BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20120021298 


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), hereafter referred to as the subject GOMOR, and all related DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)) from his Official Military Personnel File (currently known as the Army Military Human Resource Record (AMHRR)).  He further requests promotion to the rank/grade of master sergeant (MSG)/E-8.

2.  The applicant states the GOMOR, FLAG, and the delay in his promotion to MSG were based upon incorrect facts.  He defers to his counsel's written argument and supporting exhibits which were submitted along with this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests relief in the nature of correcting the applicant's AMHRR by directing the removal of the GOMOR, dated 30 August 2011, any related FLAG action, and promoting him to MSG pursuant to the Fiscal Year 2012 (FY12) MSG/E-8 Selection Board criteria with all back pay and allowances which may become due as a result of such retroactive promotion.

2.  Counsel states the following applicable military laws and the facts of this case support the contention that the subject GOMOR and the related flagging action should be removed from the applicant's AMHRR and he should be promoted to the next higher grade:

	a.  First.  The applicant was never provided the complete underlying Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation containing witness statements relating to the events of 15 July 2011, which is the subject of the GOMOR, as required by paragraph 2-1 of Army Regulation 600-37 (Unfavorable Information) which mandates that unfavorable information will not be filed in an official personnel record unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing.

	b.  Second.  The applicant has been found NOT GUILTY (emphasis added) of the allegation of being drunk on duty as evidenced by the Report of Summary Court-Martial (SCM) Proceedings.

	c.  Third.  The alleged disciplinary infractions addressed in the subject GOMOR are the direct result of the applicant's Post-Traumatic Stress Disorder (PTSD) and therefore completely mitigated and in the interests of fundamental fairness and appreciation for his service to his country in the Global War on Terrorism should not be the subject of unfavorable disciplinary action.

	d.  Fourth.  The second allegation in the subject GOMOR (i.e., that the applicant coerced his Soldiers to drink) is inconsistent with his past performance of his military duties and interactions with junior enlisted personnel.

	e.  Fifth.  If any credible or reliable evidence supported the allegation of coercing junior enlisted Soldiers to consume alcohol on 15 July 2011, Rule for Courts-Martial, 601(e)(2), requires that all known charges be referred to a single court-martial.  That did not happen in this case and it is probable that had this occurred the applicant would not have been found guilty of that allegation.  Saving this second allegation of misconduct for a GOMOR to be administered later is fundamentally unfair and smacks of a violation of administrative double jeopardy.

	f.  Sixth.  The applicant was unlawfully punished while in Afghanistan for the alleged offenses by demeaning him by requiring him to stand guard at the Special Operations Task Force (SOTF) gate as a sergeant first class (SFC)/E-7, in full view of junior enlisted and Afghan civilians, and such punishment is prohibited by the Uniform Code of Military Justice (UCMJ).

3.  Counsel provides:

* Memorandum of Facts, Law, and Argument
* the subject GOMOR
* DA Form 268
* an extract from the FY12 Promotion Selection List
* DA Form 4430 (Department of the Army Report of Result of Trial
* a memorandum rendered by the applicant, Subject:  Request for Consideration of Previous Punishments, dated 5 January 2012
* the applicant's Enlisted Record Brief (ERB)
* the applicant's Ranger Course Diploma
* the applicant's Special Forces Communications Sergeant Course Diploma
* eight of the applicant's DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* a memorandum rendered by a Neuropsychologist, Task Force Med, Combat Stress Control, Subject:  Mental Health Evaluation in the Case of [the applicant], dated 5 August 2011
* the applicant's Certificate of Completion for the Mission Resiliency Program at Laurel Ridge Treatment Center
* a letter rendered by a Clinical, Forensic, and Neuropsychologist, Arbor Psychological Clinic, dated 6 February 2012
* a Psychological Evaluation rendered by a Clinical, Forensic, and Neuropsychologist, Arbor Psychological Clinic, dated 29 January 2012
* a letter rendered by the applicant's wife, dated 14 February 2012
* a memorandum rendered by the applicant's former Rear Detachment Sergeant Major (SGM), dated 11 October 2011
* a memorandum rendered by the applicant's former Rear Detachment Commander, dated 11 October 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army as an SFC in military occupational specialty 18E (Special Operations Communications Sergeant).  He was promoted to SFC with a date of rank and effective date of 1 March 2004.

2.  On 21 July 2011, the Commander, SOTF-East (SOTF-E), Combined Joint SOTF - Afghanistan (CJSOTF-A), appointed an investigating officer (IO) to conduct a Commander's Inquiry under the provisions of the Rule for Courts-Martial (RCM) 303 (Preliminary Inquiry) and Army Regulation 15-6.  The commander tasked the IO to collect witness statements, review all photographic documentary evidence and other evidence as appropriate in order to specifically determine:

	a.  When and how much the applicant and a junior enlisted Soldier consumed alcohol in Rota, Spain.

	b.  If the applicant coerced the junior enlisted Soldier to drink alcohol in Rota, Spain.  If the applicant and Soldier were intoxicated at the time of the flight to Afghanistan on 15 July 2011.  Which personnel knew that the applicant and the Soldier were drinking alcohol?  Who would not permit them to board the flight to Afghanistan, the chalk commander or the airborne commander (pilot)?

	c.  Address any other issues or concerns that arise during the course of the investigation that may require command attention.

3.  The IO conducted the investigation and rendered his Commander's Inquiry - Findings and Recommendations in a memorandum dated 27 July 2011.  In part, his report included the following:

	a.  Findings:  After investigating the allegations of being drunk on duty and missing movement against the applicant and the junior enlisted Soldier, it was the IO's belief, based upon the evidence, that both the applicant and the Soldier were drunk on duty, causing them to miss movement of their flight to Bagram, Afghanistan from Rota, Spain.  It was also the IO's belief that the junior enlisted Soldier was coerced into drinking while on duty.

	b.  Recommendations:

		(1)  The junior enlisted Soldier should be given corrective training and placed on guard duty for 30 days in addition to teaching a class on the difference between lawful and unlawful orders.

		(2)  The applicant should be given a GOMOR that is subsequently placed in his permanent personnel file.

4.  On 27 July 2011, the Senior Defense Counsel, U.S. Army Trial Defense Service, Central Command Area of Responsibility (CENTCOM AOR), Afghanistan Field Office, Bagram Airfield, Afghanistan, rendered a memorandum Subject:  Request for Alternative Disposition on Behalf of (the applicant's rank and name) addressed to Commander, CJSOTF-A.  Counsel stated it had come to his attention that an SCM was being contemplated for the applicant's conduct during the unit's stopover in Rota, Spain.  Alternatively, the applicant respectfully requested that the Commander, CJSOTF-A recommend a GOMOR and provided several reasons for this requested alternative to a court-martial.  

5.  On 2 August 2011, the Command Judge Advocate, CJSOTF-A informed the Senior Defense Counsel that Commander, CJSOTF-A had reviewed the applicant's request and packet and was not swayed by his plea for an alternate disposition and that charges were being preferred against him that morning.

6.  A DD Form 458 (Charge Sheet), dated 2 August 2011, shows one specification of a charge of violating Article 112 of the UCMJ was preferred against the applicant for being found drunk while on duty as a Soldier performing movement to Afghanistan at or near Rota, Spain on or about 15 July 2011.  The case was referred for trial to an SCM.

7.  On 3 August 2011, the applicant and his counsel submitted an Offer to Plead Guilty to Commander, CJSOTF-A for consideration.  The applicant offered to plead guilty to the charge at an SCM and waive his right to personal appearance of witnesses if the command agreed to suspend the reduction in rank for a period of 12 months.  The applicant and his counsel contended that:

	a.  This agreement fulfilled the command's desire to demonstrate the seriousness of the offense.  An SCM is an open hearing and Soldiers can sit in on the proceedings and see that misconduct will not be tolerated even for senior NCOs.  This agreement also allowed the command to ensure the applicant's strict adherence to conduct commensurate with his rank and experience for the foreseeable future both because the message was sent that this type of behavior is unacceptable and the command could easily reduce his rank if he demonstrated unsatisfactory behavior again.

	b.  The applicant had already taken steps to ensure he did not fall below the standards set forth by the Army and the Special Forces community.  He had a documented drinking problem, referring himself to the Army Substance Abuse Program in September 2006.  Realizing he needed help, the applicant sought out and was currently attending Alcoholics Anonymous meetings there on Bagram Airfield.

	c.  While the applicant's conduct was obviously inappropriate, it was equally obvious that a reduction in rank was disproportionate punishment.

		(1)  Already, the applicant had lost any chance to receive the Critical Skills Retention Bonus of $150,000, which he was up for that year.

		(2)  At an SCM, the applicant could be reduced to staff sergeant 
(SSG)/E-6.  With a court-martial conviction on his record, the applicant would never regain his rank.  Since the applicant was approximately 2 years away from retirement, that equates to approximately a $15,000 difference in pay over the final 2 years.

		(3)  Also, since the applicant's reduction would be based on misconduct, he would receive E-6 pay on retirement.  A rough estimate of losses to retirement would amount to more than $115,000 if he lives until 70 years old.
		(4)  Finally, the retention control point (RCP) for SSG is 20 years instead of 26 years for SFC.  This means that not only would the applicant be forced to retire 6 years earlier, but also the potential percentage of retirement would be reduced from 65% to 50% for the rest of his life.  The RCP for SSG was recently reduced from 23 years to 20 years.  In the current financial climate, this could potentially be reduced again and the applicant could be forced out of the Army with no or at least significantly reduced retirement after more than 18 years of service.

	d.  The applicant and his counsel contend that prior to this incident the applicant had demonstrated that he is an outstanding Soldier and noted he received the highest ratings on his last six consecutive NCOERs.  His last two NCOERs stated to promote to MSG immediately and the NCOER before that stated to promote to MSG ahead of peers.  At his last duty assignment he filled an MSG position for over a year.  For the last 3 years, the applicant served as an instructor at the Special Warfare Training Group (Airborne) (SWTG (A)) receiving a Meritorious Service Medal.  Before that the applicant received a Bronze Star Medal for deployment to Iraq.  The applicant had consistently demonstrated his dedication to the Army and the Special Forces community.

	e.  The applicant understood the command's need to deal with the impulse that led to his inappropriate conduct and demonstrate that this conduct is not tolerated.  While his conduct was clearly improper, it was equally clear that he is a good Soldier who made a bad mistake.  He had taken this incident and already used it as a chance to grow by beginning to attend Alcoholics Anonymous meetings there at Bagram Airfield.  He had served in the military 18 years with distinction.  The SCM would already stop the applicant from progressing any further in the military.  This agreement would allow him to maintain the rank and benefits for which he served and fought to obtain so long as he continues to serve in adherence to the Army values.

8.  On 4 August 2011, the applicant was formally notified the initial session of his SCM would convene on 10 August 2011.  A DA Form 4430, dated 10 August 2011, shows the applicant was tried by SCM at Camp Montrond, Bagram Airfield, Afghanistan which convened by order of Commander, CJSOTF, Afghanistan.  This form shows he pled Not Guilty and was found Not Guilty of all charges and specifications of violating Article 112, UCMJ by being drunk on duty on 15 July 2011.

9.  On 30 August 2011, Brigadier General E. M. R., Jr., Commanding General (CG), U.S. Army Special Forces Command (USASFC) (Airborne), Fort Bragg, NC, issued the applicant a GOMOR.
	a.  The GOMOR states on 15 July 2011, the applicant was manifested on a flight from Rota, Spain to Bagram, Afghanistan in support of a deployed SOTF.  At the scheduled time to report for his flight, the mission Officer in Charge (OIC), NCO in Charge (NCOIC), and pilot of the aircraft noticed his speech was slurred and he was unable to maintain his balance.  The pilot deemed him a safety risk and did not allow him to board the plane.  A subsequent investigation revealed that during his layover in Spain, he consumed excessive amounts of alcohol.  The investigation further revealed that he attempted to use his rank and position as a senior NCO to coerce junior enlisted Soldiers to drink by telling them it was a "3d Special Forces Group (SFG) tradition," and by threatening them with physical violence, tab revocation, and other repercussions.

	b.  The CG informed the applicant he was thereby reprimanded for his flagrant disregard for the safety of the public and his fellow Soldiers.  As a senior NCO, he was responsible for ensuring both he and the junior enlisted Soldier in his charge arrived safely in Afghanistan in a timely manner.  Additionally, he was tasked to support an Operational Detachment Alpha team who was in need of a term sergeant with his expertise after a tragic loss on their team.  As a result of his lack of concern and responsibility, the team remained shorthanded until another leader was found to replace the position he had failed to fill.  The CG told the applicant he had discredited himself, the USFC, and the U.S. Army.  His actions represented a serious departure from the high standards of integrity and professionalism expected of a senior NCO of the Command.  The CG stated the applicant's conduct caused him to seriously consider his ability to lead Soldiers and his suitability for continued service as an NCO in the U.S. Army.

	c.  The CG advised the applicant the GOMOR was imposed as an administrative measure and not as punishment under the UCMJ.  The CG enclosed the information upon which he based the reprimand for the applicant's review and told him that he could submit a written rebuttal to the GOMOR within 7 days and he should include any other documents or statements he would like the CG to consider.  The CG advised the applicant he had not made a determination regarding the filing of the reprimand and he would carefully consider any matters submitted in rebuttal before making the final decision and notifying the applicant of that decision in writing.

10.  On 22 September 2011, the applicant acknowledged receipt of the GOMOR and indicated he intended to submit a response.

11.  On 11 October 2011, the applicant's counsel submitted a memorandum in response to the GOMOR wherein he expressed the applicant's request that the CG carefully review the memorandum along with the supporting documents and reconsider his decision to reprimand the applicant: 
   a.  Counsel contends a reprimand was not warranted given the particular circumstances of this case which include the following facts:

* The applicant was tried by an SCM for an offense based on the same facts at the core of this reprimand
* A series of events raise questions about a certain commander's unprofessional interest in this case
* The packet of evidence provided to support the allegations in this case contains illegible and incomplete statements
* The allegation of coercion appears to have been deliberately excluded from the first proceeding for the purpose of raising it later
* The applicant was illegally punished through public humiliation before any investigation occurred

   b.  Counsel stated that if the CG decided to proceed with the reprimand, the applicant made the specific requests listed below:

* File the reprimand locally and allow him to continue serving in the Special Forces community
* If the CG determines more than local filing, direct the legal office in Afghanistan to provide the complete packet of evidence that allegedly supports the allegations of the reprimand
* Direct the legal office in Afghanistan to secure and produce known exculpatory evidence for the CG's consideration in this case
* If the CG determines more than local filing, consider filing locally with a 6-month suspension subject to vacation for any alcohol-related misconduct
* Regardless of the disposition of the reprimand, assist him in transferring to the SWTG due to the hostility directed at him by Commander, CJSOTF-A

   c.  Counsel contends that the commander's inquiry conducted by the IO considered the question whether the applicant coerced junior enlisted Soldiers to drink.  The IO concluded that coercion occurred.  Therefore, the allegation was viable when Commander, CJSOTF-A referred the case to an SCM.  Pursuant to RCM 601(e)(2) (Discussion), "Ordinarily all known charges should be referred to a single court-martial."  Thus the allegation of coercion or maltreatment of junior enlisted Soldiers should have been included on the charge sheet.  Instead, the command inexplicably divided the incident that occurred in Spain and extracted the most serious portion of the incident.  Coercion or maltreatment of a subordinate is a violation of Article 93, UCMJ.  The maximum punishment for the offense includes a dishonorable discharge and confinement for one year.  To the contrary, being drunk on duty which is a violation of Article 112, UCMJ, only exposes a Soldier to a bad conduct discharge and confinement for 9 months.  
   
   d.  Therefore, the act of coercing a subordinate is more serious than the act of drinking on duty.  But Commander, CJSOTF-A did not direct the command to prosecute the more serious of the offenses.  Instead, he chose to hold that offense back.  A Soldier wrote a statement during the commander's inquiry which supported the notion that the applicant coerced a junior enlisted Soldier to consume alcohol.  However, when that Soldier testified as a witness at the court-martial, he completely contradicted his written statement.  Following the trial, he received nonjudicial punishment for making a false official statement.  Thus, had the charge of coercion been considered at the SCM, it is very likely that any additional written statements supporting the charge would have lost significance and weight after being questioned and challenged by the SCM officer.

12.  Counsel asserted that Commander, CJSOTF-A's actions concerning the applicant, in this case, and the court-martial raised serious questions about his motives.

	a.  On 19 July 2011, before the appointment of the commander's inquiry and before any statements or evidence had been gathered in this case, Commander, CJSOTF-A orchestrated the public punishment and humiliation of the applicant by placing him on guard duty at the front gate of Bagram Airfield.  The applicant was required to pull 12-hour shifts of duty for several days.  The stated purpose of the guard duty was to "demonstrate the consequences of alcohol-related incidents."  The duty was purposefully demeaning and exhausting.  It continued until the legal office told the command that assigning the applicant to guard duty under these circumstances amounted to illegal pretrial punishment and must be stopped.

	b.  On 27 July 2011, the applicant, through counsel, requested an alternate disposition in his case; specifically, that his case be disposed of with a reprimand instead of an SCM.  Commander, CJSOTF-A denied the request.

	c.  On 3 August 2011, the applicant offered to plead guilty to the charge of drinking on duty in return for an agreement to suspend rank reduction for a period of 12 months.  Commander, CJSOTF-A did not accept the request.

	d.  On 9 August 2011, the applicant requested a 2-week delay in the SCM proceedings based upon the fact he had been diagnosed with a stress disorder and placed on medication.  According to the psychiatrist who treated the applicant the prescribed medication "caused some cognitive problems" which could result in his inability to fully participate in his defense.  The psychiatrist said the applicant needed a 2-week delay to make certain he could effectively participate in his defense.  Ignoring the fact that the applicant received a serious diagnosis which required him to take medication that negatively affected his cognitive abilities and could affect his ability to participate in his own defense, Commander, CJSOTF-A denied the request.

	e.  In a separate request submitted on 9 August 2011, the applicant asked "to be allowed to have legal representation at his SCM."  The attorney he requested was local, available, and familiar with the case.  Having the attorney at the hearing would not have resulted in a delay of the proceeding.  Additionally, the request for representation was reasonable because the applicant had been prescribed medication which could negatively affect his cognitive abilities.  Commander, CJSOTF-A denied the request.

	f.  Fearing that Commander, CJSOTF-A had unduly influenced his subordinate command, the applicant requested appointment of an SCM officer from the outside "Commander, CJSOTF-E."  He also requested that any actions on the results of the SCM be forwarded to the General Court-Martial Convening Authority (GCMA).  The applicant made the requests because statements made and actions taken by Commander, CJSOTF-A demonstrated he had "other than an official interest in the case."  Commander, CJSOTF-A denied the request.

	g.  Finally, prior to the court-martial, Commander, CJSOTF-A told senior NCOs and junior officers that "if they do not follow the rules to include the rules on alcohol there will be consequences."  He said, "Right now I have a couple of E-7s I am getting ready to make E-6s because they did not follow the rules.  It wasn't my decision, it was theirs.  They decided they did not want to be E-7s anymore."  These statements indicate that Commander, CJSOTF-A intended to influence his subordinate commanders.  The statements also reveal that Commander, CJSOTF-A had an inflexible attitude concerning alcohol-related incidents regardless of the facts and circumstances of the case.

	h.  To conclude, Commander, CJSOTF-A's actions demonstrated an inelastic position in the applicant's case.  Further, the statements made by Commander, CJSOTF-A reveal he had no intention of considering any extenuating or mitigating evidence in the case.  His actions demonstrate that he harbored an unprofessional agenda about this case.

13.  On 22 December 2011, after considering the applicant's response, the CG directed the GOMOR be filed in the applicant's AMHRR.

14.  The GOMOR, dated 30 August 2011, the referral document, the applicant's response, related documents, and filing directive are filed in the performance section of the applicant's AMHRR.

15.  On 19 January 2012, Chief, Enlisted Promotions, Promotions Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY sent a memorandum Subject:  Headquarters Department of the Army (HQDA) Standby Advisory Board (STAB), (the applicant's standard name line) which informed the Commander, USASFC that the applicant was recommended for promotion to MSG by the FY12 HQDA MSG Promotion Board which convened on 18 October 2011.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 4, paragraph 4-17b(2), HRC regularly screens the promotion standing list to see if anyone thereon has become physically, mentally, morally or professionally unqualified for promotion.  The applicant's records indicate that on 30 August 2011 he received a GOMOR directed to be filed in his AMHRR.  Therefore, the applicant's record will be referred to an HQDA STAB.  The STAB will make a recommendation to the Director of Military Personnel Management (DMPM) as to whether he should be retained or removed from the MSG Promotion Standing List.  In accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)), chapter 1, paragraph 
1-14(d), the applicant will remain in a flagged status until a final decision is rendered by the DMPM.  The Soldier has until 17 February 2012 to submit a rebuttal on his behalf.  The applicant's packet will be reviewed by the STAB being held at the end of the FY12 Sergeant Major Board which convenes on or about 4 June 2012.  Approximately 60 days following adjournment of the board, both the command and the Soldier will be notified of the results.

16.  The applicant received an annual NCOER for the period 30 April 2011 through 29 April 2012 in May 2012.  This contains all favorable comments and indicates he was selected for promotion to MSG.  His senior rater opined he possessed unlimited potential and self-motivation and recommended that he be assigned to the most challenging positions within Special Forces.

17.  A review of the applicant's record shows he is no longer in a promotable status.

18.  On 24 August 2012, the President, DA Suitability Evaluation Board (DASEB) informed the applicant that the DASEB had deliberated on his petition to remove the GOMOR and all related documents from his AMHRR.  After careful consideration of the facts in his case, the DASEB determined that there was insufficient evidence to justify removal or transfer of the unfavorable information to the AMHRR restricted section.

19.  In support of his application, the applicant provides a legal brief prepared by his counsel.  Counsel provides the surrounding facts and circumstances in this case are as follows:

	a.  On or about 15 July 2011 the applicant was manifested on a military flight from Rota, Spain to Bagram Airfield, in support of a deployed Special Operations Task Force.  Well prior to this deployment, he had already been diagnosed with PTSD resulting from his prior combat experience.

	b.  At the scheduled time for departure, it was suspected he had been drinking and may have been under the influence of alcohol, according to the subject GOMOR.  Following his arrival in Afghanistan, and assigned to the Combined Joint Special Operations Task Force-Afghanistan, he was charged with a violation of Article 112 of the UCMJ, being drunk on duty on 15 July 2011. He accepted trial by SCM, was tried by a SCM and found NOT Guilty.  Despite this finding of not guilty, twenty days later, on 30 August 2011, the subject GOMOR again alleged [the applicant] was drunk on duty on 15 July 2011.  This GOMOR further alleged that he, on the same date and time, coerced junior enlisted Soldiers to drink alcoholic beverages by telling them it was a '3rd Special Forces Group tradition' or words to that effect.  It is important to note that this second allegation of misconduct was never charged against [the applicant] in violation of military law, discussed more fully below.

	c.  On 5 January 2012, the applicant responded to the proposed GOMOR and essentially requested that the GOMOR not be placed in his AMHRR because 
(1) he had already been selected for promotion to E-8, (2) he had been diagnosed with PTSD as early as 2007, (3) he had undergone 6 weeks of therapy at Fort Bragg for this PTSD, (4) his PTSD was directly related to the alleged misconduct on 15 July 2011, (5) he had taken it upon himself to self-refer for PTSD inpatient therapy, (6) he had self-referred to the Army Substance Abuse Program, (7) he had become an active member of the Alcoholic Anonymous program and one of the founding members of the 3rd Special Forces Group PTSD focus group, and (8) he had already been punished and humiliated by being required to stand guard at the SOTF main gate in Afghanistan as an
E-7, in full view of junior enlisted Soldiers and Afghan civilians.

20.  Counsel attests the applicant has enjoyed an otherwise competitive and successful military career as is evident in his NCOERs for the period 2005 through 2011 and numerous awards and decorations.  He contends the applicant's actions on 15 July 2011 were the direct result of his PTSD and combat deployments.  Only 3 weeks after the incident, the applicant was diagnosed with PTSD again, with symptoms of psychomotor agitation, flashbacks, nightmares and anxiety.  Most importantly, his military mental health provider concluded that "it is likely that [the applicant's] PTSD...contributed to his alcohol use while enroute to his deployment location.  

21.  On 8 December 2011, the applicant completed inpatient treatment for PTSD and alcohol dependence in a Department of Defense program.  In January 2012, the applicant was referred to a licensed clinical and forensic neuropsychologist who has been qualified as an expert in the diagnosis and treatment of PTSD many times in this country's court systems.  His psychological evaluation of the applicant provides the following regarding the applicant:

* His military mental health records were reviewed and he was tested for various mental health issues including PTSD
* His war "got real" in Kosovo in 2004 when he witnessed someone getting killed and experienced being shot at himself for the first time
* 2004-2007 he went on multiple combat missions and lost many men from his unit, three of whom he was close to
* In 2004, he began showing signs of PTSD
* In the next few years his drinking and isolation increased and by 2006 he had no friends and he barely communicated with his wife and sons
* Prior to and during one of his last combat tours to Afghanistan his drinking increased, he became sub-clinically suicidal, so he was returned to Fort Bragg
* By the summer of 2011, he became increasingly symptomatic of PTSD
* The doctor diagnosed him with PTSD and a Global Assessment of Functioning of only 45 on a 0-100 scale following a battery of tests

22.  Counsel notes the applicant and his wife have been married for over 
22 years during which he had multiple combat deployments.  His wife believes the subject GOMOR should be removed from his AMHRR because failure to do so would be tantamount to punishing her husband for having PTSD resulting from his service to his country.  She also provides a firsthand description of his PTSD-related behavior after his deployments which include:

* His withdrawal from the family
* His insistence that she not bring his symptoms to the attention of his chain of command
* His noticeable agitation and binge drinking when he heard the sound of fireworks or mortars going off near their home at Fort Bragg
* His emotional description to her of how he had to leave the dead bodies of U.S. Soldiers behind due to the combat situation at the time


23.  Counsel also notes a SGM rendered a memorandum, dated 31 October 2011, wherein he stated the applicant had been recruited from the U.S. Army, John F. Kennedy Special Warfare Center "because of his reputation as a stellar duty performer" and most importantly notes "(the applicant) is paying the price of combat experience."

24.  Counsel also notes a captain rendered a statement on 15 October 2011, wherein he opined "the applicant's issues with combat stress may have contributed to the behavior that occurred in Spain."

25.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.

	a.  Table 2-1 (Composition of the AMHRR) provides regulatory guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It states the letter, referral correspondence, member's reply, and allied documents (if they are specifically directed for file by the letter or referral correspondence) will be filed in the performance section of the AMHRR.  All other allied documents not listed will be filed in the restricted section of the AMHRR.

	b.  Paragraph 2-3 (Composition of the AMHRR) provides that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, HRC, or the HQDA, selection board proponent.  This paragraph also provides that documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

26.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.
27.  Army Regulation 600-37 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.

28.  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 chapter 7 of Army Regulation 600-37.

   a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.
   
	b.  Paragraph 7-2 (Policies and Standards), subparagraph b (Appeals for Transfers of AMHRR Entries), contains guidance on transfers of AMHRR entries.
It states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the AMHRR.  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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. GOMORs may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected by removing the GOMOR and any related FLAG action from his AMHRR.  He further contends he should be promoted to MSG pursuant to the FY12 MSG Selection Board criteria with all back pay and allowances which may become due as a result of such retroactive promotion.
2.  The above contentions was carefully considered and determined to have merit.

3.  The available evidence clearly shows a commander's inquiry was conducted to investigate the allegations of the applicant being drunk on duty, missing movement, and coercing a junior enlisted Soldier to consume alcohol.  It was the IO's belief, based upon the evidence, that the applicant was drunk on duty, causing him to miss movement of his flight to Bagram, Afghanistan from Rota, Spain.  It was also the IO's belief that the applicant coerced a junior enlisted Soldier into drinking while on duty.

4.  As a result, the IO recommended the applicant be given a GOMOR to be subsequently placed in his permanent personnel file.

5.  Despite this recommendation, Commander, CJSOTF-A elected to refer the applicant for trial before an SCM for one specification of a charge of violating Article 112 of the UCMJ for being found drunk while on duty as a Soldier performing movement to Afghanistan at or near Rota, Spain on or about 15 July 2011.  

6.  The applicant submitted requests for alternative action in the form of a GOMOR and an offer to plead guilty in exchange for suspending any potential reduction in rank/grade.  Commander, CJSOTF-A denied these requests and proceeded with court-martial action.

7.  The applicant was diagnosed with a stress disorder and placed on medication known to cause cognitive problems which could result in his inability to fully participate in his defense.  In spite of a recommendation from a psychiatrist to grant the applicant a 2-week delay to make certain he could effectively participate in his defense, Commander, CJSOTF-A denied the request.

8.  In spite of the aforementioned medical condition, Commander, CJSOTF-A also denied the applicant's request to be allowed to have legal representation at his SCM even though the attorney he requested was local, available, familiar with the case and would not have resulted in a delay of the proceeding.
9.  On 10 August 2011, the applicant was tried by SCM and was found Not Guilty of all charges and specifications of violating Article 112, UCMJ by being drunk on duty on 15 July 2011.

10.  On 30 August 2011, the applicant was issued the subject GOMOR for actions directly related to the charge for which he had appeared before the SCM 20 days earlier.

11.  As a result of receiving this GOMOR, the applicant was removed from the MSG Promotion Standing List.

12.  By regulation removal of a GOMOR can be approved based on proof the GOMOR was unjust and or that the removal would be in the best interest of the Army.  

13.  The applicant was acquitted by the judicial process and Commander, CJSOTF-A chose to issue him a GOMOR for the incident 20 days later.  While the GOMOR was technically permissible, the applicant and his counsel have provided clear and compelling evidence which clearly shows the contested GOMOR was unjust under the circumstances.

14.  In view of the facts of this case and in the interest of equity, it would be appropriate to correct the applicant's record by removing the GOMOR, dated
30 August 2011 and all related FLAG actions from his AMHRR.  Additionally, he should be reinstated on the FY12 MSG Promotion Standing List and promoted with an effective date and date of rank commensurate with the date he would have been promoted had his records not been flagged for suspension of favorable personnel actions with entitlement to all back pay and allowances due as a result of this correction.

BOARD VOTE:

_X____  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Removing the GOMOR from his AMHRR.

	b.  Removing all related FLAG actions from his AMHRR.

	c.  Reinstating him on the FY12 MSG Promotion Standing List.

	d.  Promoting him to MSG with an effective date and date of rank commensurate with the date he would have been promoted had his records not been flagged for suspension of favorable personnel actions.

	e.  Paying him all back pay and allowances due as a result of this correction.

2.  To ensure this decision results in no unintended harm to the individual concerned, following completion of the administrative corrections directed herein, this Record of Proceedings and associated documents and all other documents that are removed from the applicant's AMHRR as a result of this action will be returned to this Board for permanent filing.  The aforementioned documents will not be filed in the individual's AMHRR.



      _______ _  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)                                         AR20120021298



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ABCMR Record of Proceedings (cont)                                         AR20120021298



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