BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120020966 


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 the removal of the general officer memorandum of reprimand (GOMOR), dated 2 June 2011, from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  Not only was the reprimand uncalled for, he was not informed of Brigadier General (BG) WJG's final decision to post it to his AMHRR.  Administratively, he was denied the chance to submit a rebuttal to the decision to post this to his AMHRR through the U.S. Army Reserve Command (USARC) legal channels.  Two documents submitted to his AMHRR notifying him the reprimand was to be filed in his local file and AMHRR were never sent.  Several of his phone calls to BG WJG's office and the USARC Staff Judge Advocate requesting information in this regard were rudely received with no information forthcoming.  The reprimand itself was sent via email to his home email address and to his business email.  This entire matter was handled in an unprofessional and mean-spirited manner unbecoming of the USARC that he faithfully served.

	b.  He believes that after a review of the email correspondence between himself and the investigating officer (IO), the Board will see that he attempted to cooperate to the best of his ability and only sought clarifying information concerning the contract in question.  Contrary to the statement of the IO, there 


were dozens of contracts that he reviewed during this time period as the USARC Family Programs encompassed units all around the world.  The contract in question was purposely kept from him, the facts were presented vaguely, and the underlying truth is that this contract actually came into being before he became the acting director and continued well after he left.  He never signed a single document nor approved a payment or increase in services and, in fact, the wool was pulled over his eyes and the eyes of the other four acting directors.  However, he was the only one issued a reprimand since he was the only retired mobilized Reserve officer at the time the investigation was initiated.

	c.  A scapegoat was needed  and pinned on him since he was the easiest target.  The facts surrounding the incident did not call for a reprimand to be issued to him or for it to be filed in his permanent record.  After 30 proud years serving his country selflessly, the only "REPRIMAND EVER" issued to him came about 2 years after he retired and was based on an incident in which he was "NOT" complicit.  An injustice has been committed on the part of those in desperate need to "pin the blame on someone."  He was misled when the IO told him the only reason for the investigation was to input management internal controls in order to ensure nothing like this happened again.  Please help him purge this error from his records.

3.  The applicant provides five memoranda, 14 pages of email, a DA Form 1574 (Report of Proceedings (ROP) by IO/Board of Officers), and a DA Form 2823 (Sworn Statement).

CONSIDERATION OF EVIDENCE:

1.  Having had prior active and Reserve service, the applicant was a Reserve commissioned officer and on 28 September 2001, he entered active duty as a member of the USAR.  He was assigned as the Director, Warrior Assistance and Family Center (WFAC), USARC, Fort McPherson, GA.  He was promoted to the rank/grade of colonel (COL)/O-6 on 17 February 2005.

2.  On 13 May 2008, he was assigned as the Interim Director, Army Reserve Family Programs Directorate (ARFPD), Fort McPherson.

3.  He was honorably released from active duty on 30 September 2009 to the control of the USARC, Fort McPherson.

4.  On 1 October 2009, he was retired from the USAR by reason of sufficient service for retirement and he was placed on the Retired List in the rank of COL.


5.  On 13 August 2010, BG WJG, Chief of Staff, USARC, Fort McPherson, appointed an IO under the provisions of Army Regulation 15-6 (Procedures for IO and Boards of Officers) to look into allegations that unauthorized services were performed by a company named O----y M-------g, Inc., referred to hereafter as
O----y, for the ARFPD, Fort McPherson, from September 2008 to September 2009.  The investigation was completed on 1 November 2010.

6.  The applicant provided and his record contains the ROP from the IO to BG WJG, dated 19 November 2010, wherein the IO stated, in part, he found:

	a.  [The Applicant] in his capacity as Director, WFAC was the requesting/approving authority for WFAC contract action.  As Interim Director, ARFPD, he became the requesting/approving authority for ARFPD contract action.  Whether he implicitly, explicitly, or by leadership default exercised his authority is in question; but, irrespectively, he was the Interim Director at the time and was ultimately responsible for all contract actions under his directorate.

	b.  [The Applicant's] sworn statement clearly indicated his lack of knowledge, awareness, and supervisory oversight over contracts under his directorate.  The IO believes his lack of supervisory involvement and leadership created a climate whereby incapable subordinates made decisions for him without his consent or knowledge.

	c.  O----y provided services to ARFPD from June 2008 to June 2009 without a valid contract.  AFRPD was a directorate in flux with constant personnel turnover; lacking leadership and a director's contracting oversight, until [another COL] assumed duties on 28 May 2009.  [The Applicant] provided little or no oversight to contracts under his purview.

	d.  [The Applicant] directed/authorized the ARFPD's receipt of services from O----y either implicitly, explicitly, or by leadership default.

	e.  Neither [the Applicant], nor the contracting officer representative (COR), was fully aware of the requirements for entering into a contract with O----y.  [The Applicant's] sworn statement response of "I do not know" to the question "was the person who directed/authorized the ARFPD to receive services from O----y a COR," tells the story.  He was the interim director and did not know he was solely responsible for directing/authorizing services; did not know who was dealing with one of a handful (under five) contracts; and did not know if that person was even trained.


	f.  The total value of the unauthorized services provided by O----y to the ARFPD is probably $959,549.92.  The precise number cannot be ascertained until O----y provides all the statements for full ratification.  Although a valid written contract was not in place, a USARC COR under the implicit or explicit authorization of [the Applicant] entered into a verbal contract with O----y by mischaracterizing the status of the presumed contract and encouraging that services be rendered.

7.  The IO also recommended:

	a.  "USARC conduct a contract ratification action to enable the Command to pay O----y for the services rendered.  Although a valid written contract was not in place, a USARC COR under the implicit or explicit authorization of a USARC Program Director [the Applicant] entered a verbal contract with O----y by mischaracterizing the status of the presumed contract and encouraging that services be rendered/continued to be rendered.  O----y, in good faith, provided all required services.  Furthermore, no one in ARFPD complained about the quality of the services provided to the point that follow-on contracts were awarded to
O----y for fiscal year (FY) 10 and FY11.

	b.  USARC ensure all Directors and their Deputies dealing with, or overseeing, contracts are properly trained on their duties and responsibilities (to include ethical obligations and avoidance of undue influence) before taking over their positions, even if they are under an Interim or Acting status.

	c.  Although there is no indication that the lapses in COR execution were systemic at ARFPD, recommend a capable USARC contracting official conduct targeted re-training for all current ARFPD CORs to ensure this remains an isolated case.

	d.  I do not recommend a Commander/Supervisor take any form of disciplinary action against [the Applicant].  Although utterly reprehensible and egregious in his lack of oversight and leadership while serving as Interim Director for ARFPD, [the Applicant's] actions do not merit further USARC involvement or time investment.  The incident did not come to light until [the Applicant] had long retired and, regrettably, the lapse and memory recollection of the events by those involved is vague, sometimes contradictory, or selective.  In the IO's opinion, it is too late now for any meaningful personal accountability or punitive action that could not be successfully legally contested given the conflicting memory recollection of those involved.  In the IO's view, [the Applicant's] immature characterization of the events; lack of personal accountability, fuzzy and 


selective memory; and desire to pass responsibility to others render him unredeemable and are probably a tell-all microcosm of his service as Interim Director, ARFPD.  Still, the vague depositions of all others involved in the case do not support delayed disciplinary action.

	e.  I recommend the appropriate Commander/Supervisor consider disciplinary action against…for failure to properly execute her COR responsibilities.  …candid description of her involvement in this case merits sympathy, but does not exculpate her from personal responsibility.  This investigator does not see her actions as a dereliction of duty, but a series of missteps caused by unsupervised work, inexperience, and misunderstanding of the COR process.  Still,…needs to be excoriated for failing to fully understand and properly execute her responsibilities as a COR.  When considering disciplinary action against…, recommend the Commander/Supervisor take into consideration that the offense is two years removed from its occurrence and that actions have been undertaken to prevent a reoccurrence, to include…re-training."

8.  On 21 March 2011, the approving authority approved the IO's recommendations listed above with the following exception in 7a, except for the sentence "O----y, in good faith, provided all required services."

9.  He disapproved the recommendation listed in 7d above and approved the following substituted recommendation.  "I recommend that the Command take appropriate administrative action against [the Applicant].  His lack of oversight and leadership while serving as Interim Director for ARFPD was utterly reprehensible and egregious.  In the IO's view, [the Applicant's] immature characterization of the events; lack of personal accountability; fuzzy and selective memory; and desire to pass responsibility to others render him unredeemable and are probably a tell-tale microcosm of his service as Interim Director, ARFPD."

10.  On 2 June 2011, BG WJG presented the applicant a GOMOR, which stated he was being reprimanded for his reprehensible and egregious lack of oversight and leadership while serving as the Interim Director for the ARFPD from May until October 2008.  During his time as Director, the ARFPD entered into an unwritten/unapproved contract with O----y for various services and he failed in his duties as the requesting/approving authority.  As a result of his incompetence,
O----y provided services totaling about $1 million without a valid contract.  During the investigation into the unauthorized procurement, his memory was fuzzy and selective, and he attempted to blame others for his shortcomings.  As a senior commissioned officer, he must conduct himself at all times to high moral and 


professional standards and set an example of good judgment.  He (BG WJG) was gravely disappointed in the applicant's actions.

11.  The reprimand further stated the GOMOR was imposed as an administrative measure and under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  However, the applicant should not consider this fact an indication of his tolerance for the applicant's action.  He was considering filing the reprimand in the applicant's AMHRR and the applicant was notified he had the right to submit matters in defense, rebuttal, extenuation, and mitigation.

12.  On 7 June 2011, the applicant acknowledged receipt of the GOMOR and in an email rebuttal, dated 7 June 2011, in part, stated:

	a.  He requested the reprimand not be placed in his permanent record.  He agreed that he lacked the skills requisite for the position but he did not agree with the characterization that he attempted to place blame on others.  He reviewed his sworn statement and didn't believe the answers he gave were an attempt to shift blame or cause others to suffer.  He brought his passion and commitment as Director, WFAC, [to the ARFPD] and attempted to bring egregious irregularities under control.  Unfortunately, he was not entirely successful as evidenced by the IO's findings that indeed, more was going on behind the scenes than he was aware of.

	b.  He was truly sorry for the facts in evidence and accepted full responsibility for the actions of those subordinate to him.  As a leader, he passed credit when praise came to the team and accepted blame when things went wrong.  If he were still acting as the Director, ARFPD, and these facts were known to him, he would proceed as outlined by the IO and bring the facts to him (BG WJG).

	c.  He could point to 86 temporary duty trips in a 2-year period and the incredible accomplishments in that short time period of his team as a source of his lack of management internal control, or the fact that the same interactions that occurred during his watch started before his tenure and continued after tenure as a defense but that would be wrong.  Instead, he would simply like to repeat his pleas that the reprimand not be made a permanent part of his record.  He would continue to suffer through his own self-inflicted reprimand and the subsequent anger and disappointment his spouse was feeling and would, undoubtedly, continue to feel in the future.

13.  On 28 June 2011, BG WTG reviewed the applicant's response to the GOMOR and, after consideration of the nature of the applicant's misconduct and 


his response, he directed the GOMOR and associated documents be filed in the performance section of the applicant's AMHRR.

14.  The applicant provides and his record contains a memorandum to the applicant  from BG WTG, dated 28 June 2011, wherein it stated after a careful review of the applicant's response to the GOMOR his decision was to file the GOMOR in the performance portion of the applicant's AMHRR.

15.  The applicant also provides an email to the IO, dated 14 October 2011, wherein he asked if BG WTG decided to place the GOMOR in his permanent records.  In an email response, dated 14 October 2011, the IO stated he could not help as he did not know the disposition of the case or what the [filing] decision was.

16.  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.

17.  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.

18.  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 applicant contends the GOMOR should be removed from his AMHRR because he was not informed of BG WJG's final decision to file it in his AMHRR and he was denied the chance to submit a rebuttal to the filing decision through USARC legal channels.

2.  The evidence of record shows the applicant received a GOMOR in June 2011 as the result of a 15-6 investigation that found the applicant was egregious in his lack of oversight, leadership, and incompetence while serving as Interim Director for ARFPD.  This lack of leadership resulted in the unauthorized procurement of about $1 million of services without a valid contract.  The IO also found that during the investigation, his memory was fuzzy and selective, and he attempted to blame others for his shortcomings.

2.  He was afforded the opportunity to review the evidence against him and to submit matters in his own behalf prior to a final filing decision.  His response was received and considered.  Subsequently, the GOMOR was referred for filing in his AMHRR.

3.  Notwithstanding the applicant's contention that he was not aware of the final filing decision and denied the opportunity to appeal the final decision, his record contains a memorandum addressed to him notifying him of BG WTG's final decision.  In addition, after a decision is made by a general officer to file a reprimand in a Soldier's AMHRR, there is no process or requirement for the Soldier to appeal the decision to a higher authority.

4.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his AMHRR.  There is no evidence of an error or an injustice.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120020966



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