BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100030405 


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 the general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF).

2.  The applicant states he received a GOMOR due to differing opinions as to support requirements for his spouse.  He was a contracting officer and skilled at reading and interpreting regulations.  He interpreted the governing Army Regulation 608-99 (Family Support, Child Custody, and Paternity) as his spouse's pro-rated share was one-fourth of his basic allowance for housing (BAH).  He had one dependent child residing at home and two dependent children residing at college.  His commander interpreted the regulation as his 
ex-spouse being entitled to one-half of his BAH.  He had understood that the local staff judge advocate was seeking resolution and thought nothing further of the matter until he received the GOMOR.

3.  The applicant provides two pages from Army Regulation 608-99 and an email.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a U.S. Army Reserve (USAR) second lieutenant on 14 August 1982.  He served in various staff and leadership positions and he was promoted to the rank of lieutenant colonel on 30 December 2005.

2.  He was mobilized in support of Operation Noble Eagle and he entered active duty on 19 December 2006.  He was assigned to Headquarters, First Army, Forest Park, GA.

3.  On 2 July 2009, he was counseled by his immediate commander for failing to provide financial support to his spouse in accordance with Army Regulation 
608-99.  The DA Form 4856 (Developmental Counseling Form) stated that each family member not residing in government family housing who is not covered by a court order or a financial support agreement will be provided a pro-rated share of BAH.  The initiation of financial support will begin on the date the parties cease living together.  It had been alleged by his spouse that he had stopped providing her support payments.  Additionally, the commander stated in the absence of a financial support agreement or court order, he was required to provide financial support to his spouse in the amount of $736.20 per month based on a pro-rated share of his BAH.  He was ordered to provide her a payment no later than 3 July 2009 and to continue monthly payments until a financial support agreement or court order was signed or issued.

4.  He checked the block on the counseling form that indicated he agreed with the information contained on the form and he added the notation:  "Per legal advice from my lawyer, this is not a legal order.  Army Regulation 608-99, paragraph 2-9(c), gives me until 1 August to pay.  I have not been shown any documents that show I should pay sooner."

5.  On 25 September 2009, the applicant was reprimanded by memorandum by the First Army Commanding General.  The reprimand stated he was being reprimanded for failing to obey Army Regulation 608-99 by failing to provide the required financial support to his spouse.  The reprimand further stated he had ceased residing with his spouse in January 2009 and in July 2009, based on his spouse's complaint, he was counseled by his company commander and ordered to provide $736.20 a month to his spouse.  He [the applicant] had paid his spouse that amount on 3 July 2009, but he had failed to provide any financial support since that date.

6.  The GOMOR further stated that as a field-grade officer he had a duty to act responsibly in managing his personal affairs, his blatant refusal to fulfill his legal obligation and his disregard for orders issued for him to do so demonstrated a severe lack of character, self-discipline, and judgment.  His actions cast serious doubt on his ability to continue performing as an officer and leader in the future.

7.  On 6 October 2009, the applicant acknowledged receipt of the GOMOR and submitted a rebuttal.  In his rebuttal, the applicant stated he retained custody of his three children when his spouse moved out.  He maintained he would pay her the amount by regulation, but he thought he was legally required to provide her only $386.00 per month which increased to $491.00 per month in August 2009 based on his oldest child turning 23 years of age.  He stated he was shocked to get the GOMOR as the differing interpretation of Army Regulation 608-99 was being forwarded to the proponent of the regulation for resolution.  He further stated he would provide his spouse the support she was entitled to and had provided her with support in excess of what was required.

8.  In an email, dated 8 October 2009, his spouse informed the company commander that as of that date she had not received support from the applicant since July 2009.

9.  On 14 October 2009, the company commander recommended the GOMOR be filed in his OMPF.  The company commander stated the applicant's conduct was unacceptable for a field-grade officer and if he was not able to follow a simple order she doubted his ability as an officer to lead Soldiers.

10.  On 20 October 2009, the First Army Commanding General reviewed the applicant's response and the recommendation of the applicant's company commander and directed the GOMOR be permanently filed in the applicant's OMPF.

11.  On 18 December 2009, he was honorably released from active duty by reason of completion of required active service.

12.  Army Regulation 608-99 provides the policy, responsibilities, and procedures on financial support of family members, child custody and visitation, paternity, and compliance with court orders regarding these and related matters.

	a.  Paragraph 2-6a states this paragraph applies in the absence of a financial support agreement or a court order containing a financial support provision and until such an agreement is signed or such an order is issued.  Allegations or even proof of desertion, adultery, or other marital misconduct, or criminal acts on the part of a spouse will not excuse a Soldier's obligation to comply with the provisions of this regulation unless a battalion commander or a special court-martial convening authority has released the Soldier under the provisions of paragraphs 2-14b(4) and 2-14b(5) or 2-15.

	b.  Paragraph 2-6b (Pro-rata Share) states that under this paragraph, when the term "pro-rata share" is used with regard to BAH II-with dependents, the amount of each such share of BAH II-with dependents is calculated using the equation in figure 2-1 below.

pro-rata share = __________1__________  x  applicable BAH II-with dependents 
                           total number of supported                             rate
                                   family members

	c.  Paragraph 2-6c (Calculation) states the "total number of supported family members" in the denominator of the fraction in figure 2-1 includes all family members (regardless of residence) except the following:  (1) a Soldier's former spouse, regardless of whether the Soldier is providing financial support to the former spouse; (2) a Soldier's present spouse who is on active duty in one of the military services, unless financial support is required by a court order or written financial support agreement (see paragraph 2-6d(4)); and (3) a family member for whom the Soldier is not required to provide financial support under this regulation or for whom the Soldier has been released by his or her commander from the regulatory requirement to provide financial support pursuant to paragraph 2-13 or 2-15.

13.  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.

14.  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 chapter 7 of Army Regulation 600-37.

15.  Army Regulation 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 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.  Table 2-1 shows that administrative letters of reprimand, referral correspondence, rebuttal, and allied documents are filed in the performance section.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for failing to pay financial support to his spouse as required.  The reprimand stated he had ceased residing with his spouse in January 2009 and, although he paid his spouse $736.20 on 3 July 2009 when ordered to do so by the company commander, as of 25 September 2009 he failed to provide any financial support since.  In October 2009, his spouse maintained she still had not received any support from him since July 2009.  The applicant contends he did not pay support because he interpreted the regulation to say he was required to pay a lesser amount and he was waiting for an interpretation of the regulation by the proponent before paying support.

2.  In his response to the counseling by the company commander in July 2009, he indicated on the DA Form 4856 that he thought he did not have to pay any additional support until 1 August 2009.  However, even if he felt he had paid his spouse double the amount he owed in July 2009, by his reasoning he would still owe her an amount equal to one fourth of his BAH in September 2009.  However, there is no indication he paid support in August, September, or October 2009.
 
3.  Upon receipt of the GOMOR, he acknowledged he read and understood the unfavorable information presented against him.  He was afforded the opportunity to submit matters on his own behalf prior to a final filing decision.  The applicant's response was received and considered.  Subsequently, the GOMOR was referred for filing in his OMPF.

4.  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.

5.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of the applicant's OMPF.  There is no evidence of any violation of any of his rights.  He provides insufficient evidence to support his contention that the GOMOR should be removed from his OMPF.

6.  In view of the foregoing, he is not entitled to 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 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)                                         AR20100030405



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ABCMR Record of Proceedings (cont)                                         AR20100030405



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