IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110004847 


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 a general officer memorandum of reprimand (GOMOR) and all associated derogatory information, to include fictitious charges of being absent without leave (AWOL), from all Department of the Army records.

2.  The applicant states the evidence he presents clearly indicates that fictitious, unsubstantiated, and non-applicable policy (Joint Forces policy) information was supposedly acted upon in issuing him a GOMOR.  The commanding general (CG) was so obsessed with forcing him from the service that he pressured other military units into creating AWOL and desertion documentation he knew was clearly false and never applied to him.  He goes on to state the preponderance of evidence presented reveals that he never requested payments of any kind for himself or his family or engaged in any conduct that conflicted with his pastoral duties on Fort Myer.

3.  The applicant provides:

* photographs of the CG and his spouse and the applicant and his family
* a third-party letter
* a copy of a cancelled check
* four pages of a policy regarding choir director responsibilities
* a copy of his DA Form 2-1 (Personnel Qualification Record)
* a copy of orders ordering him to active duty for special work (ADSW)
* a copy of a GOMOR, dated 26 June 2008
* a copy of a sworn affidavit from his son
* a copy of an on-call duty chaplain roster
* a copy of his appointment order as a state chaplain in the Virgin Islands Army National Guard (VIARNG)
* a copy of his interstate transfer (conditional release)
* a copy of his 20-year letter
* a copy of his ARNG Current Annual Statement
* a copy of two officer evaluation reports (OER's)
* a copy of his request for retirement/resignation, dated 1 October 2008
* copies of documents related to his being reported as AWOL and dropped from the rolls (DFR)
* a copy of a memorandum from the CG involuntarily extending him on active duty
* a copy of a letter and supporting documents from the Defense Finance and Accounting Service (DFAS) regarding his debt to the government
* a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a copy of his separation orders from the VIARNG and withdrawal of Federal recognition
* orders transferring him to the Retired Reserve
* supplemental notes from Judge Advocate General Review provided to the applicant's attorney (unauthenticated)
* copies of two commander's inquiries, dated 22 April 2008
* a memorandum of agreement
* a letter from his attorney to the CG, dated 16 May 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a U.S. Army Reserve (USAR) lieutenant colonel on 5 October 2007 when he was issued his 20-year letter.  He accepted an appointment as the state chaplain of the VIARNG on 1 November 2007 and was ordered to ADSW in Arlington, Virginia, until 30 September 2008.

2.  On 22 April 2008, a commander's inquiry was conducted into allegations that the applicant had engaged in conduct that conflicted with his pastoral duties on Fort Myer, Virginia, by receiving payment for services his son provided in the absence of the contracted musician.

3.  The investigating officer interviewed the applicant and indicated the applicant told her that his son did fill in for the three services missed by the contractor and that he did request payment for his son's services from the contractor.  He also stated he did not remember the amount of the check, but he did write his name on it and cashed it for his son.

4.  The contractor provided a copy of the cancelled check to the installation chaplain who provided a copy to the investigating officer.  Additionally, the installation chaplain indicated he had previously told the applicant that it would be a conflict of interest and a violation of the Joint Ethics Regulation to hire a family member as a musical minister.

5.  The investigating officer recommended that the applicant would benefit from an ethics class taught by the Staff Judge Advocate and familiarizing himself with the Joint Ethics Regulation.  Additionally, he should receive a GOMOR from the Uniform Code of Military Justice (UCMJ) chain of command on Fort Myer for acting in an inappropriate manner.

6.  On 26 June 2008, the CG of the Military District of Washington issued a GOMOR to the applicant for a violation of the Joint Ethics Regulation prohibition on government employees acting in an official capacity, in any manner, in which their minor child has a financial interest.  The CG informed the applicant that he had 10 days in which to submit matters to him for consideration.

7.  The applicant initially indicated he would submit matters in his own behalf; however, after the time limit had passed, he notified his supervisory chain at NGB that he would not submit matters in his behalf.

8.  On 21 August 2008, the CG directed that the reprimand be filed in the applicant's official military personnel file (OMPF).

9.  On 11 September 2008, he was reported as being AWOL and on 1 October 2008 he submitted a memorandum in which he resigned his commission and desired to be retired effective 1 October 2008.  The memorandum is not addressed to a specific organization, individual, or office.

10.  On 25 September 2008, the CG signed a letter purportedly to involuntarily extend the applicant on active duty indefinitely.

11.  The applicant was DFRd as a deserter on 21 October 2008.  Although the specifics are not contained in the available records, it appears the applicant had been granted terminal leave without his unit at Fort Myer being aware and his AWOL/DFR status was subsequently declared erroneous.

12.  On 5 April 2009, he was discharged from the VIARNG and transferred to the USAR Control Group (Reinforcement).  On 29 June 2009, the applicant was transferred to the Retired Reserve.

13.  There is no evidence in the available records to show he applied to the Department of the Army Suitability Evaluation Board to have the GOMOR and associated documents removed from his OMPF while he was in an active status.

14.  The notarized statement from the applicant's son indicates his son agreed to substitute for the contractor beforehand and indicates the contractor gave him the check directly and, because he did not have a checking account, the contractor wrote his father's name on the check.

15.  Army Regulation 600-37 (Unfavorable Information) serves as the authority for filing unfavorable information in the OMPF.  It states that a nonpunitive memorandum of record or admonition will be filed in the OMPF only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient.

16.  Army Regulation 27-10 (Military Justice) provides policies and procedures pertaining to the administration of military justice within the Army.  It states that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty adjusting to military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are administrative reprimands and admonitions and they must contain the statement indicating they are imposed as an administrative measure and not as punishment under the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR was unjustly imposed against him based on fictitious unsubstantiated allegations and policy by a CG who was obsessed with forcing him from the service is not supported by the evidence submitted with his application and the evidence of record.

2.  The available evidence clearly shows the applicant's conduct at the time was not the conduct expected of a commissioned officer with the amount of rank, service, and experience he had as commissioned officer.

3.  Accordingly, it appears the GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the applicant's OMPF with no indication of any violations of the applicant's rights.

4.  While the specifics of the applicant's retirement application and approval of his terminal leave are not present in the available records, the documents indicating that his AWOL and DFR were deemed erroneous are present in his OMPF and should remain there to resolve any questions that may arise in the future.

5.  Given the information contained in the commander's inquiry and the lack of mitigating circumstances submitted by the applicant at the time, it would be inappropriate to second-guess the imposing commander by removing the GOMOR from his OMPF 3 years after the fact without sufficient evidence to show the applicant was innocent of the allegations against him.

6.  The applicant has submitted no evidence to support the allegations he has made in his application concerning the imposing officer.  Accordingly, his allegations appear baseless and without merit.

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)                                         AR20110004847



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ABCMR Record of Proceedings (cont)                                         AR20110004847



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