IN THE CASE OF:	  

		BOARD DATE:	    31 October 2013

		DOCKET NUMBER:  AR20130001815 


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 reconsideration of the Board's denial of his previous request for:

* removal of a General Officer Memorandum of Reprimand (GOMOR) from his U.S. Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File)
* in the alternative, transfer of the GOMOR from the performance section to the restricted section of his AMHRR
* a personal appearance
* reimbursement of the money that was recouped from him ($9,112.00)
* the opportunity to personally appear before the Board

2.  The applicant states he did not inappropriately profit from the per diem paid during his mobilization from lodging, sale of the rental property for $10.00 was correct, and the Executive Group and its receipts are legitimate.  His actions did not violate the trust the Army placed in him as an officer and a leader.  He states that he doesn't believe he would receive the support of the GOMOR issuing authority if he continued to believe the U.S. Army Criminal Investigation Command (CID) report was accurate.  He has two "Above Center of Mass" Officer Evaluation Reports (OERs) as a major with the latest showing "unlimited potential, absolute top performer, must select for promotion, command and schooling."  He understands that it is not an entitlement; however, he again asks that he be given the opportunity to personally appear before the Board to allow him to demonstrate his honesty and integrity through his presentation, demeanor, and answers.
3.  The applicant provides:

* a self-authored statement
* a listing of lodging expenses for the said property for the period March to August 2005
* expense related documents, such as monthly mortgage statements, homeowners insurance, pest control, and utilities
* real estate documents related to the purchase and subsequent transfer of the above property that he owned to the Executive Group, Limited Liability Company (LLC) and other properties controlled by the Executive Group, LLC
* 2012 Executive Group Federal Taxes
* an excerpt of the results of a computerized polygraph examination
* Ms. M's sworn statement
* additional letters of support
* email written between the applicant and Lieutenant Colonel (LTC) C, subject: Travel Voucher Issue
* an OER for the rating period 12 July 2011 through 11 July 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120006016, on 13 December 2012.

2.  The applicant has submitted new evidence which was not previously considered by the Board.  The new evidence warrants consideration at this time.

3.  On 11 August 2004, he was ordered to active duty in the rank of captain as a member of his U.S. Army Reserve (USAR) unit in support of Operation Enduring Freedom.  He was ordered to report to Fort Jackson, SC where he served as the commander of Company E, Task Force Marshall.

4.  In May 2005, he sold a residential rental property in Columbia, SC, for $10.00 to the Executive Group, an LLC registered in South Carolina for which he was the registered agent.

5.  He was honorably released from active duty on 14 May 2005.  During his mobilization, he submitted travel vouchers claiming to lease the above property which he already owned.

6.  He was promoted to major on 6 September 2006.
7.  In June 2008 as a result of irregular activities, CID agents investigated the applicant for receiving unauthorized pay and allowances.  The investigation determined the applicant committed the offenses of larceny of U.S. Government funds, signing false statements, and temporary duty (TDY) fraud when he signed and submitted fraudulent travel vouchers with attached rental receipts claiming he was leasing the above property from the Executive Group, LLC, which was a business that he owned and operated.  The investigation determined the applicant sold this property to the Executive Group, LLC, on 10 May 2005, for $10.00 and subsequently submitted travel vouchers to the Defense Finance and Accounting Service (DFAS) claiming he was leasing the said property for $2,010.00 to $2,077.00 per month.  He received pay and allowances he was not authorized, totaling $9,181.00, a loss to the U.S. Government.

8.  On 7 March 2010, he was reprimanded by the Commanding General, 80th Training Command, USAR.  The GOMOR stated he was reprimanded for his role in submitting fraudulent rental receipts and rental agreements while mobilized to Fort Jackson and for stealing money from the U.S. Government pursuant to these fraudulent documents.  The GOMOR was imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.

9.  He acknowledged receipt of the GOMOR and submitted a rebuttal through a civilian attorney.  His attorney stated:

* the GOMOR should not be filed because it contained reference to criminal activity despite the fact that the applicant was never charged with a crime
* the Joint Federal Travel Regulations authorized the applicant to claim lodging reimbursement whether he rented or owned the residence
* the regulation prohibits filing inaccurate derogatory information in personnel files
* the GOMOR is based solely on a CID report and the applicant had paid the amount demanded by DFAS in full

10.  After careful consideration of the applicant's case the commanding general ordered filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

11.  On 31 October 2011, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR from his AMHRR.  He contended the GOMOR was untrue and unjust.


12.  On 26 January 2012, based on the available evidence, the DASEB determined the applicant did not provide clear and convincing evidence that showed the GOMOR was rendered in error or was unjust.  Therefore, the DASEB denied his request.

13.  He submits a self-authored statement stating there were a few concerns in the Board's letter that were similar to the GOMOR-issuing authority's when he met with him.  Those concerns were:  inappropriate profiting from lodging, sale of the rental property for $10.00, and the legitimacy of the Executive Group and its receipts.

14.  He also provides the following additional documentation.

	a.  A memorandum of support from the then Commanding General at Fort Jackson, SC, now retired, dated 12 September 2013, who states his Chief of Customer Service at Fort Jackson Defense Military Pay Office remembers the applicant seeking advice from DFAS regarding his situation and wrote a sworn statement to that effect.  He stated that he had reviewed the information, evidence, and documentation surrounding the issue which resulted in the GOMOR and he did not believe the applicant acted dishonorably nor did he defraud the government.  He recently met with the applicant and believed him to be an outstanding officer who continues to serve with a high level of integrity and one who lives the Army values.  He stated he supports the applicant's request to have the GOMOR removed.
 
	b.  An HRC memorandum, subject: Initiation of Elimination, dated 29 June 2013, states the applicant was identified by the Calendar Year 2013 USAR LTC Command Board to show cause for retention on active status under the provisions of Army Regulation 135-175 (Separation of Officers), paragraph 2-11f (Acts of Personal Misconduct) and paragraph 2-11o (Conduct Unbecoming an Officer).

	c.  An OER covering the rating period 12 July 2011 through 11 July 2012 for his duties as an Engineer Plans Officer while assigned to the Transatlantic Division, U.S. Army Corps of Engineers, Winchester, VA, shows his rater rated his performance as "Outstanding Performance – Must Promote" and his senior rater rated his performance and potential as "Best Qualified" and "Above Center of Mass."

	d.  He also provides the 2012 Executive Group, LLC Federal tax documents showing the income or loss from various real estate properties controlled by the company. 

15.  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.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

	a.  Paragraph 3-2c states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.  These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others.  Other unfavorable character traits of a permanent nature should be similarly recorded.

	b.  Paragraph 7-2 of this regulation 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.

16.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  The AMHRR is an administrative record as well as the official permanent record of military service belonging to a Soldier.    

17.  Army Regulation 15-185 (ABCMR) states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the evidence he provides and his assertions about the situation are insufficient to support granting the requested relief.

2.  A CID investigation determined he committed the offenses of larceny of U.S. Government funds, signing false statements, and TDY fraud when he signed and submitted fraudulent travel vouchers with attached rental receipts claiming he was leasing a residence from the Executive Group, LLC, which was a business that he owned and operated.  He submitted travel vouchers to DFAS claiming he was leasing the said residence and he received pay and allowances he was not authorized.

3.  As a result, he received a GOMOR.  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.  After careful consideration of the applicant's case and his rebuttal, the imposing general officer ordered filing of the GOMOR in the performance section of the applicant's AMHRR, where it is currently filed.

4.  The applicant was a captain and a commander in a position of trust and authority.  He violated that trust.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests, but for the Army's as well.  His conduct was inexcusable and his actions brought discredit to himself.  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust.

5.  The Board is generally reluctant to remove adverse information from an AMHRR when doing so would place the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does move unfavorable information, it only does so if it has truly served its intended purpose.  Notwithstanding the former Fort Jackson commanding general's recent statement and recommendation, the applicant's GOMOR does not appear to be untrue, unjust, or to have served its intended purpose.  The fact that he was not selected for promotion – despite the fact that promotion boards do not divulge the reason(s) for nonselection – and/or command appears to be a natural result of his own actions.

6.  He provides expense listings and Executive Group, LLC tax documents to show he did not "make a profit" from renting this property from himself.  However, the fact that he did not "make a profit" does not show that he would not have financially benefited from his actions.  Furthermore, the failure to make a profit in this venture is not a mitigating factor in this case.
7.  Though he provided his most recent OER which shows his rater rated his performance as "Outstanding Performance – Must Promote" and his senior rater rated his performance and potential as "Best Qualified" and "Above Center of Mass" this does not show that the GOMOR was untrue, unjust, or has served its intended purpose.

8.  His request for a personal appearance hearing was carefully considered.  However, as stated in the original proceedings, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

9.  In view of the foregoing, he has not provided sufficiently convincing evidence to support removing or transferring the contested GOMOR or to reimburse him for any monies he claimed fraudulently that he has since repaid to the government.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120006016, dated 13 December 2012.




      __________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)                                         AR20130001815



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ABCMR Record of Proceedings (cont)                                         AR20130001815



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