitting his rebuttal; however, there is no indication he chose to exercise that right.  On 6 May 2009, he submitted his appeal to the CG.  After reviewing the applicant’s rebuttal, the CG deemed it appropriate to file the GOMOR in his OMPF, which was within his realm of authority.  

4.  Careful consideration has been given to the applicant's service before, during, and after the imposition of the GOMOR.  His contention that he did not violate the UCMJ is not evidence of any substantive violation of his rights.  The GOMOR was administered in accordance with applicable regulations and it was not disproportionate to the offense.  The GOMOR was imposed as an administrative measure, and not punishment under Article 15, UCMJ.  The GOMOR also included the applicant's response/rebuttal statement.  

5.  The applicant has failed to show that removal of the GOMOR is in the best interest of the Army or that the CG's final decision was in error or unjust.  The applicant's GOMOR was properly filed in the performance section of his OMPF in accordance with Army Regulation 600-37.

6.  The applicant contends he was REFRAD 90 days earlier than stated on his mobilization orders.  To the contrary, the orders stated he was to be mobilized in support of OIF for a period of 400 days unless otherwise released earlier.  His DD Form 214 shows he was mobilized for a period of 398 days, which does not equate to the 90 days he has requested.

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.




      _______ _   _X______   ___
               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)                                         AR20100015108



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ABCMR Record of Proceedings (cont)                                         AR20100015108



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