IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130001699 


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, in effect, correction of his Official Military Personnel File (OMPF) (now known as the Army Military Human Resource Record (AMHRR)) by:

	a.  removing the General Officer Memorandum of Reprimand (GOMOR), dated 7 January 2010, from his AMHRR;

	b.  removing the Promotion Review Board (PRB) results, dated 31 May 2012, from his AMHRR;

   c.  removing the Involuntary Separation Board (ISB) results, dated 19 June 2012, from his AMHRR; and 
   
   d.  reinstating him on the 2009 Lieutenant Colonel (LTC) U.S. Army Reserve (USAR) Non-Active Guard Reserve (AGR), Promotion Selection List (PSL).

2.  The applicant states, in effect:

   a.  The Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was unwarranted, flawed, and conducted over seven months after the incident.  Errors were clearly identified to Major General (MG) Exxx in the applicant's rebuttal memorandum; however, MG Exxx failed to consider conflicting evidence.  

   b.  He was notified of the ISB in August 2010, yet the board wasn't conducted until June 2011.  The results of the 15-6 investigation were proven flawed at the ISB and he was recommended to be retained in the USAR.
   
   c.  Multiple PRBs were conducted (May 2010 and September 2011); however, the Army will not share with him the results of the first board, nor will they explain why two boards had to be conducted.

   d.  His chain of command recognized the incident as an accident and gave him exceptional ratings during the period covering the incident.  Additionally, he has maintained an exceptional status in the USAR since the incident, and has volunteered for many challenging positions.  

   e.  The Department of the Army (DA) Inspector General (IG) will not investigate and address the injustices regarding why a flawed investigation was permitted; two PRBs were permitted; and why so much time was permitted to elapse at every phase of the situation.

   f.  The lack of leadership and professionalism in his chain of command and their lack of desire to take care of one of their Soldiers is appalling.  He has served for over 22 years in the USAR, including a deployment for Operation Iraqi Freedom from January 2003 through February 2004.

3.  The applicant provides:

* a self-authored statement
* a timeline of events
* a GOMOR, dated 7 January 2010
* a 3-page GOMOR rebuttal, dated 3 February 2010
* 2 letters of character reference
* 3 memoranda of character reference
* 4 DA Forms 67-9 (Officer Evaluation Report)
* a letter from Director – Alternate Video Channels
* a memorandum from the Chief, DA Promotions

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a major in the USAR.

2.  His AMHRR contains a DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers), dated 10 November 2009, signed by the IO and containing the following discussion of facts and circumstances:

   a.  On 18 February 2009, the applicant exited the Post Exchange (PX) located at Fort Carson, CO, while talking on his cell phone and without paying for a pair of Wiley X sunglasses that were in his possession.  The applicant had been monitored via security cameras located in the PX by Mr. Bxxxxx, security personnel employed by the Army and Air Force Exchange Service (AAFES).  Mr. Bxxxxx stopped the applicant after the applicant had exited the PX into the mini mall.  Mr. Bxxxxx identified himself and asked for the applicant's identification and requested he accompany him to the security office where the applicant surrendered the sunglasses and pouch.  The Fort Carson Police Department was notified and dispatched Mr. Dxxxxxx.  Upon arrival, Mr. Dxxxxxx was informed of the situation by Mr. Bxxxxx and Mr. Dxxxxxx observed the security video for himself.  After viewing the video, he took the applicant into custody and transported him to the police station where he was charged with larceny of AAFES property, less than $100.00 (Article 121, Uniform Code of Military Justice (UCMJ)).

   b.  The applicant is a Reserve Soldier assigned to U.S. Army Forces Command Augmentation Unit.  He had been assigned as a supply officer but was changing to a contracting officer position that needed to be filled.  The applicant had been approved to attend a contract course given at Fort Carson, CO, which he was attending at the time of the incident.  The applicant's civilian position is as an Associate Director for Product Management with AT&T in Atlanta, GA.  During this timeframe, the applicant, in his civilian capacity, was involved in negotiating a large multi-year, multi-million dollar contract with a vendor for the development of a new product line for AT&T as the primary negotiator.  As such, the applicant was required to work extended hours past those required to meet the requirements of his military duties in order to fulfill his civilian responsibilities.   

3.  The IO found that there was evidence to support the fact the applicant exited the Fort Carson PX without paying for the sunglasses that were in his possession.  New information provided by Mr. Bxxxxx, AAFES Loss Prevention Officer, indicated the applicant's actions in prying open the display case and removing the price tag from the sunglasses were indicators of dishonest intent.  Based on the sum of information, it is the IO's opinion that the "intent to permanently deprive or defraud" portion of Article 121 was present and the applicant was guilty of a violation of Article 121, UCMJ.  The IO recommended the applicant receive an Article 15 and that competent authority review the applicant's security clearance.

4.  On 7 January 2010, the applicant received a GOMOR for his conduct in shoplifting merchandise from the Fort Carson PX.  The applicant was given       14 days to acknowledge the memorandum and to submit any matters deemed appropriate.

5.  On 3 February 2010, the applicant submitted his rebuttal to the GOMOR.  In his rebuttal he respectfully asked to consider removing the GOMOR from his file.  He further stated that he understood that the issuance of a GOMOR was mandatory for incidents of this nature when the events actually occurred.  He did not intentionally steal sunglasses from the PX.  It was nothing more than a mistake and a lapse of attentiveness.  He whole-heartedly desires to continue to serve his country and would hate to have a reprimand in his file for allegations he did not commit.

6.  On 18 April 2010, after reviewing the matters submitted by the applicant the commanding general (CG) directed the GOMOR and the applicant's three-page rebuttal be filed in the applicant's AMHRR.

7.  The GOMOR is filed in the performance folder of the applicant's AMRHR.

8.  On 11 May 2010, the applicant received a notification of suspension of favorable personnel action from the Chief, DA Promotions who stated the DA Reserve Components Selection Board that recessed on 22 September 2009 recommended the applicant for promotion to LTC, USAR.  In accordance with DA policy and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), promotion lists are screened continuously to ascertain if an officer may have become unqualified prior to promotion to the next higher grade.  Based on the GOMOR, his record was to be referred to a DA PRB for reconsideration of his promotion status.  Effective         5 May 2010, the applicant was under a suspension of favorable personnel actions.

9.  On 30 September 2011, the applicant received notification that his records would be referred to a PRB.  He was given 20 days from the date of notification to submit a rebuttal, comments, information, and letters of endorsement to the President of the PRB on his behalf attesting as to why he should be retained on the promotion list.

10.  On 15 October 2011, the applicant submitted his rebuttal request to maintain his promotion eligibility.  In his rebuttal request he states a Show Cause Board which took place on 28 June 2011 validated the errors in the 15-6 investigation and determined that no misconduct had occurred which indicated the incident was purely accidental.

11.  On 14 February 2012, after reviewing the applicant's overall record, a majority of the members of the PRB recommended the applicant be removed from the FY 2009, LTC, RC, AR Non-AGR Competitive Category, PSL.  On        29 May 2012, the Secretary of the Army directed removal of the applicant from the FY 2009, LTC, RC, AR Non-AGR Competitive Category, PSL and further directed that no action be taken to initiate elimination proceedings based on the board's recommendation that the officer be required to show cause for retention in an active status.

12.  On 31 May 2012, the applicant was notified in a memorandum by a member of the U.S. Army Human Resources Command (HRC), Officer Promotions, of the Secretary of the Army's decision to remove his name from the FY 2009, LTC, RC, AR Non-AGR Competitive Category, PSL.  The memorandum further states that a copy of the board's decision, and a copy of the applicant's rebuttal (if applicable), will be filed in the restricted portion of his OMPF.  These documents are currently located in the restricted folder of his AMHRR.

13.  The applicant's record contains a memorandum from the CG, HRC, dated  19 June 2012, which states a Field Board of Inquiry held on 28 June 2011 recommended the applicant be retained in the USAR.  This document is currently located in the performance folder of his AMHRR.

14.  The applicant provided a timeline of events, his rebuttal to the GOMOR, several character references, and officer evaluation reports in which he received exceptional ratings during the period covering the incident in support of his application. 

15.  There is either insufficient or no evidence and the applicant did not provide any evidence to support his contentions that the DA IG would not investigate and address the injustices regarding why a flawed investigation was permitted; two PRBs were permitted; and why so much time was permitted to elapse at every phase of the situation.

16.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  The regulation does not place time restrictions on the opening or completion of an investigation to ascertain and consider evidence.

17.  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 B-1 (Authorized documents) and Table C-1 (Documents no longer authorized for filing) 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.  Once placed in the AMHRR, the document becomes a permanent part of that file.  Table B-1 provides that letters/memorandums of reprimand, censure, or admonition will be filed in the "Performance" portion of the AMHRR unless directed otherwise by the DA Suitability Evaluation Board.

18.  Table 3-1 (Army Military Human Resource) of Army Regulation 600-8-104 provides, in pertinent part, 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 Headquarters, Department of the Army (HQDA), selection board proponent.  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.

19.  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 Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

20.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.  Paragraph 7-2 of this regulation states 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 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.

21.  Army Regulation 600-37 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.

22.  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.

23.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility.  Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.

	a.  HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.

	b.  An officer may be referred to a PRB for numerous reasons, to include a Memorandum of Reprimand placed in the AMHRR.
	
   c.  Appropriate officials, including commanders (through command channels to Major Area Commands); The Judge Advocate General; The Surgeon General; the Chief of Chaplains; the Chief, General Officer Management Office; the Director, Officer Personnel Management; and the CG, HRC, may recommend at any time that an officer's name be removed from a promotion list.

24.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the GOMOR, dated 7 January 2010; the PRB results, dated 31 May 2012; and the ISB results, dated 19 June 2012, from his AMHRR and to further reinstate him on the 2009 LTC, USAR Non-AGR, PSL has been carefully examined and found to lack merit.

2.  The evidence of record shows the applicant received a GOMOR for his conduct in shoplifting merchandise from the Fort Carson PX, and that it is filed in his AMHRR.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  The applicant's response was received and considered.  The CG ordered the GOMOR be placed permanently in the applicant's AMHRR.  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.

3.  The applicant appears to make the argument that since his chain of command gave him exceptional ratings during the period covering the incident and he was retained in the USAR following his ISB, the 15-6 and subsequent GOMOR are flawed.  There is insufficient evidence to show the results of the investigation and his subsequent receipt of a GOMOR was in any way flawed or untrue.  

4.  There is either insufficient or no evidence and the applicant did not provide any evidence to support his contentions that the DA IG would not investigate and address the injustices regarding why a flawed investigation was permitted; two PRBs were permitted; and why so much time was permitted to elapse at every phase of the situation.

5.  In view of the foregoing, there is an insufficient evidentiary basis to remove the contested GOMOR, PRB results, and ISB results from his AMHRR, or to further reinstate him on the 2009 LTC, USAR Non-AGR, PSL. 

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)                                         AR20130001699



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ABCMR Record of Proceedings (cont)                                         AR20130001699



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