DOCKET NUMBER:  AR20120011936 


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 reconsideration of the portion of his original request for removal of a General Officer Memorandum of Reprimand (GOMOR), dated 28 October 2008, from his Army Military Human Resource Record (AMHRR), formerly known as the official military personnel file.

2.  The applicant states the investigation concerned him booking personal off-duty travel to see his family on weekends.  He contends that when he booked this travel, he told the booking agent that he was an active duty Reserve member taking personal travel.  He was subsequently given a "military leisure" rate, which is common in the airline industry. 

	a.  The Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) was defective and the findings were not supported by the evidence.  

	b.  The investigation never established the presence of a special airline program called "United's Thanks Our Troops" that was current and available to active duty personnel.

	c.  The airline booking agents gave him what he believed was a "leisure rate" that was available under this special program.  Unbeknownst to him, he was actually receiving the Government Services Administration (GSA) City Pairs rate which offers fares considerably discounted off comparable commercial fares.  This rate is reserved for official travel and requires a government travel card (GTC).
	d.  Prior to the AR 15-6, he received correspondence from United Airlines indicating he had been incorrectly fared under the government rate for past personal travel.

	e.  He attempted to resolve the matter with United Airlines and he was assured that the improper fare was an internal airline issue whereby the agent did not follow the rules of the fare which does not allow the use of a personal, non-government issued credit card for the issuance of a government fare. 

	f.  The investigating officer (IO) accepted the only evidence which was that he (the applicant) solicited travel agents for City Pairs without interviewing the agents.

	g.  It appears United Airlines confused their own "Thank Our Troops" program with the "City Pairs" program and they admitted the error when they stated that this issue was an internal airline issue.

	h.  If the IO had been aware of all the facts and properly applied all the facts, he would have reached a different conclusion.  His findings were not supported by any evidence and relied on the uncorroborated assertions of an airline employee. 

3.  The applicant provides:

* Printout from the United Airlines website
* Printout of a special deal/fare called United Airlines Thank Our Troops 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110022522, on 22 March 2012.

2.  The applicant provides a new argument which was not previously considered by the Board.  

3.  The applicant was appointed as a Reserve commissioned officer and executed an oath of office on 9 May 1986.  He entered active duty on 2 June 1986 and served in a variety of stateside or overseas assignments.  He was honorably released from active duty on 1 May 1995.  

4.  Subsequent to his release from active duty, he served in various troop program units of the U.S. Army Reserve as a transportation or infantry officer, including a period of mobilization from 15 December 2002 to 18 August 2004, and he attained the rank of lieutenant colonel (LTC) on 1 December 2004.  

5.  He entered active duty on 1 June 2005 and he was assigned to the Office of the Deputy Chief of Staff, G-1, Pentagon, VA, and on 21 June 2006, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

6.  On 22 July 2008, an IO was appointed to conduct an informal investigation into allegations that the applicant had violated various articles of the Uniform Code of military Justice (UCMJ), specifically, fraud (Article 132), engaging in activities that qualify as conduct unbecoming an officer and gentleman (Article 133), and engaging in conduct prejudicial to good order and discipline or conduct of a nature to bring discredit upon the Armed Forces (Article 134).

7.  In a document titled "United Airlines Statement," dated 14 August 2008, the applicant provided a seven-page statement regarding his personal travel between Washington, DC, and Chicago, Illinois.  In summary, he stated:

	a.  In mid January 2008, he began to experience difficulty accessing his account on the United Airlines website.  He repeatedly called the airlines to ascertain the problem, but customer service could not provide an answer.  He placed 12 calls over a period of 6 days in January, all without an answer to his problem.

	b.  On 18 January 2008, a lady from United Airlines asked him if he has a GTC; he responded in the negative (he did not have a GTC).  He further mentioned to her that the credit card on file with the airlines was his personal card and he had used it for all of his travel.

	c.  On or about 21 January 2008, he received a letter from United Airlines indicating that an audit of his flight activity had been performed.  The tickets were for flights made by United Airlines reservations personnel and were charged to his personal credit card.  The audit resulted in a determination that the wrong fare was used for his travel.  United Airlines was seeking a payment of $1,200.00 to $1,500.00 per round trip ticket vice the $200.00 fare that was charged for each of his trips.  United Airlines contended he owed the difference in price.

	d.  After receiving the letter discussed above, he immediately contacted an attorney in Chicago to find out what steps he should take to resolve the issue.  He felt this was a personal issue more than an Army issue, so he chose to continue with private legal counsel.
	e.  His intent was to seek the most economical round-trip airfare.  He called the United Airlines reservations to book his travel.  He looked to see if economy tickets were available.  He was asked for his Federal identification card or some type of government identification card.  He recalled a few times when the representative told him he could not be ticketed with the credit card that was on file with the airlines because it was not a GTC.  He responded that his travel was personal, not for official business.  He does not remember the airlines making any distinction between "military" and "government" rates during the time of ticketing.

	f.  He routinely saw United Airlines offering round-trip fares in the range of $180.00-$200.00.  These fares were prevalently and frequently advertized.  When he booked his travel, he asked for the most economical transportation.

	g.  On 30 January 2008, he found round-trip fares on four different airlines that ranged from a low of $157.00 to $195.00.  He concluded the United Airlines rates were reasonable.

	h.  In mid-March 2008, he contacted an account manager with United Airlines to seek his input and any insight into the fare structure.  He told him that the travel in question was personal and not for official business.  He also shared the list of tickets that had been previously issued by United Airlines agents.

	i.  On 23 April 2008, the account manager responded to the applicant informing him that the airline would not seek reimbursement because the tickets were issued by United Airlines.

	j.  On 5 June 2008, the account manager assured him that the Security Department at United Airlines would take no further action.  This decision was based on a determination that the airline agent did not follow the rules of the fare. As a result, he was permitted to use his personal credit card to purchase tickets at prices reserved for purchase only with a GTC.

	k.  An email sent from the account manager at United Airlines to Headquarters, Department of the Army (HQDA), G-1, contained incorrect statements, conjecture, and speculation.  

	l.  He discussed an example of the difficulties experienced when he asked for "bottom-line" pricing from United Airlines.  He contended that the ticketing process was dysfunctional and even United Airlines did not know the best, most economical fare.

	m.  He argued that the use of a "BUA" fare code indicating an economy unrestricted fare is ludicrous.  Even at the time of ticketing, flight restrictions, ticketing restrictions, travel restrictions and rules application were never communicated or expressed options to the ticketing process that would significantly change the prices of a "BUA" fare.

	n.  He discussed a published news article stating that even military fares are no bargain as they can cost far more than regular tickets.  Congressional action in 2003 urged air carriers to offer active duty military members rates that are comparable to the lowest airfare for ticketed flights.

	o.  He also discussed a recently published news article that referred to a bill introduced in Congress that would require reduced-priced fares for service members and relax the rules for snagging standby seats.

	p.  He stated at no time did he attempt to defraud United Airlines.  He continued to seek the lowest, most economical fare consistent with use of his personal credit card during off-duty hours for personal travel.

8.  On 18 August 2008, the IO submitted a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) for the subject investigation.  The facts, findings, and recommendations are summarized as follows:

	a.  Facts:  The applicant was recalled to active duty as a USAR officer; he was stationed at the Pentagon working in the Force Projection and Distribution Directorate within the G-4.  He was alleged to have travelled on commercial common carrier using the government-contracted rate for personal business; he paid for the subject travel by personal credit card vice the required GTC.  The commercial carrier sought remittance in the amount of $22,913.41; he was previously offered a reduced payoff amount of $15,000.00.  He retained the services of legal counsel in January 2008 and decided not to answer any questions related to the subject allegations.  He subsequently left a statement, dated 14 August 2008, in the IO's office on 21 August 2008 offering his account of the facts and circumstances.  A United Airlines employee stated under oath that several of the allegations brought forth by the applicant were, in fact, correct; however, there were contradictions with regard to the types of fares and the calculation of rates.  

	b.  Findings:

* Article 132 (Frauds Against the United States) – the evidence does not support any violation
* Article 133 (Conduct Unbecoming an Officer and Gentleman) – circumstantial evidence indicated he received the government rate on 22 separate occasions – he still had an outstanding debt to United Airlines
* Article 134 (General Article) – circumstantial evidence indicated he did or failed to do certain acts; he displayed a pattern of requesting government airfare rates and then remitted payment using his personal credit card; furthermore, he refused to pay when informed of the $22,913.41 difference in fare cost
* in every circumstance in this particular investigation, he received the city-pair rate for the airline tickets he purchased as opposed to receiving a discounted military rate that is often advertised by United Airlines; he should have asked for clarification regarding these rates
* he was asked for his GTC by the United Airlines customer service representatives indicating they thought he was on official travel and authorized the city-pair rate

	c.  Recommendations included: appropriate administrative or punitive action against the applicant, command emphasis to ensure all personnel in the G-4 were knowledgeable of the Army Ethics Program, and remedial training/emphasis on the proper use of the GTC and understanding about and use of travel at government rates.

9.  On 28 October 2008, the Assistant Deputy Chief of Staff, G-4 (a major general), reprimanded the applicant for misconduct.  The GOMOR states:

	a.  The applicant performed personal travel between his duty station in Washington DC, and his home of record in Chicago, Illinois, on 22 separate occasions from 1 December 2006 through 16 December 2007.  An AR 15-6 investigation revealed that he had purchased tickets from United Airlines under the government-contracted rate (GSA city-pair fares).

	b.  Under the Joint Federal Travel Regulation, only Federal employees or uniformed service members and their respective dependents on official travel may use this program.  Because of the misconduct, United Airlines sought repayment in the amount of $22,913.41, the difference in price of the tickets purchased and the full regular fare.

	c.  As a senior field-grade officer in a position of leadership, he is held to a higher standard.  His misconduct brought discredit not only on himself, but on the Pentagon and the Army as well.  The use of his position for personal financial gain is the very definition of "conduct unbecoming."  The GOMOR was imposed as an administrative measure and not as punishment under the UCMJ.  

10.  On 28 October 2008, the applicant acknowledged receipt of the GOMOR and on 5 November 2008, he submitted a rebuttal as follows: 

	a.  He contended that he continually handled himself using the ethical standards of a U.S. Army officer throughout his tour of duty.  Once informed of the allegation, he immediately informed his chain of command to express his embarrassment and bewilderment.  He also contended that the IO found no basis for any wrongdoing under Article 132, UCMJ, and only circumstantial evidence under Articles 133 and 134.

	b.  He contended that the IO incorrectly stated he worked in the Transportation Policy Division of the Army G-4.  The IO used that assertion as a basis to wrongly conclude he must have known the city-pair rates.  He further stated he had since learned about the requirements for the city-pair rates which include having official travel orders and a GTC.  He contended that he never indicated he was on official travel orders and always used a personal credit card to pay for his personal travel.

	c.  He acknowledged taking 22 flights from December 2006 through December 2007, but at no time did he intentionally misrepresent the purpose of his travel.  He felt he made it clear to ticketing agents at all times that he was a Reserve member on active duty on personal travel and paying with a personal credit card.  He further contended that he accepted fares offered as accurate and as valid fares for a military person traveling on leave or personal business.

	d.  He contended that he had initially compared United Airlines fares with other carriers and thought they seemed comparable.  He also contended that the range of prices he paid for the subject flights were between $200.00 and $225.00.  He provided an enclosure from GSA purporting to show the city-pair rate (unrestricted/capacity controlled) for one-way travel between Ronald Reagan Washington National Airport and O'Hare International Airport was $116.00/105.00.  He also enclosed the following round-trip price information for travel between the same two airports:

* American Airlines – February 8 and 10 (direct flight) – $157.00
* United Airlines – February 8 and 11 (direct flight) – $195.00
* Continental Airlines – Feb 8 and 10 (connecting flights) – $178.00
* Northwest Airlines – Feb 8 and 10 (connecting flights) – $178.00
* United Airlines – variety of dates – $189.00
* Kayak Buzz Daily Alert – weekends September 2008-June 2009 – $191.00-$200.00+

	e.  He contended that the fare largely depended upon which United Airlines agent received the call.  He called the main reservations line and often got an overseas reservations agent.  He finally contended that the city-pair rates were not any cheaper than what he could have obtained through Internet capabilities.  Therefore, there is no indication that he was receiving an unethical benefit or entitlement.

11.  On 6 November 2008, after careful consideration of the facts and circumstances pertaining to the applicant, the imposing GO directed filing the GOMOR in the applicant's AMHRR and in his unit informational personnel file.

12.  He submitted various internet printouts related to a program called "United Thanks Our Troop," a special deal from United Airlines to active duty members (including dependent children and spouse).  These fares are subject to change, not offered in all markets, and the lower fares may be available to select markets. 

13.  Army Regulation 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states 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.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Appendix B-1 states a letter of reprimand is filed in the performance section of the AMHRR.

14.  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.

15.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Army Regulation 600-37, paragraph 7-2, provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an IO determined circumstantial evidence indicated the applicant received the government rate for personal travel on 22 separate occasions and circumstantial evidence indicated he did or failed to do certain acts.  The IO further found the applicant displayed a pattern of requesting government airfare rates and then remitted payment using his personal credit card; furthermore, he refused to pay when informed of the $22,913.41 difference in fare cost.  In every circumstance in this particular investigation, he received the city-pair rate for the airline tickets he purchased as opposed to receiving a discounted military rate that is often advertised by United Airlines; he should have asked for clarification regarding these rates.  He was asked for his GTC by the United Airlines customer service representatives indicating they thought he was on official travel and authorized the city-pair rate

2.  Accordingly, he received a GOMOR.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  He did so through his attorney.  After careful consideration of the applicant's case and his rebuttal, the imposing general officer ordered filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

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

4.  There is generally a reluctance to remove adverse information from an AMHRR when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does move unfavorable information, it only does so if it has truly served its intended purpose. Here, the applicant continues to argue that he did nothing wrong.  

5.  In view of the foregoing evidence, there is an insufficient basis to remove the contested GOMOR from his official records. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20110022522, dated 22 March 2012.



      _______ _  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)                                         AR20120011936





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ABCMR Record of Proceedings (cont)                                         AR20120011936



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