IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110024962 


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 the removal of a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF) or transfer of the GOMOR to the restricted section of his OMPF.

2.  The applicant states:

	a.  In the GOMOR issued by Brigadier General (BG) BWM, the general stated no risk assessment and no pre-combat inspections were done but the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) and the U.S. Army Criminal Investigation Command (CID) investigations stated it was the actions of the first sergeant (1SG) and platoon sergeant (PSG) that caused the incident by placing a heat-exhausted Private (PVT) JM on a truck without a battle buddy.  This led to the PVT falling from the truck and having a heat stroke.  He (the applicant) was leading his company formation and he was unaware of their actions.

	b.  The Department of the Army Suitability Evaluation Board (DAESB) unanimously decided to remove the GOMOR from his record.  However, the Deputy Director of the Army Review Boards Agency (ARBA) over-ruled the Board's decision and stated as the commander, he was responsible for the failed actions of his subordinates.

	c.  As a commander, he conducted rest halts every 40 minutes and he had water buffaloes with his lead and rear vehicles.  The standing operating 


procedure (SOP) stated Soldiers having trouble keeping pace were to fall back with a battle buddy to the next platoon and under no circumstances were Soldiers ever allowed to be without a battle buddy.  The 1SG and PSG failed to recognize the signs of heat injury and put PVT JM on the trail vehicle without a battle buddy.  They received letters of reprimand but were not removed from their duty positions and they have the opportunity to continue to serve and retire.  He was passed over for promotion because of the GOMOR and he has been punished enough for the actions of his subordinates.  He could not be in multiple places at once.

3.  The applicant provides:

* Eight memoranda
* GOMOR appeal request
* Four pages titled "Composite Risk Management Worksheet"
* Three pages titled "Training Support Package"

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve Corps of Engineers (EN) and executed an oath of office on 11 May 2002.  He was promoted to the rank/grade of captain (CPT)/O-3 in the Regular Army on 1 September 2005.

2.  On 30 May 2008, he was assigned as the commander of Company F,
1st Battalion, 61st Infantry, Fort Jackson, SC, a basic training company.

3.  On 19 August 2009, while participating in a 7-mile road march with Company F, 1st Battalion during a 5-day field exercise, PVT JM fell from a truck and he was rushed to the Palmetto Health Richland Hospital, Columbia, SC.  On 20 August 2009, he was pronounced dead from probable heat stroke due to bodily exertion.

4.  In a commander's inquiry, dated 9 April 2010, the investigating officer stated after reviewing the CID investigation, PVT JM's medical records, Fort Jackson's regulations, unit records, and other relevant information he found the following:

	a.  Approximately 5 miles into the road march, PVT JM began to exhibit symptoms of exhaustion and fell behind the formation.  Although he was not assessed as a heat casualty, the 1SG and PSG determined he could not complete the road march and put him in the back of an accompanying truck with water but unattended.  Before the truck entered the collection area, PVT JM 


exited the back of the truck, presumably lost his balance, and fell off the truck.  He was treated for a head injury and transported to an off-post hospital.  At the hospital, he was treated for the head injury and it was noted his body was hot but treatment for the heat injury did not begin until 1 hour after his arrival in the emergency room.

	b.  The PSG stated it was not customary to put a battle buddy with a Soldier who fell out of a road march.  Other drill sergeants stated the same even though this was a violation of Training and Doctrine Command (TRADOC) Regulation 350-6 (Training - Enlisted Initial Entry Training Policies and Administration).  Two Soldiers who assisted PVT JM into the back of the truck stated they thought he was a heat casualty as he had slurred speech, was slow to answer, and rolled himself onto his back in the truck.  However, neither voiced their concern to the 1SG or PSG.

	c.  There was probable cause to believe the 1SG and PSG were derelict in the performance of the duty to respond to PVT JM's apparent heat injury.  They should have known of Fort Jackson Regulation 385-11 (Training and Training Support), chapter 8, that describes the required treatment for heat injuries and failed to follow procedures in the regulation.  There was no probable cause to support a determination that their acts or omissions caused PVT JM's death.  All witness statements corroborate they both believed PVT JM was coherent and able to take care of himself when he was placed in the truck.

	d.  There was no evidence that an improper risk assessment occurred.  The battalion commander properly emphasized heat injury prevention and the battalion SOP reinforced policy.  Administrative failures may not have caused PVT JM's death; however, they do reveal that potentially the conditions for an undisciplined application or enforcement of regulatory standards were present in Company F.  They illuminate that despite strict adherence and emphasis of heat injury prevention standards at battalion level, enforcement and emphasis may have been lacking at the company level.  An evaluation of the conduct of personnel against existing standards revealed numerous failures by the command and cadre of Company F in their conduct of the road march on 19 August 2009.  While the battalion and company SOP correctly identified procedures for heat injury prevention and treatment, cadre failed to follow procedures and the unit did not ensure a qualified driver was operating the trail vehicle. 

5.  On 27 April 2010, the applicant was issued a GOMOR by the Commander, U.S. Army Basic Combat Training Center of Excellence for failing to exercise command responsibility and oversight.  The GOMOR stated although the 


applicant's conduct did not cause the tragic death of PVT JM, subsequent investigation identified that specific failures within his authority to prevent that contributed to and compounded a series of error in judgment by his subordinates in response to the heat injury.  He failed to conduct inspections and rehearsals and failed to enforce risk mitigation measures identified for the road march.  His failure to conduct rehearsals was evident in the driver's inability to navigate the vehicle containing PVT JM.  Further, he failed to conduct his own risk analysis prior to the road march and implement leader controls as evidenced by the failure of his subordinates to identify the heat injury and take the response measures identified in Fort Jackson Regulation 385-11.  

6.  The GOMOR further stated that a key element of command authority and responsibility was to ensure Soldiers and equipment were in a state of readiness at all times.  His conduct and performance failed the standards set by the Army and the Basic Combat Training Center of Excellence; therefore, he did not set the conditions for success in his company.  The GOMOR was being imposed as an administrative measure.

7.  The applicant acknowledged receipt of the GOMOR, and on 4 May 2010 he submitted an appeal.  In his appeal, he stated he accepted full responsibility for the life that was lost while under his command and accepted whatever repercussions that followed.  However, he further stated:

	a.  Although the driver did not know the route, he (the applicant) placed a drill sergeant in the vehicle that did know the route.  However, the drill sergeant left the vehicle after the battalion command sergeant major told him he should be marching with the troops.

	b.  He did take full responsibility for not using his company van as the trail vehicle.  However, the battalion SOP did not state it should or must be used but the decision was his and it was a mistake.

	c.  He believed he took precautions to mitigate the risk of heat injuries but wished he had conducted a more thorough risk assessment.   He was in front of the company to give the Soldiers motivation and believed the 1SG was capable of identifying a heat casualty and taking appropriate action.  The 1SG and PSG should not have put PVT JM in the truck without a battle buddy.

	d.  Other events led to PVT JM's death such as the paramedics dropped him onto the road and fell on top of him as they tried to load him into the ambulance and initially the hospital did not check or treat him for a heat injury.

	e.  He requested the GOMOR not be filed in his OMPF because if it was he would be passed over for promotion and forced out of the Army before retirement.  

8.  His immediate commander recommended the GOMOR be permanently filed in the applicant's OMPF because his (the applicant's) actions and/or inactions provided an environment that set the conditions for the tragedy to take place.

9.  On 6 May 2010, the issuing commander reviewed the applicant's response and the recommendation of his immediate commander and directed the GOMOR be permanently filed in the applicant's OMPF.

10.  On 2 August 2011, a request to the DASEB was received from the applicant requesting the GOMOR be removed from his OMPF or transferred to the restricted section of his OMPF.

11.  In the DASEB Record of Proceedings, the analyst recommended denial of the applicant's request for removal or transfer of the GOMOR to the restricted section of his OMPF.  The analyst stated the applicant failed to provide evidence that the GOMOR was untrue or unjust; therefore, removal was not recommended.  In addition, the applicant did not provide evidence to show the intent of the GOMOR had been served and transfer of the GOMOR to the restricted section of his OMPF was not recommended.  

12.  On 25 August 2011, the DASEB voted to deny the applicant's request for removal of the GOMOR; however, it granted him partial relief by granting his request to transfer the GOMOR to the restricted section of his OMPF.  On 13 October 2011, the Deputy Director, ARBA, rejected the Board's decision and denied relief to transfer the GOMOR.  The Deputy Director stated as the commander the applicant was responsible for the unit's failure to follow the requirements of Fort Jackson Regulation 385-11 resulting in the death of one of his Soldiers.

13.  The applicant accomplished the following since receiving the GOMOR:

* he completed the 3-month Field Artillery Basic Qualification Course on 3 September 2010
* he received an "Outstanding Performance, Must Promote" and "Best Qualified" rating for his annual OER for the period 2 October 2010 through 1 October 2011, while serving as a battle management team chief

14.  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.

15.  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 applicant contends the GOMOR should be removed from his OMPF or transferred to the restricted section of his OMPF because in the GOMOR, BG BWM stated no risk assessment and no pre-combat inspections were done but CID and CI investigations stated the actions of the 1SG and PSG caused the incident.

2.  The evidence of record shows he received a GOMOR for his failure to exercise command responsibility and oversight and that although he did not cause the tragic death of PVT JM, subsequent investigations identified specific failures within his authority to prevent that contributed to and compounded a series of error in judgment by his subordinates.

3.  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.

4.  The applicant, a CPT in a command position, was reprimanded for his failure to exercise command responsibility and oversight that contributed to and compounded a series of errors in judgement by his subordinates.  As a company commander, the applicant was serving in a position of trust, responsibility, and accountability, and he was directly responsible for the development, training, welfare, and morale of all the Soldiers in his command.  He failed to exercise the proper oversight that ultimately led to the death of a Soldier.

5.  The ABCMR is generally reluctant to remove adverse information from an OMPF when it places the applicant on a 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.  In this case, the evidence presented does not show that the GOMOR is untrue or unjust.  

6.  In addition, it appears the applicant has not acknowledged that his actions and/or lack of action directly contributed to the death of a Soldier under his command and learned from this error.  In this case, it does not appear the GOMOR has served its intended purpose, which might warrant transferring it to the restricted section of his OMPF.

7.  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 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)                                         AR20110024962



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024962



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1