IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120018594 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a general officer memorandum of reprimand (GOMOR) from his U.S. Army Military Human Resource Record (AMHRR) (formerly known as official military personnel file (OMPF)).

2.  He states:

* His wife made a false allegation that he threatened her life; as a result, an informal investigation was conducted
* The investigating officer (IO) found no preponderance of evidence and his investigation was not consistent with Army investigative process
* The IO recommended a GOMOR based solely on opinionated comments, not facts
* There is no credible evidence that he lacked exemplary conduct during his military career
* This forced GOMOR revoked his recall to active duty and cancelled an approved end-of-career Legion of Merit
* His wife had mental health issues and a history of previous false allegations

3.  He provides:

* the contested GOMOR, rebuttal, and allied documents/filing instructions
* DA Form 1574 (Proceedings by Investigating Officer/Board of Officers) and allied documents/sworn statements
* Affidavit and protective order of the court 
CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Regular Army commissioned officer and executed an oath of office on 23 May 1981.  He served in a variety of stateside or overseas assignments and he was promoted to lieutenant colonel (LTC) on 1 January 1998.

2.  He was assigned to the Mission Command Awareness Division, Army Capabilities Integration Center, Headquarters, U.S. Army Training and Doctrine Command (TRADOC), Fort Monroe, VA. 

3.  On 21 April 2012, the applicant's immediate commander placed a military protective order prohibiting contact or communication with his spouse due to an earlier incident of allegedly communicating a threat by the applicant to his spouse. 

4.  On 1 May 2012, the Deputy Director/Chief of Staff - Army Capabilities Integration Center, Major General (MG) AMB, appointed an IO pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) to investigate the facts and circumstances surrounding the applicant's adherence to proper leave and pass procedures, security protocols, communicating a threat to his wife, and engaging in an improper relationship.  

5.  When the IO concluded his investigation on 14 May 2012, he made the below findings and recommendations regarding the applicant:

* he did not violate security policy for overseas travel
* he was read-on for Top Secret/Sensitive Compartmented Information
* he did not violate the leave and pass policy regarding declaration of a leave address
* there was insufficient evidence to support the allegation that he engaged in an inappropriate relationship or improper conduct with Ms. LJ
* there was no evidence to support the allegation that he carried on an inappropriate relationship or improper conduct with Ms. CG
* there was no evidence to indicate an inappropriate relationship with Ms. CC, Ms. MB, Ms. LC, or Ms. BE
* there was credible evidence that he communicated a threat to his wife or engaged in a conduct which may have created a hostile environment at their home
* there was credible evidence that he violated a military protective order issued by the unit commander 

The IO stated the applicant and his spouse were both abusive in language, argumentative, lying, and creating a hostile and potentially volatile environment.  Their marriage had been bad but neither wanted to face up to that fact.  Nevertheless, this did not give the applicant the right to behave in this manner.  As such, the IO recommended a GOMOR for the threat and violation of the military protective order. 

6.  On 31 May 2012, MG AMB reprimanded the applicant for his actions.  The GOMOR states he was reprimanded specifically for communicating a threat to his wife in the January to February 2012 timeframe and for violating the military protective order issued by his commander.  By engaging in these acts of misconduct, he seriously compromised his standing as a commissioned officer.  His actions revealed a lack of judgment on his part as an officer and Soldier.   

7.  He acknowledged receipt of the GOMOR and submitted a rebuttal through a civilian attorney.  His attorney stated:

* the applicant never communicated a threat to his wife or engaged in any conduct creating a hostile environment
* the IO's findings were not fully supported and the investigation did not undergo a legal review
* the threats were based solely on the unreliable allegations made by the applicant’s wife
* the IO's recommendations were based more on the instability of the applicant’s wife than the applicant’s own actions
* the applicant’s wife had mental health issues and a history of inconsistent statements
* the applicant received numerous awards and decorations throughout his career
* the GOMOR should be filed locally 

8.  After careful consideration of the applicant's case and the rebuttal he submitted, the imposing general officer ordered the filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

9.  Prior to receiving the GOMOR, the applicant had submitted a request for voluntary retirement.  He retired on 31 May 2012 and he was placed on the Retired List in his retired rank of LTC on 1 June 2012.  He was credited with over 31 years of active service.  

10.  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.

11.  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 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.

12.  Army Regulation 600-8-104 (AMHR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board or Army Board for Correction of Military Records). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that an IO found credible evidence the applicant had communicated a threat to his wife or engaged in conduct which may have created a hostile environment at their home and violated a military protective order issued by the unit commander.  Accordingly, he received a GOMOR. 

2.  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.  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 officer 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.  Although his spouse may have had mental health issues, his conduct was inexcusable.  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust or that it has served its purpose.

4.  In addition, there is a reluctance to transfer adverse information to the restricted section an AMHRR when it places the applicant on 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. The fact that he was not recalled to active duty appears to be a natural result of his own actions.  There is an insufficient evidentiary basis on which to show that the contested GOMOR has served its intended purpose and thus there is also insufficient reason to transfer the GOMOR to the restricted section of his AMHRR.

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 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)                                         AR20120018594





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ABCMR Record of Proceedings (cont)                                         AR20120018594



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