IN THE CASE OF:	  

		BOARD DATE:  13 December 2012

		DOCKET NUMBER:  AR20120006016 


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) from his U.S. Army Military Human Resource Record (AMHRR) (formerly known as official military personnel file (OMPF))
* in the alternative, transfer of the GOMOR from the performance section to the restricted section of his AMHRR
* a personal appearance
* reimbursement of the money that was recouped from him ($9,112.00)

2.  He states:

* he was reprimanded for submitting fraudulent rental receipts and rental agreements and stealing money while mobilized to Fort Jackson
* he believes the documents he submitted were not fraudulent and he did everything in accordance with the law and regulation
* he is a successful small business owner in a civilian capacity and everything he did with regard to the rental was done ethically
* he may have misunderstood the Joint Federal Travel Regulation (JFTR), but he never intended to defraud
* he is nonetheless sorry for his actions
* the GOMOR unfairly impugns his integrity and honesty – it is unfair, untrue, and unjust 
* as a result of this GOMOR, he was not selected for promotion to lieutenant colonel by the September 2011 board or for command by the July 2012 command board
* he was also flagged and determined to be ineligible to deploy with his unit
* he was removed from phase III of the intermediate-level education resident course but pursued completion through other avenues
* he received an outstanding officer evaluation report (OER) wherein his rating officials recommended his promotion ahead of peers
* the GOMOR has served its purpose

3.  He provides:

* the contested GOMOR, rebuttal, and allied documents/filing instructions
* four letters of support/character reference letters
* an OER for the rating period 12 July 2010 through 11 July 2011
* a Meritorious Service Medal Certificate
* a U.S. Army Criminal Investigation Command (CID) Report
* a Department of the Army Suitability Evaluation Board (DASEB) appeal, supporting documents, and denial
* a Headquarters, Department of the Army, Internal Review Office, Review of Temporary Change of Station Program Report Number 09-001

CONSIDERATION OF EVIDENCE:

1.  Having prior service, the applicant was discharged from the Army National Guard on 27 April 1995 and he was transferred to the U.S. Army Reserve (USAR).

2.  He served in a variety of assignments in the USAR, including periods of mobilization, and he was promoted to captain on 10 July 2000 and to major on 6 September 2006.

3.  On 11 August 2004, he was ordered to active duty as a member of his Reserve unit in support of Operation Enduring Freedom.  He was ordered to report to Fort Jackson, SC.  He was the commander of Company E, Task Force Marshall.

4.  In May 2005, he sold his residence in Columbia, SC, for $10.00 to the Executive Group, a limited liability company (LLC) registered in South Carolina for which he was the registered agent.

5.  He was honorably released from active duty on 14 May 2008.  During his mobilization, he submitted travel vouchers claiming to lease a property he already owned.

6.  In June 2008 as a result of irregular activities, CID agents investigated the applicant for receiving unauthorized pay and allowances.  The investigation determined the applicant committed the offenses of larceny of U.S. Government funds, signing false statements, and temporary duty (TDY) fraud when he signed and submitted fraudulent travel vouchers with attached rental receipts claiming he was leasing a residence from the Executive Group, LLC, which was a business owned and operated by him.  The investigation determined the applicant sold his residence to the Executive Group, LLC, on 10 May 2005 for $10.00 and subsequently submitted travel vouchers to the Defense Finance and Accounting Service (DFAS) claiming he was leasing the said residence for $2,010.00 to $2,077.00 per month. He received pay and allowances he was not authorized, totaling $9,181.00, a loss to the U.S. Government.

7.  On 7 March 2010, he was reprimanded by the Commanding General, 80th Training Command, USAR.  The GOMOR stated he was reprimanded for his role in submitting fraudulent rental receipts and rental agreements while mobilized to Fort Jackson and for stealing money from the U.S. Government pursuant to these fraudulent documents.

8.  He acknowledged receipt of the GOMOR and submitted a rebuttal through a civilian attorney.  His attorney stated:

* the GOMOR should not be filed because it contained reference to criminal activity despite the fact the applicant was never charged with a crime
* the JFTR authorized the applicant to claim lodging reimbursement whether he rented or owned the residence
* the regulation prohibits filing inaccurate derogatory information in personnel files
* the GOMOR is based solely on a CID report and the applicant had paid the amount demanded by DFAS in full

9.  After careful consideration of the applicant's case and the rebuttal he submitted through his attorney, the commanding general ordered filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

10.  On 31 October 2011, he petitioned the DASEB for removal of the GOMOR from his AMHRR.  He contended the GOMOR was untrue and unjust.

* his unit had no briefing how to handle temporary change of station (TCS) orders and TCS orders were confusing
* he spoke with others regarding submission of TCS vouchers and he knew if there was a problem, DFAS would contact him
* when he created the LLC, he believed he was doing everything right and properly
* in September 2011, he took a polygraph test that showed he was telling the truth

11.  On 26 January 2012 based on the available evidence, the DASEB determined the applicant did not provide clear and convincing evidence that showed the GOMOR was rendered in error or was unjust.  Therefore, the DASEB denied his request.

12.  He submits four memoranda, an award certificate, and an OER in support of his request.

	a.  A memorandum from the imposing general officer, now retired, dated 12 November 2012, states he personally met with the applicant on 31 October 2012 to review this matter.  The imposing general officer states the applicant was not selected for promotion or battalion command as a result of this reprimand which put him at a disadvantage.  He opines that the GOMOR has served its purpose and recommends its transfer to the restricted section of his AMHRR.

	b.  A memorandum from the Chief, Engineering Technical Services, Winchester, VA, dated 25 September 2012, states he has known the applicant for the past 2 years and found him to be a highly capable officer with great potential.  The author opines that it is in the best interest of the Army to remove or transfer the GOMOR.

	c.  A memorandum from a USAR battalion executive officer, dated 24 September 2012, opines that the GOMOR has served its purpose.  He elaborates as to how the applicant's career has been hurt as a result of the GOMOR.  He also opines that it is in the best interest of the Army to remove or transfer the GOMOR.  He describes the applicant as an outstanding officer of high integrity and honesty who would not behave in such a dishonorable way.

	d.  A memorandum from a USAR major, dated 25 September 2012, opines that the GOMOR should be transferred to the restricted section of the applicant's AMHRR.  He states he previously served with the applicant and describes him as an outstanding officer who goes out of his way to help Soldiers.

	e.  A Meritorious Service Medal Certificate, dated 10 September 2011, shows he was awarded a Meritorious Service Medal for meritorious service from 1 July 2006 to 24 February 2011.

	f.  An OER covering the rating period 12 July 2010 through 11 July 2011 for his duties as an Engineer Plans Officer while assigned to the Transatlantic Division, U.S. Army Corps of Engineers, Winchester, VA, shows his rater rated his performance as "Outstanding Performance – Must Promote" and his senior rater rated his performance and potential as "Best Qualified" and "Center of Mass."

13.  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 a filing determination is made.

14.  A memorandum of reprimand may be filed in a Soldier's AMHRR 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 AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Army Regulation 600-37, paragraph 7-2, provides 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

15.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  The naming convention AMHRR replaces OMPF with the publishing of this regulation.  Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR.  The AMHRR is an administrative record as well as the official permanent record of military service belonging to a Soldier.  It remains in Army control for 62 years from a Soldier's final separation date and, upon the 63rd year, is transferred to the control of the National Archives and Records Administration.  Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by the DASEB.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  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 shows a CID investigation determined the rental receipts submitted by the applicant during his mobilization were suspect.  The investigation determined he committed the offenses of larceny of U.S. Government funds, signing false statements, and TDY fraud when he signed and submitted fraudulent travel vouchers with attached rental receipts claiming he was leasing a residence from the Executive Group, LLC, which was a business owned and operated by him.  He submitted travel vouchers to DFAS claiming he was leasing the said residence for $2,010.00 to $2,077.00 per month.  He received pay and allowances he was not authorized, totaling $9,181.00, a loss to the U.S. Government.

2.  Accordingly, he received a GOMOR.  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.  He did so through his attorney.  After careful consideration of the applicant's case and his rebuttal, the imposing general officer ordered filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

3.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was a senior captain in a position of trust and authority.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  Here, the applicant violated that trust.  His conduct was inexcusable and his actions brought discredit to himself.  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust.

4.  The Board is generally reluctant to remove adverse information from an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does move unfavorable information, it only does so if it has truly served its intended purpose. 
Notwithstanding the imposing general officer's recent recommendation, the applicant's GOMOR does not seem to have served its purpose.  The fact that he was not selected for promotion – despite the fact that promotion boards do not divulge the reason(s) for nonselection – and/or command appears to be a natural result of his own actions.

5.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

6.  In view of the foregoing evidence, there is an insufficient basis to remove or transfer the contested GOMOR or to reimburse him for any monies he claimed fraudulently.

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)                                         AR20120006016



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ABCMR Record of Proceedings (cont)                                         AR20120006016



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