BOARD DATE:	  12 September 2013

		DOCKET NUMBER:  AR20130001695 


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), dated 21 July 2005, from his Army Military Human Resource Record (AMHRR), formerly known as the official military personnel file.

2.  The applicant states he believes this GOMOR has served its purpose. Furthermore, he believes the placement of the GOMOR in his official file was not warranted based on the final findings of the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation. 

	a.  He admits to his lapse in judgment.  He failed to secure a classified device upon arriving in Turkmenistan late into the night, a country he had never visited, but that device was secured immediately after arriving at the U.S. Embassy the following morning.  This item never left his control and it was never compromised.  The data on the device did not contain information detrimental to National Security or U.S. Army Operations.  

	b.  With regard to missing a meeting, he was not informed about this meeting; if he had been informed, he would have attended.  He attended all meetings that were planned and scheduled and provided relevant and critical information at the meeting between U.S. and Turkmenistan Counter-parts, even receiving positive comments from the Nevada National Guard representatives and the U.S. Central Command (CENTCOM) Action Officer.  Never once throughout the day or that evening to include the follow-up discussion prior to splitting up that night of the incident did anyone mention a meeting or state that they were going to coordinate a meeting at the Embassy the following afternoon. In fact while returning that night from the invitational dinner in the van, the team discussed the planning of other events and they planned to link up later that evening for a final social.  His experience as an Army Officer and Desk Officer prepared him to ask the right questions.

	c.  He has travelled to numerous countries in support of exercise planning conferences and never had issues.  He conducted Deming Operations in Ethiopia, Counter Drug Operations in Peru, and served as the Desk Officer for Uzbekistan where he received an above center of mass evaluation prior to this event.  The statements from individuals interviewed in the AR 15-6 investigation reflect these facts.  He made an error spending the evening at a local national’s apartment, but he told the truth about this event because he knew that he had not committed adultery or done anything wrong.  Did he use bad judgment?  Yes. He accepted full responsibility for his actions.  He was confident that telling the truth concerning his whereabouts that night would alleviate the concerns.  Instead what occurred were the acts of an overzealous Noncommissioned Officer and inexperienced Defense Attaché reacting without thinking and then adding on information to give the impression that he (the applicant) was behaving inappropriately within a short time of being in the country.  This team never coordinated transportation to have someone meet them at the airport; they did not coordinate for cell phones for use in country, and never provided a briefing on the do’s and don’ts.  As he stated, this was not his first country where he worked at an Embassy.

3.  The applicant provides:

* A previous application submitted to the Army Board for Correction of Military Records (ABCMR)
* ABCMR administrative closure letter
* Contested GOMOR, rebuttal, and filing instructions
* DA Form 1574 (Report of Proceedings by Investigating Officers/Board of Officers)
* Multiple DA Forms 67-9 (Officer Evaluation Report)
* Multiple DA Forms 7222 (Senior System Civilian Evaluation Report)
* 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Multiple DD Forms 2906 (Department of Defense National Security Personnel System (NSPS) Performance Plan - Interim Review(s)/Closeout Assessment - Annual Performance Appraisal)





CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a Reserve commissioned officer and executed an oath of office on 20 May 1985.  He entered active duty on 11 May 1986 and served in a variety of stateside and overseas assignments, including Germany, Bosnia, Afghanistan, and Kuwait.  He was promoted to major (MAJ) on 1 March 1998.  

3.  He was assigned as a Civil Military Operations Planner for the Office of the Assistant Chief of Staff, G-5/G-9, Third Army, CENTCOM, Coalition Forces Land Component Command, Fort McPherson, GA.  He was serving in a temporary duty status on a mission in Ashgabat, Turkmenistan, from 25 to 26 January 2005. 

4.  On 4 February 2005, the Third Army Chief of Staff appointed an investigating officer (IO) to conduct an informal investigation into allegations that the applicant had violated various articles of the Uniform Code of Military Justice (UCMJ), specifically:

* without authority, failing to attend the After Action Review (AAR) meeting with the Ministry of Defense and the State Border Service on 25 January 2005
* mishandled and/or otherwise compromised classified information to include a classified USB drive
* conduct unbecoming an officer, prejudicial to good order and discipline or of a nature as to bring discredit upon the Armed Forces

5.  On 8 March 2005, the IO submitted a DA Form 1574 for the subject investigation.  The IO found the applicant's conduct during the period 24 to 
26 January 2005 was disturbingly lax in adherence to procedures for information and personal security.  He also failed to maintain communications with other U.S. personnel causing a delay in mission accomplishments.  The IO opined none of the verifiable actions warranted punishment under the UCMJ.  However, he recommended the applicant receive a GOMOR and corrective training on Information Security, handling classified material, Subversion and Espionage Directed Against the Army, and Force Protection.  He also recommended his security clearance be restored upon satisfactory completion of this training. 

6.  On 21 July 2005, the Commanding General (CG), Third U.S. Army, reprimanded the applicant for misconduct, involving a series of incidents in Ashgabat, Turkmenistan.  The GOMOR states:

	a.  The applicant's conduct prompted the U.S. Ambassador to request that he (the applicant) never return in any official capacity.  He failed to attend a scheduled meeting with the Ministry of Defense and the State Border Service.  He was unable to be located for a considerable amount of time prompting a search.  He also failed to properly secure a classified USB drive.  His behavior was unacceptable and caused the CG to question his judgment as an officer.

	b.  He was sent to Turkmenistan on a specific mission.  He failed in that mission and his conduct reflected poorly on himself and Third Army.  His actions galvanized a short-staffed embassy causing them to use no less than 
6 personnel to conduct a search for him.  He was missing because he made an extremely poor decision to spend the night at the home of a local female national. His conduct caused the U.S. Ambassador to use her valuable time to deal with this situation and he embarrassed the U.S. Defense Attaché.  

	c.  The GOMOR was imposed as an administrative measure and not as punishment under the UCMJ.  

7.  On 30 July 2005, the applicant acknowledged receipt of the GOMOR and he submitted a rebuttal as follows: 

* he requested the GOMOR be filed in his local file as opposed to his AMHRR
* he took full responsibility for his lack of judgment and actions that led to this situation
* he always considered himself a professional and this action was not a reflection of his character
* he has worked in numerous embassies in the past with no incidents and he has gained the trust and confidence of several foreign governments
* contrary to what the GOMOR stated, he attended the meeting with the Ministry of Defense and State Border Control; he only failed to attend the AAR - which was not officially coordinated
* he acknowledged that he failed to maintain contact with the U.S. delegation and put himself in a compromising situation with a group of local females
* although he failed to secure the classified USB drive upon arrival in country, he did so as soon as he went to the Embassy
* he missed the AAR because he consumed too much alcohol at a U.S. sponsored invitational dinner which impaired his judgment

8.  On 12 August 2005, after careful consideration of the facts and circumstances pertaining to the applicant, the imposing CG directed permanent filing of the GOMOR in the applicant's AMHRR.

9.  On 25 October 2005, the applicant submitted a request for voluntary retirement.  His request was approved.  

10.  On 31 October 2005, he petitioned the ABCMR to transfer the contested GOMOR to the restricted section of his AMHRR.  With his appeal, he submitted various letters of support and/or character reference letters, from several senior officers and civilians, who recommended favorable consideration.  

11.  On 24 January 2006, by letter, the ABCMR notified him that his request was returned without action since he had not exhausted his administrative remedy.  He had not submitted his request to the Department of the Army Suitability Evaluation Board (DASEB).

12.  Subsequent to this letter, he petitioned the DASEB to transfer the contested GOMOR to the restriction section of his AMHRR.  With his appeal, he submitted the letters of support and/or character reference letters.

13.  He retired on 31 August 2006 and he was placed on the Retired List in his retired rank of MAJ effective 1 September 2006. 

14.  On 25 September 2006, by letter, the DASEB notified him that after careful consideration, it voted unanimously to deny his appeal. 

15.  On 18 October 2012, he submitted a request for reconsideration to the DASEB.  However, by letter, on 16 January 2013, he was notified that since he no longer had a military status, the DASEB could not consider his request.  He was referred to the ABCMR.  




16.  He submitted:

	a.  Multiple DA Forms 67-9 from 15 May 2004 to 30 December 2005 that show his performance was rated as "Outstanding Performance - Must Promote" by his raters and "Best Qualified" by his senior raters. 

	b.  Multiple DA Forms 2906 showing superior ratings.

	c.  Multiple DA Forms 7222 show "Excellent" performance during each rating period and "Successful" overall performance. 

	d.  Multiple letters of support and/or character reference letters from various officials who spoke highly of the applicant's character and opined that the GOMOR should be expunged from his record. 

17.  Army Regulation 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Appendix B-1 states a letter of reprimand is filed in the performance section of the AMHRR.

18.  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.

19.  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.  Army Regulation 600-37, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an IO determined sufficient evidence existed to support a finding that the applicant's conduct during the period 24 to 26 January 2005 was disturbingly lax in adherence to procedures for information and personal security.  He also failed to maintain communications with other U.S. personnel causing a delay in mission accomplishments.  Although the IO opined none of the verifiable actions warranted punishment under the UCMJ; the recommendation was that the applicant receive a GOMOR and corrective training.

2.  Accordingly, the applicant received a GOMOR.  He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision.  He did so and acknowledged his lapse of judgment and/or his error several times in his rebuttal.  After careful consideration of the applicant's case and his rebuttal, 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.

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 MAJ 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.  His conduct was inexcusable and his actions brought discredit to himself and the Army.  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust.

4.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed in his AMHRR, it became a permanent record and will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.

5.  As stated, the GOMOR is an administrative tool used by imposing officers to correct and rehabilitate a Soldier.  It is unclear how the applicant determined the GOMOR served its purpose.  He submitted his voluntary retirement 2 months after receiving the GOMOR and he retired a year later.  Had he remained on active duty, it is reasonable to presume he would have had to show cause for retention.  He did not soldier on or serve long enough to establish a progressively noteworthy advancement in achievements and maturity, outstanding performance as a field grade officer, or any ingredient in the success or achievement of an individual.

6.  In view of the foregoing evidence, there is an insufficient basis to transfer or remove the contested GOMOR from his official records. 

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)                                         AR20130001695



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ABCMR Record of Proceedings (cont)                                         AR20130001695



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