BOARD DATE:	4 February 2014  

		DOCKET NUMBER:  AR20130000813 


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), imposed on 14 October 2006, from the performance section in his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)).

2.  The applicant essentially states the following in a four-page memorandum:

	a.  His request is predicated on the grounds that the GOMOR is inaccurate and unjust.  

   b.  The GOMOR was based on an Army Regulation (AR) 15-6 investigation. He was accused of adding his name to a convoy manifest of a convoy that was attacked on 8 January 2006 and then submitting a Combat Action Badge (CAB) packet based on the attack.  In response to the GOMOR, he submitted a rebuttal to the issuing authority, Brigadier General (BG) T____, which BG T_____ found to be unpersuasive.  
   
   c.  He later submitted a second rebuttal to BG T____ based on additional evidence provided during the AR 15-6 investigation that demonstrated the basis of the GOMOR was not accurate.  BG T____ again was not persuaded.  He [applicant] presented the same evidence to the Department of the Army Suitability Evaluation Board (DASEB), but it too declined to remove the GOMOR.

   d.  A improvised explosive device (IED) attacked his convoy, which he participated in on 10 January 2006.  Numerous people and documentation confirm his presence on 10 January 2006.  His Military Transition Team (MiTT), Commander, Lieutenant Colonel (LTC) R_____, provided a sworn statement stating that the applicant was in the convoy that day.  Had the investigating officer (IO) consulted with LTC R_____ during the investigation, the process would have come to an abrupt stop, but since LTC R_____ had departed theater and the IO already had the proof that he was not on the 8 January 2006 convoy, the IO saw this as an open and shut case.

3.  The applicant argues:

* BG T_____'s finding that he altered documents to make it appear he was on the convoy attacked on 8 January 2006 is untrue
* BG T____ in his GOMOR endorsed the investigative finding that he (the applicant) falsified LTC R_____'s signature
* BG T_____ issued him a GOMOR based on incomplete information
* LTC R_____ indicated the CAB packet in question was one of several documents he signed prior to his departure
* he does not believe that an administrative error justifies leaving the GOMOR in his AMHRR
* during the process that led to his GOMOR, he was denied access to exonerating evidence
* he virtually did not have legal representation
* his counsel did not spend time investigating the facts of his case
* given the limited ability to gather evidence and limitations of his appointed counsel, he had no alternative other than to accept responsibility for submitting inaccurate documents
* he was denied any opportunity to gather evidence to respond to the AR 15-6 investigation
* he was issued a no-contact order that prevented him from communicating with his unit

4.  The applicant provides an index that identifies his evidence in Tabs 1 through 4.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer on 15 August 1999 in the Nebraska Army National Guard (NEARNG) at the rank of second lieutenant (2LT).  He is currently serving in the NEARNG at the rank of major (MAJ).  

2.  In September 2004, he was assigned to the 189th Transportation Company as the company commander at the rank of captain (CPT).  On 17 August 2005, he was ordered to active duty in support of Operation Iraqi Freedom.

3.  On 24 August 2006, an IO completed an AR 15-6 investigation concerning CAB packets submitted by the 189th Transportation Company relating to enemy action on 8 January 2006.

4.  On 8 January 2006, six members of the 189th Transportation Company encountered an IED while on Alternate Supply Route (ASR) Bronze, Iraq.  The convoy consisted of two U.S. Marine vehicles, two Iraqi vehicles, and two U.S. Army vehicles.  The IED exploded in front of the convoy.  The U.S. Army vehicles were the last two.  The 189th Transportation Company Soldiers were assigned to the 2nd Motorized Transportation Regiment (MTR), MiTT at the time of the incident.  Several months later, it was discovered the description of events contained in the CAB packets did not match the actual event.

   a.  The AR 15-6 investigation found:
   
		(1) One week after the 8 January 2006 attack the Soldiers involved were directed to prepare DA Forms 2823 (Sworn Statement) detailing their involvement.  The statements were emailed to the applicant.

		(2) Sometime in May or June it was discovered the original CAB packets were missing.  Around this time the applicant sent the backside of DA Forms 2823 to the MiTT to be re-signed.  The front side of the documents were not included.  

		(3) The packets that were submitted were generated by the applicant and Sergeant (SGT) B_____.  SGT B_____ generated the DA Form 4187 (Personnel Action) and 3rd Division Corps Support Command (COSCOM) Awards Checklist based on the narrative and sworn statements provided by the applicant.  After review of the packets, several discrepancies were found.  Among the discrepancies was that the applicant had included his name, but had not taken part in the convoy.

		(4) The applicant claimed to have been present and signed a DA Form 2823 claiming he was on the convoy on 8 January 2006.
   
		(5) The applicant generated the narrative and event diagram.  He signed the DA Form 4187 that had the list of potential awardees, including himself, as an attachment.  He signed a DA Form 2823 describing his involvement in the event.
		
	b.  The IO recommended the issuing authority review the findings, sworn statements and other evidence surrounding the incident to determine whether administrative or punitive action should be taken.

5.  On 18 September 2006, the Deputy Staff Judge Advocate, 13th Sustainment Command (Expeditionary) completed a legal review for the AR 15-6 investigation and determined that the investigation complied with the legal requirements of AR 15-6 

6.  On 22 September 2006, the Commander, 485th Corps Support Battalion, notified the applicant of her intent to request relief of cause approval and a GOMOR.  Based on the finding of the AR 15-6 investigation, the applicant was suspended from command pending resolution of the matter.

7.  On 27 September 2006, the Commander, 82nd Sustainment Brigade, recommended the applicant be issued a GOMOR. 

8.  On 6 October 2006, the applicant's counsel responded to the notification received from the Commander, 485th Corps Support Battalion.  Counsel stated the applicant disputed the finding of the AR 15-6 investigation.  He maintained that he had not intentionally falsified any statements; he had not intentionally falsified or forged anyone's signature; and he had not intentionally created any false diagrams.  

9.  His counsel stated the only incorrect fact provided in any of the applicant's statements was that the convoy he described was on 10 January 2006 rather than 8 January 2006.  In support of the fact, LTC R_____ (MiTT Commander) indicated in his sworn statement the applicant was a member of the 10 January 2006 convoy.  Furthermore, LTC R_____ stated that he did sign what he believed to be several CAB packets before leaving Tallil at the end of April 2006.  Counsel provided the following documents as evidence:

* Weekly Report (2 January 2006 - 8 January 2006)
* Weekly Report (9 January 2006 - 15 January 2006)
* DA Form 2823 dated 30 September 2006 with attached Situation Reports submitted by Sergeant First Class (SFC) V__K__________.
* DA Form 2823 dated 2 October 2006 provided by LTC R_____

10.  On 12 October 2006, the applicant's counsel informed the Commander, 82nd Sustainment Brigade, that the applicant did not wish to respond to or rebut the AR 15-6 investigation.  He apologized for any undue burden of distraction from the mission that his actions had caused.  Once the command determined punishment in the matter, he would respond accordingly. 
11.  Counsel advised the applicant to withhold any response at the time based on the risk that any sort of response may be used against him in a future 
court-martial proceeding.  The applicant did not wish to contest the allegations against him at a court-martial.  If the command determined they would not proceed with court-martial, he would fully cooperate in their imposition of any administrative actions against him.

12.  On 13 October 2006, by memorandum to the Office of the Staff Judge Advocate, 13th Sustainment Command (Expeditionary), the applicant's battalion and brigade commanders recommended that he be relieved from command and issued a GOMOR.

13.  On 14 October 2006, the Commanding General (CG), 13th Sustainment Command, issued the applicant a GOMOR.  The GOMOR stated that in June 2006 as a company commander, he falsified official documents relating to an attack on ASR Bronze when members of the unit the applicant commanded encountered an IED.  He altered documents to make it appear he was also with the convoy when in fact he was not.  

14.  On 14 October 2006, the applicant acknowledged receipt of the GOMOR and elected to submit matters in rebuttal.  There is no evidence that the applicant submitted rebuttal evidence to the CG, 13th Sustainment Command (Expeditionary).

15.  In October 2006, the NEARNG Anti-Terrorism Officer and the Commander, 588th Maintenance Company, provided character reference letters in behalf of the applicant.  The officers stated that they known and worked with the applicant.  Each officer expressed that he is a professional and competent officer.

16.  On 15 October 2006, by memorandum, the Chief of Staff, NEARNG, stated he was aware of the allegations against the applicant.  He indicated because the applicant was prior service and because of his demonstrated tactical and technical abilities, he was confident that the applicant could be rehabilitated.  Given the opportunity, the applicant could overcome the indiscretion, grow from it and continue to serve as an integral part of the NEARNG and the U.S. Army.  The Chief of Staff requested the CG reconsider permanently placing the GOMOR in the applicant's AMHRR.

17.  On 19 October 2006, by memorandum to the CG, 13th Sustainment Command (Expeditionary), the applicant's battalion and brigade commanders recommended that the GOMOR be placed in the performance portion of the applicant's AMHRR.
18.  On 20 October 2006, the applicant responded to the possible filing of the GOMOR.  He was aware that there were three filing possibilities for the GOMOR. It could not be filed at all; it could be filed locally at unit level for a period not to exceed three years; or it could be filed in the performance portion of his AMHRR. He understood the GOMOR could not be placed in the restricted portion of his AMHRR in accordance with Army Regulation 600-37 (Unfavorable Information).  The only effect this clarification had on his response is that he requested the GOMOR be filed locally at his unit, rather than a restricted filing.

19.  The CG, 13th Sustainment Command (Expeditionary), directed the GOMOR be filed permanently in the applicant's AMHRR.

20.  The applicant provided results of a NEARNG investigation, several letters of support, and two legal reviews addressed to the issuing authority, now Major General (MG) T____, regarding reconsideration of the removal of the GOMOR from the applicant's AMHRR:

   a.  By memorandum, dated 9 April 2007, from the NEARNG, MAJ K______ was directed to conduct an investigation regarding the applicant's investigation.  His investigation was to be as extensive as possible considering the incident occurred over a year ago.  MAJ K_____ found that:

      (1) The case is a classic "He said/She said" case where neither side could produce any new evidence; therefore, he had to base the investigation on the original AR 15-6 investigation, and one-on-one interviews with witnesses.

		(2) His investigation could not prove one way or the other if the applicant
was being deceptive in his account of the incident on 10 January 2006.

      (3) After reading the entire 15-6 and all the sworn statements, it didn't take long for him to conclude the incident occurred on 10 January 2006, and the reason for the date confusion was the fact that sworn statements were not provided in a timely manner. 
	
	(4) The case was very complicated and filled with deceit and deception.  In a court of law, there is no way a prosecutor would file a case of this nature.

      (5) There were some inconsistencies throughout the statements of Soldiers who stated the applicant was not on the convoy.  
      
      (6) The most credible witness for the applicant was LTC R_____.  LTC R_____ stated he was absolutely sure that the applicant was on the mission to Rawaah by the conversation he had with 2LT S____ and the applicant at dinner after the convoy and how satisfied 2LT S____ was that the applicant was able to see firsthand how the Marines conduct business.

	b.  In a memorandum, dated 9 September 2008, the Command Judge Advocate, NEARNG recommended a direct appeal to BG T_____.  There was convincing evidence to establish that the convoy actually occurred on 10 January 2008.

	c.  In a letter, dated 12 July 2009, the former Nebraska TAG, MG L_____ (retired), stated that BG T_____ was presented a packet containing conclusive evidence that contrary to a 15-6 investigation the applicant did indeed participate in a mission involving enemy action on 10 January 2006 as uncovered through an AR 15-6 action that he directed as the TAG.
      	
	d.  In a letter, dated 20 August 2009, the Nebraska TAG, MG K_____, stated in his letter that he considered the applicant to be an outstanding officer who placed the mission and his duty first, based on his experiences with him during post-deployment.

(1) Based on his review of the investigation, he agreed with his staff's
assessment that there was additional information which may have exonerated the applicant, but he also agreed that the additional information may have confirmed his guilt, in that he recognized that they, in Nebraska, cannot know what actually occurred.

     (2) MG K_____ concluded that he was informed that MG T_____ had the authority to remove the applicant's GOMOR and transfer it to him for filing in his local file.  If MG T_____ was willing to do so, MG K_____ offered his personal assurance that the matter would not be considered closed.  Instead, he would personally ensure that the matter be archived locally to ensure the applicant understood that the scrutiny he had experienced would not end.  

	e.  In a letter, dated 20 August 2009, LTC R_____ stated that he believes the original AR 15-6 investigation included a date error that may have prevented critical information from being discovered, and fears his redeployment during the investigation contributed to the date error.

   f.  In a letter, dated 11 September 2009, the Deputy J7, NEARNG stated the applicant was a diligent and dedicated officer whose personal and professional integrity is beyond reproach.  
   
	g.  In a letter, dated 15 September 2009, the Command Judge Advocate stated he reviewed all available information from a due process perspective and concluded that the AR 15-6 investigation wrongly determined the date of the convoy in question and it prevented further investigation which may have exonerated the applicant, based primarily on the letter and statements of LTC R_____.

	h.  In a memorandum, dated 27 January 2010, the Assistant Adjutant General stated on behalf of the applicant that he requested the removal of the GOMOR MG T_____ imposed on the applicant in 2006, based on a later investigation directed by MG L_____ (retired).

21.  On 12 May 2011, the applicant petitioned the DASEB for the removal of the GOMOR from his AMHRR.  The primary grounds for the appeal were that the factual basis of the GOMOR was untrue, as determined by a later investigation and evidence not presented during the initial investigation.  In addition, he submitted statements of support and legal reviews attesting that the applicant received inadequate legal representation during the GOMOR proceedings.  On 28 June 2011, the DASEB denied his request.  The DASEB determined:

* the basis upon which he appealed his GOMOR to be "untrue" was the same basis upon which his NEARNG chain-of command had presented to the GOMOR imposing authority on 27 January 2010

* the imposing commander, after having reviewed and considered all the evidence that was submitted, stated he was not convinced that the GOMOR was either "unjust or untrue"

* the memorandum, dated 12 October 2006, by the applicant's trial defense
counsel provided that the applicant apologized for any undue burden or distraction from the mission that his actions have caused

22.  The applicant submitted three OER's for the periods:

* 17 August 2005 through 16 August 2006
* 17 August 206 through 16 August 2007
* 17 August 2007 through 1 February 2008

23.  The reports show that he received ratings of "Outstanding Performance, Must Promote" from the raters, and ratings of "Best Qualified" from the senior raters.  All of the rating officials recommended him for immediate promotion to the next higher grade.

24.  The applicant's AMHRR shows the following awards and accomplishments:

* Meritorious Service Medal Certificate, dated 12 October 2007
* Army Commendation Medal (1st Oak Leaf Cluster), dated 3 October 2008
* DA Form 1059 (Service School Academic Evaluation Report) showing he successfully completed the U.S. Army Command and General Staff College on 11 June 2010
* Webster University transcripts, dated 15 May 2010, showing he received a Master of Business Administration Degree 
* Aerial Achievement Medal Certificate, 17 November 2011
* Defense Meritorious Service Medal Certificate, dated 15 June 2013

25.  There is no record of other derogatory information in the applicant's military service records.

26.  Army Regulation 600-37 (Unfavorable Information) provides, in pertinent part, 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.

27.  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 portion of the AMHRR.  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.

28.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted portion of the AMHRR.  The above documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the GOMOR from the performance portion of his AMHRR was carefully considered and it was determined that the evidence is insufficient to support his request.

2.  The available evidence shows an AR 15-6 investigation was conducted and the IO determined that the applicant falsified official documents.

3.  On 14 October 2006, the CG, 13th Sustainment Command, issued the applicant a GOMOR.  The GOMOR stated that in June 2006 as a company commander, he falsified official documents relating to an attack on ASR Bronze, when members of the unit the applicant commanded encountered an IED.  He altered documents to make it appear he was also with the convoy when in fact he was not.  He directed the GOMOR be filed permanently in the applicant's AMHRR.

4.  The Nebraska TAG directed that the applicant’s AR 15-6 investigation be investigated.  The findings from the investigation were presented to the imposing authority for reconsideration of his filing decision.  The imposing authority indicated he had carefully considered all that was submitted, but he was unconvinced that the GOMOR was "unjust or untrue."

5.  The CG made his decision to permanently file the GOMOR in the applicant's AMHRR only after careful consideration of all the evidence presented by the IO AR 15-6 investigation and the applicant.  It appears the CG made an appropriate decision to file the GOMOR in the applicant's AMHRR.  

6.  By regulation, in order to support removal of a document properly filed in the AMHRR there must be clear and convincing evidence that shows the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.   

7.  The governing regulation authorizes the transfer of a GOMOR from the performance to the restricted portion of the AMHRR when it can be determined that the document has served its intended purpose.  The evidence of record in this case shows the applicant has accepted responsibility for his actions.  A former Nebraska TAG stated the applicant lives the Army values better than any other junior officer who has worked directly for him.  The applicant has received solid OERs categorizing him as the best qualified, he has received various military awards, he successfully completed the CGSC, he earned a masters degree, and he has responded positively to the GOMOR, as evidenced by his continued outstanding performance.

8.  The applicant's overall service since the issuance of the GOMOR indicates that he has performed his duties in an outstanding manner and has continued value to the Army.  Therefore, it is concluded that the GOMOR in question has served its intended purpose.  Thus, it would be appropriate to transfer the GOMOR to the restricted portion of the applicant's AMHRR at this time.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  ___X_____  ___X_____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the 14 October 2006 General Officer Memorandum of Reprimand and all related documents from the performance portion to the restricted portion of his AMHRR.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the General Officer Memorandum of Reprimand from the 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)                                         AR20130000813





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ABCMR Record of Proceedings (cont)                                         AR20130000813



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