BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20120014314 


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 the general officer memorandum of reprimand (GOMOR), dated 5 June 2007, and all related documents from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)) or transfer to the restricted folder in its entirety.  In addition he requests:

* reinstatement as an officer in the active U.S. Army Reserve
* promotion reconsideration by special selection boards (SSB's) beginning with the Fiscal Year (FY) 2007 Lieutenant Colonel (LTC) Promotion Board, FY08 board, and FY09 board, if required once his record is corrected
* all pay commensurate with LTC
* adjustment of his date of rank (DOR)
* correction of his retirement points
* expunction of all flagging actions
* approval of any military education waivers required for promotion consideration once reinstated due to these actions
* extension of his mandatory removal date (MRD) for the period he has been in the Retired Reserve
* reconsideration of his application to be an Engineer warrant officer without derogatory waivers required
* authority to compete for colonel (COL) selection boards that his reinstated LTC DOR would authorize

2.  The applicant states the GOMOR was issued based on an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation report that was not legally sufficient, complete, or accurate.  Major General 
(MG) S____'s memoranda state that with further information provided to him, all accusations in his original GOMOR are untrue.  The GOMOR determinations of wrongdoing are incorrect and unjust.  The Department of the Army Suitability Evaluation Board (DASEB) decision, dated 2 June 2010, was based partially on an incorrect conclusion; it concluded that he had not proven the Internal Review Report or the Army Regulation 15-6 investigation to be untrue or unjust.  He contends that both of these supporting documents include false statements and unjust findings.  The DASEB conclusion that MG S____ elected to issue a GOMOR rather than other corrective actions available under the table of penalties mixed the separation of military and civilian due process.  Army Regulation 15-6, paragraph 1-9b, was not adhered to.  The injustice he has endured stems from his accuser's decision to prosecute his military position under advantageous administrative rules for removal that would knowingly in turn remove him from his civilian position, all without the need for legal due process under Office of Personnel Management (OPM) regulations for the same accusations.  This is important as Reserve membership is a military technician (MT) condition of employment.  Once removed as a Reserve Soldier, he would have been administratively removed as an MT and not been provided legal due process on the same charges through OPM.  This ability to remove a civilian on charges not reviewed by OPM allows statutes to be circumvented.

3.  The applicant provides:

* 353rd Engineer Group (EN GP) Dual Status Pay Review Report, dated 14 August 2006
* Army Regulation 15-6 appointment memorandum, dated 15 August 2006
* Army Regulation 15-6 appointment memorandum, dated 25 September 2006
* relevant information to the summary of arguments with five appendices
* memorandum, dated 7 May 2007, subject:  Legal Review, Army Regulation 15-6 Investigation, 353rd EN GP
* GOMOR, dated 5 June 2007
* applicant's response to the GOMOR, dated 23 July 2007
* memorandum from MG S____ directing filing the GOMOR in the applicant's AMHRR, dated 2 August 2007
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 16 September 2007
* Summarized Administrative Separation Board Proceedings held on 16 September 2007 with table of contents
* applicant's request for removal of the GOMOR from his AMHRR, dated 13 May 2009
* memorandum from MG S____ to the Army Special Review Board (ASRB), dated 17 February 2010
* DASEB Decision AR20090008955, dated 24 September 2009
* DASEB Decision AR20100009531, dated 2 June 2010
* memorandum, dated 15 June 2011, subject:  Legal Review of Army Regulation 15-6 Investigation
* letter from MG S____ to the Army Board for Correction of Military Records (ABCMR), dated 15 August 2011
* memorandum from Major (MAJ) A____, Staff Judge Advocate (SJA), 85th Support Command, Arlington Heights, IL, dated 15 February 2012
* U.S. Army Reserve (USAR) MT Information Handbook
* excerpts from Army Regulation 11-7 (Army Internal Review Program)
* excerpt from Army Regulation 350-1 (Army Training and Leader Development)
* chart showing procedures for timecard submission of the 420th Engineer Brigade (EN BDE) from November 1996 until April 2007
* email, dated from 28 September 2006 to 2 February 2006, concerning timecard submission from the applicant to Mr. P____

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He previously served 3 years and 1 day in the Regular Army and 8 years, 2 months, and 23 days in the USAR in an enlisted status.  He was commissioned as a second lieutenant in the USAR on 19 August 1987.  He was promoted to MAJ on 14 October 2001.

3.  The applicant provides a copy of a pay review, dated 14 August 2006.  The objective of the review was to determine:

	a.  if the 353rd EN GP was in compliance with appropriate regulatory requirements for documenting and recording civilian time in the payroll system;

	b.  who is approving Supervisory Staff Administrators' (SSA) timecards and DA Forms 5172-R (Request, Authorization, and Report of Overtime);

	c.  if civilian personnel were in a leave status when performing military duty; and

	d.  evaluate internal controls to ensure correct time submission.

4.  The pay review determined the 353rd EN GP personnel were not in compliance with regulations and policies.  Numerous questionable time inputs were found that appear to be fraud, waste, or abuse.  The SSA's timecards were not approved by either the 353rd EN GP Commander or the 420th EN BDE SSA. 
There were documented conflicts between civilian and military statuses.  It appeared that individuals manipulated civilian compensatory time and military duty for self-benefit.  The 353rd EN GP lacked adequate controls to ensure the civilian and military pay systems were not subject to fraud, waste or abuse.  Additional findings were:  adequate controls for tracking additional drill assemblies (ADA's) (also known as additional training assemblies (ATA's)) and rescheduled training (RST) were not in place; adequate control was not in place to prevent collusion among MT's in submitting "Reserve pay"; and travel reimbursements were a potential area for fraud, waste, and abuse.

5.  The pay review also found that the supervisor failed to provide proper oversight for compensatory time because 55 percent of the compensatory time was performed without proper approval.  The lack of pre-approval gives the appearance that employees were allowed to work additional hours as they saw appropriate.  Additionally, military pay internal controls were lacking.

6.  A memorandum, dated 15 August 2006, appointed COL S____ as an investigating officer (IO) pursuant to Army Regulation 15-6 to investigate allegations that the 353rd EN GP MT's abused RST's; violated command policies regarding ATA's, overtime, and compensatory time; and violated pay input internal controls.  A copy of an audit which provided additional information on the allegations was included.  He found the following conditions existed:

	a.  The 353rd EN GP fostered an environment that encouraged MT's to use RST's, ATA's, and readiness management assemblies (RMA's) to accomplish assigned civilian work.  The cause was that supervisory personnel failed to ensure the MT's understood the proper use of RST's, ATA's, and RMA's; failed to follow established procedures in the approval for MT's to perform active duty for training, active duty for special work, ATA's, and RMA's; and MT's took advantage of the 353rd EN GP's failure to monitor and to appropriately administer the use of RST's, ATA's and RMA's.

	b.  The 353rd EN GP's violation of the Automated Drill Attendance Reporting System (ADARS) internal controls created opportunities for incorrect inactive duty training (lDT) pay input.  The cause was that every MT in the 353rd EN GP had access to ADARS for pay input.  MT's were certifying each other's DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) for pay and individual transmittal logs for pay that others input.

	c.  The supervisors failed to approve overtime or compensatory time prior to performance of the duty.  The cause of which was the supervisor's failure to follow established guidance.  Civilians were allowed to work overtime or compensatory time without prior approval.  The 493rd EN GP could not produce DA Forms 5172-R which granted approval.  The 353rd EN GP approved DA Forms 5172-R after the duty was performed and the 420th EN BDE had DA Forms 5172-R, but the authorizing person failed to sign the 
DA Forms 5172-R.

7.  A second memorandum, dated 25 September 2006, appointed COL D____ as an IO pursuant to Army Regulation 15-6 to investigate allegations that the 353rd EN GP MT's abused RST's; violated command policies regarding ADAs, overtime, and compensatory time; and violated pay input internal controls.  A copy of an audit which provided additional information on the allegations was included.  His findings in conclusion were:

	a.  The 353rd EN GP did not comply with regulations and/or policies in documenting and correctly recording civilian pay.

	b.  The applicant's timecards or requests for overtime and/or compensatory time were not signed by either Mr. L____ or COL M____.

	c.  The 353rd EN GP personnel had numerous IDT periods which were associated with their normal duty day.  Because of these IDT periods being 4 hours in duration, it was difficult to determine whether the IDT periods conflicted with the civilian work hours.  Fourteen specific conflicts were identified.

	d.  Civilian timekeeping internal controls were not adequate to ensure that individual civilian time was properly recorded.  Civilian timekeeping internal controls did not preclude individuals from being credited for civilian work while in a military status.  The supervisor failed to change the employees from a compressed work schedule to a standard work schedule when the employees attended school and IDT pay input internal controls were violated.

	e.  The 353rd EN GP did not have adequate controls for tracking ADA's.

	f.  The 353rd EN GP did not have adequate controls for the RST of MT's.  The MT's abused/misused ADA's.  MT's RST requests were excessive and violated Army Regulation 140-1 (Army Reserve Mission, Organization, and Training), paragraph 3-12.

	g.  IDT pay input internal controls were violated.

	h.  An appearance of travel voucher irregularity existed.

8.  The applicant provided a memorandum, dated 7 May 2007, subject:  Legal Review, Army Regulation 15-6 Investigation, 353rd EN GP.  The legal review was conducted by Captain (CPT) R____, Judge Advocate, Chief, Administrative Law, U.S. Army 90th Regional Readiness Command (RRC).  CPT R____ stated:

The above-referenced AR 15-6 [Army Regulation 15-6] investigation is legally sufficient.  However, the Investigating Officer (IO) failed to provide clear findings and recommendations based upon the facts of the case.  Below are findings and recommendations distilled from the IO's AR 15-6 Report.  Recommend that you review these findings and recommendations and decide the appropriate actions to be taken so that a properly completed DA Form 1574 can be prepared to conclude this investigation.

9.  CPT R____ provided the following findings concerning the applicant:

During the period of review, [the applicant] credited himself with 128 hours of compensatory time earned.  In all instances, [the applicant] failed to obtain prior written approval via a DA Form 5172-R from COL M____, Commander of the 353rd En Gp, for any of the compensatory time for which he was credited.  In fact, he never received any authorization to perform compensatory time during the period under review.  [The applicant] willfully violated DoD [Department of Defense] and 90th RRC policies.

During the period under review, [the applicant] failed to pre-approve approximately 57% of the [DA Forms 5172-R] submitted by personnel in the 353rd En Gp in advance of duties performed.  Further, of the [DA Forms 5172-R] that were pre-approved, many appear to have been backdated to conceal the fact that they were prepared after the work was performed.  …This provides evidence to the fact that it was the practice of personnel in the 353rd En Gp to perform compensatory time/overtime at their convenience.

During the period under review, [the applicant] supervised the 353rd En Gp's use of 509 ADA's above the Group's allocated number of ADA's.

[The applicant] allowed personnel in the 353rd En Gp to perform military duty through RST or ADA following a regular civilian workday with no clear delineation between the civilian and military duties performed.  Conversely, he allowed personnel in the 353rd En Gp to receive compensatory time following military duty performed via RST or ADA without any clear delineation between the military and civilian duties performed.  As stated above, the majority of these instances were without his preauthorization.  This shows gross mismanagement of personnel at the 353rd En Gp.

10.  CPT R____ provided the following recommendations concerning the applicant:

All 128 hours of compensatory time credited to [the applicant] during the period under review be reversed.

In the alternative, all 128 hours of compensatory time credited to [the applicant] be reversed unless, within 30 days of receipt of notice, [the applicant] can provide documentary evidence (e.g., corroborating work product and/or computer usage log for the dates in question) sufficient to prove to COL M____ that he performed the work for which he was compensated.  Recommend further that if [the applicant] provides such documentation, [the applicant] then provide to COL M____ completed DA Form(s) 5172-R so that the work can be properly documented and authorized.

COL M____ be provided a copy of this report in order to determine if appropriate disciplinary action should be taken against [the applicant].

11.  On 5 June 2007, the applicant received a GOMOR from MG S____, Commanding General, 90th RC.  The GOMOR states:

I hereby reprimand you for improperly and willfully crediting yourself and the military technicians (MilTechs) at the 353rd En Gp with compensatory time, overtime, and military pay that was not earned.  Specifically, you credited yourself with over a hundred hours of compensatory time without any authorization.  You performed ADA's and RST at your convenience for your own personal benefit and openly allowed the MilTech's that you supervised to do the same.  Your actions set the tone at the 353rd En Gp which created a culture a [sic] deceit among its full-time personnel.  As a supervisor, you failed to pre-approve or provide any authorization for numerous hours of compensatory time and overtime performed by the MilTechs at the 353rd En Gp.  You allowed the use of 509 ADAs in excess of the Group's allocated number in FY 2005 and the Group continued to abuse ADAs in FY 2006.  You also allowed the MilTechs at the 353rd En Gp to brazenly abuse RST.  Your flagrant violation of DoD and 90th RRC personnel policies has cost the Government thousands of dollars and violated the public trust.

12.  On 28 June 2007, the applicant was notified he completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60.

13.  On 23 July 2007, the applicant submitted a preliminary response to the GOMOR.  He stated he had not received an entire copy of the Army Regulation 15-6 investigation pertaining to the misconduct alleged in the GOMOR.  He provided the following response to each allegation:

ALLEGATION #1:  Crediting myself with over 100 hours of compensatory time without authorization.

Response #1:  As an Officer in the US Army Reserve I do not earn compensatory time.

ALLEGATION #2:  I performed ADA's and RST at my convenience for my own benefit and openly allowed the MILTECH's that I supervised to do the same.

Response #2:  All of my ADA and RST performed were requested and approved prior to the conduct of duty.  I did not approve my own.  I do not supervise MILTECH's in their military capacity.  Therefore, I did not approve their ADA or RST authorizations.

ALLEGATION #3:  As a supervisor, you failed to pre-approve or provide any authorization for numerous hours of compensatory time and overtime performed by the MILTECH's at the 353rd En Gp.

Response #3:  As a US Army Reserve Officer I do not supervise MILTECHs.  I perform supervisory actions for MILTECHs in my civilian position.

ALLEGATION #4:  I allowed the use of 509 ADAs in excess of the Group's allocated number in FY 05 and the Group continued to abuse ADAs in FY 2006.

Response #4:  As the Design Engineer Officer for the 353rd En Gp I had no oversight responsibilities for ADA usage.  This action was performed under the supervision of the S3 Officer of the Group.

ALLEGATION #5:  I allowed the MILTECHs at the 353rd En Gp to brazenly abuse RST.

Response #5:  As the Design Engineer Officer of the 353rd En Gp I do not supervise any MILTECHs.  All RST requests go from the section leader to the Company Commander for approval.

14.  On 2 August 2007, MG S____ directed permanently filing the GOMOR along with the applicant's response in the applicant's AMHRR.

15.  On 16 September 2007, a board of officers convened to determine whether the applicant should be discharged for moral or professional dereliction for acts of personal misconduct.  The board found that the applicant did not violate the provisions of Army Regulation 135-175 (Army National Guard and USAR Separation of Officers), paragraph 2-12, for moral or professional dereliction and DOD Instruction 1332.40, paragraph E2.2, for acts of misconduct or moral or professional dereliction.  The board further found the applicant should be retained in the USAR.

16.  On 13 May 2009, he requested removal of the GOMOR, dated 5 June 2007, from his AMHRR.

* he provided MG S____ with a response recommended by his attorney which did not include documentary evidence
* he had already been notified of a scheduled Administrative Separation Board (ASB) for the same accusation made by MG S____
* the GOMOR was issued and filed in his AMHRR prior to the ASB
* it was the unanimous findings of the ASB that he did not commit any of the offenses
* the context of the offenses before the ASB was almost identical to the accusations in the GOMOR

17.  On 24 September 2009, the DASEB denied his request to remove the GOMOR, dated 5 June 2007, from his AMHRR in Docket Number 
AR20090008955.

18.  A remark entered in the transaction history of the applicant's U.S. Army Human Resources Command (HRC) Integrated Web Services (IWS) record, dated 7 February 2010, states the applicant was twice non-selected for promotion by the 2009 LTC APL board.  He was not recommended for continuation; therefore, he was to be removed from an active status no later than the first day of the seventh month after the month in which the board was approved.

19.  On 17 February 2010, MG S____ submitted a memorandum to the ASRB requesting removal of the GOMOR he issued to the applicant on 5 June 2007 from the applicant's AMHRR.  MG S____ stated:

On 16 September 2007, a board of officers convened to formally determine whether [the applicant] committed the acts for which he was reprimanded and, if so, whether he should be discharged.  That board examined written evidence and heard testimony from several witnesses as to whether [the applicant] improperly performed Additional Drill Assemblies or wrongfully credited himself and others with compensatory time, overtime, and military pay that was not earned (the same issues for which I reprimanded him).  The board of officers specifically found that [the applicant] committed NO misconduct or acts of moral or professional dereliction, and that he should not be discharged (enclosed).

I directed the filing of a GOMOR in [the applicant's] OMPF.  Later investigation by the board of officers determined it was untrue.  Upon review of the enclosed investigation, I am convinced the allegations in the GOMOR are untrue.  I am convinced [the applicant] did not commit any of the misconduct for which he was originally reprimanded.  The GOMOR should be removed from [the applicant's] OMPF.

20.  On 2 June 2010, DASEB denied his request to remove the GOMOR, dated 5 June 2007, from his AMHRR in Docket Number AR20100009531.

21.  On 15 July 2010, the applicant voluntarily transferred to the Retired Reserve.

22.  Remarks entered in the transaction history of the applicant's HRC IWS record, dated 18 January-8 April 2011, indicate the applicant submitted an application for the warrant officer program.  He needed a two-time pass-over waiver if he had been selected and he had a moral waiver.  He was not selected by the January 2011 Officer Direct Commission Board.  The specific reason for his non-selection is not shown.

23.  The applicant provided a memorandum from the 85th Support Command, dated 15 June 2011, subject:  Legal Review of Army Regulation 15-6 Investigation.  The legal review was conducted by MAJ A____, Deputy Staff Judge Advocate.  MAJ A____ stated:

In my role as a legal assistance officer and on behalf of [the applicant] I have reviewed the report of investigation conducted under Army Regulation 15-6.  This 15-6 [sic] investigation alleged that [the applicant], in his civilian capacity, credited himself with compensatory time without prior written approval, failed to pre-approve [DA Forms 5172-R], allowed excessive use of ADAs, and allowed personnel to improperly earn compensatory time or overtime.

I find this 15-6 [sic] investigation (15-6) to be legally insufficient due to numerous substantive and administrative errors.  This legally insufficient 15-6 [sic] investigation investigated [the applicant] only in his civilian capacity, but was used as the basis for [the applicant's] General Officer Memorandum of Reprimand, (GOMOR) and separation action.

The investigating officer (IO) failed to collect sworn statements from all witnesses and thoroughly document all witness statements in writing as directed in the appointment memorandum.  The IO failed to obtain statements from many interested parties to include superiors who would have first-hand knowledge of the circumstances.  It is clear from the investigation that the IO talked to many key individuals without obtaining a sworn statement from them as required, and he also failed to summarize these conversations so they would become part of the record.  This failure prevented the respondents from seeing and being able to respond to much of the information that served as the basis for the administrative action taken against them.  The investigation failed to thoroughly investigate the issues by not allowing the respondents to explain the surrounding circumstances and by asking them only a few very specific questions.

This investigation did not investigate [the applicant] or any of the responsibilities of [the applicant].  The IO investigated [the applicant] only in his civilian position and civilian duties as the SSA, but the appointing authority, MG S____, punished [the applicant] as a Soldier in his military capacity.  Should wrong doing have been found, the IO should have recommended that [the applicant] be punished in his civilian capacity.  It does not make sense to punish [the applicant] in his military capacity, but fail to punish him in his civilian capacity where he allegedly committed the wrongdoing.  Under AR 15-6 paragraph 1-9b. [sic], a 15-6 [sic] investigation may be used in adverse administrative actions except 'in every case involving contemplated formal disciplinary action against civilian employees, the servicing civilian personnel office and labor counselor will be consulted before the employee is notified of the contemplated adverse action.'  Since the investigation and all the allegations were directed against [the applicant] in his civilian capacity and not [the applicant in his military capacity], the servicing civilian personnel office and labor counselor should have been consulted and provided the 15-6 [sic] so they could take appropriate action, if any, against [the applicant] in his civilian capacity.  This would have ensured [the applicant] received the procedural safeguards he was entitled to in his civilian position.

Under AR 15-6 paragraph 1-6, the primary function of the IO is to "ascertain facts and to report them to the appointing authority."  "It is the duty of the IO to ascertain and consider the evidence on all sides of each issue, thoroughly and impartially, and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority."  In this case, there were two different people who delivered the findings and recommendations.  The IO made the initial findings and recommendations that were submitted with his investigation.  The Judge Advocate, CPT T. S____ R____, who performed the legal review of the 15-6 [sic] found the IO failed to provide clear findings and recommendations.  In his legal review CPT R____ substituted the IO's findings and recommendations with findings and recommendations distilled from the IO's AR 15-6 Report.  It is not clear who distilled the findings and recommendations of the 15-6 [sic] investigation; it may have been CPT R____ or some other party.  It is clear from the legal review that he included findings and recommendations in the legal review that were not the findings of the IO who was appointed to make the findings and recommendations.  This alone makes the 
AR 15-6 investigation legally insufficient.  CPT R____ should have returned 15-6 [sic] to the IO for further clarification of the findings and recommendations.  He cannot substitute the IO's findings and recommendations with the findings and recommendations of someone who was not appointed as the IO and did not perform the investigation.

In the 15-6 [sic] the IO, COL D____ T. D____, recommended (page 12) COL M____ receive a letter of reprimand or admonishment for failing in his responsibilities as a certifying official.  Also, on page 15 and 16 of the investigation the IO names BG C____ as one who may have committed an internal control, regulatory or policy compliance violation.  Under AR 15-6 paragraph 2-1c(3)(b) "An investigating officer or voting member of a board who, during the proceedings, discovers that the completion thereof requires examining the conduct or performance of duty of, or may result in findings or recommendations adverse, to, a person senior to him or her will report this fact to the board president or the appointing authority.  The appointing authority will then appoint another person, senior to the person affected, who will either replace the investigating officer or member, or conduct a separate inquiry into the matters pertaining to that person."  There is no evidence that the IO reported this information as required or that the legal advisor recognized or made any attempt to rectify this issue or inform MG S____ of the problem.  Upon review of the 15-6 [sic], the legal advisor should have advised MG S____ that, at a minimum, a Brigadier General (senior to BG C____) replace COL D____ as the IO.

The IO, in violation of [the applicant's] rights, continued to question [the applicant] after [the applicant] told the IO he wanted to speak to counsel (see attached summary in 15-6 [sic]).  The summary of this interview was included as part of the 15-6 [sic] investigation.   Anything [the applicant] said after he informed the IO he wanted counsel should have been removed from the investigation.

In the directions from MG S____ in the appointment memo to COL D____, MG S____ directed that "All witnesses will be sworn prior to being interviewed and you are to thoroughly document all witness interviews in writing, preferably on a DA Form 2823, Sworn Statement."  COL D____ only obtained a few sworn statements some of which were unsigned.  The IO failed to obtain the statement of the Internal Review officer who performed the initial inspection that led to the initiation of the investigation. 
Except for [the applicant], the IO failed to obtain statements from individuals who were in positions of authority.  COL D____ refers to a 40 minute interview with COL M____, but there is not even a summary of what they discussed, there is only a small reference made alluding to that interview.  There are no statements from any of the individuals that [sic] were in the chain of command above [the applicant].  The IO failed to take statements from the Group Commander, COL C____ M____; the Brigade SSA, Mr. S____ L____; the acting commander HHC [Headquarters and Headquarters Company] 353rd Eng Group, SFC [Sergeant First Class] 
J____ S____; Mr. J____ M____; Mr. J____ P____; the S3 officer, LTC G____ L____, and BG P____ C____.  The standard question form that the IO used in his investigation just asks a very few, very specific questions designed to elicit a specific response.  It does not ask questions that would indicate he is investigating numerous allegations of a complicated subject matter.  It appears the IO did not give the respondents the opportunity to offer forth any explanation to counter the allegations.  The IO failed to ask who, when and how certain items were approved and processed.  The IO failed to ask obvious questions that go to the heart of the investigation.  Further, the failure of the IO to obtain sworn statements as directed by the appointing authority prevented the respondents, to include [the applicant], from responding to any allegations by the individuals who made them.  The failure to obtain detailed statements from anyone senior to [the applicant] who had involvement in the issues combined with this failure to obtain sworn statements from all the witnesses as directed makes this an incomplete investigation.

24.  The applicant provides a letter from MG S____, dated 15 August 2011, concerning removal of the GOMOR from the applicant's AMHRR.  MG S____ stated:

On 5 June 2007, as then Commanding General of the 90th Regional Readiness Command, I issued a GOMOR (enclosed) to [the applicant] for improperly crediting himself and other military technicians at the 353rd Engineer Group with compensatory time, overtime, and military pay that were not earned.  On 2 August 2007, I originally directed that this reprimand be filed in [the applicant's] OMPF.

Based on new evidence presented to me, I now request that the General Officer Memorandum of Reprimand (GOMOR), dated 5 Jun 2007 [sic], and all supporting documents be removed from the Official Military Personnel File (OMPF) of [the applicant].

On 16 September 2007, a board of officers was convened to determine whether [the applicant] committed acts for which he was reprimanded and, if he did, whether he should be discharged from the Army Reserve.  The board of officers specifically found that [the applicant] had committed no misconduct or acts of moral or professional dereliction, and that he should not be discharged (enclosed).  I have again reviewed the AR 15-6 investigation, along with a subsequent legal review of the investigation, that proves the investigation findings and recommendations were flawed and legally insufficient for numerous reasons (enclosed).

On 16 February 2010, I met with [the applicant] and he provided me with records that strongly supported his position that he had committed no wrongdoing in this matter.  Neither the 15-6 [sic] Investigating Officer (IO) nor I had previously considered these documents (enclosed).  Had this documentation been included with the final 15-6 [sic] report, I would neither have issued the GOMOR nor have directed the Administrative Separation Board Hearing.  The evidence presented to me by [the applicant] showed material flaws in the IO's 15-6 [sic] findings and in the original legal review.

In light of the new information provided, I again reviewed the AR 15-6 investigation and determined that this investigation was incomplete and should not have been used as a basis for issuing a GOMOR to [the applicant].  Specifically, the IO failed to collect sworn statements from all witnesses and thoroughly document all witness statements in writing as I had directed in the appointment memorandum (enclosed).  In fact, the IO, COL D____ D____, failed to obtain sworn statements from anyone other than the respondents.  He provided only limited summaries of some of the interviews which he did complete.  Significantly, the IO failed to obtain a sworn statement from the Internal Review Officer whose report served as the basis for initiation of this investigation.  The IO also failed to obtain the sworn statements of any of [the applicant's] superiors.

The first paragraph of the initial legal review (upon which I relied for the GOMOR) prepared by the Staff Judge Advocate Officer at the 90th Regional Readiness Command dated 7 May 07 [sic] states that "The above-referenced AR 15-6 investigation is legally sufficient."  "However, the investigating officer (IO) failed to provide clear findings and recommendations based upon the facts of the case."  "Below are findings and recommendations distilled from the IO's 15-6 [sic] Report."  The subsequent legal review provided by MAJ J____ A____ on behalf of [the applicant] opined that the 15-6 [sic] investigation is legally insufficient because, among other reasons, the IO's findings and recommendations were replaced with findings and recommendations distilled from the 15-6 [sic] report by someone other than the IO himself.  It is not clear from the record who made those findings and recommendations, but it is evident they were not made by the IO that I had appointed.  The legal review conducted by MAJ A____ details several legal deficiencies in the investigation.

Upon review of all the new evidence listed above, I am convinced the allegations in the GOMOR are unfounded and that [the applicant] did not engage in any of the misconduct for which he was originally reprimanded. 
The GOMOR and all documents in reference to it should be removed from [the applicant's] OMPF.  [The applicant] should be reinstated in the Army Reserve and go before the USAR LTC Promotion Selection Board.

25.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.

	a.  Paragraph 1-6 states the primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority.  It is the duty of the IO or board to ascertain and consider the evidence on all sides of each issue, thoroughly and impartially, and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority.

	b.  Paragraph 1-9b states the OPM and Army regulations establish rules for adverse actions against Army civilian personnel and establish the procedural safeguards.  In every case involving contemplated formal disciplinary action against civilian employees, the servicing civilian personnel office and labor counselor will be consulted before the employee is notified of the contemplated adverse action.

26.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy for selecting and promoting commissioned officers of the USAR.

	a.  Table 2-1 shows that for promotion from MAJ to LTC, an officer must have a minimum of 4 years and a maximum of 7 years in the lower grade.

	b.  Table 2-2 shows the military education requirement to qualify for promotion to LTC is completion of 50 percent of the Command and General Staff Officers Course (CGSOC).  Note 3 states completion of either the Logistics Executive Development Course (LEDC) or the Associate Logistics Executive Development Course (ALEDC) will satisfy this requirement.  To receive credit, the officer must provide evidence of completion of the LEDC or ALEDC to the Chief, Office of Promotions (Reserve Components (RC)), HRC.

	c.  The Chief, Office of Promotions (RC), HRC, is the approval authority for all requests for exceptions to non-statutory promotion requirements.

	d.  Paragraph 3-19d(2) states records of officers or former officers will be referred for SSB action when the Office of Promotions (RC) determines that an officer's record contained a material error.

	e.  Material error is defined as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's non-selection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

	f.  Paragraph 3-19g states applications for promotion reconsideration will be sent through command channels to the Chief, Office of Promotions (RC), HRC. As an exception, area commanders will disapprove applications for SSB consideration from officers not meeting the minimum military education requirements or civilian education requirements without referral to HRC.

27.  Army Regulation 135-175 states boards of officers convened to determine if officers will be retained in the Army will ensure that all hearings are fair and impartial.  It is the responsibility of the government to establish by a preponderance of evidence that officers have failed to maintain established standards for grade and branch or that their conduct has been prejudicial to National security.

28.  Army Regulation 140-1, paragraph 3-12, states RST's will enhance the ability of the unit to perform its assigned mission.  Commanders should use the RST to increase flexibility in scheduling training activities that directly affect the unit's training status.  Commanders will ensure the RST is not abused and that the Soldier or subsection performing the RST is contributing directly to the unit's mission.  Such training should be accomplished by complete subordinate elements of the unit (i.e., team, section, squad, platoon, or composite group) as directed by the commander, whenever possible.  The period of training for the RST will be of the same duration as that scheduled for the unit training assembly/multiple unit training assembly.

29.  Army Regulation 600-37 (Unfavorable Information) states an officer who directed filing an administrative letter of reprimand, admonition, or censure in the OMPF may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust in whole or in part.

DISCUSSION AND CONCLUSIONS:

1.  MG S____ indicated he again reviewed the Army Regulation 15-6 investigation, the findings of a board of officers who specifically found the applicant had committed no misconduct or acts of moral or professional dereliction, and a subsequent legal review of the investigation that proved the investigation findings and recommendations were flawed and legally insufficient.  He also met with the applicant who provided him with records that strongly supported his position that he had committed no wrongdoing.  MG S____ stated that had this documentation been included with the final Army Regulation 15-6 investigation report, he would neither have issued the GOMOR nor have directed the Administrative Separation Board Hearing.  MG S____ stated that upon review of all the new evidence, he is convinced the allegations in the GOMOR are unfounded and that the applicant did not engage in any of the misconduct for which he was originally reprimanded.  MG S____ stated the GOMOR and all documents in reference to it should be removed from the applicant's AMHRR.

2.  In view of the above, it would be equitable to remove the GOMOR, dated 5 June 2007, and all associated documents from the applicant's AMHRR.

3.  It appears that he transferred to the Retired Reserve due to his two-time non-selection for promotion.  Therefore, reinstatement in the active Reserve would not be appropriate unless he were selected for promotion by an SSB.

4.  The applicant's ORB does not show he completed the LEDC or ALEDC.  There is no other evidence to show he completed 50 percent of the CGSOC.  Therefore, he does not meet the military education requirement for promotion to LTC.  There is no evidence to show he requested a waiver of this military education requirement prior to the FY07, FY08, and FY09 LTC promotion boards.

5.  Because the applicant did not meet the military education requirement for promotion to LTC, removal of the GOMOR does not provide a reasonable chance that he would have been recommended for promotion.  Applications for an SSB will not be considered by HRC from officers who do not meet the minimum military education requirements for promotion.  Therefore, his request for any military education waivers required for promotion and an SSB for the LTC promotion boards for FY07, FY08, and FY09 should be denied.

6.  Based on the denial of the aforementioned SSB's, his requests for reinstatement in the active Reserve, pay for LTC, DOR adjustment for LTC, correction of retirement points, extension of his MRD, and authority to compete for COL should be denied.

7.  Entries in the applicant's HRC IWS record show he applied for and was not selected for appointment as a warrant officer.  These records also show he had a moral waiver, but needed a two-time pass-over waiver if selected.  The specific reason for non-selection by a selection board is not made a matter of record.  Therefore, there is an insufficient basis to show he may have been selected had the GOMOR not been a part of his AMHRR.


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 is 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 removing the following documents from his AMHRR:

* GOMOR, dated 5 June 2007, and all associated documents
* applicant's request for removal of the GOMOR from his AMHRR, dated 13 May 2009
* DASEB Docket Number AR20090008955, dated 24 September 2009
* DASEB Docket Number AR20100009531, dated 2 June 2010

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 SSB's, military education waivers, reinstatement in the active Reserve, pay for LTC, DOR adjustment for LTC, correction of retirement points, extension of his MRD, authority to compete for COL, and reconsideration for the Engineer Warrant Officer Program.



      ___________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)                                         AR20120014314



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ABCMR Record of Proceedings (cont)                                         AR20120014314



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