IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110010981 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s general under honorable conditions discharge be vacated and to have the applicant reinstated to active duty as a commissioned officer.  He further requests his reinstatement be accompanied with promotion to captain (CPT)/O-3, reimbursement of loss of pay and any and all other forms of relief to which the applicant is entitled to in connection with his wrongful discharge from service.

2.  Counsel argues:

   a.  The applicant was instructed by his chain of command not to fight the General Officer Memorandum of Reprimand (GOMOR) as a plan was in place to rehabilitative transfer him to another unit.

   b.  To ensure his cooperation, the applicant was promised by his chain of command that he would be “taken care of” and allowed to matriculate to the Captain’s Career Course immediately following redeployment.  The applicant was under the false impression that the GOMOR would be filed locally and was assured the GOMOR would have no negative impact on his career and that the best thing he could do was to accept the reprimand without any discussion.

   c.  Having full confidence and faith in his chain of command, the applicant accepted the GOMOR.  After seeking council from the Trial Defense office, he prepared a three-page rebuttal in his defense.  The applicant was informed by a member of his chain of command that his rebuttal was too long and the applicant was instructed to reduce the rebuttal to one page.  Based on this guidance, the applicant reluctantly submitted a one-page rebuttal.

   d.  Following his redeployment, the applicant was reassigned to the unit’s parent command and he was informed that the U.S. Army Human Resources Command (HRC) initiated a Show Cause action in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges).  The basis for the initiation of the Show Cause proceedings was the issuance of the GOMOR.  The applicant made it known to his new chain of command, to include the commanding general, of the promises that were made to him.  Either his command did not believe the applicant or they did not care because the command team had already recommended elimination.  Because the applicant was a probationary officer, he was not entitled to a hearing or any form of due process other than the submission of rebuttal matters.  The applicant and his attorney of record made pleas to his command at all levels only to be told the case was simple, complete and closed.

   e.  In May 2010, the applicant and his attorney contacted HRC, Retirements and Separation Division to make a personal request.  Upon reviewing all evidence, HRC notified the applicant and his attorney that his separation packet would be returned to his unit and that a field board inquiry would be conducted into the allegations against him.  While preparing for the hearing, the applicant received orders to be separated from the Army without the hearing.  When questioned about the new decision, HRC replied that the earlier notification of a board of inquiry was in error.

   f.  On 8 July 2010, the applicant was discharged from the U.S. Army after    16 years of service with a general under honorable conditions discharge.  There was no hearing, no investigation and no determination if such a discharge was justified for such a meritorious career.  In less than a year, the applicant received a GOMOR, suffered humiliation of premature redeployment, denial of attendance at the Captain’s Career Course and a general under honorable conditions discharge all for an accusation that he was pressured into accepting without the submission of an honest and accurate rebuttal. 

3.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* GOMOR and allied documents (rebuttal and filing instructions)
* 6 pages of email correspondence 
* Memorandum and Elimination message

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant’s records show he successfully completed Officer Candidate School and was appointed as a Regular Army commissioned officer in the quartermaster branch in the rank of second lieutenant on 24 August 2006.  He completed various staff assignments, and he was discharged from active duty in the rank/grade of first lieutenant/O-2 for unacceptable conduct on 7 July 2010.  The DD Form 214 he was issued shows he completed a total of 16 years, 4 months, and 27 days of creditable active service.  

2.  On 22 April 2009, the applicant received a GOMOR for fraternization, violating an order from a superior officer, lying, and for making defamatory statements of a sexual nature to a commissioned officer for whom he served as a rater then threatened that officer with taking retaliatory action against his evaluation.  The applicant acknowledged receipt of the reprimand and indicated he intended to submit matters for consideration prior to filing the reprimand in his Official Military Personnel File (OMPF).

3.  On 26 April 2009, the applicant submitted a one-page rebuttal letter in which he recognized his conduct was in violation of the fraternization policy and  expressed regret and embarrassment for his lapse of judgment and his behavior.  He further requested consideration to file the reprimand locally.

4.  On 27 April 2009, after careful review of the applicant’s case file, the memorandum of reprimand, and all rebuttal matters, the applicant’s battalion-level commander recommended the applicant’s reprimand be filed in the performance portion of his OMPF.

5.  On 28 April 2009, the applicant’s brigade-level commander recommended the reprimand be filed in the performance portion of the applicant’s OMPF.  The commander further stated he recommended this course of action because the applicant’s actions demonstrated a complete departure from the conduct demanded of officers.  His misconduct illustrated a lack of integrity, character, and self-discipline and has shown that he does not deserve to command troops or serve in a nominative position.

6.  On 3 May 2009, after reviewing the applicant's rebuttal and considering all matters available, the Commanding General directed the GOMOR be filed in the applicant's OMPF.  
7.  On 16 July 2009, the Chief, Promotions Branch, HRC requested a Promotion Review Board (PRB) be convened to reconsider the promotion status of the applicant based on his receipt of a GOMOR.  On 15 September 2009, the PRB found the applicant not fully qualified and not among the best qualified for selection to meet the needs of the Army and recommended the applicant be removed from the Fiscal Year (FY) 2009 Captain Army Promotion list.

8.  On 13 March 2010, the applicant acknowledged receipt of a memorandum from HRC initiating elimination action.  He acknowledged he must show cause for retention and he elected to make statements and submit rebuttal matters on his behalf although neither are available in his OMPF. 

9.  The Department of the Army Ad Hoc Review Board reviewed the applicant’s elimination case and on 17 June 2010, the Deputy Assistant Secretary (Army Review Boards) approved the applicant’s elimination based on misconduct and moral or professional dereliction and further determined that the applicant should be discharged from the U.S. Army with a general under honorable conditions characterization of service.   

10.  The applicant provides an email from his former battalion command sergeant major who states it was never the intent of the battalion commander to separate the applicant from the Army.  

11.  Army Regulation 27-10 (Military Justice) states that commanders have authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment.  It notes that a written administrative admonition or reprimand will contain a statement that it has been imposed as an administrative measure and not as punishment under Article 15.  

12.  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.

13.  Army Regulation 600-37, further states 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.

14.  Army Regulation 600-8-24 provides the authority for the separation of commissioned and warrant officers from the Active Army.  Paragraph 4-2b of this regulation specifically provides for the involuntary release of officers from active duty for misconduct, moral or professional dereliction, and/or when their degree of efficiency and manner of performance required release from active duty or elimination from the service.  Paragraph 4-20f of this regulation provides for processing an officer’s recommendation for elimination.  If the officer declines to tender a resignation, request discharge, or apply for retirement (if otherwise eligible) in lieu of elimination and if an honorable or general under honorable conditions discharge is recommended, CG, HRC, will forward the case to the Secretary of the Army for final decision.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph     2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  Counsel’s request to have the applicant’s general under honorable conditions discharge vacated and to have him reinstated to active duty as a commissioned officer with promotion to CPT, reimbursement of loss of pay and any and all other forms of relief to which he is entitled to has been carefully examined and it was determined there is insufficient evidence to support this request.

2.  The evidence of record shows the applicant admitted to violating the Army’s policy on fraternization, received a GOMOR for misconduct, and that it was filed in his OMPF.  He was afforded the opportunity to review all of the evidence against him and 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.  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.

3.  Counsel’s contention the applicant was instructed by his chain of command not to fight the GOMOR because a plan was in place to rehabilitative transfer him is corroborated by the statement provided by the applicant’s former battalion sergeant major.  However, the applicant’s record does not contain nor did the applicant provide any evidence (such as counseling or local reassignment orders) which would indicate this was the case.  Discussions on what course of action to undertake are common amongst command teams and it would seem logical the sergeant major may have been part of the initial discussions; however, ultimately the decision resides within the chain of command and not the noncommissioned officer support channel.   It is evident despite whatever discussions the sergeant major may have been privy to, the chain of command decided to pursue an alternate course of action.  The GOMOR was imposed as an administrative measure, not as punishment under Article 15, UCMJ.  

4.  Evidence shows the PRB reviewed the facts and circumstances surrounding his case and after careful consideration decided to remove him from the FY 2009 promotion standing list.

5.  As a result, he was afforded an opportunity to show cause for retaining him in the Army.

6.  The evidence shows the applicant was properly and equitably discharged in accordance with regulation.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant 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 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)                                         AR20110010981



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ABCMR Record of Proceedings (cont)                                         AR20110010981



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