IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120006145 


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, in effect, correction of his Official Military Personnel File (OMPF) (now known as the Army Military Human Resource Record (AMHRR)) by:

	a.  setting aside the punishment and removing the General Officer Memorandum of Reprimand (GOMOR), dated 8 July 2005, from his AMHRR;

	b.  reinstating him on the 2005 Colonel (COL) U.S. Army Reserve (USAR) Promotion List; and

	c.  promoting him to the rank/grade of COL/O-6 with the appropriate retroactive date of rank (DOR).

2.  The applicant states, in effect, the GOMOR was not properly referred under the provisions of Army Regulation (AR) 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers).  This regulation required that he be allowed to submit a timely rebuttal.  He contends the Promotion Review Board's (PRB) decision to remove him from the promotion list was not justified due to the fact that the AR 15-6 investigation and his rebuttal show the GOMOR's first alleged misconduct was mitigated while the second alleged misconduct is unsubstantiated.

3.  The applicant provides a supplemental statement rendered by counsel and supporting exhibits as shown below.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be granted the following relief:

	a.  setting aside the GOMOR, dated 1 August 2005;

	b.  setting aside the 2006 removal of the applicant's name from the 2005 COL USAR Promotion List after a 2006 PRB recommendation citing the GOMOR, in accordance with AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), dated 2004, paragraph 3-18a(10)(d) which states an officer's name may not be removed from a promotion list except for an AMHRR reprimand; and

	c.  Reinstating the applicant to the 2005 COL USAR Promotion List with a retroactive DOR deemed appropriate in accordance with AR 135-155, dated 2004, paragraph 4-18 which states to adjust the DOR after involuntary promotion delay for any period the officer was unqualified due to any adverse administrative action.  The promotion delay statute found in Title 10, U.S. Code (Title 10 USC), subsection 14311(a), states to retain an officer on the promotion list and promote with same DOR when the basis for delay no longer exists.

2.  Counsel states it is in the interest of justice to consider this application for the following reasons:

	a.  The record shows the GOMOR was not properly referred to the applicant in accordance with the AR 15-6 investigation and supporting material to permit a timely rebuttal.

	b.  The GOMOR should not have been filed in the applicant's AMHRR.

	c.  The applicant submitted a de facto rebuttal in 2006 before the PRB's decision to remove him from the promotion list and his rebuttal shows the GOMOR's first alleged misconduct was mitigated while the second alleged misconduct is unsubstantiated.

3.  Counsel provides:

	a.  an extract from the Presidential Nominations for appointment to the rank/grade of COL/O-6 which was confirmed by the Senate on 17 February 2005;

	b.  mobilization and deployment orders;

	c.  the subject GOMOR, applicant's acknowledgement of receipt, and issuing authority's filing decision;

	d.  DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG));

	e.  applicant's memorandum addressed to Commander, First U.S. Army, dated 30 January 2006;

	f.  Chief, Office of Promotions, Reserve Components, U.S. Army Human Resources Command (HRC) memorandum, dated 6 February 2006;

	g.  DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and related documents;

	h. the applicant's memorandum addressed to the President, PRB, dated 8 March 2006; and

	i.  a letter from counsel's surgeon, dated 6 April 2011.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that following a period of enlisted service in the Regular Army, he was appointed as a second lieutenant in the USAR on 18 September 1981.  He completed initial entry training in area of concentration (AOC) 12 (Engineer) and at a later date he transferred to AOC 11 (Infantry).  The applicant served in various staff and leadership positions within Puerto Rico and was promoted to first lieutenant on 18 March 1983, to captain on 18 March 1987, and to major on 17 March 1994.

2.  On 22 October 1998, the applicant was notified by the Director, Personnel Actions and Services, USAR Personnel Command, that he had completed the required years of qualifying Reserve service for retired pay on application at age 60 (Twenty Year Letter) in accordance with Title 10, USC, Chapter 1223.

3.  On 8 February 2001, the applicant was promoted to the rank/grade of lieutenant colonel (LTC)/O-5.

4.  An extract from the list of Presidential Nominations for appointment to the rank/grade of COL/O-6 from the 109th Congress (2005 - 2006) shows the applicant was considered, selected, and nominated for promotion by the 2005 COL USAR Promotion Selection Board.

5.  HRC Orders A-02-503355, dated 3 February 2005, show the applicant was ordered to active duty in the rank of LTC for a period of 2 years on 9 February 2005.  The purpose of his mobilization was to fulfill active duty requirements in accordance with the Contingency Operations Extended Active Duty (CO-EAD) program as a commander.

6.  On 7 March 2005, the Commander, Headquarters, U.S. Army Garrison Fort Buchanan, Fort Buchanan, Puerto Rico appointed an LTC as an IO to conduct an informal investigation under the provisions of AR 15-6 into the allegations and issues relating to the applicant in an Inspector General Action Request (IGAR).  The IO was specifically directed to investigate the following allegations that:

	a.  The applicant improperly gave preferential treatment to subordinates of his command in violation of AR 600-20 (Army Command Policy).

	b.  The applicant was improperly derelict in the performance of his duties in violation of Article 92, Uniform Code of Military Justice (UCMJ).

	c.  The applicant improperly used a Government Services Administration (GSA) vehicle for his personal use in violation of Article 121, UCMJ and the Joint Ethics Regulation (JER).

7.  The IO was also specifically directed that, prior to beginning her investigation, she was to receive a briefing from the Installation Legal Office regarding all aspects of the investigation and to meet with the applicant to discuss the allegations and issues contained in the IGAR and other details of the investigation.

8.  The investigation commenced on 8 March 2005.  During the course of her investigation, the IO interviewed 38 Soldiers, six of whom were no longer assigned to the command.  On 10 March 2005, prior to rendering a statement, the applicant acknowledged he understood that he was the subject of an AR 15-6 investigation and that his disclosure of information pertaining to the investigation was voluntary with the understanding that if he did not provide the requested information the determinations or evaluations would be made based on the evidence that was contained in the investigation record.  The IO obtained sworn statements from the applicant and each of the 32 Soldiers still assigned to the unit.  On 12 April 2005, the IO completed her findings and recommendations and forwarded them to the Commander, U.S. Army Garrison Fort Buchanan, Puerto Rico.

	a.  The IO found that the allegation the applicant improperly gave preferential treatment to subordinates of his command in violation of AR 600-20 was substantiated.

		(1)  In accordance with AR 600-20, chapter 4-14b(1)-(3), relationships between Soldiers of different rank are prohibited if they:  compromise or appear to compromise the integrity of supervisory authority or the chain of command; cause actual or perceived partiality or unfairness; or involve, or appear to involve, the improper use of rank or position for personal gain.

			(a)  Some Soldiers did have the perception that the applicant exhibited preferential treatment towards certain members of the unit.  Intentionally or unintentionally, the applicant repeatedly selected certain individuals in the detachment to assist him and he did not consider the negative effects of his actions.

			(b)  The applicant knew that two noncommissioned officers (NCO) (Staff Sergeant (SSG) H and Master Sergeant (MSG) M) worked together prior to their assignment to the detachment and maintained a close friendship.  These facts appeared to be common knowledge among the Soldiers.  The applicant should have been sensitive to how Soldiers would react to SSG H's presence in the unit and should have made a conscious effort to dispel any perceptions and rumors of preferential treatment.  Instead, his actions exacerbated the situation.

			(c)  The applicant frequently requested that SSG H serve as his driver or perform certain special duties.  Soldiers working closely with SSG H complained that tasking her in this manner served as a method of excusing her from extra duties or details.

			(d)  Major (MAJ) E stated that soon after SSG H arrived at the unit, she was selected to work in the Mobilization Operations Center (MOC) because of her secretarial skills.  This may have been valid justification for placing SSG H in the MOC, but Soldiers had already formed the opinion that the applicant preferred SSG H over them because of her friendship with MSG M.

			(e)  The applicant and SSG H visited MAJ C's office to deliver SSG H's Army Physical Fitness Test (APFT) scorecard.  According to MAJ C, the applicant directed him to remove SSG H's suspension of favorable personnel actions (FLAG) and request promotion orders from G-1, 65th Regional Reserve Command.  The applicant stated the meeting in MAJ C's office was not planned; SSG H called him on the cell phone and since he was in the area, he told her that he would meet her there.  When the applicant injected himself into the enlisted Soldier's action, he compromised his authority as Officer in Charge (OIC), presented the appearance that he influenced SSG H's promotion, and caused more rumors of preferential treatment.

			(f)  MAJ P stated the applicant displayed preferential treatment toward Soldiers in the unit.  He believed that the applicant shielded MAJ O from additional duties and demanding assignments.  He stated the applicant threatened his Officer Evaluation Report (OER) because he refused to sign a DA Form 4187 (Personnel Action).  MAJ P also believed the applicant also attempted to influence the processing of his request for EAD orders.  MAJ P submitted an official complaint to the IG and attempted to resolve these issues through the chain of command.

			(g)  MAJ C stated the applicant showed preferential treatment toward an NCO in her section when she was assigned as OIC of the Logistics Control Center, Camp Santiago.  The NCO failed to follow a direct order and jeopardized the mission.  The applicant did not support MAJ C's recommendation for disciplinary action under the provisions of Article 15, UCMJ, interfered with her supervisory role, and negatively impacted her ability to lead the NCO.  This incident occurred during March 2003.

			(h)  The applicant executed poor judgment in dealing with the above mentioned situations.  He failed to eliminate the perception of preferential treatment and communicate to his Soldiers that he, as a leader, would not tolerate special treatment of Soldiers in the unit.  Because of these shortfalls and the applicant's relationship with NCOs who were the basis of Soldiers' complaints, issues or concerns involving preferential treatment were not discussed with him.  It appeared that Soldiers kept their concerns at their level and wanted to avoid possible retaliation or harassment.  The applicant admitted that the Soldiers apparently did not trust him enough to discuss these types of problems with him.

	b.  The IO found the allegation that the applicant was improperly derelict in the performance of his duties in violation of Article 92, UCMJ was not substantiated.

	c.  The IO found the allegation that the applicant improperly used a GSA vehicle for his personal use in violation of Article 121, UCMJ and the OER was substantiated.

		(1)  As OIC, the applicant was responsible for the utilization of all GSA vehicles within the detachment.  Although there was no written command policy on the use or assignment of GSA vehicles when the investigation was started, the IO submitted that common sense should have prevailed, meaning that GSA vehicles are only used to conduct official business.

		(2)  Sergeant (SGT) V admitted to using a GSA vehicle in performing a personal errand for the applicant.  SGT V stated the applicant gave him a personal check and directed him to pay his bill at a bank.  SGT V was told to drive the GSA vehicle to the bank.

		(3)  The majority of Soldiers stated they were not aware if GSA vehicles were used improperly.  Some Soldiers hinted that the GSA vehicles could have been used for personal business, but they did not provide written comments.  One Soldier, SSG M, stated "he witnessed the GSA vehicle being used by certain NCOs for personal business."  SSG M stated that Sergeant Major 
(SGM) P, MSG M, and SSG H would use the vehicle for personal and official business and he witnessed the vehicle being used to travel to lunch, dinner, and shopping.

	d.  In view of the above findings, the IO recommended, as a minimum, the applicant receive formal counseling and/or Memorandum of Reprimand for his actions.  He was fully aware of his responsibilities as OIC of the detachment.  It is a reasonable assumption that he was aware of developing problems and issues in the unit.  When he did not conduct himself in the proper manner or implement corrective actions in a way that is expected of an officer at the rank of LTC, he placed himself in a position in which Soldiers would start to lose confidence in his abilities as a leader.

		(1)  The applicant was not appointed to the position of commander in accordance with the provisions of AR 600-20.  He erroneously assumed the role and title of Detachment Commander after COL M departed from Camp Santiago.
Although the applicant was not corrected by his superiors, he should have requested approval from the Installation Commander to use the title of commander.  Many of the Soldiers knew that he was not officially a commander and this action did cause some confusion.

		(2)  The applicant failed to recognize the difference between delegated duties as an OIC of a section versus the appointed duties of a commander.  His role as an OIC did not override the commander's authority.  He should have observed the boundaries between his duties as OIC and the commander's responsibilities, and supported the chain of command.

		(3)  As OIC, it was the applicant's responsibility to establish and maintain a "zero tolerance" unit climate for preferential treatment of Soldiers and fraternization among the ranks.  He was aware of existing friendships and he should have ensured that these relationships did not interfere with the good order of the unit.

		(4)  As OIC, it was the applicant's responsibility to counsel, mentor, and serve as a role model to subordinate officers.  In dealing with some of his subordinates, to include MAJ C and MAJ P, it appeared he let his personal feelings interfere with his professional judgment and evaluation of the Soldier's individual performance.

		(5)  As OIC, it was the applicant's responsibility to ensure that government property was used in the conduct of official military business only.  In the absence of a command policy, the applicant should have drafted a policy for unit personnel to govern the use of GSA vehicles.  To simply say that there was no written policy is not an excuse to abuse privileges.

		(6)  As OIC, the applicant has the responsibility to ensure all administrative details and actions were completed before his departure.  He should not be released until he has ensured all OERs, NCOERs, and award submissions have been processed.  At this point, all documents requiring his signature should have been completed.  The applicant should be directed to provide a unit roster to the Headquarters and Headquarters Company Garrison Commander which lists the status of administrative actions for all Soldiers, to include those who were currently assigned or released from active duty at the time.

	e.  The IO provided the following observations on other issues:

		(1)  Morale.  The IO did not sense that the overall morale of the Soldiers was low.  During the investigation, the IO found the majority of Soldiers in the unit were hard working, committed, and focused on the mission.  There were only a few individuals who made the assignment unpleasant.  The names of SGM P, MSG M, and SSG H came up several times during the conduct of interviews.  Soldiers believed that the senior leadership showed preferential treatment to SSG H and she should not have been promoted.  The majority of complaints were not directed toward the applicant, but there was a sense among the Soldiers that he was a friend of the senior NCOs, which made it difficult for them to approach him about the issue.

		(2)  Counseling and Evaluations.  It appeared that quarterly counseling and timely submission of evaluations were not a priority in the unit and occurred as required, not as a standard.  There were some concerns over final evaluations which should be addressed before the applicant's release.

		(3)  Sexual Harassment.  No Soldier mentioned or hinted about sexual harassment.  In the IO's opinion, the detachment Soldiers were respectful of both sexes.

		(4)  Mandatory military training classes.  It was apparent that both officers and enlisted Soldiers in the detachment would have benefited from military classes during their tour on active duty.  Classes such as Consideration of Others, Sexual Harassment, Equal Opportunity, Fraternization and Command Policies, would have served as a preventative and corrective measure for the Soldiers.  Leaders must ensure that all Soldiers understand certain acts will not be tolerated.

9.  The Commander, U.S. Army Garrison Fort Buchanan sent a memorandum to the Commanding General (CG), First Army, Fort Gillem, Forest Park, GA, wherein he recommended that the CG review the AR 15-6 investigation in which substantiated misconduct was found against the applicant.  He noted the applicant was in a promotable status and that allegations from the investigation arose as a result of a command climate assessment conducted by the installation IG after receiving complaints from Soldiers assigned to the detachment.  The IO recommended that the applicant receive formal counseling or a memorandum of reprimand for his actions.  In view of the fact the CG had withheld the authority to administer adverse administrative or judicial action against Soldiers in the grades of E-8 and above, he requested that the CG initiate a GOMOR against the applicant.

10.  On 8 July 2005, the CG, First Army, reprimanded the applicant for misconduct which was substantiated by an AR 15-6 investigation.  The CG noted that:

	a.  the applicant gave a personal check to a subordinate Soldier and directed him to drive a GSA vehicle to pay a personal bill at a local bank off-post.  Not only is such an order illegal, but it is also misuse and abuse of government resources.  Such conduct is in violation of AR 600-20 and Article 92, UCMJ.

	b.  the applicant threatened to negatively impact an officer's OER when that officer properly refused to sign a DA Form 4187 that he was not authorized to sign.

	c.  this reprimand was imposed as an administrative measure and not as punishment under Article 15 of the UCMJ.  This GOMOR could be filed permanently in the applicant's AMHRR or it could be filed in his local file for up to 3 years, or until the applicant was reassigned to another general court-martial jurisdiction, whichever came first or not at all.
	d.  before a final decision was made the applicant could submit any statements or other matters he wished to have considered.

11.  On 11 July 2005, the applicant acknowledged receipt of the GOMOR and elected to submit matters on his own behalf.  However, on 15 July 2005, the applicant rendered a memorandum wherein he stated he would not be making any type of rebuttal to the GOMOR he received from the CG, First Army.  He added that he would appreciate it if this matter could be concluded with the utmost urgency and relative privacy.  He also expressed his appreciation for his counsel's assistance and legal guidance in this matter.

12.  On 1 August 2005, the CG, First Army directed the GOMOR, dated 8 July 2005, be filed in the performance portion of the applicant's AMHRR.  The CG noted that in making this filing determination, he had complied with the policies and procedures of AR 600-37 (Unfavorable Information), chapter 3, dated 
19 December 1986.  He also noted the applicant had been afforded an opportunity to comment, but had declined his right to do so.

13.  The GOMOR, applicant's acknowledgement of receipt, declination of opportunity to submit a rebuttal, and the CG's filing determination are currently filed in the performance section of the applicant's AMHRR.

14.  On 2 December 2005, the applicant submitted a request under the Freedom of Information Act (FOIA) to the Installation FOIA Officer, Fort Buchanan, Puerto Rico, in order to obtain a copy of the aforementioned AR 15-6 investigation.

15.  Counsel provides a self-authored memorandum addressed to the CG, First Army, Subject:  "Memorandum Letter of Reprimand - [applicant's name and social security number]", dated 30 January 2006.  In this memorandum, the applicant stated:

	a.  On 8 July 2005 he was issued a GOMOR pursuant to the findings of an AR 15-6 investigation which should have been furnished to him along with the GOMOR.  He contended his due process rights had been infringed upon as he was not provided all the required information or given a full opportunity to defend himself from the false charges in the GOMOR in a proper Memorandum of Rebuttal.

	b.  He took particular exception to the accusation that he had "threatened to negatively impact an officer's OER when that officer properly refused to sign a DA Form 4187" and contended he deserved the right to be heard on this matter and would like the opportunity to discuss his grievances in a memorandum of rebuttal based on all relevant information used against him.
	c.  On 1 August 2005, he was informed the GOMOR was to be filed in the performance portion of his AMHRR.  As of December 2005, he had been in the current zone for promotion to the rank/pay grade of COL/O-6.  Because of the GOMOR in his record, his promotion was delayed until a PRB could review his packet.  His right to earn an income was being infringed upon as the Department of the Army was refusing to promote him to COL based on a faulty GOMOR.

	d.  AR 600-37 provides that unfavorable information is not to be filed in an official personnel file unless the recipient has been given a chance to review the documentation that serves as the basis for the proposed filing.  He attested he was not afforded the right to review all the documentation that was used against him in drafting the GOMOR.  Additionally, although there is no legal requirement, he was told a FOIA request was required in order for him to view the findings of the AR 15-6 investigation upon which his GOMOR was based.  He attested that in spite of submitting a FOIA request, he had still not been provided a copy of the investigation.

	e.  As a direct result of these injustices, he requested a copy of the investigation be provided to him and that he be given the opportunity to draft a Memorandum of Rebuttal to combat the fictitious GOMOR which was preventing him from being promoted to COL.

	f.  The signature block portion of this memorandum bears the applicant's typewritten name and rank, a handwritten entry indicating the original was signed, and his initials.

16.  On 30 January 2006, an adverse action FLAG was initiated by the Chief, Office of Promotions, Reserve Components in order to suspend favorable personnel actions for the applicant.  On 6 February 2006, a memorandum was sent to the applicant informing him:

	a.  The Reserve Promotion Special Selection Board that recessed on 6 August 2004 recommended him for promotion to COL in the USAR.

	b.  In accordance with Department of the Army Policy and AR 135-155, promotion lists are screened continuously to ascertain if an officer thereon may have become unqualified prior to promotion to the next higher grade.  Review of his record revealed he had been issued a GOMOR on 8 July 2005.

	c.  His record would be reconsidered by a Department of the Army PRB for reconsideration of his promotion eligibility.  Until a final determination was made, he was not in a promotable status.

	d.  He had a maximum of 45 days from the date of this memorandum to submit any information in his behalf prior to the submission of his records to the PRB.

17.  On 8 March 2006, the applicant rendered a memorandum addressed to President, PRB, Subject:  Request for favorable consideration of promotion status to O-6 Army Promotion List (APL).  In this memorandum the applicant stated:

	a.  In January 2005, while awaiting deployment orders from the Army G-3 for an assignment with the Rapid Equipping Force (REF).  Unfortunately, he was unable to deploy when needed in March 2005 due to an ongoing AR 15-6 investigation involving several of his Soldiers, which in turn prompted another investigation of which he was the subject.

	b.  As a result of the investigation, he received a GOMOR from the CG, First Army.  He immediately sought the advice of his supervisor, who gave him the impression that if he decided not to challenge the allegations in the GOMOR, then he could deploy with the REF.  Otherwise, the appeal process could take weeks, if not months, and he would miss the opportunity to deploy on a combat tour.  At this point, the applicant had not viewed the findings of the investigation nor did he know whether the GOMOR was to be filed in his AMHRR.  He accepted the GOMOR, not knowing the implications it would bring to his career, and deployed to Kuwait a few days later.

	c.  While deployed in Kuwait, he received a letter stating the GOMOR was to be placed in the performance portion of his AMHRR.  Unfortunately, he could not take action on this matter until he returned to the United States.  Upon redeployment, he immediately sought legal guidance and requested a copy of the investigation.

	d.  Upon review of the investigation, he was extremely shocked and dismayed to learn of the allegations which became the basis for the GOMOR.  He acknowledged the misuse of the GSA vehicle, but took exception to the other allegations.

	e.  He attested that upon his arrival at the detachment, he was immediately forced to dismiss MAJ P from his duties due to his ineffectiveness as the Mobilization S-1.  He contended that, as a result of this dismissal, MAJ P held a grudge against him and tried to get back at him by rendering a false claim that the applicant had threatened him with a negative OER for refusing to sign a document.

	f.  His leadership style may have caused discomfort among some personnel.  However, the mission required directive leadership and a no-nonsense attitude and his OERs are a measure of his success and the fact that he had always maintained an excellent record of performance.  Following his deployment to Kuwait, he was chosen to become the Operations Director for the REF, which was clearly an honor and reward for a job well done.

	g.  He had 27 years of military service with no previous court-martial convictions or nonjudicial punishment under the provisions of Article 15, UCMJ.  He has deployed to Kuwait with visits to Iraq, has maintained an excellent record of performance, has attempted to be the best officer he could be, and avoided (to the best of his ability) misperceptions and partiality.

	h.  The possibility of being removed from the COL/O-6 promotion list was very painful to say the least.  He attested he had demonstrated his ability to serve at a higher level and intended to submit an appeal to the Department of the Army Suitability Evaluation Board (DASEB) requesting the GOMOR be removed from his AMHRR or transferred to the restricted portion of his AMHRR.

	i.  He had learned a valuable lesson from this embarrassing situation and respectfully requested the PRB consider removing the FLAG and allowing him to remain on the APL.

18.  The applicant was subsequently removed from the APL.  On 30 June 2006, the applicant was released from active duty with an honorable characterization of service and transferred to the USAR Control Group (Individual Ready Reserve).

19.  The applicant was transferred to the Retired Reserve effective 25 June 2009.

20.  In addition to the aforementioned information which was extracted from the applicant's AMHRR, Counsel provides a Supplemental Statement on behalf of the applicant wherein he essentially presents:

	a.  Reasons why it is in the interest of justice to consider the application:

		(1)  From 2003 to 2007 the applicant was mobilized and deployed numerous times, including the CO-EAD Program.  In computing limitation periods for including agency appeals, the time on active duty is not to be included.  Moreover, his deployments did contribute to his delay in responding to the GOMOR.

		(2)  2006 to 2008, there were further delays complicating efforts to appeal the GOMOR and PRB actions.  In 2006 the applicant attempted to approach the General Officer (GO) who imposed the GOMOR for his support in an appeal to the GOMOR.  However, that GO was initially preoccupied during the Hurricane Katrina emergency in his role as Command, Joint Task Force Katrina.  The applicant learned the GO would soon be retiring and was advised to then seek his support.  However, in late 2008 once the GO had retired, he communicated to the applicant that since time had passed, he should appeal to the DASEB or this Board.

		(3)  In late 2008, the applicant served again on active duty, then prepared for retirement in November 2009, and relocated his residence and family in 2010.

		(4)  Army records are complete, and they fairly contain all the necessary contentions at issue for decision.

		(5)  Counsel's arms were injured in an accident in late 2007, experiencing constant numbness in the hands and forearms, and eventual muscle atrophy.  Legal work at this time was limited to part-time.  Counsel's medical condition worsened and he underwent additional treatment, multiple surgeries, and substantial physical rehabilitation through 2010.

	b.  Factual Support/Errors and Injustice:

		(1)  Counsel reiterates the allegations of the investigation were whether the applicant 1) gave preferential treatment to subordinates in violation of AR 600-20; 2) was derelict in the performance of his duties in violation of Article 92, UCMJ; and 3) used a GSA vehicle for personal use in violation of Article 121, UCMJ (misappropriation).  He contends allegation "2" is related to allegations "1" and "3" - in that whether violation of AR 600-20 is such that it also constitutes an Article 92 offense of dereliction of duties to obey.  In accordance with the Manual for Courts-Martial (MCM), Article 92 applies when someone violates/fails to obey a regulation or is derelict in performance of duties imposed by regulation.  He contends dereliction can occur either intentionally or negligently, but "a person is not derelict if the failure to perform those duties is caused by ineptitude" (MCM at paragraph 16.c(3)).  Secondly, the intent to treat together the dereliction allegation with the other two, appears in the eventual GOMOR.

		(2)  Counsel also contends that although the first allegation was substantiated, the IO found no actual or real preferential treatment or deliberate maltreatment.  Counsel bases this contention on the fact that in various sub-findings, the IO said the applicant's actions gave the appearance of preference that he should have been sensitive thereto, which led to his conclusion that the applicant's actions demonstrated poor judgment by not resolving these perceptions.

		(3)  Counsel notes the IO recommended "formal counseling and/or Letter of Reprimand," but the appointing authority elected to request a GOMOR from the CG.  The CG rendered a GOMOR for conduct that violated AR 600-20 and Article 92, UCMJ, which appears to be for dereliction in violating that regulation's rule against improper use of rank for personal gain.

		(4)  Counsel acknowledges the fact the applicant withdrew his request to submit a rebuttal to the GOMOR so the matter could be brought to a close as soon as possible.  However, he reiterates the applicant's claim that he was not provided a copy of the investigation at the time he was issued the GOMOR and that he never received a copy until December 2005 in response to a FOIA request.

		(5)  Counsel reiterates the content of the applicant's delayed rebuttal, dated 8 March 2006, as previously detailed in paragraph 17 above.

21.  AR 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.

   a.  Paragraph 1-9 provides, in pertinent part, that the regulation does not require that an investigation be conducted before adverse administrative action, such as relief for cause or punishment under the provisions of Article 15 of the UCMJ, can be taken against an individual.

   b.  In addition, there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the 
Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards.

22.  AR 600-20 prescribes the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct, the Army Equal Opportunity (EO) Program, and the Army Sexual Assault Victim Program.  Paragraph 4-14 pertains to relationships between Soldiers of different rank and applies to different-gender relationships and same-gender relationships.  All military personnel share the responsibility for maintaining professional relationships.  However, in any relationship between Soldiers of different grade or rank, the senior member is generally in the best position to terminate or limit the extent of the relationship.  Commanders should seek to prevent inappropriate or unprofessional relationships through proper training and leadership by example.  Should inappropriate relationships occur, commanders have available a wide range of responses.  These responses may include counseling, reprimand, order to cease, reassignment, or adverse action.  Potential adverse action may include official reprimand, adverse evaluation report(s), nonjudicial punishment, separation, bar to reenlistment, promotion denial, demotion, and courts-martial.  Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair.  Violations of this policy may be punished under Article 92, UCMJ as a violation of a lawful general regulation.  This paragraph states relationships between Soldiers of different rank are prohibited if they:

	a.  Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.

	b.  Cause actual or perceived partiality or unfairness.

	c.  Involve, or appear to involve, the improper use of rank or position for personal gain.

	d.  Are, or are perceived to be, exploitative or coercive in nature.

	e.  Create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

23.  Article 92, UCMJ (Failure to obey order or regulation) states any person who commits any of the following offenses shall be punished as a court-martial may direct:

	a.  violates or fails to obey any lawful general order or regulation:

		(1)  That there was in effect a certain lawful general order or regulation;
		(2)  That the accused had a duty to obey it; and

		(3)  That the accused violated or failed to obey the order or regulation.

	b.  having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order

		(1)  That a member of the armed forces issued a certain lawful order;

		(2)  That the accused had knowledge of the order;

		(3)  That the accused had a duty to obey the order; and

		(4)  That the accused failed to obey the order.

	c.  is derelict in the performance of his duties:

		(1)  That the accused had certain duties;

		(2)  That the accused knew or reasonably should have known of the duties; and 

		(3)  That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties.

24.  AR 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  This regulation states that only those documents listed in Table B-1 (Authorized documents) and Table C-1 (Documents no longer authorized for filing) are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.  Once placed in the AMHRR, the document becomes a permanent part of that file.  Table B-1 provides that letters/memorandums of reprimand, censure, or admonition will be filed in the "Performance" portion of the AMHRR unless directed otherwise by the DASEB.

25.  Table 3-1 (Army Military Human Resource) of AR 600-8-104 provides, in pertinent part, that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army (HQDA), selection board proponent.  Documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

26.  AR 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

27.  Chapter 7 of AR 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.  Paragraph 7-2 of this regulation states 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.
Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

28.  AR 600-37 provides, in pertinent part, 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.

29.  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 chapter 7 of AR 600-37.

30.  AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility.  Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.

	a.  HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.

	b.  An officer may be referred to a PRB for numerous reasons, to include a Memorandum of Reprimand placed in the AMHRR.

	c.  Appropriate officials, including commanders (through command channels to Major Area Commands); The Judge Advocate General; The Surgeon General; the Chief of Chaplains; the Chief, General Officer Management Office; the Director, Officer Personnel Management; and the CG, Army Human Resources Command, may recommend at any time that an officer's name be removed from a promotion list.

	d.  For officers selected for promotion to COL, HQDA will conduct a post-board screening of the restricted fiche of recommended officers and information in other official files such as those maintained by the U.S. Army Criminal Investigation Command and the DAIG.  A review board convened at HQDA will consider any adverse information from this screening and advise the Deputy Chief of Staff (DCS), G-1, or the DCS, G-1's designee, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the Secretary of the Army should consider recommending removal of the officer's name from the report of the selection board or the officer should be referred to a PRB.

31.  AR 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for setting aside and removing the GOMOR from his AMHRR, setting aside his removal from the 2005 COL USAR Promotion List, and promoting him to the rank/grade of COL/O-6 with the appropriate retroactive DOR were carefully considered and deemed to lack merit.

2.  Prior to presenting her findings and recommendations to the appointing official, the IO confirmed her understanding that in accordance with the standards of proof detailed in AR 15-6, paragraph 3-10(b), her findings had to be supported by greater weight (preponderance) of evidence than that which supports a contrary conclusion and that the conclusion had to be more credible and probable than any other conclusion.

3.  The appointing official reviewed the investigation and the matters submitted by the applicant and concluded the applicant's behavior ran counter to the standard he had set for his officers and the result this action could have on his career should have been considered before he chose to engage in the conduct that he did.  As a result, he requested that the CG issue the applicant a GOMOR, and the CG elected to comply.

4.  The applicant's and his counsel's contentions that the GOMOR was not properly referred with the investigation conducted under the provisions of AR 
15-6 as required to permit a timely rebuttal is unfounded.  AR 15-6 specifically states there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the Soldier a reprimand based upon the investigation because the regulations governing written reprimands provide the necessary procedural safeguards.  Additionally, evidence clearly shows the CG afforded the applicant an opportunity to seek counsel, review the matters brought against him and to submit a written rebuttal to the proposed GOMOR, but he voluntarily declined to do so, in writing.  As a result, the CG decided to issue the GOMOR to the applicant and directed the filing of the document in the performance section of his AMHRR.

5.  The applicant and his counsel failed to provide any evidence in support of their contentions that the applicant attempted to approach the GO who imposed the GOMOR in an effort to appeal the GOMOR and PRB actions, but was ignored; therefore, these claims are unsubstantiated.

6.  The fact that counsel's arms were injured in an accident in late 2007 is duly noted.  However, nothing precluded the applicant from seeking legal counsel from another lawyer during his original counsel's incapacitation.

7.  The evidence shows the applicant received a GOMOR for misconduct.  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 chose not to submit a rebuttal.  Subsequently, the GOMOR was referred for filing in the performance section of his AMHRR.

8.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.

9.  By regulation, in order to remove a document from the AMHRR, there must be clear and convincing evidence showing that the document is untrue or unjust.
The applicant failed to submit evidence that the document in question which is filed in the performance section of his AMHRR is untrue or unjust.  Therefore, it is deemed to be properly filed and should be retained in his AMHRR.  

10.  The applicant's and his counsel's contentions that the PRB's decision to remove him from the promotion list was not justified is also unfounded.  HQDA continuously reviews promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.  An officer may be referred to a PRB for numerous reasons, to include a Memorandum of Reprimand placed in the AMHRR.  Evidence shows a review board convened at HQDA determined the applicant's GOMOR was substantiated, relevant, and it reasonably and materially affected his promotion recommendation.  As a result, he was referred to a PRB.  The PRB carefully considered the matters brought against the applicant as well as the rebuttal he submitted and determined he should be removed from the promotion list.

11.  The evidence shows the GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his AMHRR.  Subsequently, the GOMOR was appropriately considered by a PRB and the applicant was afforded an opportunity to present matters in his own behalf for consideration by the PRB.  After considering all of the evidence, it was determined that he should be removed from the promotion list.  There is no evidence of an error or an injustice.  Therefore, there is no basis for granting the applicant's 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)                                         AR20120006145



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ABCMR Record of Proceedings (cont)                                         AR20120006145



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