IN THE CASE OF:
BOARD DATE: 23 October 2012
DOCKET NUMBER: AR20120018180
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 to counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests:
a. removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 20 July 2010, and the resultant general officer memorandum of reprimand (GOMOR), dated 22 July 2010, from the applicant's Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File);
b. or alternatively transfer the DA Form 2627 and the resultant GOMOR to the restricted section of the applicant's AMHRR; and
c. consideration of the applicant's records for promotion by a special selection board (SSB) with the GOMOR not as part of the AMHRR.
2. Counsel states:
a. An Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation into allegations the applicant had fraternized and/or committed adultery determined the applicant was in an inappropriate relationship.
His conduct did not adversely impact discipline, affect authority, or prejudice good order and discipline. He received an Article 15 for an inappropriate relationship. He admitted to and apologized for his conduct.
b. He was selected for promotion to lieutenant colonel (LTC) by the Fiscal Year (FY) 2010 promotion selection board. However, due to the Article 15, his record was sent to a promotion review board (PRB). The flag officer who imposed the Article 15 recommended the applicant's retention on the LTC list. He did not meet the criteria for consideration by the FY11 LTC promotion board because of the PRB action.
c. The PRB recommended his removal from the promotion list and the U.S. Army Human Resources Command (HRC) notified him of the Secretary of the Army's (SA) decision on 30 August 2011. However, on 29 August 2011 the SA directed that no action would be taken to initiate elimination proceedings based on the PRB's recommendation that the applicant show cause for retention on active duty or on the basis of the underlying misconduct that was referred to the PRB for consideration.
d. The applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) on 4 November 2011 to transfer the Article 15 and GOMOR to the restricted section of his AMHRR. The DASEB denied relief on 6 January 2012.
e. The FY12 LTC promotion board convened on 22 February 2012. The Military Personnel (MILPER) message stipulated the through date of officer evaluation reports (OER's) would be 15 November 2011 and the lock-in date to review the AMHRR was 17 February 2012.
f. Contrary to the SA's direction, the FY13 LTC, Operations Support, Centralized Selection List (CSL), Command and Key Billets Board recommended that the applicant show cause for retention. As such, elimination action and a flag (suspension of favorable personnel actions) were initiated. The applicant presented the SA's directive to HRC on 30 May 2012. Accordingly, HRC terminated the elimination action and the flag on 13 June 2012.
g. The consequences of these actions/inactions were that the SA's memorandum was never filed in the applicant's AMHRR, which meant the FY12 LTC promotion board never saw the SA's memorandum. This should entitle him to an SSB, but that SSB would still see the Article 15 and the GOMOR. The applicant filed his DASEB petition with the understanding the board would see the SA's memorandum. Through negligence by the Army, the memorandum was not filed in his AMHRR. This made the DASEB decision prejudicial. The memorandum from the SA represents a conclusion that the Article 15 and GOMOR have served their purposes. There is no other interpretation. The SA's decision seldom uses this language and therefore carries great significance.
3. Counsel provides:
* DASEB denial decision
* initiation of the Army Regulation 15-6 investigation and completed investigation
* DA Form 2627 and GOMOR
* memorandum from the applicant
* PRB recommendation and results
* memorandum from the SA
* letter of support
* MILPER Message 11-324, dated 20 October 2011, subject: FY12 LTC Maneuver, Fires, and Effects (MFE), Operations Support (OS), and Force Sustainment (FS) Boards Zones of Consideration
* consideration for referral to a show cause board
* DA Forms 268 (Report to Suspend Favorable Personnel Actions)
* initiation of elimination action
* email pertaining to entitlement to an SSB
* request for reconsideration
* Bronze Star Medal Certificate
* officer evaluation report (OER)
* mandatory retirement letter
CONSIDERATION OF EVIDENCE:
1. Having prior enlisted service, the applicant was appointed as a Regular Army military intelligence (MI) commissioned officer on 28 May 1994. He entered active duty on 15 June 1994 and served in a variety of stateside and overseas assignments. He was promoted to major (MAJ) on 1 February 2005.
2. He completed several periods of foreign service including Saudi Arabia, Kuwait, Hawaii, and the Philippines. He was assigned to the Special Operations Command Pacific (SOCPAC) in the SOC Center/Joint Operations Center from June 2008 to March 2009. Between April and October 2009, he deployed to Joint Special Operations Task Force-Philippines (JSOTF-P).
3. On 5 March 2010, the FY10 LTC OS promotion selection board recessed. The applicant was selected for promotion to LTC.
4. On 24 June 2010, the applicant's spouse turned an email in to the Pacific Command Office of Inspector General indicating an inappropriate relationship existed between the applicant and a Marine staff sergeant (SSG) also serving with the JSOTF-P. A 7-day "no contact" order was issued the next day.
5. On 28 June 2010, the Chief of Staff, SOCPAC, Camp Smith, HI, ordered appointment of an investigating officer (IO) to conduct an informal inquiry into the facts and circumstances surrounding the applicant's potential misconduct and fraternization with Marine SSG C___ P___. The alleged misconduct may include adultery, conduct unbecoming an officer and a gentleman, fraternization, and failure to obey a general regulation.
6. On 29 June 2010, the IO rendered his report. Based on the evidence he collected, the IO found a professional relationship existed between the applicant and SSG C___ P___ that grew into inappropriate behavior/contact without any sexual intercourse. There was no apparent adverse impact on discipline or morale. Furthermore, it did not appear to affect authority and was not prejudicial to discipline and good order. However, the conduct was a violation of a lawful general regulation. The IO recommended:
* initiation of a command climate survey
* imposition of appropriate administrative action against the applicant via nonjudicial punishment (NJP)
* approval of applicant's request for early return of dependents
* hold SSG C___ P___'s change of station orders pending further action
* hold applicant's promotion to LTC pending further action
7. On 12 July 2010, a military attorney conducted a legal review of the informal investigation and found it legally sufficient.
8. On 19 July 2010, the applicant submitted matters of defense/mitigation of his Article 15 hearing. He acknowledged that his inexcusable actions were a disgrace to him, his family, the command, and the Army. He apologized and asked for forgiveness.
9. On 20 July 2010, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for violating a general regulation (wrongfully engaging in an intimate relationship with SSG C___ P___ and engaging in an inappropriate relationship of an intimate and personal nature with SSG C___ P___ on divers occasions. His NJP consisted of a written reprimand. The imposing officer directed filing of the Article 15 in the performance section of the applicant's AMHRR. The applicant elected not to appeal his punishment.
10. On 22 July 2010, the SOCPAC Commanding Officer (U.S. Navy Rear Admiral) reprimanded the applicant for violating a general regulation in that he established and maintained a personal and intimate relationship between himself and an enlisted Marine. The inappropriate relationship rose to the level of conduct unbecoming an officer because both he and SSG C___ P___ were married to other people.
11. The Article 15, together with allied documents and the reprimand, are filed in the performance section of the applicant's AMHRR.
12. On 19 August 2010, HRC officials notified the applicant by memorandum that in accordance with Title 10, U.S. Code (USC), section 624(d)(2), and Army Regulation 600-8-29 (Officer Promotions), his promotion may be delayed if there was cause to believe he was mentally, physically, morally, or professionally unqualified to perform the duties of the grade to which he was selected for promotion. A review of his file indicated he received a GOMOR as part of an Article 15 on 22 July 2010 after the convening date of the promotion selection board which affected his promotion to LTC. He was further notified that his records would be referred to a PRB which would recommend one or more of the following to the SA:
* retention on the promotion list
* removal from the promotion list
* show cause for retention in the Army
13. He was further informed that his records were flagged and he had the right to submit a rebuttal within a specified period of time.
14. On 22 November 2010, the applicant acknowledged notification of his referral to the PRB. On 24 November 2010, the officer who imposed the Article 15 (the U.S. Navy Rear Admiral) strongly recommended the applicant's retention on the FY10 LTC List. He indicated the punishment had served its purpose.
15. On 1 December 2010, the applicant submitted a rebuttal wherein he stated he had undergone rehabilitative efforts in the form of counseling to reconcile his behavior. He apologized again and asked that the PRB retain him.
16. On 11 January 2011, a memorandum for the Secretariat, Department of the Army Selection Boards, requested that a PRB be convened for reconsideration of the applicant's promotion status. He had been selected for promotion to LTC by the FY10 LTC board and his records indicated he received a GOMOR.
17. On 3 March 2010, a board of officers convened at the Secretariat for Selection Boards, Fort Knox, KY, to consider the applicant's case. The board viewed the applicant's qualifications and the requirements of the Army. The PRB found the applicant was not fully qualified and not among the best qualified for selection to meet the needs of the Army consistent with the requirements of exemplary conduct in Title 10, USC, section 3583. As such, the PEB recommended the applicant's removal from the promotion list by unanimous vote.
18. The Director of Military Personnel Management, Office of the Deputy Chief of Staff (DCS), G-1, requested the SA's approval of the results of the PRB. The staffing and approval record shows the following:
* DCS, G-1, recommended removal
* Assistant Secretary of the Army for Manpower and Reserve Affairs (ASAMRA) recommended removal
* Vice Chief of Staff of the Army (VCSA) recommended removal
* Chief of Staff of the Army (CSA) recommended removal
19. On 29 August 2011, the SA ordered the applicant's immediate removal from the FY10, Army, OS, Promotion Selection List, under the provisions of Title 10, USC, section 629(a), and Army Regulation 600-8-29. The SA also directed that no action be taken to initiate elimination proceedings based on the PRB's recommendation that the officer be required to show cause for retention on active duty or on the basis of the underlying misconduct that was referred to the PRB for consideration.
20. The complete PRB packet, together with the SA's decision memorandum, were filed in the restricted section of the applicant's AMHRR on 30 August 2011.
21. On 20 October 2011, MILPER Message Number 11-324 announced the FY12 LTC, MFE/OS/FS Boards zone of consideration. The MILPER message stated the board would convene on 13 March 2012 to consider MAJ's with a date of rank of 31 March 2006 (primary zone) as well as other zones. The required through date for promotion reports was 15 November 2011 and the board promotion file would open for review/certificate by eligible officers on 20 December 2011 and close on 17 February 2012.
22. On 8 December 2011, the applicant petitioned the DASEB to transfer the Article 15 and GOMOR to the restricted section of his AMHRR. However, on 6 January 2012, the DASEB denied his request by unanimous vote.
23. On 15 May 2012, the Commanding General, HRC, notified the applicant by memorandum that he was identified by the FY13 LTC, OS, CSL Command and Key Billets Board to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2(b), because of misconduct moral or professional dereliction. The action was based on substantiated derogatory activity in the form of an Article 15 and GOMOR placed in his record. In conjunction with this action, a DA Form 268 was also initiated.
24. On 31 May 2012, the applicant requested that initiation of a show-cause board by HRC be stopped due to the SA's decision not to initiate elimination proceedings against him on 29 August 2011.
25. On 6 June 2012, an official in the Office of the DCS, G-1, notified HRC by email that the SA directed no action to be taken against the applicant. He also requested an SSB be prepared and ready for execution as soon as the FY12 LTC Promotion Selection Board is released. The FY12 LTC board adjourned on 8 March 2012; the results were released on 29 July 2012 and confirmed by the Senate in September 2012.
26. On 13 June 2012, HRC notified the applicant that the initiated elimination action was closed and the flag imposed on 15 May 2012 would be removed in light of the SA's decision not to initiate action against him.
27. On 26 July 2012, HRC notified the applicant that the FY12 LTC MFE/OS/FS Promotion Selection Board considered his record for promotion to LTC, but he was not selected. The HRC official also notified him that:
* by law, he must be retired from the Army no later than the seventh month of the approval date of the promotion board's report unless he was within 2 years of retirement
* since he was within 2 years of retirement, he could elect to remain on active duty until 30 June 2014, his mandatory removal date (MRD)
* he may request voluntary retirement on his MRD otherwise, he would be involuntarily retired as a two-time non-select
28. The applicant and his counsel submitted:
a. a Bronze Star Medal Certificate, dated 11 August 2012, showing the applicant was awarded the Bronze Star Medal for meritorious service in support of Operation Enduring Freedom from February 2012 to September 2012; and
b. an OER for the rating period 11 October 2011 through 15 September 2012 showing his duty as an Afghan Army Advisor assigned to the 1st Brigade Combat Team, 82nd Airborne Division. His rater rated him "Outstanding Performance Must Promote" and his senior rater rated him "Best Qualified/Above Center of Mass."
29. Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List (ADL). Paragraph 1-19 states an officer's promotion is automatically delayed (i.e., the officer is not promoted in spite of the publication of promotion orders) when the officer is under investigation that may result in disciplinary action of any kind being taken against him or her, or when under or should be under suspension of favorable personnel actions, and/or when a memorandum of reprimand (directed for filing in the AMHRR before the date he or she would otherwise have been promoted) which was not considered by the board that selected him or her for promotion.
30. Army Regulation 600-8-29, chapter 8, provides for managing the PRB's.
a. Paragraph 8-1 states that before the report of an officer selection board has been approved by the SA, the name of an officer recommended by a selection board may be removed from the board report by the President or his designee (Title 10, USC, section 579(d)). A report of a selection board exists after a promotion board issues a signed board report. The board report becomes a promotion list after approval by the President or his designee. If the SA recommends removal of the name of an officer from a selection board's report and the recommendation includes information that was not presented to the selection board, the information will be made available to the officer. The officer will be afforded a reasonable opportunity to submit comments on that information to the officials making the recommendation and the officials reviewing the recommendation. If the officer cannot be given access to the information for reasons of national security, the officer will, to the maximum extent practicable, be provided an appropriate summary of the information.
b. Paragraph 8-2 states an officer may be referred to a PRB for a number of reasons, to include when derogatory information is received by Headquarters, Department of the Army (HQDA), but not filed in the AMHRR, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. An officer may be referred to a PRB for the following reasons (the list is not exclusive): a referred OER, punishment under Article 15 (whether filed in the restricted or performance section of the AMHRR), any court-martial conviction, a memorandum of reprimand placed in the AMHRR, adverse documentation filed in the AMHRR, initiation of elimination action, or other derogatory information received by HQDA but not filed in the AMHRR, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.
c. Paragraph 8-3 states suspension of favorable personnel actions will be as prescribed in the appropriate regulation. HQDA will prepare a DA Form 268 upon referral of a case to a PRB by HQDA. The failure to prepare a DA Form 268, however, does not invalidate referral of the action to a PRB or subsequent action relating to the PRB (including removal from a promotion list). HQDA will remove the suspension of favorable personnel action (if not earlier removed by the SA or the SA's designee) when the President or the President's designee decides whether the officer should be removed from the promotion list.
The provisions of paragraphs 1-19 and 1-20 regarding non-promotable status and delay of promotions apply.
d. The DCS, G-1, or a designee (normally the Director of Military Personnel Management) is authorized to refer cases to a PRB except those involving promotion to or within general officer grades. Before the PRB convenes, the officer under review will be informed by memorandum of the reason for the action and provided a copy of any information that will be considered by the board.
e. The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB. The PRB's recommendation is only advisory to the SA. In cases involving promotions to or within general officer grades, the board report will be sent through the CSA to the SA who will forward the report with an appropriate recommendation through the Secretary of Defense to the President. An officer who is removed from a promotion list continues to be eligible for consideration for promotion. Officers considered by a PRB will be informed of the results in writing through their chains of command.
31. Army Regulation 600-8-29 also states an SSB may be convened to consider or reconsider commissioned officers for promotion when HQDA discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error, including officers who missed a regularly0scheduled board while on the Temporary Disability Retired List and who have since been placed on the ADL (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).
32. 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.
33. 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. Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.
34. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF 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 B-1 states that 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. There are three key issues in the applicant's case:
* removal or transfer of the Article 15 and the resulting reprimand
* referral to the PRB
* promotion consideration by an SSB
2. With respect to the Article 15 and GOMOR:
a. The evidence of record confirms the applicant, a MAJ, violated the UCMJ and subsequently accepted NJP on 20 July 2010 for violating a general regulation by wrongfully engaging in an intimate relationship with a Marine SSG and engaging in an inappropriate relationship of an intimate and personal nature with the SSG on divers occasions. His NJP consisted of a written reprimand. The imposing commander directed filing of the Article 15 in the performance section of his AMHRR. He elected not to appeal his punishment.
b. His NJP proceedings were conducted in accordance with law and regulation and the Article 15 and allied documents are properly filed in the performance section of his AMHRR as directed by the imposing commander. There is no evidence of record and the applicant provides insufficient evidence to show the DA Form 2627 is untrue or unjust.
c. The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.
d. When an NJP action reflects unmitigated moral turpitude, the interests of the Army are compelling and in such cases the record should be filed in the AMHRR. The fact that the applicant engaged in an inappropriate relationship with an enlisted Soldier is evidence of a lack of integrity.
e. He and his counsel have not demonstrated the NJP action was unjust or untrue, or that this NJP should be removed because of the length of time, or that a removal would be in the best interest of the Army. Therefore, he is not entitled to removal or transfer of the Article 15 in this case.
f. His NJP was a written reprimand. The reprimand is an allied document to the Article 15. The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit to the Army. The applicant was a field-grade commissioned officer with several years of experience. He violated the Army values. By his own admission, his conduct was inexcusable and his actions brought discredit to himself, the command, and the Army. His actions displayed a lack of discipline and raised questions about his ability to effectively perform as a leader. The reprimand was correctly filed. The applicant has not proven this GOMOR to be either untrue or unjust. He is not entitled to its removal or transfer.
3. With respect to his removal by the PRB:
a. Prior to receiving the Article 15 and GOMOR, he had been selected for promotion by the FY10 LTC board. For officers selected for promotion, HQDA conducts screening of the records of recommended officers and information in other official files. A review board convened at HQDA will consider any adverse information from this screening and advise the DCS, G-1, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the SA should consider recommending removal of the officer's name from the report of the selection board or the officer should be referred to a PRB.
b. Having received an Article 15 and a GOMOR, his records were referred to a PRB as required by Army Regulation 600-8-29, chapter 8. The applicant was afforded an opportunity to comment on this information and he did so. The senior HQDA chain of command, including the G-1, VCSA, CSA, and ASAMRA, unanimously recommended his removal a clear sign of the seriousness of his actions. Only then and after having considered all the information, including the PRB's recommendation and the applicant's rebuttal and letters of support, did the SA order removal of his name. While the PRB process was in motion, he was in a non-promotable status. Accordingly, he was never considered by the FY11 LTC board.
4. With respect to the SSB:
a. As stated earlier, the SA ordered the applicant's immediate removal from the FY10, Army, OS, Promotion Selection List, as required by statute and regulation. The SA also directed that no action be taken to initiate elimination proceedings based on the PRB's recommendation that the officer be required to show cause for retention on active duty or on the basis of the underlying misconduct that was referred to the PRB for consideration.
b. The evidence of record shows the complete PRB packet, together with the SA's decision memorandum, was filed in the restricted section of the applicant's AMHRR, as required by the governing regulation. It is not required to be filed in the performance section of his AMHRR. Although it is unclear if the board looked at both his performance and restricted sections, the contention that the outcome would have been different if the board had seen the SA's memorandum is speculative and lacks merit. Additionally, when the applicant reviewed his promotion file within the open window to review and certify, he would have noticed the absence of such memorandum from the performance section of his AMHRR. He never raised it as an issue or corresponded with the promotion board to address it as an issue.
c. In any case, given the derogatory information in his official file, HRC officials notified him on 5 May 2012 that he was identified by the FY13 LTC OS, CSL Command and Key Billets Board to show cause for retention on active duty. He immediately alerted the G-1 of the error. The Office of the DCS, G-1, notified officials at HRC that the SA directed no action to be taken against the applicant. He also requested that an SSB be prepared and ready for execution as soon as the FY12 LTC Promotion Selection Board was released (July 2012). However, no SSB was initiated because he did not qualify for an SSB.
d. On 13 June 2012, HRC notified him that the elimination action was closed and the flag imposed on 15 May 2012 would be removed in light of the SA's decision not to initiate action against him.
e. Since there was never a material or an administrative error in his record, and since he did not provide sufficient evidence to support removal of either the Article 15 or the resulting GOMOR from his records, there is no reason to send his records before an SSB.
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.
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