IN THE CASE OF: 

		BOARD DATE:	    29 November 2012

		DOCKET NUMBER:  AR20120002727 


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 his General Officer Memorandum of Reprimand (GOMOR) and Army Regulation (AR) 15-6 Report of Investigation (ROI) be removed from the restricted portion of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel Files (OMPF).

2.  The applicant states Headquarters, Department of the Army (DA) took the unusual step of directing the Commanding General (CG), U.S. Army Forces Command (FORSCOM), to review an already-completed ROI and make any recommendation he believed necessary.  

3.  The applicant states the additional review undercut the authority and intent of the 82nd Airborne Division CG who already directed the GOMOR be filed locally.

4.  Additionally, the applicant states, in effect, the Army Board for Correction of Military Records (ABCMR) has established precedent by removing unfavorable information from his former commander's AMHRR, who was investigated in the same ROI.  

5.  Further, the applicant states the presence of the derogatory information in his AMHRR tarnishes an otherwise remarkable service record and may preclude him from being selected to serve and command Soldiers at the battalion level.




6.  The applicant argues:

* the presence of the documents in his AMHRR qualifies as an injustice pursuant to AR 15-85, paragraph 2-10c(1)
* parts of the AR 15-6 investigation are untrue
* the investigating officer (IO) completely disregarded his version of events 
* at the time he took full responsibility for his actions 
* he voluntarily disclosed he mistreated two nationals 
* the Department of the Army Suitability Evaluation Board (DASEB) usurped the authority of the 82nd Airborne Division CG
* he feels he was treated unjustly because the DASEB took away the authority of the CG to make a filing determination
* the Board granted his former company commander's request to remove unfavorable information from the restricted portion of his AMHRR
* it would be unjust if the Board did not take the same action for him

7.  The applicant provides an index which identifies his evidence in Tabs A through S. 

CONSIDERATION OF EVIDENCE:

1.  The applicant, a West Point graduate, accepted a commission as a second lieutenant (2LT) in the Regular Army on 31 May 1997.  He is currently serving on active duty as a major (MAJ).   

2.  On 15 July 1998, he was assigned to A Company, 3rd Battalion, 504th Parachute Infantry Regiment (PIR).  On 31 August 1999, A Company deployed to Kosovo and was attached to Task Force Falcon (TFF).

3.  On 23 January 2000, the TFF CG directed an AR 15-6 investigation into the climate and state of discipline within the 3rd Battalion, 504th PIR (specifically A Company), while deployed in Kosovo.

4.  On 22 February 2000, the AR 15-6 investigation was completed.  It alleged that on two occasions the applicant improperly used physical force against civilian nationals held in the unit detention facility.  The applicant struck one detainee and used physical force to interrogate a second detainee.  The IO stated in the ROI, "On the evening of the slapping incident, 1LT D_______ reports that he informed his unit First Sergeant (1SG) S_______."     



5.  On 17 May 2000, the 82nd Airborne Division CG issued the applicant a GOMOR for improper treatment of civilian nationals in Kosovo.  The CG stated that on two occasions the applicant improperly used physical force against civilians being held in his detainee facility.

6.  On 16 June 2000, the applicant acknowledged receipt of the GOMOR and elected to submit matters in a rebuttal, wherein he indicated there were mitigating factors for his actions.  He witnessed a man pass from life to death while attempting to perform first aid.  Later that night in an attempt to find the man’s murderer, he struck a civilian.  

7.  The applicant continued that the second incident occurred while using physical force during an interrogation of a known criminal.  The criminal was involved in considerable amounts of crime in Vinita and the applicant tried to get him to admit it.

8.  On 21 June 2000, the 82nd Airborne Division CG, directed the GOMOR be filed locally.

9.  On 8 September 2000, the Chief of Staff of the U.S. Army (CSA) directed the FORSCOM, CG, to review the ROI.  The CSA requested the results of the review within 30 days so he could provide the results of the review to the Secretary of the Army.

10.  On 6 November 2000, the FORSCOM CG submitted his ROI review to the CSA.  The FORSCOM CG indicated that he had taken action to rectify both the contributing as well as the causative factors.  The FORSCOM CG stated the crimes and abuses which occurred were the direct result of failure in leadership and lack of personal discipline within Company A, Task Force 3-504, and particularly within Company A, 1st Platoon.  Junior leaders both commissioned and noncommissioned participated in misconduct themselves and condoned the conduct of their Soldiers.

11.  The FORSCOM CG further stated appropriate disciplinary action was taken against all responsible leaders and Soldiers; however, subsequently several of those responsible received favorable assignments, selection for schooling, or promotions.  The CG recommended that all of those favorable personnel actions be reviewed.  He further indicated he had forwarded a copy of the memorandum to the U.S. Total Army Personnel Command (PERSCOM) CG requesting a review of the ROI by the DASEB.


12.  On 9 February 2001, the applicant petitioned the DASEB for removal of all unfavorable information from his AMHHR.  The applicant stated he took full responsibility for the offenses he committed.  He had already been punished for his misconduct and he had learned some incredibly valuable lessons.  Filing the information in his AMHRR would unfairly limit his potential for future service in the Army.

13.  On 9 February 2001, the CG, XVIII Airborne Corps, Fort Bragg, NC, indicated he issued the GOMOR to the applicant when he was the CG, 82nd Airborne Division.  The CG stated in a letter to the DASEB his rationale for the adverse action he chose to impose on CPT D ______ was a result of mistreatment of civilians detailed in the ROI.

14.  The XVIII Airborne Corps CG stated "I hope the Board understands that I took my obligations as a commander in this case seriously.  I endeavored to fully understand the facts and circumstances surrounding the incidents of the ROI, and despite significant media attention and the knowledge that my decision might engender further scrutiny, I decided upon an adverse action against CPT D_______ which was the proper thing to do. "

15.  On 11 April 2001, the DASEB issued a memorandum to the Commander, PERSCOM, indicating that the Director, Military Personnel Management (DMPM), Office of the Deputy Chief of Staff, Personnel directed the GOMOR along with the attached documents be included in the restricted portion of the applicant’s AMHRR.  The memorandum further stated the action constituted an entry of unfavorable information in the applicant's AMHRR that could affect favorable personnel actions and should be treated accordingly.  

16.  The summary of unfavorable information stated, in pertinent part, that an investigation into the climate and state of discipline within Company A, 3rd Battalion, 504th PIR was conducted while the applicant was deployed in Kosovo. The investigation found Company A leaders failed to take appropriate action based upon reported allegations of Soldier misconduct and to excessive use of force.  That investigation also found that the applicant assaulted and harassed local nationals in violation of the TFF policy; he exceeded the scope of his authority and showed a lack of good judgment when performing his duties.  

17.  The applicant provided ABCMR Record of Proceedings Docket Number AR20050007123, dated 6 December 2005, which shows adverse information was removed from another individual's AMHRR.  The applicant claims this individual was involved in the same investigation that led to the filing of his adverse information.

18.  The applicant provides seven DA Forms 67-9 (Officer Evaluation Report (OER)), three DA Forms 1059 (Service School Academic Evaluation Report (AER)), and three DA Forms 1613 (Records Cross Reference (RCR)), which show his ratings and evaluations for the periods August 2001 through November 2011:

* AERs for December 2000 through September 2001 - two reports exceeded course standards
* OERs for September 2001 through July 2007 - five evaluations above center of mass and two evaluations were center of mass
* RCR for March 2007 through March 2010, three evaluations were above center of mass
* AER for August 2010 through July 2011 shows he exceeded course standards

19.  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 3-4a (Filing in the Military Personnel Records Jacket (MPRJ)) states, in pertinent part, that authority to issue and direct the filing of letters of reprimand, admonition, and censure in the MPRJ of commissioned officers and warrant officers is restricted to the recipient's immediate commander or a higher level commander in the chain of command, the recipient's rating chain under the OER system, and any general officer senior to the recipient or an officer who has general court-martial jurisdiction over the recipient.  A letter designated for filing in the MPRJ only may 
be filed for a period not to exceed 3 years or until reassignment of the recipient to another general court-martial jurisdiction, whichever is sooner.  Such a letter will state the length of time it is to remain in the MPRJ.

20.  Army Regulation 600-37, paragraph 3-4b (Filing in the AMHRR), states, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the AMHRR only upon the order of a general officer senior to the recipient or by
direction of an officer having general court-martial jurisdiction over the individual. 
Letters filed in the AMHRR will be filed on the performance section.  The 
direction for filing in the AMHRR will be contained in an endorsement or addendum to the letter.  A letter to be included in a Soldier's AMHRR will be referred to the recipient concerned for comment.  The referral will include reference to the intended filing of the letter.  Statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing in the AMHRR.  This will be done before a final determination is made to file the letter.  Should filing in the AMHRR be directed, the statements and evidence may be attached as enclosures to the basic letter.  The letter will be signed by an officer authorized to direct such filing and will be forwarded for inclusion in the performance portion of the AMHRR only after considering the circumstances and alternative non-punitive measures.  Once placed in the AMHRR, however, such correspondence will be permanently filed unless removed through the appeal process and also will be filed in the MPRJ.  

21.  Army Regulation 600-37, 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for removal of the GOMOR and ROI from the restricted portion of his AMHRR was carefully considered and it was determined that the evidence is insufficient to support his request.  

2.  The available evidence shows the TFF CG directed an AR 15-6 investigation into the climate and state of discipline within Company A, 3rd Battalion, 504th PIR, 82nd Airborne Division, while deployed in Kosovo.  The IO for the investigation determined the applicant and other members in leadership positions abused their authority.

3.  On 21 June 2000, the 82nd Airborne Division CG issued the applicant a GOMOR for improper treatment of civilian nationals in Kosovo.  The CG directed that the GOMOR be filed locally. 

4.  On 8 September 2000, the CSA directed that the FORSCOM CG review the ROI, the climate, and state of discipline within the 3rd Battalion, 504th PIR.  The CSA raised questions about the leadership, readiness, and training within the battalion.

5.  On 6 November 2000, the FORSCOM CG completed his task for the CSA.  The FORSCOM CG stated appropriate disciplinary actions had been taken against all responsible leaders and Soldiers.  He also forwarded a memorandum to the CG, PERSCOM, requesting a DASEB review of the ROI because several individuals had received favorable assignments, selection for schooling, or promotions.


6.  On 11 April 2001, the DASEB denied the applicant's request to remove unfavorable information from his AMHRR.  The DASEB directed that the GOMOR and ROI be included in the restricted portion of his AMHRR.  Under the governing regulation, the DASEB is authorized to do this.

7.  By regulation, in order to support removal of a document properly filed in the AMHRR there must be clear and convincing evidence that shows the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  

8.  It is recognized that the 82nd Airborne Division CG, directed the GOMOR be locally filed; however, after the ROI was reviewed by the FORSCOM CG, he requested a DASEB review.  The DASEB determined that there was enough evidence in the ROI to justify placing the GOMOR and ROI in the restricted portion of the applicant's AMHRR.

9.  The applicant contends that his former company commander successfully requested to have unfavorable information removed from the restricted portion of his AMHRR.  However, a review of the two cases revealed significant differences in the facts and circumstances of each.  The applicant's case reveals direct involvement in the improper treatment of detainees, which is not the case with his company commander.  Each case that comes before the ABCMR is decided on its own merits and does not set precedent for similar cases.  

10.  In view of the facts of this case, there is insufficient evidence to satisfy the regulatory burden of proof necessary to support removing the GOMOR and ROI in question from the restricted portion of the applicant’s AMHRR.  As a result, there is no basis for granting 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)                                         AR20120002727





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ABCMR Record of Proceedings (cont)                                         AR20120002727



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