BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120011370 


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), dated 3 March 2010, from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states the GOMOR is for child neglect and related issues.  He reopened the investigation into the child neglect based on new evidence obtained after the GOMOR was filed in his AMHRR.  The determination on the case based on the new information was "not substantiated, did not occur."  This GOMOR should be removed on the basis of fairness and equity.

3.  The applicant provides:

* affidavit, dated 30 May 2008
* affidavit, dated 2 June 2008
* undated letter
* medical report, dated 4 June 2008
* initial court report, 11 June 2008
* memorandum, dated 22 May 2009
* 10 email messages
* student training history
* three daily sign-in rosters
* request for GOMOR, dated 8 October 2009
* GOMOR, dated 3 March 2010
* 
GOMOR rebuttal, dated 12 April 2010
* GOMOR filing recommendation, dated 26 April 2010
* memorandum, dated 22 June 2010
* memorandum, dated 13 July 2010

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service, the applicant was appointed as a Reserve warrant officer one (WO1) on 27 May 2005.  He currently serves as a military intelligence warrant officer in military occupational specialty 352S (Signal Collection Technician) and holds the rank/grade chief warrant officer two (CW2).

2.  He was assigned to Headquarters and Headquarters Detachment, 205th Military Intelligence Battalion, Fort Shafter, HI, from 18 September 2007 to 31 March 2009.  During this assignment he received two OER's.

	a.  His first OER covers the rating period 18 September 2007 through 14 July 2008.  His rater wrote, "Superb performance by a quality officer….superior knowledge of operations, intelligence and information systems… a remarkable asset.  Excellent potential.  Select for CW3 ahead of his peers and send to the Warrant Officer Advanced Course."  His senior rater checked a block indicating he was "best qualified" and wrote, "Outstanding potential, select for promotion ahead of his peers and send him to the Warrant Officer Advanced Course."

	b.  He provided an affidavit, dated 30 May 2008, wherein a police officer with the Dallas, TX, police department stated he responded to a police service call for child abandonment at the home of the applicant's former spouse.  When he arrived, he spoke to the next door neighbor who stated the children (male twins born on 6 April 2001, female born on 15 September 2003, and female born on 5 June 2006) were left alone and unattended at their mother's residence.  Upon entering, he observed the residence was in poor condition.  The living room was empty and there were human and animal feces on the kitchen, living room, and both bathroom floors.  He called Child Protective Services (CPS) for assistance.  He transported the children to CPS for their safety.  

	c.  He provided an affidavit, dated 2 June 2008, wherein a caseworker for the Dallas County CPS Unit of the Texas Department of Families and Protective Services (TDFPS) stated, on 30 May 2008, the TDFPS intake received a call for an investigation alleging the physical neglect and abandonment of the applicant's four children by their mother.  The allegation stated the children's mother was not providing adequate physical care for the oldest victims (7 years old) and the siblings (4 years old, 1 year old).  The children were left alone for extended periods of time without any supervision.
		(1)  Upon physical observation, the children appeared to be very small for their ages, pale and extremely hungry when they came into CPS even though they had recently been fed by a police officer.  The case worker observed the 1-year old had difficulty walking.  The children told the case worker their mother had gone to work and would not be returning until 5:00 a.m.  They further stated a babysitter was supposed to be watching them but had not arrived.  

		(2)  The children left their home and went next door to a neighbor's house and the police were called.  At 9:30 p.m., a police officer transported the children to CPS after their mother did not show up at the home.  

		(3)  The daytime babysitter was located.  She stated that she kept the younger children during the day and the older children when they returned from school in the afternoon.  The nighttime babysitter was her employee and was unable to keep the children on the night in question.  The daytime babysitter stated the children's mother picked them up at 6:30 p.m. and she witnessed the mother leaving alone at 7:15 p.m.; however, she was not aware the children were alone.  The daytime babysitter informed TDFPS that the children's mother was likely with her boyfriend and provided his number.

		(4)  The case worker contacted the boyfriend and spoke to the children's mother at 11:30 p.m.  The case worker informed the mother her children were at the CPS office and she needed to come to the office immediately.  The mother arrived at the CPS office at approximately 2:00 a.m., although she had told the case worker she was only a short distance away.  

		(5)  The children were extremely frail and immediately taken to a children's medical center.  Each child was severely underweight and diagnosed with a failure to thrive.  The twin boys were both diagnosed with hernias which would require surgery.  The 1-year old only weighed 16 pounds, was the size of a 
9-month old, and had to be hospitalized for nutritional purposes.

		(6)  During the processing of the investigation, the case worker discovered the mother had been previously reported to CPS on 16 February 2008 for physical neglect.  The allegations in the case were similar to the current case.

	d.  In November 2008, the applicant obtained custody of his four children.

	e.  His second OER covers the rating period 15 July 2008 through 31 March 2009.  His rater wrote, "An excellent rating period…Excellent potential.  Select for CW3 ahead of his peers and send to the Warrant Officer Advanced Course."  His senior rater checked a block indicating he was "best qualified" and wrote, "An admirable performance by a highly skilled and exceptional professional…He should be selected ahead of his peers for promotion and selection for the Warrant Officer Advanced Course."

3.  He was assigned to the 715th Military Intelligence Battalion, Schofield Barracks, HI, from 1 April 2009 to 22 September 2010.  During this assignment he received three OER's and a GOMOR.

	a.  His record contains a memorandum issued by the Chairperson, Case Review Committee (CRC)/Department of Social Work, Family Advocacy Program, Tripler Army Medical Center, Honolulu, HI, on 22 May 2009.  The memorandum was sent to inform him the Family Advocacy CRC had made an incident determination on an allegation of child neglect.  The memorandum stated:

		(1)  "The CRC met on 19 May 2009 to review incidents 20090125 and 20090124 [on 24 and 25 January 2009.]  The allegation was child neglect.  The CRC determined the incident[s] met criteria for child neglect and will enter the determination into a Department of Defense Central Registry database."

		(2)  "The CRC recommends the service member be command-directed to contact the assigned case worker below to schedule and monitor treatment and to comply with the recommended actions determined by the CRC."

		(3)  "Treatment Plan:  Parenting Group, New Parent Support Program, Nutritional Care Services, Comply to CPS recommendations (Family Support Services)."

		(4)  "In accordance with Army Regulation 608-18 (The Army Family Advocacy Program), if the alleged offender or victim disagrees with the determination, either may request a review….The CRC findings are to be shared between you and your commander."

		(5)  On 4 June 2009, Captain (CPT) M___ T. P___, his company commander at the time, signed the bottom of this memorandum indicating the applicant's command concurred with the treatment plan and that he would act as the applicant's sponsor.

	b.  His record contains a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), issued by CPT R___ L. S___, his company commander at the time, on 20 May 2009.  CPT R___ L. S___ informed him he was being investigated for failure to report and child neglect.

	c.  He provided a certificate of completion showing he completed and passed the 2273 Managing and Maintaining a Microsoft Windows Server 2003 Environment Course from 3 August to 7 August 2009.

	d.  The first OER while assigned to Company A, 715th Military Intelligence Battalion, covers the rating period 1 April 2009 through 12 August 2009.  He served as a SIGINT technician.  His rater, Commander (CDR) C___ D. A___, checked a block indicating "satisfactory performance, promote" and wrote, "[Applicant's] overall work performance has been satisfactory during the rating period.  [Applicant] is a deep thinker with the innate ability to understand difficult concepts and organize his thoughts in support of the battalion and NSA/CSS mission; however, from May to August 2009, [Applicant] was faced with a serious Family crisis that impeded his mission performance and focus.  As a result [Applicant] was moved from NTOC-H [National Threat Operations Center-Honolulu] to be able to handle his family crisis."  His senior rater and battalion commander, Lieutenant Colonel (LTC) P___ C. P___, checked a block indicating he was "fully qualified" and wrote, "Satisfactory performance throughout the rating period.  [Applicant's] intelligence and ability to grasp difficult concepts quickly could make him well suited for Signals Intelligence Operations.  [Applicant] possesses potential."

	e.  On 8 October 2009, Colonel (COL) C___ S. B___, his brigade commander, sent a memorandum to Brigadier General (BG) M___ A. L___, Commander, 8th Theater Sustainment Command, Fort Shafter, HI, requesting a GOMOR.  The memorandum stated:

		(1)  On 18 May 2009, the applicant was reported absent from his duty location by his work section.  The applicant's company commander (CPT R___ L. S___) located him at his quarters and questioned him as to why he failed to report to work.  The applicant made a false official statement to CPT R___ L. S___ by stating he had, in fact, been at work.  Upon review of the badge-in log, it was discovered that the applicant had not only been absent on 18 May 2009, but that he also left without authority and failed to return to work on 14 May 2009, and failed to report to work at all on 15 May 2009.  Also, on various dates in May 2009, he received four on-post traffic citations.

		(2)  On 19 May 2009, allegations of child neglect made against the applicant were substantiated by the Family Advocacy CRC.  On 11 June 2009, he was reported absent from duty by his work section and upon review of the badge-in log, it was found he was also absent without authorization on 8 June 2009 and 9 June 2009.  Between 6 July 2009 and 7 August 2009, he was tardy, left early, or failed to report to network classes he was required to attend.  On 13 August 2009, he was notified that his supervisor requested his removal from his work duties due to substandard performance, lack of leadership, and unreliability.

	f.  The Fiscal Year 2010 CW3 Promotion Selection Board recommended him for promotion to CW3 in February of 2010.  Additionally, the April 2010 edition of the Army Times listed him by name and showed his promotion sequence number as 428.

	g.  In a GOMOR, dated 3 March 2010, BG M___ A. L___ officially reprimanded him for making a false official statement, numerous failures to report, and a substantiated finding of child neglect.  The GOMOR further stated, on divers occasions between 18 May 2009 and 7 August 2009, he failed to report to his appointed place of duty and/or without authority left his appointed place of duty.  On 18 May 2009, he made a false official statement to CPT R___ L. S___ about his whereabouts, which was verified by CPT R___ L. S___ when he reviewed the badge-in log.  On 19 May 2009, an allegation of child neglect was substantiated by the Family Advocacy CRC.

	h.  He submitted a rebuttal to the GOMOR, dated 12 April 2010, wherein he stated in pertinent parts:

		(1)  While with the 205th Military Intelligence Battalion the battalion commander asked him if he could help the battalion by serving in the S-2 position; he did so for 12 months and was slated to become the collection manager.  However, Texas CPS called him in the fall of 2008 and it became apparent he might acquire custody of his four children because their mother was not treating them properly.  Texas CPS asked if he desired custody of his four children.  As a result, he delayed the collection manager position and remained in the S-2 position for another 6 months.

		(2)  In November of 2008, he became a single father overnight and the only refuge for four children who had been abandoned by their mother.  All of the children were severely underweight, all had received the medical diagnoses of a failure to thrive, and all were prone to illnesses due to a lowered immune system.  His twin sons, were diagnosed with hernias and his 1-year old daughter, had to be hospitalized for 5 days due to malnourishment.  All of the children suffered from extreme separation anxiety and had nightmares.  He remained in the S-2 position until his departure from the 205th Military Intelligence Battalion and arrival to the 715th Military Intelligence Battalion on 1 April 2009.

		(3)  Allegations of child neglect were made against him.  On 13 May 2009, he spoke with a case worker at Tripler Family Advocacy who indicated his case would be forwarded to the Case Review Board soon, but was unsure of the exact date.  During this time he tried to acquire all the evidence he could, researched the case review process, and began consolidating all this data and his evidence.

		(4)  In mid-May 2009, he realized he would be missing time from work.  He planned on starting the evening shift which would have allowed him to take care of his personal challenges during the day and still fulfill his work obligations.  He was supposed to be working the evening shift on 18 May 2009 but was instructed, after being counseled on 19 May 2009, to attend work only during the day shift.  As anticipated, in the following weeks he had to miss work on several occasions to take care of:

* childcare placement which required more time, due to the children's background of neglect and increased susceptibility to illness
* preparation for the initial child neglect case review
* preparation of rebuttal to the finding of neglect for the case review
* attendance at weekly morning meetings in Pearl Harbor (8 weeks)
* meetings with legal assistance
* attendance of nutritional appointments at Tripler Army Medical Center
* one of his children who broke an arm which required surgery to repair and multiple follow up appointments
* working with Family Advocacy and attending their classes 
* sick children
* setting up summer daycare

		(5)  On 18 May 2009, CPT R___ L. S___, his company commander at the time, asked him what was going on with work and where he had been.  Since he had been studying in the "HEAT" classroom within the National Security Agency (NSA), Hawaii, and since he was in uniform on his way to work, he thought CPT R___ L. S___ was referring to not working in his actual work center.  He informed CPT R___ L. S___ it had been difficult to receive training within the National Threat Operations Center; therefore, he had to go to the "HEAT" classroom and conduct training there.  He acknowledges he should have finished his statement to CPT R___ L. S___ instead of assuming CPT R___ L. S___ had fully understood him.  Later, he discovered he had provided CPT R___ L. S___ a response to a question he had not been asking.  The end result was CPT R___ L. S___ reengaging him prematurely by stating he had been looking for him and to stand by to speak with the battalion commander.  It was not his intention to deceive anyone.  When he spoke to CPT R___ L. S___ he was in uniform and on his way to work.

		(6)  On 19 May 2009, CPT R___ L. S___ counseled him for failing to report to work; however, CDR C___ D. A___, his rater, recorded his absences only on 18 May 2009, indicating his section was aware of his absences on 14 May 2009 and 15 May 2009 due to family reasons.  He failed to ensure work was 100-percent aware of his beginning the evening shift on 18 May 2009 by verifying and re-verifying that the new work schedule had been completely vetted up through the operational chain of command.

		(7)  On 11 June 2009, CPT M___ T. P___, his new company commander, issued him a counseling statement for failing to report to work.  However, as stated previously, CDR C___ D. A___, his supervisor and rater, recorded his absences as occurring only on 18 May 2009.  His section was aware of his absences from work occurring on 8 June 2009 when his daughter was ill and on 9 June 2009 when he attended a command-directed class in Pearl Harbor after which he reported back to the company area at 1340 hours and stayed there for the remainder of the day.  On 11 June 2009, he attended another command-directed class in Pearl Harbor and then secured summer daycare for his children.

		(8)  On 13 August 2009, CPT M___ T. P___, his company commander, issued him another counseling statement for failure to report to classes from 13 July 2009 to 7 August 2009.  The NSA policy on class attendance mandates a required attendance of 80 percent in order to pass the class.  He has a certificate and transcripts showing he passed each class in which he participated.  Additionally, he included statements from fellow students attesting that he was present for each class.  Each instructor provided a sign-in sheet attesting to the fact that he was present and attended classes in excess of the NSA minimum-attendance policy.

		(9)  On 1 March 2010, he met with someone regarding his child neglect case to present new evidence he was able to acquire.  The new evidence was substantial enough to allow him to request that COL D___ F. A___, Chief and Chairman of the Department of Social Works, conduct another review of his case.  On 9 April 2010, he met with COL D___ F. A___, presented the new evidence, and COL D___ F. A___ indicated he would reinvestigate the allegations of child neglect.

	i.  The following correspondence pertains to his excused absences and was attached to his rebuttal:

		(1)  He provided an email, dated 30 April 2009, showing he sent an email to Ms. N___ P___, a civilian employee in his section, to remind her that he was in the "HEAT" classroom if anyone were looking for him.

		(2)  He provided an email, dated 12 June 2009, from Mr. A___ G___, the technical director of his section, which stated his section had been aware he was/was going to be absent from work on the following days for the following reasons and the sign-out roster reflects such:

* 8 June 2009 – care for sick child (received approval)
* 9 June 2009 – class in Pearl Harbor in the morning
* 9 June 2009 – personal appointments in the afternoon (prior approval)
* 11 June 2009 – appointment at Tripler (prior approval)
* 11 June 2009 – appointment to obtain summer childcare (prior approval)
* 11 June 2009 – worked on Family Care Plan (prior approval)

		(3)  He provided an email, dated 1 August 2009, from Sergeant First Class N___ C___, the senior enlisted leader of his section, who stated the applicant had been out of the office on 8 June 2009 to care for a sick child and on 11 June 2009 for appointments regarding daycare/Family Care Plan.

	j.  He provided the following correspondence which pertains to his attendance at various mandatory courses during the month of July 2009 and was attached to his rebuttal:

		(1)  Four email from fellow students state, in effect, that he was in attendance at all of classes during the month of July 2009 and from 3 August 2009 to 7 August 2009, and did not leave until he was released by the instructor.

		(2)  A student training history search and three daily sign-in rosters show he completed, passed, and had perfect attendance in the following classes:

* Interconnecting CISCO Network Devices 1 (6 July 2009-10 July 2009)
* Interconnecting CISCO Network Devices 2 (13 July 2009-17 July 2009)
* Telecommunications Fundamentals – Parts 1 and 2 (27 July 2009-31 July 2009)

		(3)  An email, dated 17 May 2010, from COL C___ S. B___, Commander, 500th Military Intelligence Brigade, Schofield Barracks, HI, states, "I acknowledge, and have always acknowledged that [Applicant] completed the '2273 Managing and Maintaining a Microsoft Windows Server 2003 Environment' Course and that [Applicant] passed the various NSA-H courses listed in attached Enclosure #1."

		(4)  An email, dated 29 July 2010, shows a school official confirmed his attendance at the "MS course 2773" from 3-7 August 2009.

		(5)  An email, dated 29 July 2010, shows a school official verified his attendance of the "NETW2259" on 6-10 July2009, "NETW3008" on 13-17 July 2009, and "NETW1002" and completed all three courses.  He further stated, "any absences would have been noted on the transcript."

	k.  On 26 April 2010, his chain of command prepared a GOMOR filing recommendation wherein:

		(1)  CPT M___ T. P___, his company commander, stated the applicant's "performance and conduct resulted in severe loss of credibility and lack of confidence among peers and subordinate alike.  [Applicant] performs adequately under supervision and does not possess the necessary leadership and technical skills to be an effective officer."

		(2)  LTC P___ C. P___, his senior rater and battalion commander, stated "the actions [Applicant] demonstrated show an extreme lack of judgment, professionalism, and integrity.  Therefore, I recommend filing this letter of reprimand in his [AMHRR]."

		(3)  COL C___ S. B___, his brigade commander recommended filing the GOMOR in the applicant's AMHRR and stated, "There is a pattern of substandard performance, poor judgment, and lack of integrity.  I fear he simply does not have the character and leadership to serve in greater levels of responsibility."

	l.  The GOMOR was filed in the performance section of his AMHRR on 5 May 2010.

	m.  The second OER while assigned to Company A, 715th Military Intelligence Battalion, covers the rating period 13 August 2009 through 18 June 2010.  During this rating period he served as a special project officer.

		(1)  His new rater and company commander, CPT M___ T. P___, checked a block indicating "satisfactory performance, promote" and wrote, "[Applicant's] overall work performance has been somewhat satisfactory during the rating period.  Rather than directing his energies toward the mission, however, [Applicant] spent the vast majority of his time disputing previously substantiated child neglect allegations and other misconduct, as well as his removal from duty at the National Threat Operations Center (NTOC).  [Applicant] spent countless hours at legal and medical appointments, resulting in excessive absences from his assigned duty.  He showed rather increased initiative for mission support during this rating period….[Applicant] possesses great potential, but his lack of personal responsibility and tarnished credibility limited him from achieving his full potential.  Promote to CW3 upon continual satisfactory performances."

		(2)  His senior rater, LTC P___ C. P___, checked a block indicating he was "fully qualified" and wrote, "Mediocre performance throughout the rating period.  [Applicant] is uniquely suited for Signals Intelligence Operations; however, his somewhat average performance, lack of personal responsibility, and unreliability resulted in severe loss of confidence among superiors and peers alike.  He performed somewhat satisfactory [sic] as a Special Duty Officer, but often required continual supervision to complete tasks, therefore difficulty and importance of his assigned duties remained correspondingly low.  [Applicant] possesses potential.  Promote to CW3 at a later time, upon continual satisfactory performances."

	n.  His record contains two memoranda issued by the Chief of the CRC/Chairperson, Department of Social Work, Family Advocacy Program, Tripler Army Medical Center, Honolulu, HI – the first issued on 22 June 2010 and the second on 13 July 2010.  Both memoranda were sent to inform him that the Family Advocacy CRC had made a final determination on the reopened investigation of the allegations of child neglect.  The CRC determined that the allegations of "child abuse/child neglect" were "unsubstantiated, did not occur."

	o.  It appears he was reassigned within the 715th Military Intelligence Battalion from Company A to the Headquarters Operation Center (HOC) on 19 June 2010.

	p.  On 13 August 2010, CPT R___ L. S___, his former company commander, wrote a memorandum for record which stated CPT R___ L. S___ was his company commander from 1 April 2009 to 29 May 2009.  This memorandum further stated:

* on 19 May 2009, CPT R___ L. S___ counseled him solely for failure to report
* on 20 May 2009, CPT R___ L. S___ read him his rights and suspected/accused him solely for failure to report and child neglect; he went on to make a sworn statement and answered all the questions CPT R___ L. S___ asked
* he informed CPT R___ L. S___ the child neglect allegations against him had been unsubstantiated
* during CPT R___ L. S___'s tenure as his company commander, he never counseled, suspected, or accused him of making a false official statement

	q.  His OER while assigned to the HOC, 715th Military Intelligence Battalion, covers the rating period 19 June 2010 to 22 September 2010.  He served as the assistant battalion S-3.  His rater wrote, "Strong performance by [Applicant].  Within a week of starting the job [Applicant] took the lead as the Battalion M16/M9 range Officer in Charge, responsible for developing the OPORD, training the range cadre and coordinating with range and ammo personnel for resources….As a SIGINT analysis subject matter expert [Applicant] proved to be a valuable asset to 35S MOS training….  [Applicant] has the technical expertise and dedication to serve in positions of greater responsibility; must promote to CW3 and select for future staff positions."  His senior rater checked a block indicating he was "best qualified" and wrote, "Solid performance…has great potential for future service in the MI Warrant Officer Corps.  Promote to CW3 and send to the Warrant Officer Advanced Course."

4.  He was reassigned to Company A, 297th Military Intelligence Battalion, Fort Gordon, GA, on 29 September 2010.

5.  In a memorandum, dated 22 October 2010, the U.S. Army Human Resources Command (HRC) informed him his promotion might be delayed because his record indicated he received a GOMOR after the convening date of the promotion selection board.  He was further informed that the Promotion Review Board (PRB) could recommend to the Secretary of the Army that he be retained on the promotion list, be removed from the promotion list, or be forced to show cause for retention on active duty.

	a.  His rebuttal to HRC, dated 4 November 2010, essentially restated the arguments he made in the rebuttal he made in reference to his GOMOR.

	b.  Military Personnel Message 10-327 issued on 16 December 2010 shows that sequence numbers 377 through 431 were selected for promotion to CW3 effective 1 January 2011.

	c.  In a memorandum, dated 5 May 2011, the HRC PRB recommended his removal from the Fiscal Year 2010, CW3 Promotion List.  Accordingly, on 25 January 2012, the Secretary of the Army directed his removal from the promotion list effective immediately.

6  The Department of the Army Suitability Evaluation Board (DASEB) disapproved his request for removal of his GOMOR on 2 November 2011.

7.  The Manual for Courts-Martial, Article 107 (False Official Statements), states any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.  In order to constitute a false official statement the accused must have signed a certain official document or made a certain official statement, the document or statement was false in certain particulars, the accused knew it to be false at the time of signing it or making it and the false document or statement was made with the intent to deceive.  Official documents and official statements include all documents and statements made in the line of duty.  The government may be the victim of this offense.  The false representation must be made with the intent to deceive.  It is not necessary that the false statement be material to the issue inquiry.  If, however, the falsity is in respect to a material matter, it may be considered as some evidence of the intent to deceive, while immateriality may tend to show an absence of this intent.  The false representation must be one which the accused actually knew was false.  Actual knowledge may be proved by circumstantial evidence.  An honest, although erroneous, belief that a statement made is true, is a defense.

8.  Army Regulation 600-37 (Unfavorable Information), chapter 7 (Appeals and Petitions), states appeals and petitions for removal of unfavorable information are to be directed to the DASEB.  Paragraph 7-2a (Appeals for Removal of AMHRR Entries) states 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.  

9.  Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-16 (Evaluation Parameters), states a rating official's evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report.  Each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period.  A report will not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

10.  Army Regulation 623-3, paragraph 3-19 (Unproven Derogatory Information), states any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded.  This regulation further states:

	a.  No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to Headquarters, Department of the Army (HQDA).  For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself.

   b.  If the rated Soldier is absolved, comments about the incident will not be included in the evaluation.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier's AMHRR, such as charges that are later dropped, or charges or incidents of which the rated Soldier may later be absolved.

	c.  Any verified derogatory information may be entered on an evaluation report.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's reference to verified derogatory information.  

	d.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal.  Reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status.  Upon completion of the trial or investigation, processing of evaluation reports will resume.

11.  Army Regulation 623-3, paragraph 3-20 (Prohibited Comments), states  when nonjudicial punishment is given and filed in the restricted portion of the AMHRR or locally rating officials may not comment on the fact that such nonjudicial punishment was given to a rated Soldier.  This does not preclude mentioning the rated Soldier's underlying misconduct, which served as the basis for the nonjudicial punishment.

12.  Army Regulation 600-8-29 (Officer Promotions), chapter 8 (Promotion Review Boards), states the Secretary of the Army may remove the name of a warrant officer who is on a promotion list.  PRBs are used to advise the Secretary of the Army in any case in which there is cause to believe that a warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion.  An officer may be referred to a PRB for a referred OER, a memorandum of reprimand placed in the official files, or adverse documentation filed in the official files.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR he received on 3 March 2010 should be removed from his AMHRR on the basis of fairness and equity.

2.  Many of the dates and statements within this GOMOR were taken from COL C___ S. B___'s 8 October 2009 request for a GOMOR.

3.  His GOMOR stated, "on 18 May 2009, he made a false official statement to CPT R___ L. S___ about his whereabouts, which was verified by CPT R___ L. S___ when he reviewed the badge-in log."

	a.  The applicant stated he believed he was starting a new shift on 18 May 2009, and on his way to work the night shift when CPT R___ L. S___ asked him what was going on with work and where he had been.  He believed CPT R___ L. S___ was referring to him not working at his actual work center and he responded by stating he had gone to the "HEAT" classroom to conduct training.  He stated the miscommunication was in fact a misunderstanding about his work schedule.  He was supposed to report to his work station on 18 May 2009 for the day shift but instead he had prepared to work the evening shift.  He acknowledged he should have paid closer attention to the finalized, fully-vetted schedule rather than assuming his schedule had changed based on the working copy which had not been officially published through the approval channel.  He further states it was not his intention to deceive anyone.

	b.  CPT RSL wrote a memorandum for record stating he only ever counseled the applicant for a substantiated allegation of child neglect and not reporting to work the day shift on 18 May 2009.  He further stated in his memorandum for record that he never suspected or accused him of, believed he made, or counseled him for making a false official statement about his whereabouts on 18 May 2009.

	c.  Based on CPT R___ L. S___'s memorandum for record and the applicant's statements, it is clear his company commander, CPT R___ L. S___, never accused him of, counseled him for, or believed he made a false official statement about his whereabouts on 18 May 2009; therefore, all references referring to making a false official statement should be removed from the GOMOR.

4.  His GOMOR stated, "on 19 May 2009, an allegation of child neglect was substantiated by the Family Advocacy CRC."  An allegation of child neglect was substantiated; however, the CRC did not have all the facts or information when the initial determination was made and the case was reopened based on new evidence provided by the applicant.  The CRC overturned the original decision and determined the allegation of child neglect was unsubstantiated and the child neglect never happened.  Therefore, all references referring to child neglect should be removed from the GOMOR.

5.  His GOMOR stated, he had "numerous failures to report; on divers occasions between 18 May 2009 and 7 August 2009, he failed to report to his appointed place of duty and/or without authority left his appointed place of duty."  The broad range of dates covered by this portion of the GOMOR are referencing certain dates listed in the request for the GOMOR initiated by COL C___ S. B___, on 8 October 2009 wherein COL C___ S. B___ specifically mentioned 14 May 2009, 15 May 2009, 18 May 2009, 8 June 2009, 9 June 2009, 11 June 2009, and four mandatory classes he took between 6 July 2009 and 7 August 2009.

	a.  14 May 2009 and 15 May 2009 were not included in the range of dates for which he was reprimanded in the GOMOR.

	b.  On 18 May 2009, he was reported absent from his duty location by his work section.  However, this issue was addressed by his company commander in a formal counseling session where he was most likely counseled about being more careful to ensure he checked the finalized schedule before assuming his work hours or shift had changed.  As indicated by the counseling he received, the issue was appropriately handled at the lowest possible level.

	c.  On 8 June 2009, the evidence shows he was home caring for his daughter who was ill, his section was aware of his absence, the reason for the absence, and the absence had been approved.

	d.  On 9 June 2009, the evidence shows he notified and received prior approval from his section to attend a mandatory class at Pearl Harbor in the morning and several personal appointments in the afternoon.

	e.  On 11 June 2009, the evidence shows he notified and received prior approval from his work section to attend a mandatory morning appointment at the Tripler Army Medical Center, an appointment to obtain childcare, and time away from his work center to work on his Family Care Plan.

	f.  He was scheduled for his first mandatory class, Interconnecting CISCO Network Devices 1, from 6 July 2009 to 10 July 2009.  The evidence shows an authorized school official, student sign-in roster, and fellow students verified he attended each day class from start to finish and was never absent.

	g.  He was scheduled for his second mandatory class, Interconnecting CISCO Network Devices 2, from 13 July 2009 to 17 July 2009.  The evidence shows an authorized school official, student sign-in roster, and fellow students verified he attended each day class from start to finish and was never absent.

	h.  He was scheduled for his third mandatory class, Telecommunications Fundamentals – Part 1 and 2 from 27 July 2009 to 31 July 2009.  The evidence shows an authorized school official, student sign-in roster, and fellow students verified he attended each day class from start to finish and was never absent.

	i.  He was only scheduled for one class during August of 2009, his fourth mandatory class, 2273 Managing and Maintaining a Microsoft Windows Server 2003 Environment Course, a 5-day class which took place from 3 August 2009 to 7 August 2009.  The NSA policy on class attendance mandated a required attendance of 80 percent in order to pass the class, meaning in order to pass this 5-day class he would have had to be in attendance for a minimum of 4 full days.  Passing the course is proof he was in attendance for at least 4 out of 5 days.

	j.  The evidence shows he attended all three of his mandatory classes in July 2009 without ever being absent or tardy.  Additionally, though there is no evidence showing he missed any of his fourth mandatory class in August, it is mathematically impossible for him to have missed more than 1 day.

6.  The evidence presented in this case supports removing all of the comments in the GOMOR which reprimanded the applicant, thereby making it necessary to remove the GOMOR in its entirety from the applicant's AMHRR.  As such, all other adverse actions, comments, or records affecting the applicant as a result of this GOMOR must also be addressed.

7.  The second OER he received while assigned to Company A, 715th Military Intelligence Battalion, covers the period from 13 August 2009 through 18 June 2010.  In this OER, his rater, CPT M___ T. P___, stated, "[Applicant's] overall work performance has been somewhat satisfactory during the rating period.  Rather than directing his energies toward the mission, however, [Applicant] spent the vast majority of his time disputing previously substantiated child neglect allegations and other misconduct, as well as his removal from duty at the National Threat Operations Center (NTOC).  [Applicant] spent countless hours at legal and medical appointments, resulting in excessive absences from his assigned duty.  He showed rather increased initiative for mission support during this rating period….[Applicant] possesses great potential, but his lack of personal responsibility and tarnished credibility limited him from achieving his full potential."  His senior rater for this period, LTC P___ C. P___, mirrored the rater's sentiments by stating, "lack of personal responsibility, and unreliability resulted in severe loss of confidence among superiors and peers alike.  He performed somewhat satisfactory as a Special Duty Officer, but often required continual supervision to complete tasks, therefore difficulty and importance of his assigned duties remained correspondingly low."

	a.  The evidence shows there was an ongoing, reopened, investigation regarding the previously-substantiated allegations of child neglect during the aforementioned rating period which had not been concluded by the end of the rating period.  This is evident because the CRC issued a memorandum on 22 June 2010 which stated, "CRC had made a final determination on the reopened investigation of the allegations of child neglect and determined the allegations of 'child abuse/child neglect' were 'unsubstantiated, did not occur.'"

	b.  He was well within his rights to spend time fighting allegations of child neglect and related issues of misconduct.  Collecting evidence and ensuring his rights were protected would have required a substantial amount of legal appointments.  Additionally, the legal appointments were necessary, it was his right to make them in an attempt to clear his name, and comments of this nature should not have been inserted into his OER as they are unjustly prejudicial.

	c.  He would also have spent a large portion of his time at medical appointments.  His four children had been seriously neglected by his former spouse and had severely weakened immune systems.  As a result, they became ill more frequently and required specialized medical care.  It was his responsibility as the father to ensure his children were receiving the medical attention they needed.  Additionally, he was also attending command-directed medical appointments, something his rater was well aware of as his command-directed sponsor, due to his previously-substantiated child neglect allegation.

	d.  His rater also mentions he spent too much time fighting his removal from duty at the National Threat Operations Center.  However, his rater from the previous rating period stated, "[Applicant] was faced with a serious family crisis that impeded his mission performance and focus.  As a result [Applicant] was moved from NTOC-H [National Threat Operations Center-Honolulu] to be able to handle his family crisis."  He was not moved as a punishment, he was moved so that he could better deal with the extraordinary situation in which he found himself.

	e.  The OER for 13 August 2009 through 18 June 2010 contains several examples of unfounded derogatory information and reference a substantiated child neglect allegation which was later found to be unsubstantiated.  The various comments about his medical and legal appointments, as well his "lack of personal responsibility, and unreliability [which] resulted in a severe loss of confidence among superiors and peers alike," are not valid given what is known.

	f.  The OER for 13 August 2009 through 18 June 2010 should be removed from his record and replaced with a non-prejudicial statement of non-rated time due to no fault of the Soldier.

8.  An HRC PRB convened because he received a GOMOR.  As a result of this PRB he was removed from the Fiscal Year 2010, CW3 Promotion List after the convening date of the promotion selection board.  Had the PRB not removed him from the promotion list, he would have been promoted to CW3 on 1 January 2011.  Since the PRB was based on an unfounded GOMOR, the PRB proceedings/ decision should be voided and all allied documents pertaining to the PRB should be removed from his AMHRR.

9.  The evidence shows he applied to and was denied relief by the DASEB.  However, since then the applicant was able to provide additional and pertinent evidence, which clearly shows his GOMOR was unfounded.  Therefore, the DASEB'S record of proceedings and all allied documents pertaining to the DASEB should be removed from his AMHRR.

10.  The evidence shows the GOMOR is unfounded and untrue, as such, in an effort to make the applicant whole; he should be promoted to CW3 with the date of rank and effective date appropriate for his promotion sequence number.  Additionally, he should receive all pay and allowances due as a result of this correction.

11.  As a matter of equity, and to make the applicant whole, this ABCMR record of proceedings and allied documents should be returned to the ABCMR for filing rather than filed in his AMHRR.

BOARD VOTE:

___X_____  ___X_____  _X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* removing the GOMOR, dated 3 March 2010, and all allied documents from his AMHRR
* removing the OER for the period 13 August 2009 through 18 June 2010, and replacing it with a non-prejudicial statement of non-rated time due to no fault of the applicant
* voiding the PRB's decision and removing all allied documents pertaining to the PRB from his AMHRR
* removing the DASEB's record of proceedings and all allied documents from his AMHRR
* promoting him to CW3 with the date of rank and effective date appropriate for his promotion sequence number
* paying him any pay and allowances due as a result of this correction
* returning the ABCMR record of proceedings and allied documents to the ABCMR for filing rather than filing them in 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)                                         AR20120011370



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ABCMR Record of Proceedings (cont)                                         AR20120011370



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