IN THE CASE OF:  .

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20120007602 


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 derogatory information, in effect, a General Officer Memorandum of Reprimand (GOMOR) and a Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) (hereafter referred to as the contested report) (from the performance section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  

2.  He states that due to the filing of these documents in his AMHRR, he was referred to a STAB and may possibly be removed from the USASMA list.  He received a GOMOR as well as the contested report for an incident that happened while conducting an operation in Afghanistan during the period 2007 to 2008.

	a.  While serving as an infantry platoon sergeant on the 22nd day of a 30-day operation (Operation Maiwand), his platoon received word from Afghan National Defense Service Agents that several insurgents were operating in the village of Niazollah.  The purpose of the operation was to attempt to destroy Improvised Explosive Device (IED) cells that were destroying equipment and killing many American Soldiers and coalition forces.

	b.  A German National reporter was imbedded within his platoon of 
15 Soldiers.  Somewhere around 0300 hours (3:00 AM), while under the cover of darkness, approximately 30 Afghan National Army (ANA) soldiers and 15 Afghan National Policemen (ANP) accompanied his platoon on a "Cordon and Search" operation in the village of Niazollah.  
	c.  Upon arriving and settling into security positions, he and his Afghan counterpart searched a home where one fighting-aged male was detained.  Upon exiting the home, he asked the ANA soldier if the individual was an insurgent.  The ANA soldier did not speak English well, but in his own way motioned "yes" to his question.

	d.  Upon placing the individual in flex cuffs and then placing him on the ground, he explained to the ANA soldier he had to go to the other cordon location where other suspected insurgents were being held before ANP arrived.  This meant the ANA soldier would be left alone with the detainee.

	e.  Understanding he would be left alone with the detainee, the ANA soldier took a piece of tubular nylon from his truck and tied one end to the ankle of the detainee and the other end to the rear of the truck to prevent escape.  At this time, the German reporter took a picture of the applicant standing about 10 feet behind the detainee with his ankle tied, the ANA soldier, and the rear of the truck and published an article once he returned to Germany.  The article stated Americans were threatening Afghans with torture in an attempt to gain information.

	f.  The investigation, as conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) later proved the allegations and many others made by the reporter were false.  The statements given by the ANA soldier, the detainee, and the applicant all proved that at no time did the detainee feel threatened with harm or feared for his life.

	g.  Although the investigation found him not guilty of committing the acts as depicted by the German reporter, he still received two possible career-ending documents which were filed in his AMHRR.

	h.  He understood the ramifications the accusations had on the United States and the mission as a whole.  He did everything possible in an attempt to clear the name of the unit and ultimately the U.S. Army.  He thought that all investigative parties involved were looking out for his best interest as well but quickly discovered otherwise.

	i.  Although the photographs can be interpreted in several different ways, the facts are clear as stated by the detainee himself that it simply did not happen.

3.  The applicant also states that throughout his 16 years of military service he has demonstrated he possesses the tactical and technical competence as well as moral and ethical courage necessary to lead Soldiers in the Army.  He has 


learned from his mistakes and since the incident, has used his experience to better prepare his Soldiers for the rigors of combat and military service.  He also feels the events on the day in question have made him a better NCO and have provided him with another tool to lead from the front.

4.  He adds that since the incident, he has been promoted to master sergeant (MSG)/E-8 and served as a first sergeant (1SG) for 36 months in an Airborne Infantry Battalion and deployed to Afghanistan for another 12 months as a 1SG of a Rifle Company.  He was commended by all levels of the chain of command as having the best company in the brigade.

5.  He provides:

* his rebuttal to the GOMOR
* 12 letters of support
* four NCOERs 
* an Enlisted Record Brief (ERB)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 March 1995.  He completed training in military occupational specialty (MOS) 11B (Infantryman) and he remained on active duty through a series of continuous reenlistments.  He is currently serving on active duty in the rank/grade of MSG/E-8.

2.  On 24 June 2007, Colonel (COL) MPS appointed Lieutenant Colonel (LTC) SWM as the investigating officer (IO).  He was directed to investigate the allegations of maltreatment of an Afghan local national detainee made in an article by a German news magazine.  In part, the article included the following allegations:

	a.  The applicant was involved in the maltreatment of a detainee (detainee tied behind vehicle, engine started, threatened with being dragged if he did not answer the ANA soldier's questions).

	b.  The applicant allegedly was quoted as saying, "…sometimes it works… it works.  I know of a 13 year old boy who was recently threatened with being shot and suddenly he gave a lot of useful information."

3.  Additionally, on 24 June 2007, the applicant's battalion commander at the time initiated a Commander's Inquiry to determine the validity of the allegations.  He recommended an independent IO be assigned from outside the battalion, stating:


	a.  The account of the story as published in the German magazine and as told by the applicant contained many contradictions.  He further recommended that a formal Army Regulation 15-6 investigation be initiated due to the many inconsistencies.  He noted the applicant had been temporarily suspended from his position as platoon sergeant until the investigation was completed.

	b.  At the request of the applicant, a polygraph examination was conducted on 26 June 2007.  The initial results indicated some deception; however, the applicant rendered a full and accurate statement at the conclusion of the examination.

	c.  In an email, dated 24 June 2007, and written by the IO to the appointing officer, COL MPS, the IO stated, in part, "Bottom line – it appears a grain of truth was inflated – single U.S. Soldier involved – but not in any torture – dragging – beating – or toleration of same.

	d.  His record is absent a formal investigation as requested by his battalion commander.

4.  The Report of Investigation, dated 29 June 2007, shows the evidence indicated that the applicant and an ANA soldier conducted a search of Qalat during combat operations in support of Operation Maiwand.  Insurgents had engaged coalition forces from a village with rocket-propelled grenades and small arms fire during the previous evening.  The applicant and the ANA soldier detained and questioned a local national male found at the compound.  The detainee gave several conflicting reports and was believed to have been an insurgent.

	a.  The IO found that the allegations made by the German magazine were sensationalized and generally unsubstantiated.

	b.  He also found the applicant participated in an incident where a local national was secured to a vehicle that was started by the applicant while undergoing questioning by an ANA soldier.

	c.  The IO recommended the applicant be disciplined pursuant to the Uniform Code of Military Justice (UCMJ).

	d.  He also recommended the German magazine print a retraction and the reporter who wrote the article lose his/her credentials for future embeds with coalition forces.


5.  The findings of the investigation were approved on 20 August 2007.  The approval authority requested the Commanding General (CG), Combined/Joint Task Force 82, issue the applicant a GOMOR.  He stated the following:

	a.  The investigation revealed the applicant used inappropriate and inhumane tactical questioning techniques when he started a vehicle and revved the engine while the detainee was secured to the bumper of the vehicle.  The incident was witnessed by a German journalist and later reported in a German news magazine.

	b.  The applicant demonstrated poor judgment and extreme departure from the standards expected of a senior NCO.  He recommended the GOMOR be filed in the applicant's AMHRR.

6.  On 4 September 2007, the applicant was issued the GOMOR by the CG.

	a.  The GOMOR shows, in part, the applicant was charged with the responsibility of leading Soldiers and ensuring a vital mission within the global war on terrorism was executed in accordance with the Geneva Convention, applicable laws, and Department of Defense standards, which governs the processing and humane treatment of detainees.  His actions demonstrated a failure to enforce these standards.

	b.  The reprimand was imposed as an administrative measure and not as punishment under Article 15 of the UCMJ.  The CG's intention was to direct filing a copy in the applicant's AMHRR.  The GOMOR was referred to the applicant for rebuttal.

7.  The applicant provided a copy of his four-page rebuttal, dated 29 October 2007.  This document shows he requested the GOMOR be filed in his local file.  He acknowledged his actions or lack thereof and provided a detailed explanation into the events.

8.  He also provided a memorandum in support of his rebuttal that was prepared by his senior defense counsel.  Counsel wrote, in part, the incident was an unfortunate culmination of a few bad decisions and an overly zealous reporter and photographer.  He requested the CG consider the applicant's prior stellar performance as an outstanding NCO and file the GOMOR locally.

9.  On 19 November 2007, the CG reviewed the applicant's case file, the filing recommendations of his chain of command, the administrative reprimand, and the applicant's rebuttal matters.  He directed the GOMOR be filed in the applicant's AMHRR.
10.  A review of his record shows the GOMOR is filed in the performance section of his AMHRR.

11.  The contested report is a "Relief for Cause" NCOER covering the period 
1 July 2007 through 4 September 2007.  This report shows the following entries:

	a.  Part Iva. – Army Values shows he received a "No" rating in item 3 (Respect/EO/EEO (Equal Opportunity/Equal Employment Opportunity)) and the report contains the bullet:  "suspended from duty because of allowing an Afghan Policeman to threaten violence on a local national."

	b.  Part IVb. – Values/NCO Responsibilities, f. (Responsibility and Accountability) shows an "X" was placed in the "Needs Improvement (Some)" block and contains the bullet comments:

* the rated NCO has been notified of the reason for the relief
* emphasis on attention to detail resulted in zero accidents
* consistently takes responsibility for his decisions whether right or wrong

	c.  Part V – Overall Performance and Potential show the rater placed an "X" in the "Fully Capable" block.  The senior rater placed an "X" in the "Successful 3" block of item c (Senior Rater.  Overall Performance) block and an "X" in the "Superior 2" block of item d (Senior Rater. - Overall Potential).  The bullet comments in item e (Senior Rater Bullet Comments) read:

* promote to MSG with peers; an extremely knowledgeable NCO that is ready for increased responsibility
* send to the 1SG course with peers
* dynamic leader with unlimited potential; should be given a 1SG position

	d.  The remainder of the contested report contain a mixture of "Excellence" and "Success" ratings with bullet comments that support each.

	e.  The contested report is filed in the performance section of the applicant's AMHRR.

12.  He also provided four subsequent NCOERs beginning 5 September 2007 and ending 26 May 2011.  These NCOERs show he cumulatively received all "Excellence" and one "Success" rating in Part IVb and he was rated "Among the Best" on all reports.  The senior rater portions of the reports show he received all "Successful 1" and Superior 1" ratings and state, in part, he had unlimited potential and he was the epitome of the senior warrior.

13.  His record shows he was promoted to MSG/E-8 on 1 June 2008.  He was also selected to attend the resident USASMA course by the Fiscal Year 2011 (FY11) SGM Training/Selection Board as shown in the board results memorandum, dated 11 August 2011.  He was not assigned a promotion sequence number; however, the letters "RES" are listed next to his name indicating he is a resident course select.  This document also shows, in part, the following information:

	a.  All Soldiers identified as selects on this list are subject to additional administrative review and the list is not to be construed as a promotion, appointment, or permanent change of station (PCS) order.

	b.  Soldiers should not assume that the structure of the list or presence of a name on the list constitutes a firm forecast for promotion or appointment. 

	c.  Eligibility for attending the USASMA course and promotion to SGM requires Soldiers be successfully screened for suitability.  Soldiers who ultimately fail to clear the background suitability screening will not gain eligibility to attend the USASMA course or retain a promotable status to SGM.

	d.  The U.S. Army Human Resources Command (HRC) will issue PCS orders for attendance to the USASMA course only after Soldiers are cleared by Headquarters, Department of the Army (HQDA) following suitability screening. 

14.  The applicant's name remains as a USASMA course selectee on the FY12 SGM Selection/Training Board Results that were released on 9 August 2012.

15.  He provided 12 letters of support from various Soldiers serving in the grades of COL, LTC, Major, Captain, Command Sergeant Major, and SGM.  These documents cumulatively recommend the applicant be retained on the SGM list and attend the USASMA course:

* his commitment to providing top quality service is unmatched by peers and superiors
* he continuously goes above and beyond the call of duty to provide the best leadership and quality service that the Army's Soldiers deserve
* he is an exceptionally competent and confident leader who will continue to make the Army proud
* he totally transformed a dysfunctional organization into a well trained and disciplined unit
* he is a proven combat leader who epitomizes the creed of the NCO
* nearly all authors of the letters stated they feel compelled to defend the applicant as it has been an honor to serve with this stellar and outstanding NCO
* he was recognized by several CSMs as being the best 1SG in the brigade as well as the battalion
* he is trustworthy, loyal, honest, and accountable
* he is a self-starter and can be relied upon to accomplish multiple tasks simultaneously 
* he has an impeccable character and he is the best infantry NCO, leader, trainer, and mentor that one of the authors has ever served with
* he is the type of NCO who genuinely cares about Soldiers and their well-being and holds himself and his Soldiers to the highest ethical and moral standings
* his character and duty performance provides the necessary evidence to retain him on the SGM list and to attend the USASMA course

16.  One of the letters of support is from his battalion commander at the time of the incident.  He wrote, in part, he had weekly contact with the applicant and watched him lead Soldiers throughout difficult, complex and often ambiguous combat operations.  The incident that led to this review was a single, isolated event and is not indicative of his overall performance.

	a.  The applicant learned and developed from the experience and it is best illustrated by his exemplary service and subsequent combat deployments since 2008.  He demonstrated that is an extremely high-quality NCO, leader and a man who refused to quit on his profession or his Soldiers because of one isolated event.

	b.  The board has a difficult task as it determines who is worthy of the privilege of leading the Army's Soldiers at the highest level.  He endorses the applicant's appeal with complete confidence.  A full review of his performance and assessment of his potential can lead to only one outcome -- allowing him to attend the USASMA course and retaining him on the SGM list.

17.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.


	a.  Paragraph 2-3 covers the actions required by the appointing authority.  It states unless otherwise provided by another directive, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board.  Therefore, the appointing authority may take action less favorable than that recommended with regard to a respondent or other individual, unless the specific directive under which the investigation or board is appointed provides otherwise.

	b.  The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the investigation or board.

	c.  Paragraph 3-19 states a written report of proceedings will be submitted, in two complete copies, directly to the appointing authority or designee, unless the appointing authority or another directive provides otherwise.  If there are respondents, an additional copy for each respondent will be submitted to the appointing authority.

	d.  The appointing authority will notify the IO if further action, such as taking further evidence or making additional findings or recommendations, is required. Such additional proceedings will be conducted under the provisions of the original appointing memorandum, including any modifications, and will be separately authenticated.

18.  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.

	a.  A GOMOR 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.


	b.  Paragraph 7-2 (Policies and standards) 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 OMPF.

	c.  Paragraph 7-2b provides that only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  In addition such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  This regulation further provides that in the cases where the appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted section of the AMHRR.

19.  Army Regulation 600-8-104 (Army Military Human Resources Record Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  Only those documents listed in tables 2-1 and 2-2 are authorized for filing in the AMHRR.  Depending on the purpose, the documents will be filed in performance, service, or restricted section.

	a.  The performance section is routinely used by career managers and selection boards.  Documents placed in this section are limited to those that provide evidence of a Soldier's demonstrated performance.  These documents are used for evaluation and selection purposes.  

	b.  Disciplinary information filed on the restricted section of the AMHRR will be provided to CSM/SGM promotion boards, USASMA selection boards, and CSM/SGM retention boards to ensure the best qualified Soldiers are selected for these positions of highest trust.

	c.  Documents in the restricted section 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 interest of the Soldier and the Army.


20.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.

	a.  It provides the objectives of the Army's Enlisted Promotions System, that include filling authorized enlisted spaces with the best qualified Soldiers.  Paragraph 4-14 stipulates, in part, that the Deputy Chief of Staff, G-1, or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier's AMHRR when the file was reviewed by a promotion board.

	b.  It also states, in part, a Soldier’s name may be removed from the USASMC enrollment selection list by the promotion authority on receipt of adverse information that clearly warrants denial of enrollment and participation in the USASMC.

21.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 2166-8 (NCOER).

	a.  Paragraph 1-9 states evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pam 623-3 (ERS).

	b.  Paragraph 4-11 states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption.  For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.

	c.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander’s or Commandant’s Inquiry may provide support for an appeal request.


DISCUSSION AND CONCLUSIONS:

1.  He stated the investigation, as conducted under the provisions of Army Regulation 15-6, later proved the allegations and many others made by the reporter were false.  Although the investigation found him not guilty of committing the acts as depicted by the German reporter, he still received two possible career ending documents which were filed in his AMHRR.  He also thought that all investigative parties involved were looking out for his best interest as well but quickly discovered otherwise and as a result, the GOMOR and contested report should be removed from his record.

2.  The regulatory guidance that covers investigations states the appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the investigation or board.  Therefore, the appointing authority may take action less favorable than that recommended by the IO, unless the specific directive under which the investigation or board is appointed provides otherwise.

3.  The applicant has not provided sufficient evidence or argument to show the investigation was not properly conducted or that he was not provided due process.  The appointing authority, along with the CG, found the applicant acted in a manner that was not expected of a senior NCO and as such, directed the issuance of a GOMOR and Relief for Cause NCOER, both which are filed in his AMHRR.

4.  The applicant contends the GOMOR and contested report that are filed in the performance section of his AMHRR caused his records to be referred to a STAB and he may possibly be removed from the selection list to attend the USASMA course.

5.  He is correct in his assertion that upon review, his name may be removed from the selection list.  A copy of the FY11 SGM Selection/Training Board Results memorandum explicitly explains that all Soldiers identified as selects on this list are subject to additional administrative review and the list is not to be construed as a promotion, appointment, or PCS order.  Eligibility for attendance at the USASMA course requires Soldiers be successfully screened for suitability.


6.  The FY12 SGM Selection/Training Board Results that were released on 
9 August 2012 still show the applicant as a resident course selectee.  As a result, it appears the STAB did not remove him from the list.

7.  His participation in the inhumane tactical questioning techniques as stated in the GOMOR and as listed on the contested report, even though a one-time event is an extremely serious offense.  In the event a selection choice comes down between two Soldiers with an equal record of service, all information properly filed in the AMHRR must be available to board members in order to equitably make their selection choice.

8.  The contested report shows he received two "Excellence" ratings in spite of the serious offense listed on the report.  As such, this report does not appear to be unfair or unjust and should remain in the performance section of his AMHRR.

9.  It is evident that the filing of these documents that occurred in January 2008 did not hinder the decision of the MSG/E-8 promotion selection board or the FY11 SGM Selection/Training Boards.  Both promotion and school selection board members are highly-experienced military officials who are capable of distinguishing between a poor decision and a "problem" record of service.

10.  Selection boards for CSM/SGM, USASMA course, and SGM retention are provided access to documents filed in the restricted section of the AMHRR.  As a result, the applicant's records, along with all other selectees on the FY11 and the FY12 SGM Selection/Training Board lists will be thoroughly screened for suitability.

11.  However, the governing regulation authorizes the transfer of a GOMOR from the performance to the restricted section of the record when it can be determined the document has served its intended purpose.  The evidence of record in this case shows the applicant has accepted responsibility for his actions.

12.  Given the strong support by his chain of command and various other leaders as shown in the letters of support, it is concluded that the GOMOR in question has served its intended purpose.  Thus, it would be appropriate to transfer the GOMOR to the restricted portion of the applicant's OMPF at this time.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X __  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the GOMOR from the performance section to the restricted section of his AMHRR.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing/transferring the contested report to the restricted section of his AMHRR.




      __________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)                                         AR20120007602



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ABCMR Record of Proceedings (cont)                                         AR20120007602



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