BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120001859 


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, or as an alternative, transfer of a General Officer Memorandum of Reprimand (GOMOR) and all associated documents from the performance section to the restricted section of his Army Military Human Resource Record (AMHRR) previously known as the Official Military Personnel File.

2.  The applicant states:

	a.  he never conspired with Major (MAJ) S_____ to defraud the government or provide a false statement to investigation officers;

   b.  he actively testified against MAJ S____ at his court-martial which led to MAJ S____’s conviction;
   
   c.  his contentions with the denial of his appeal by the Department of the Army Suitability and Evaluation Board (DASEB);

	d.  the GOMOR should be removed from his AMHRR on the basis of fairness and equity;

	e.  the GOMOR has already served its intended purpose, as he has been twice nonselected for promotion, denied command opportunities and/or follow on assignments with increased responsibilities, disapproved for award of the Meritorious Service Medal (MSM), and repeatedly punished for something he did not do; 
	f.  personal appearance before the Army Board for Correction of Military Records (ABCMR) to test his credibility, truthfulness, and demeanor; and

   g.  consideration should be given to the letters of support he provides from his commander and other Army officers.

3.  The applicant provides:

* the indexed list of documents included with his application
* five self-authored statements with indicated enclosures

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that during the period in question, he was serving on active duty as a member of the U.S. Army Reserve Army Guard Reserve (AGR) in the rank of major.  He held area of concentration 25C (Communications-Electronics Operations Officer).

2.  On 12 March 2009, the Commanding General (CG), Headquarters, 7th Civil Support Command, issued the applicant a GOMOR for on or about 28 January 2004:

   a.  conspiring to steal government funds and providing a false official statement;
   
   b.  creating a lease agreement for another officer to rent property which that officer already owned;
   
   c.  drafting a provision that ensured he would receive a percentage of each month's rent resulting in his receipt of $900.00 a month for the agreement;
   
   d.  to accomplish the fraud, listing his personal business as the lessor on the agreement and the other officer as the lessee;
   
   e.  telling the investigators that the owner of the property was a woman from Georgia, who did not know how to create a lease, you did not remember the woman's name or contact information, and you did not retain that information;
   
   f.  telling the investigators you received the rent check from the other officer, deposited it in your personal bank account, and then wrote a new check each month to the woman in Georgia for the rent minus your portion.

3.  On 31 March 2009, the applicant acknowledged receipt of the GOMOR and elected to submit a statement in his own behalf.   In it, he provided rebuttal comments to this reprimand.

4.  On 13 May 2009, the CG who issued the GOMOR directed it be filed in the applicant’s AMHRR.

5.  The applicant's AMHRR includes four DA Forms 67-9 (Officer Evaluation Report (OER)) for the periods ending 16 June 2009, 16 June 2010, 16 June 2011, and 4 June 2012.

   a.  The first of these reports encompassed the period the GOMOR was imposed and evaluated the applicant as the Deputy Commander/Operations Officer for a forward deployed European-based Civil Support Team and the subsequent three reports evaluated him as the Assistant Professor of Military Science at Montana State University, Bozeman, Montana.
   
   b.  The applicant received highly favorable rater and senior rater comments, recommendations for promotion to lieutenant colonel, and recommendations for command positions on all four reports.

6.  The applicant petitioned the DASEB on 2 May 2011 for removal of or transfer of the GOMOR to the restricted section of his AMHRR.

7.  On 15 May 2011, the DASEB determined the evidence presented in the applicant's case did not clearly and convincingly establish that the GOMOR was untrue or unjust and unanimously voted to deny this request.  In addition, the evidence presented did not provide substantial evidence that the GOMOR had served its intended purpose.

8.  The applicant was considered by the FY2010 (below the zone), FY2011, and FY2012 LTC Army Promotion List (APL) boards and not selected for promotion.

9.  The applicant provides a self-authored memorandum, dated 15 November 2010, to the CG who directed the filing of the GOMOR in question, requesting reconsideration of the adverse action taken against him by removing the administrative reprimand from his AMHRR.  On an unknown date, the CG responded to the applicant's request indicating he would not revise, alter, or remove the GOMOR from his military record.


10.  The applicant provides six letters from individuals who support his request to remove or transfer the GOMOR in question to the restricted section of his AMHRR.  

	a.  A letter from the Chief of Military Justice and another from the Lead Trial Counsel in the case of the United States versus MAJ S______ indicates the applicant consistently maintained his innocence and testified as a prosecution witness in the court-martial against MAJ S_____, which when combined with additional evidence led to a guilty finding and conviction.

   b.  A memorandum dated 1 March 2011 from the Commander, Department of Military Science, Montana State University (an LTC), shows the applicant:
   
* demonstrated nothing but the highest degree of professionalism and ethical integrity under his command
* controls a budget of $950K in annual scholarships, manages 100 percent of the advertising budget and civilian pay requirements
* represented a $130K yearly value to the Army that will endure long after his departure

   c.  Letters from two retired colonels (COL) and a retired LTC, three of the applicant's former commanders, show he is an outstanding and dedicated officer of unlimited potential and unquestionable character.  He continuously modeled the highest standards of conduct and integrity and proved moral courage to do the right thing over the expedient choice.  Because of the GOMOR, the applicant:
   
* had a well-deserved MSM downgraded
* suffered the suspension of his security clearance
* received subsequent downgraded OERs to "center of mass"
* did not receive a below the zone promotion
* has been passed over for command
* his assignments have been affected

11.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Paragraph 7-2 (Policies and Standards) states, in pertinent part, that once an official document has been properly filed in the AMHRR, 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 AMHRR, or that it has served its intended purpose to support transfer from the performance portion to the restricted section of the AMHRR.  

12.  Army Regulation 15-185, the regulation under which this Board operates, states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the GOMOR was issued and filed in the AMHRR in accordance with the governing law and regulation.  By regulation, in order to remove this document from the AMHRR, there must be clear and convincing evidence showing that the document is untrue or unjust.  No such evidence has been provided in this case.

2.  However, the governing regulation does authorize the transfer of a GOMOR from the performance to the restricted section of the AMHRR when it can be determined that the document has served its intended purpose.  The evidence of record in this case shows the applicant has now accepted responsibility for his actions.  Further, it is likely the GOMOR was responsible for the applicant's
non-selection for special assignments and promotion, and has clearly placed him behind his peers.  In spite of this, the applicant has responded positively to the reprimand, as evidenced by his continued outstanding performance, which is attested to by his chain of command during the time in question and his current chain of command. 

3.  Given the strong leadership support by the applicant's subsequent and current chain of command; and based on the passage of time, during which the applicant has been non-selected for special assignments and promotion; and because of the applicant's continued value to the Army, the GOMOR in question has served its intended purpose.  Therefore, it would be appropriate at this time to transfer the GOMOR and associated documents to the restricted section of the applicant's AMHRR.

4.  The applicant indicated that he would like to personally appear before this Board to show and explain his innocence.  However, there is sufficient evidence available for a fair and impartial consideration of his case.  Therefore, a personal appearance is not required in this case.


BOARD VOTE:

__x___  ___x_____  _____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the 12 March 2009 General Officer Memorandum of Reprimand and all related documents from the performance section to the restricted section of his AMHRR based on it having served its intended purpose.




      _______ _ 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)                                         AR20120001859



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ABCMR Record of Proceedings (cont)                                         AR20120001859



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