IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100017169 


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 the General Officer Memorandum of Reprimand (GOMOR), dated 21 December 2006, for Recruiting Improprieties (RI) be found unsubstantiated and:

	a.  removing the GOMOR from his official military personnel file (OMPF) or transferring to the restricted section of his OMPF;

	b.  overturning the decision by the Standby Advisory Board (STAB), dated
10 December 2009, to remove him from the Fiscal Year (FY) 2006 Sergeant First Class (SFC) Promotion List; and

	c.  retroactively promoting him to SFC/E-7.

2.  The applicant states that the investigators did not follow proper procedures outlined in Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers); that there was coercion in the statements submitted during the investigation to fit the investigation; that the investigators did not utilize all tools available to determine the truth; that there was a lack of knowledge as to recruiting responsibilities and procedures on behalf of the investigation; and that there was a rush to judgment due to the climate in his battalion.

3.  The applicant provides the following documents:

* a copy of the GOMOR
* 
a copy of the STAB removal memorandum
* a copy of his appeal memorandum and the Department of the Army Suitability Evaluation Board's (DASEB) denial memorandum
* a copy of a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) with allied documents and tabs
* a Table of Contents with attached investigation (Tabs A through R)
* a copy of an electronic mail (email) to a general officer (GO)
* various letters of recommendation or support
* copies of his Noncommissioned Officer Evaluation Reports (NCOER)
* a copy of his Enlisted Record Brief (ERB)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army staff sergeant (SSG)/E-6 who initially enlisted on 19 June 1992.  He holds military occupational specialty 92A (Automated Logistics Specialist) and he has served through multiple reenlistments within and outside the continental United States in various staff and leadership positions.

2.  In or around March 2005, he was selected for a special assignment as a field recruiter and he was subsequently assigned to the Huntington Park Recruiting Station, U.S. Army Recruiting Battalion, Los Angeles, CA.

3.  In May 2006, the Commanding General (CG), U.S. Army Recruiting Command (USAREC) appointed several investigating officers (IOs) pursuant to Army Regulation 15-6 to conduct an informal investigation into allegations regarding possible fraud and use of Armed Services Vocational Aptitude Battery (ASVAB) ringers in various companies within the Los Angeles Recruiting Battalion.  The investigations focused on the following points:

* whether individuals enlisted with falsified education documents
* whether ringers were used to take the ASVAB test
* any other matters the IOs deemed appropriate

4.  Subsequent to interviewing various individuals and collecting information, the IO concerned with the applicant's recruiting station determined that several noncommissioned officers (NCOs) in that station were involved in RI, among them the applicant.  The IO determined that the applicant facilitated the creation of false education documents of five individuals based on a statement from one of the individuals that the applicant told him he would help him out when that individual told him that he did not have a high school diploma and also based on verification that the other individuals did not graduate from high school.


5.  On 30 May 2006, having completed the investigation, the IO issued a Report of Investigation (ROI) wherein he recommended, in pertinent part, the applicant be found guilty of a substantiated RI and be court-martialed and removed from the Army with a bad conduct discharge for his participation in conspiring to enlist applicants into the military through the process of ASVAB fraud, creating fraudulent documents, and ASVAB ringing.  The applicant willfully disrespected the Army values, his lack of integrity and morals were evident in his dereliction of his duties as an NCO, and he should immediately be removed from his duties as a recruiter and be given a "Relief for Cause" NCOER and his awards be withdrawn.

6.  On 21 December 2006, having reviewed the ROI concerning the applicant's misconduct, the USAREC Acting CG determined that the preponderance of evidence substantiated that he committed RI by using false education documents in the enlistment of five applicants, using ringers to take the ASVAB test for five applicants, and enlisting applicants not qualified for enlistment in violation of USAREC regulations and the Uniform Code of Military Justice (UCMJ).

7.  On the same date, the USAREC Acting CG reprimanded the applicant for his misconduct.  The GOMOR stated that as an NCO and a recruiter, the applicant was expected to conduct himself beyond reproach.  Instead, he involved himself in actions that cast doubt upon his personal integrity and character and his actions raised serious questions concerning his ability to hold future positions of trust and responsibility.  He (the CG) intended to file the GOMOR in the applicant's OMPF and he had the opportunity to submit any matters in rebuttal to the allegations.

8.  On 21 December 2006, the applicant acknowledged receipt of the GOMOR and elected not to make a statement in his own behalf.

9.  On 22 January 2007, by memorandum, the applicant's battalion commander remarked that the applicant expressed no remorse for his actions.  The battalion commander recommended the GOMOR be filed in the applicant's OMPF.  On   23 January 2007, the applicant's brigade commander concurred.

10.  On 26 February 2007, after reviewing the GOMOR imposed against the applicant, his declination to submit a statement in his own behalf, and the chain of command's recommendation, the USAREC CG directed the GOMOR be filed in the applicant's OMPF. 

11.  The GOMOR is currently filed in the performance section of the applicant's OMPF.

12.  In February 2007, he was notified by his immediate commander of the initiation of separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administration Separations), chapter 14-12c, for misconduct - commission of a serious offense, and he elected an administrative separation board.  Copies of the notification of separation action memorandum and his election statement are not available for review with this case.

13.  On 15 October 2007, the USAREC CG appointed an administrative separation board to consider the applicant for separation.  The board subsequently convened on 19 March 2008 and recessed on 21 March 2008.  After finishing gathering or hearing evidence and carefully considering the evidence, the board found the following:

* the applicant did not commit an RI by falsifying birth verification in order to enlist an individual into the Army
* the applicant did commit RI by using false education documents, using ringers, and enlisting unqualified individuals

The board determined that its findings did not warrant separation with respect to the commission of a serious offense under the provision of Army Regulation
635-200, chapter 14-12c, and recommended his retention with a rehabilitative transfer.

14.  On 29 April 2008, the USAREC CG approved the administrative board's findings and recommendation.

15.  On 3 February 2009, the applicant was considered for removal from the FY06 SFC Promotion Standing List by a DA STAB and on 24 March 2009, by memorandum, he was notified that the board members recommended and the Director of Military Personnel Management approved his removal from the selection list.  However, he would remain eligible to compete for promotion to SFC/E-7 in subsequent boards, if otherwise qualified.

16.  On 11 September 2009, by memorandum, he petitioned the DASEB to have the GOMOR moved to the restricted section of his OMPF.  He contended that the GOMOR served its purpose because he had been removed from the SFC/E-7 standing list and due to passage of time, he also missed the opportunity to compete for promotion in subsequent boards.

17.  On 10 December 2009, by unanimous vote, the DASEB denied his request by reason of failing to provide any substantial evidence that the GOMOR had served its intended purpose or that its transfer was in the best interest of the Army.

18.  On 23 February 2010, by memorandum in response to the applicant's appeal to the DA, Enlisted Promotion Branch, an official at that branch notified him that he could appeal the removal from the promotion list if the underlying basis for the removal is subsequently determined to be erroneous.  This determination must be based on facts that were not available or reasonably discoverable at the time of the original action.  The official further stated that after reviewing the documentation he submitted with his appeal, he did not find cause to overturn the decision made by the FY09 SFC STAB.

19.  The applicant submits the following documents:

* multiple letters of support or recommendations by various command sergeants major, senior and field grade officers, warrant officers and senior NCOs, who essentially agree that he is an outstanding Soldier and comment on his loyalty, dedication, and willingness to excel.  The authors also recommended his promotion to SFC
* copies of his NCOERs since his incident, wherein he was rated mostly successful or excellent and among the best by his raters and receiving a successful overall performance and superior ratings by his senior raters.  None of his NCOERs listed his RI or addressed his misconduct

20.  His records also show the following actions since his incident:

* he attended and completed the Automated Logistics Specialist Advanced NCO Course from 12 February 2009 through 19 March 2009
* he was reassigned to the 1st Sustainment Command, Fort Bragg, NC, on or about July 2008, and he is currently deployed to Kuwait/Iraq

21.  USAREC Regulation 601-45 (Recruiting Improprieties Policies and Procedures) prescribes policies and responsibilities for reporting, processing, investigating, and disposing of allegations of RI within USAREC.  A substantiated recruiting impropriety by any individual within USAREC may subject Soldiers to adverse administrative action or disciplinary action under the UCMJ and civilian employees to disciplinary action or adverse action under Federal laws.   RIs include any of the following:

* Acts or omissions in violation of law or regulation with the intent to access a Future Officer (FO) or enlist a person in the Future Soldier Training Program (FSTP) not qualified for military service or whom the recruiter believes is unqualified for military service
* Acts or omissions in violation of law or regulation with the intent to grant a person a specific option, MOS, educational benefit, bonus, or other benefit for which an applicant is ineligible or whom the recruiter does not believe is eligible
* Grossly negligent acts or omissions in violation of law, regulation, or policy resulting in a fraudulent, erroneous, or defective enlistment or officer accession, reporting to active duty, or transfer of an unqualified person
* Absent evidence of an innocent purpose intentional violations of any specific prohibition identified in paragraph  2-3, whether or not any processing, officer accession, or enlistment occurred

22.  USAREC Regulation 601-45, paragraph 2-3b (Specific Prohibitions - False Documents), states recruiters will not falsify, assist in falsifying, knowingly use any false documents and/or information, or intentionally omit any material information pertaining to an applicant’s qualification for enlistment, officer accession, option, bonus, benefit, or referral credit for promotion.  This prohibition includes any physical or electronic records or entries made or used during enlistment and/or officer accession processing.  It also includes the use of any documents bearing forged or unauthorized signatures. 

23.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 4-13d states that STABs are convened for various reasons among them to recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list.  Additionally, paragraph 4-17 states in pertinent part that a Soldier may be referred to a STAB for various reasons among them when a memorandum of reprimand is placed in the OMPF or adverse documentation is filed in the OMPF.  The STAB will consider the Soldier’s OMPF in addition to the documents contained in the removal action and any submission to the board by the Soldier under consideration.  The Soldier may include the opinion and statements of third party persons in his or her submission.  Furthermore, paragraph 4-18 states in pertinent part that a Soldier who is removed from a promotions list may appeal that action only in limited circumstances.  The Human Resources Command will take final action on any appeal.  Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous.  The subsequent determination must be based on facts that were not available or reasonably discoverable at the time of the original action or at the time that the Soldier was notified of the removal action.  An appeal may also be submitted for other compelling reason(s).

24.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral        must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

25.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

26.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate a reprimand, admonition, or censure (normally for Soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to the restricted section would be in the best interest of the Army. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for misconduct related to RI and that it was filed in his OMPF.  The misconduct had been substantiated by an IO who interviewed the individuals involved.  The convening authority reviewed the ROI concerning the applicant's misconduct and determined that the preponderance of evidence substantiated that he committed RI by using false education documents in the enlistment of five applicants, using ringers to take the ASVAB test for five applicants, and enlisting applicants not qualified for enlistment in violation of USAREC regulations and the UCMJ.

2.  The applicant was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision but he chose not to do so.  Subsequently, the GOMOR was referred for filing in his OMPF.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  He provides no evidence to support his contentions that the IOs did not follow proper procedures outlined in Army Regulation 15-6, that there was coercion in the statements submitted during the investigation to fit the investigation, that the investigators did not utilize all tools available to determine the truth, that there was a lack of knowledge as to recruiting responsibilities and procedures on behalf of the investigation, or that there was a rush to judgment due to the climate in his battalion.  There is no evidence of an error or an injustice.

3.  Subsequent to receiving this GOMOR, he was recommended for separation by reason of commission of a serious offense.  However, while an administrative separation board recommended his retention and transfer out of the recruiting command as a rehabilitative transfer, that same board also found that he committed an RI.

4.  Having received a GOMOR and being a promotable SSG, he was referred to a STAB that considered his OMPF in addition to any documents contained in the removal action and any statements to the board he may have submitted.  The STAB recommended and the Director of Military Personnel Management approved that his name be removed from the selection list.  He then appealed this decision but his appeal was denied.  Again, there is neither an error nor an injustice.

5.  He then petitioned the DASEB to move the GOMOR to the restricted section of his OMPF.  However, by unanimous vote, the DASEB denied his request by reason of failing to provide any substantial evidence that the GOMOR had served its intended purpose or that its transfer was in the best interest of the Army. 

6.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  As an NCO and a recruiter, regardless of the challenges faced by recruiters to attract applicants for enlistment, not only did he fail to conduct himself in a professional and responsible manner, he knew or should have known not to falsify documents to facilitate applicants' entry into the military.  His conduct was inexcusable and his actions brought discredit to himself, the NCO corps, and the Army.  His actions displayed a lack of discipline and raised questions about his ability to effectively perform as a leader.

7.  The applicant's 17 years of service to the Army is noted.  Additionally, the NCOER ratings he received during and since the period of the GOMOR reflected the overall applicant's performance and/or potential.  An omission by the rater or the senior rater, intentional or otherwise, not to address the GOMOR on the NCOER does not invalidate the GOMOR or excuse the applicant's actions.

8.  The Board is generally reluctant to remove adverse information from an OMPF when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does move unfavorable information, it only does so if it truly has served its intended purpose. However, in this case, the applicant's GOMOR does not seem to have served its purpose.  In view of the foregoing, he is not entitled to any of the requested relief.

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)                                         AR20100017169



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ABCMR Record of Proceedings (cont)                                         AR20100017169



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