BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100023077 


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 reconsideration of his earlier request for the removal of a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF).

2.  The applicant states, in effect, he was reprimanded for intentionally providing the regimental commander with false information and erroneous documentation to obtain a Title 10 active duty tour.  However, he neither misled his regimental commander nor did he submit erroneous information.

3.  The applicant provides a letter from The Adjutant General (TAG), Missouri Army National Guard (MOARNG).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090012137 on 14 January 2010.

2.  The applicant submitted a letter from TAG, MOARNG, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and warrants consideration by the Board. 

3.  Having had prior enlisted service in the U.S. Air Force and the ARNG, the applicant was appointed as a second lieutenant (2LT)/O-1 in the Pennsylvania ARNG (PAARNG) and he executed a National Guard Bureau (NGB) Form 337 (Oaths of Office) on 15 July 2000.

4.  He served in various staff or leadership positions, including service on active duty in Bosnia from 26 August 2002 to 16 March 2003 and Kuwait/Iraq from 11 March 2004 to 10 February 2005, and he was promoted to captain (CPT)/O-3 on 19 October 2005.

5.  On 18 April 2006, he was transferred to the MOARNG and on 25 July 2007, he was discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He was assigned as a TAC (Teaching, Advising, and Counseling) officer with the 2nd Battalion, 140th Regional Training Institute (RTI), Fort Leonard Wood, MO, in support of the Operation Warrior Training (OWT) program.

6.  On 9 April 2007, by memorandum to the Chief, NGB, TAG, MOARNG, issued the applicant a letter of release in which he authorized the applicant's release from the OWT program to perform an active duty for special work (ADSW) tour for a period not to exceed 1 year contingent upon the applicant's recall to the MOARNG if his unit was alerted for mobilization.

7.  The ADSW is defined as projects supporting ARNG programs, such as short term missions, administrative support, training, and other duty, other than inactive duty.  Some of the authorized projects are support of annual screening; operation of training activities, centers, and sites; operation of training ships; unit conversion to new weapons systems; study groups; support at training sites and exercises; and short term missions and administrative support.

8.  On 30 April 2007, the U.S. Army Human Resources Command, Alexandria, VA (HRC-Alexandria), published Orders A-04-710926, ordering the applicant to active duty under the provisions of Title 10, U.S. Code, section 12301d in support of contingency operations for active duty operational support for a period of 11 months and 29 days, beginning on 7 May 2007, at Fort Bragg, NC.

9.  On 5 May 2007, a commander's inquiry was conducted by the applicant's battalion commander to look into allegations that the applicant used his ADSW letter of release to obtain a Title 10 active duty tour at Fort Bragg, NC.  In her interview with the commander, the battalion commander concluded that email traffic confirmed the applicant had conversed with Fort Bragg personnel directly 

and had sent an erroneous TAG letter of release to complete his packet for Title 10 orders.  The TAG letter of release was specifically issued for the applicant's ADSW mission at the 140th RTI.  He was never released by TAG for active duty orders at Fort Bragg.  He (the applicant) claimed that he did not know how the active duty orders were issued.

10.  On 6 May 2007, by letter, the applicant was reprimanded by the 140th Regimental Commander (Colonel JCK).  The reprimand stated that based upon a commander's inquiry, he (the commander) determined the applicant had intentionally provided false information and that he personally submitted erroneous documentation to obtain a Title 10 tour.

11.  On 6 May 2007, the applicant was also relieved from his assignment as a TAC officer with the 2nd Battalion, 140th RTI, for failing to uphold and exemplify the Army values.  He violated the principles of loyalty, honesty, selfless service, work ethic, and integrity by:

* intentionally providing false information to a superior officer
* abandoning his responsibilities and jeopardizing the success of a critical war-time mission
* circumventing the chain of command
* placing personal desires ahead of the needs of a nation at war

12.  The applicant acknowledged receipt of the GOMOR and after an approved extension, he and his counsel submitted a rebuttal.  In his rebuttal, the applicant stated that he did not intentionally provide false information or submit erroneous information to obtain a Title 10 tour of active duty.  He insisted that he kept his supervisor informed at all times.

13.  On 2 June 2007, the regimental commander reviewed the applicant's response and decided to file the letter of reprimand in the applicant's local file for a period of 3 years.  He further forwarded the documentation to the OMPF filing authority with a recommendation to file the letter of reprimand in the applicant's OMPF.

14.  On 19 July 2007, the Assistant AG (Brigadier General LDK), MOARNG, reviewed the evidence and the applicant's rebuttal.  He decided to file the letter of reprimand in the applicant's OMPF.

15.  On 12 May 2008, the applicant applied for removal of the GOMOR and all allied documents from his OMPF as a matter of injustice.  On 27 October 2008, 

the Department of the Army Suitability Evaluation Board (DASEB) determined the evidence presented did not establish clearly and convincingly that the document under consideration was untrue or unjust.  Accordingly, the DASEB denied his request to remove the GOMOR from his OMPF.

16.  He submits a memorandum, dated 17 December 2008, from TAG, MOARNG wherein he (TAG) states that after review and consideration by his office, he has decided to recommend and support the removal of the Letter of Reprimand and all documents that were placed in the applicant's OMPF.

17.  On 24 June 2009, the applicant applied to the ABCMR for removal of the GOMOR and all allied documents from his OMPF as a matter of injustice and an error.  On 14 January 2010, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice.  Accordingly, the ABCMR denied his request to remove the GOMOR from his OMPF.

18.  The GOMOR and allied documents are filed in the performance section of the applicant's OMPF.

19.  Since receiving the GOMOR, the applicant:

* completed the 3-week Combined Arms Exercise Course (8 to 24 August 2008)
* received a "Best qualified" rating during an annual Officer Evaluation Report (OER) for the period 18 April 2008 through 17 April 2009 and a change of rater OER for the period 18 April 2009 through 1 September 2009
* was awarded the Military Outstanding Volunteer Service Medal
* received an Army Chief of Staff Certificate of Appreciation 

20.  Army Regulation 600-37 (Unfavorable Information) provides 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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR in May 2007 for intentionally providing false information and erroneous documentation to obtain a Title 10 tour.  The GOMOR was based on a commander's inquiry that reached that conclusion.  He was provided with an opportunity to submit matters in his own behalf and he did so.  The GOMOR was ultimately filed on the performance section of his OMPF.  

2.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

3.  He now provides a 17 December 2008 memorandum wherein the TAG, MOARNG states that after review and consideration by his office, he has decided to recommend and support the removal of the Letter of Reprimand and all documents that was placed in the applicant's OMPF.

4.  It is unclear how this new determination was reached.  The applicant did not submit a new commander's inquiry or an informal reinvestigation of what occurred in May 2007.  As such, it appears TAG is applying retrospective thinking and reevaluating the previous decision or action in an attempt to prevent the GOMOR from harming the applicant any further.

5.  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.  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 remove unfavorable information, it only does so if it is untrue or unjust.  However, in this case, there is no evidence the GOMOR was unjust or untrue or inappropriately filed in his OMPF.
6.  In view of the foregoing, there is no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20090012137, dated 14 January 2010.



      _________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)                                         AR20100023077



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ABCMR Record of Proceedings (cont)                                         AR20100023077



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