IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100023383 


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:

The applicant defers his request and statement to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* Removal of the General Officer Memorandum of Reprimand (GOMOR), dated 26 June 2007, from the applicant's Official Military Personnel File (OMPF)
* Set aside of his Report of Inquiry (ROI) findings, dated 17 October 2009
* Reinstate him as an active duty U.S. Army Reserve (USAR) officer
* Reinstate his security clearance 
* Restoration of back pay from his discharge date of 24 March 2010

2.  Counsel states, in effect, that:

* Based on the applicant's job, he had to travel on temporary duty (TDY) frequently and had difficulty using the automated Defense Travel System (DTS)
* In March 2007, his senior commander ordered an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation on the TDY of the applicant and another officer
* In April or May 2007, the applicant requested an audit of his travel records to ensure he was in compliance with governing travel and leave regulations
* The AR 15-6 investigating officer (IO) found the applicant was overpaid $415 and had claimed 21 duty days instead of pass or leave
* He was issued a GOMOR based solely on the results of the AR 15-6 investigation
* There was no legal review of the findings of the AR 15-6 investigation; therefore, the action taken against the applicant should be voided

3.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* Three DA Forms 67-9 (Officer Evaluation Report) covering the period from June 2006 through April 2009
* DA Form 4037-E (Officer Record Brief)
* Self-authored statement by the applicant
* Memoranda
* Five pages titled 15-6 interview questions
* Two DA Forms 2823 (Sworn Statement)
* Two pages titled G-8 Audit 
* Nine pages showing government credit card transactions
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Memorandum for Record
* GOMOR
* Five DA Forms 31 (Request and Authority for Leave)
* Two DTS printouts
* DA Form 4179 (Leave Control Log)
* 15 Memoranda
* Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings (ROP)
* Board of Inquiry Report
* Army Board of Review for Eliminations Transcript of Hearing

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a second lieutenant in the USAR on 22 December 1980.  He served in command or staff positions, as a Signal Corps (SC) officer within and outside the continental United States and attained the rank/grade of colonel (COL)/O-6.  

2.  He entered active duty as a USAR officer in an Active Guard Reserve status on 25 August 1996.  He was assigned to the 70th Regional Readiness Command, Seattle, WA.

3.  On 29 March 2007, the applicant's senior commander appointed an AR 15-6 officer to investigate allegations of fraud, waste, and abuse in connection with TDY travel by the applicant and another officer in his unit.  The AR 15-6 investigation took place from 2 April 2007 to 29 May 2007.  

4.  In the AR 15-6 findings, dated 30 May 2007, the IO states he found that the applicant had engaged in fraud, waste, and abuse in the conduct of TDY and that the applicant specifically:

* Arrived at TDY locations before official business was to be conducted without being in an approved leave or pass status
* Remained at TDY locations after official business had been conducted without being in an approved leave or pass status
* Claimed or received per diem reimbursements for non-duty time
* Failed to request and take leave as required
* Failed to follow established official travel regulations and procedures resulting in excessive costs to the government

5.  On 26 June 2007, the Deputy Commanding General, U.S. Army Reserve Command, Fort McPherson, GA, the applicant's senior commander, reprimanded the applicant based on the results of the AR 15-6 investigation into the applicant's TDY travel.  The GOMOR stated the investigation disclosed that the applicant engaged in fraud, waste, and abuse by arriving at TDY locations significantly prior to and departing significantly after official business was conducted without being in a leave or pass status.  In addition, it found the applicant claimed and received payments for per diem and other unauthorized expenses for non-duty days and improperly rented a luxury vehicle.  The reprimand stated the applicant's blatant disregard for the rules governing TDY and leave/passes fell seriously short of the high standards of behavior demanded of senior officers and his actions demonstrated poor judgment.  The senior commander stated he seriously questioned the applicant's continued fitness to serve.

6.  On 3 July 2007, the applicant acknowledged receipt of the written reprimand and submitted a rebuttal on 23 July 2007 wherein he admitted he made mistakes and used poor judgment and accepted full responsibility for his actions.  He also stated, in part, he did not intentionally engage in fraud, waste, and abuse but lacked a thorough understanding of DTS resulting in periods of unauthorized absences and improper reimbursements.  He disputed the IO's conclusion as being inconsistent and he stressed his own actions were never intentional. 

7.  On 6 August 2007, by memorandum, the applicant's senior commander recommended the written reprimand be filed in the applicant's OMPF.  

8.  On 2 June 2008, he was notified by U.S. Army Central Personnel Security Clearance Facility (CPSCF), Fort Meade, MD of the intent to revoke his security clearance based on the findings of the AR 15-6 investigation that determined he had engaged in fraud, waste, and abuse.

9.  On 24 June 2008, he appealed the security violation revocation and stated he did not intentionally engage in fraud, waste, and abuse.  He admitted he failed to properly complete documents and leave requests but stated it was an oversight and he had since repaid the overpayments.

10.  On 11 July 2008, the CPSCF revoked his clearance and stated they thoroughly evaluated his response but the seriousness of the applicant's misconduct was not considered compatible with the standards required for access to classified information.

11.  On 10 March 2009, the U.S. Army Personnel Security Appeals Board denied his appeal of the revocation of his security clearance.  This decision constituted a final and complete exhaustion of his due process rights regarding the revocation of his security clearance.

12.  On 17 October 2009, the Commanding General, 90th Regional Readiness Command (RRC), North Little Rock, AR, ordered a Board of Inquiry (BOI) convened at Headquarters, 90th RRC, Little Rock, AR, under the provisions of AR 600-8-24 (Officer Transfers and Discharges) to determine whether the applicant should be administratively separated because of substandard performance of duty, misconduct and moral or professional dereliction, and in the interest of national security.  The BOI determined the applicant engaged in acts of misconduct in that he committed numerous acts of fraud, waste, and abuse in conjunction with his TDY travel and recommended he be discharged from the USAR with a general discharge under honorable conditions.   

13.  On 29 October 2009, the DASEB denied the applicant's request to remove the GOMOR from his OMPF.  The DASEB found there was insufficient evidence to show the GOMOR was untrue and/or unjust. 

14.  In February 2010, the applicant's BOI was forwarded to the Army Review Boards Agency (ARBA) for further action.  A Board of Review (BOR) was convened on 19 February 2010 to review the actions of the BOI which recommended his elimination.  The BOR was composed of three COLs to include a Reserve Component (RC) officer as required by Title 10, U.S. Code, section 14102 and paragraphs 4-7a and 4-17a of AR 600-8-24.  The BOR for elimination, having reviewed the records of the case, found:

* The applicant failed to take proper leave and submitted travel vouchers for entitlements during the periods he should have been in a leave status
* The applicant made false or misleading statements to the AR 15-6 IO and received a GOMOR for committing fraud, waste and abuse

The BOR recommended the applicant be eliminated from the U.S. Army with a general, under honorable conditions characterization of service.  

15.  On 22 February 2010, the Deputy Assistant Secretary of the Army (Review Boards) [DASA(RB)] approved the BOR's recommendation to eliminate the applicant from the Army based on misconduct and moral and professional dereliction (AR 600-8-24, paragraph 4-2b) and substandard performance of duty (AR 600-8-24, paragraph 4-2a) with a general, under honorable conditions characterization of service.  On 24 March 2010, he was discharged accordingly.

16.  The DD Form 214 he was issued confirms he was discharged under the provisions of AR 600-8-24, paragraph 4-2b, by reason of unacceptable conduct, in the rank/grade of COL/O-6 with a general under honorable conditions characterization of service.  He completed 13 years and 7 months of net service this period, had 3 years, 11 months, and 4 days of prior active service, and 11 years, 8 months, 19 days of prior inactive service.

17.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Army Commendation Medal (2nd Award), Army Reserve Components Achievement Medal (2nd Award), National Defense Service Medal (2nd Award), Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Army Service Ribbon, and the Armed Forces Reserve Medal with "M" Device.

18.  AR 600-8-24 sets forth the basic authority for the separation of officer personnel.  Chapter 4 establishes policy and prescribes procedures for separating members for misconduct; specific categories include moral or professional dereliction, or in the interests of national security, intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, and acts of personal misconduct unbecoming an officer.  The final denial or revocation of an officer's security clearance by appropriate authorities and adverse information filed in the OMPF require an officer's record to be reviewed for consideration of terminating appointment.  

19.  AR 600-8-24 further states the BOI’s purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army.  Paragraph 4-7 states boards will consist of at least three voting members and a recorder, legal advisor, and respondent’s counsel without vote.  The president of the BOI will be the grade of COL or above and senior in grade to the respondent.  Other voting members will be Regular Army officers on active duty (unless the respondent is an RC officer) in the grade of lieutenant colonel or above and senior in grade and rank to the respondent.  When the respondent is an RC officer, one or more of the voting members will be an RC officer, preferably the same component. 

20.  Paragraph 4-17 (Board of Review) of AR 600-8-24 states an officer recommended for elimination by a BOI will have his or her case referred to a BOR.  The BOR is appointed by the Secretary of the Army or his designee and has the same board composition as the BOI (the president of the BOR will be the grade of COL or above and senior in grade to the respondent).  Other voting members will be Regular Army officers on active duty (unless the respondent is an RC officer) in the grade of lieutenant colonel or above and senior in grade and rank to the respondent.  When the respondent is an RC officer, one or more of the voting members will be an RC officer, preferably the same component.  The BOR, after thorough review of the records of the case, will make recommendations to the Secretary of the Army or his designee as to whether the officer should be retained in the Army.  When the BOR recommends a member's elimination from the Army, to include type of discharge and characterization, if applicable, the recommendation will be transmitted to the Secretary of the Army or his designee, who makes the final decision.

21.  AR 600-37 (Unfavorable Information) provides in pertinent part that administrative letters 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.  Letters of reprimand may be filed in a Soldier's OMPF upon the order of a general officer level authority and are to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  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.  

22.  AR 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.  Chapter 2 of this Army regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Documents will be placed in the performance or restricted sections as they are received by the custodian.  Documents filed are those that must be permanently kept to record a Soldier’s military service, manage a Soldier’s career, and/or protect the interests of both the Soldier and the Army.
Administrative letters of reprimand, referral correspondence, rebuttal, and allied documents are filed in the performance section and Department of the Army directed elimination actions are filed in the restricted section.

23.  AR 15-6, paragraph 2-3b, states other directives that authorize investigations or boards may require the appointing authority to refer the report of proceedings to the servicing Judge Advocate (JA) for legal review.  The appointing authority will also seek legal review of all cases involving serious or complex matters, such as where the incident being investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in adverse administrative action, or will be relied upon in actions by higher headquarters.  

24.  DOD Directive 5200.2-R (Personnel Security Program) provides expanded direction and procedures for granting persons access to classified information or assignment to a sensitive position. Chapter 8, paragraph C8.1.2 (Referral for Action), in pertinent part, states that whenever derogatory information is developed or otherwise becomes available to any DOD element, it shall be referred by the most expeditious means to the commander or the security officer of the organization to which the Soldier is assigned.  The commander or security officer shall review the information in terms of its security significance and completeness and determine whether it is in the interests of national security to continue the Soldier's security status. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through counsel, that:

* The 26 June 2007 GOMOR should be removed from his OMPF
* The 17 October 2009 BOI should be set aside
* He should be reinstated as an active duty USAR officer
* His security clearance should be reinstated
* All pay and allowances since 24 March 2010 should be restored

2.  The evidence of record shows an AR 15-6 investigation determined the applicant engaged in fraud, waste, and abuse by arriving at TDY locations significantly prior to and departing significantly after official business was conducted without being in a leave or pass status.  In addition, it found the applicant claimed and received payments for per diem and other unauthorized expenses for non-duty days.  There is no evidence, nor did the applicant or his counsel provide any evidence, to show the AR 15-6 investigation did not have a legal review or was improperly processed.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the AR 15-6 investigation findings received a legal review.

3.  Based on the findings of the AR 15-6 investigation, the Deputy Commanding General, U.S. Army Reserve Command, the applicant's senior commander, accordingly issued the applicant a GOMOR.  The applicant acknowledged receipt of the written reprimand and submitted a rebuttal wherein he admitted he made mistakes and used poor judgment and accepted full responsibility for his actions.  He disputed the IO's conclusion as being inconsistent and stressed his own actions were never intentional.  Subsequently, the GOMOR was directed to be filed in his OMPF.

4.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.  The evidence considered by the IO and the GOMOR imposing authority sufficiently established by a preponderance of the evidence that the applicant engaged in travel fraud.

5.  The filing of the GOMOR in the applicant's OMPF required the U.S. Army CPSCF to notify him of the intent to revoke his security clearance.  He appealed the security revocation and in his appeal he admitted he failed to properly complete documents and leave requests but stated it was not intentional, it was only an oversight.  His security clearance was revoked and subsequently the U.S. Army Personnel Security Appeals Board denied his appeal of the revocation.  The revocation was properly processed in accordance with applicable regulations and the denial decision by the Appeals Board constituted a final and complete exhaustion of the applicant's due process rights.

6.  In October 2009, a BOI convened to determine whether he should be eliminated from the service on the basis of his substandard performance of duty, misconduct and moral or professional dereliction, and in the interest of national security.  The applicant and his counsel appeared before the board and presented evidence.  The BOI found the applicant committed numerous instances of fraud, waste, and abuse in conjunction with TDY travel and engaged in conduct unbecoming an officer.  The BOI recommended his discharge from the USAR with a general, under honorable conditions discharge.  The BOI was properly conducted in accordance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence considered by the BOI sufficiently established by a preponderance of the evidence that the applicant engaged in travel fraud.

7.  However, when the BOI was forwarded to ARBA for review by a BOR, the membership of that board consisted of three colonels.  Although one of the three colonels was an RC officer, none were senior by grade.  Since the applicant was a colonel, the regulation required that all BOR members be general officers with at least one being an RC officer.  This defect in the BOR's composition constitutes a denial of due process.

8.  Therefore, the applicant's BOI should be referred to a new BOR which should include three general officers.  Awarding the applicant credit for active duty service since his improper discharge will give him between 18 and 20 years of active duty; therefore, the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) becomes the appropriate decision authority if the BOR recommends his separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Voiding the applicant's separation and DD Form 214 dated 24 March 2010
* Granting him constructive service credit on active duty, back pay, and allowances from 24 March 2010 as specified in paragraph 2 or 3, below
* Forwarding the 17 October 2009 Board of Inquiry to a new Board of Review with the proper membership
* Forwarding the decision of the newly convened Board of Review to the Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) for final action

2.  If the BOR or ASA (M&RA) elects to retain him on active duty, the Army will reinstate the applicant into the USAR and return him to active duty.  In this event, he will receive back pay and allowances from 24 March 2010 until the date he is returned to active duty.

3.  If the BOR or ASA (M&RA) elects to eliminate him and the ASA (M&RA) does not retain him in sanctuary in order to complete 20 years of active duty, the applicant's records will be corrected to award him back pay and allowances from 24 March 2010 until the date of the decision by the ASA (M&RA).

4.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* Removal of the GOMOR, dated 26 June 2007, from his OMPF
* Setting aside the Board of Inquiry findings, dated 17 October 2009
* Reinstatement of his security clearance 



      __________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)                                         AR20100023383





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ABCMR Record of Proceedings (cont)                                         AR20100023383



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