BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120014520 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the General Officer Memorandum of Reprimand (GOMOR), dated 30 May 2006, from the applicant's Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  Counsel states:

	a.  The GOMOR alleges the applicant violated the Privacy Act by gaining access to information contained in officer evaluation reports (OERs) and disclosing that information without their consent.  The officers were his Iraq Forward Operating Base (FOB) commander, and two Judge Advocate General’s (JAG) Corps defense counsels assigned to Trial Defense Services (TDS).  The applicant had access to the OERs as a part of his official duties.

	b.  The disclosures in the inspector general (IG) complaint were exempt from the Privacy Act's "prior consent" rule.  Within the law enforcement purpose, they are persons authorized for "routine use" to assist Soldiers with the IG process, all within the IG regulatory term "triangle of confidentiality" (commander/counsel/IG). The three officers approved the contents of the applicant's IG complaint.

	c.  A sworn affidavit from a former Army IG stating the OERs and the contents therein in this particular situation are exempt from prior consent.  OERs that are referenced in a Soldier’s IG complaint are not privileged.  This extends to the Soldier's commander and defense counsel since both are a necessary part of the IG process.

	d.  As part of his official S1 duties the applicant was forwarded completed OERs for the Headquarters and Headquarters Company (HHC) commander and the 785th Military Police (MP) battalion commander, Lieutenant (LT) L ____, and Lieutenant Colonel (LTC) F____, for administrative processing.  Several comments from these OERs evidenced what the applicant believed confirmed a formalized, high-level cover-up of past misconduct and self-promoting cronyism.  This was past misconduct witnessed by the applicant including misbehavior condoned by LT L ____ and LTC F ____.  LT L ____ received an "Outstanding" for performance and the rater stated "LT L____ demonstrates Army values on a daily basis" and the senior rater stated "LT L____ lives the Army values and his word is his bond."  LTC F ____'s OER stated he "dedicates himself to the highest standards of performance and conduct."  Thus, access was within the performance of his duties and exempt from the prior consent requirement under the Privacy Act.  Concurrently, the applicant was a person authorized within the law enforcement function to use such information for routine use of the IG process.

	e.  As a whistle-blower claim, disclosure was a protected lawful communications.  Lawful means any information the Soldier believes evidences violation of law or regulation.  It is a communication protected from reprisals, such as the reprimand.

	f.  The applicant was mobilized and assigned as the S1 officer in the 785th MP Battalion in FOB Camp Bucca, Iraq.  The FOB Commander was Colonel (COL) S____.  The HHC Commander, LT, L____; the executive officer (XO), Major (MAJ) E____; and the battalion commander, LTC F____, had all served together in Guantanamo Bay, Cuba, "The Gitmo Clique."

	g.  At the home station, in mobilization training, and continuing at Camp Bucca, the applicant witnessed misconduct, violation of regulations and the Uniform Code of Military Justice (UCMJ), and lack of Army values "from leaders of the Battalion and HHC (who were acting)...with impunity."   More specifically, he alleged "coercion, undue influence, and lack of integrity...cover-up and favoritism among the (Gitmo) clique" (referring to LT L____, the HHC commander; LTC F____, the battalion commander; and MAJ E____, the battalion XO).

	h.  In October 2005, the applicant approached COL S ____ to seek resolution of the pattern of misconduct in the 785th leadership.  Because COL S ____ was in the applicant's chain of command this is considered part of the protected IG process to resolve complaints.  COL S ____ reviewed a preliminary draft of the applicant's IG complaint.

	i.  In early April 2006, the applicant emailed to COL S ____ the final IG complaint and asked for advice on how to proceed.  COL S ____ advised the applicant to get a TDS counsel to assist, review the complaint, and provide any necessary legal advice before filing the complaint.  

	j.  The applicant provided the IG complaint to TDS counsel, CPT H ____, and Mr S ____,a civilian defense counsel at Fort Dix, NJ.  The complaint was reviewed and it was filed at Camp Bucca, Iraq, on 28 April 2006.  The IG complaint contained excerpts from OERs on LT L ____, and LTC F ____.

	k.  The OER information was not publically disclosed by the applicant.  He made a "lawful communication" sent to the IG, the chain of command and defense counsel.  They comprise the protected triangle of confidentiality as a routine use exception for law enforcement purposes.  The term "law enforcement communication" is defined as encompassing any information that the Soldier reasonably believes provides evidence of a violation of law or regulation, including...unlawful discrimination, gross mismanagement, gross waste of funds or resources, abuse of authority, or substantial and specific danger to public health or safety.

3.  Counsel provides a:

* 22-page Supplemental Statement (legal brief co-signed by the applicant)
* Counsel's Declaration  
* Department of the Army Suitability Evaluation Board (DASEB) decisional document
* the applicant's IG complaint, dated 6 April 2006
* letter of appointment of an Army Regulation (AR) 15-6 Investigating Officer with enclosures
* contested GOMOR and allied documents
* memorandum of support, dated 29 January 2007
* Office of the IG responses to Freedom of Information Act request
* several DA Forms 67-9 (OER)
* email notes relating to review of his IG complaint
* a portion of ARs on IG activities and procedures, Army legal services, and the Army Privacy Act Program
* opinion from the U.S. Court of Appeals for the Armed Forces
CONSIDERATION OF EVIDENCE:

1  The applicant was appointed as a U.S. Army Reserve (USAR) officer, Military Police Corps, on 12 June 2002.  He was promoted to captain on 27 February 2007.

2.  On 6 April 2006, while deployed to Iraq, he filed an IG complaint requesting resubmission of his recommendation for award of the Bronze Star Medal; change of his rating scheme; and an AR 15-6 investigation into a long list of allegations he submitted relating to incidents of cronyism, favoritism, and incidents of misconduct by his chain of command.  He included in his complaint excerpts from OERs for two members of his chain of command he acquired in his capacity as the battalion S1 officer.

3.  The AR 15-6 investigation was conducted and the IO recommended the applicant be subjected to disciplinary action because he violated AR 340-21 (The Army Privacy Act Program) in that he released OER material without written consent from LT L ____ and LTC F ____ and that the applicant be subject to disciplinary action for making false official statements in violation of Article 107, Uniform Code of Military Justice (UCMJ) and Article 122, UCMJ, conduct unbecoming an officer and a gentleman.

4.  The appointing authority approved the IO finding that the applicant violated AR 340-21.

5.  On 30 May 2006, the Commanding General (CG), 43rd MP Brigade, issued the applicant a GOMOR for violating AR 340-21.  The GOMOR stated that "Sometime, on or before 27 October 2005, while assigned as the S-1 for the 785th Military Police Battalion. [sic]  You [sic] obtained certain private information from the records of two fellow officers.   You thereafter wrongfully disclosed their private information without their written consent, as required by AR 340-21.  Further, this disclosure was not authorized within any exception to the consent requirement."

6.  The applicant acknowledged receipt and submitted a rebuttal relating that: 

   a.  prior to submitting his IG complaint he sought guidance from the FOB commander, who provided him with the names of two attorneys;
   
   b.  he was completely unaware that disclosing the content of OERs required prior written consent.  He had never seen this practice implemented in any previous unit; 
   c.  he was never counseled by his leadership about the Army Privacy Act Program, never received any training, nor did the attorneys who assisted him provide him any feedback that the content would violate ARs; and 
   
   d.  had he been properly mentored, counseled, and guided by his leadership and attorney he is confident that the incident would not have occurred.

7.  On 13 June 2006, the CG directed that the GOMOR be filed in the performance section of the applicant's AMHRR.

8.  On 5 June 2010, through counsel, the applicant petitioned the DASEB for removal of the contested GOMOR from his AMHRR and submitted essentially the same information as is offered with his application.  On 22 July 2010, by a unanimous vote, the DASEB determined the overall merits of his case did not warrant removal or transfer of the contested document.  Accordingly, the DASEB denied relief.

9.  Subsequent to the DASEB record, counsel has provided a sworn declaration of a telephonic interview that was conducted with a Mr. Gary T ____, retired USAR COL, who was the G1 Training Officer for the 91st Division.  In the 1990s, he served 3 1/2 years as the IG for the 95th Division (USAR).  He stated he was IG school trained and IG certified.  Counsel swore, "COL T ____ stated that based on his training and IG experience...OERs are not privileged in the IG process or investigation." When asked if looking at OERs require prior consent of the rated officer he said, "in fact, ...commanders tell IG's to look for anything that may be relevant." Counsel did not inquire as to the applicability of the Privacy Act provisions to OER's in making or building an IG complaint. 

10.  AR 600-37 (Unfavorable Information), paragraph 7-2a, states that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  Paragraph 7-2b(1) states that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

11.  Title 10, U.S. Code, section 1034(c) requires a military IG receiving an allegation of a prohibited personnel action notify the Department of Defense (DoD) IG and expeditiously determine if an investigation is required.  If the military IG determines an investigation is not required, the matter must be forwarded to the DoD IG for review.  If an investigation is required, the military IG must conduct the investigation expeditiously.  Neither an initial determination under nor an investigation is required in the case of an allegation made more than 60 days after the date on which the member becomes aware of the personnel action that is the subject of the allegation  

12.  AR 600-8-104 (AMHRR) 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.  Table 2-1 states administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through counsel, the GOMOR dated 30 May 2006 should be removed from his AMHHR.

2.  As a result of a formal investigation, the IO recommended the applicant be subjected to disciplinary action because he violated AR 340-21 (The Army Privacy Act Program) in that he released OER material without written consent from LT L ____ and LTC F ____.  The appointing official approved the recommendation and the applicant was issued a GOMOR.  
   
3.  He was provided an opportunity to submit a rebuttal and he did so.  In his rebuttal, he indicated that prior to submitting his IG complaint he sought guidance from the FOB commander, who provided him the names of two attorneys.
He was completely unaware that disclosing the content of OERs required prior written consent.  He had never seen this practice implemented in any previous unit.  He was never counseled by his leadership about the Army Privacy Act Program, never received any training, nor did the attorneys who assisted him provide him any feedback that the content would violate AR's.  Had he been properly mentored, counseled, and guided by his leadership and attorney he is confident the incident would not have occurred.

4.  Presumably those two TDS attorneys and the FOB commander would have been available to provide supporting evidence on his behalf.  However, he did not obtain any such evidence at the time and does not provide such evidence now.

5.  The sworn declaration describing the telephonic interview that counsel conducted with COL T ____ (Ret) was considered along with the other evidence presented.  It is noted that counsel did not inquire as the Privacy Act status of third-party OERs.

6.  The applicant became aware of the personnel action on 1 June 2006.  Whether or not he contacted and claimed the GOMOR was reprisal is not available in the evidence before the Board.  The applicant's claim of whistleblower reprisal would have best been filed with the IG within 60 days of receiving the GOMOR.  The applicant does not explain why the record is silent on this important matter.  At this point in time, an investigation into the alleged matter will most likely not provide reliable evidence.  

7.  The applicant claims he came upon the OERs in the normal course of his work.  However, in his application he also claims he was authorized to view the OERs as a matter of law enforcement and therefore permission was not required. He did not provide evidence that he was properly charged with the responsibility for investigating or prosecuting the (alleged) violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto. 

8.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his AMHRR.  There is insufficient evidence of an error or an injustice.  The evidence considered by the IO and the GOMOR imposing authority sufficiently established by a preponderance of the evidence the applicant violated the Army Privacy Act.

9.  After review of counsel's contentions and arguments, the evidence does not show by clear and convincing evidence that the GOMOR contains a material error, inaccuracy, or injustice.  Therefore, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  __X_____ _  __X______  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120006481



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ABCMR Record of Proceedings (cont)                                         AR20120014520



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