IN THE CASE OF:	  

		BOARD DATE:  27 February 2014

		DOCKET NUMBER:  AR20130006888 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* rescission of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated 28 February 2008 (Final/SSI – 
0087-07-CID041-XXXXX-XX)
* rescission of the memorandum of reprimand (MOR) issued to the applicant, dated 23 January 2012, and removal of the MOR from his Official Military Personnel File (now known as the Army Military Human Resource Record (AMHRR))
* remission of the alleged debt to the Defense Finance and Accounting Service (DFAS) and termination of collection actions
* reimbursement of all amounts previously paid against the above alleged debt plus interest

2.  Counsel states he believes the applicant's records are in error or unjust for the following reasons:

	a.  CID suspected three officers – Major (MAJ) G____ A. C____, MAJ B____ M____, and the applicant – of creating a fictitious company, submitting fraudulent temporary duty (TDY) settlement vouchers to DFAS, and submitting false leasing documents and receipts in support of lodging claims for funds to which they were not entitled.  After investigating, CID incorrectly concluded that all three officers committed the offenses of conspiracy, fraud, larceny of U.S. Government funds, and wire fraud.

	b.  The CID's case against the applicant essentially amounts to a single alleged misdeed of the applicant submitting one false lodging voucher to DFAS for a period of several days in December 2005 for the amount of $994.00.

	c.  Based exclusively on the CID investigating agent's report, DFAS wrongly concluded the applicant defrauded the U.S. Government of $35,181.42 (exhibit 3).  DFAS did not conduct its own investigation, though its own regulations require it to do so.  How the amount was determined is a complete mystery.

	d.  Also, based exclusively on the CID investigating agent's report, Major General (MG) J____ J. M____, Deputy Commanding General for Operations, U.S. Army Reserve Command, issued a general officer memorandum of reprimand (GOMOR) to the applicant.

	e.  The applicant appealed the CID investigating agent's report and on the same day he submitted his response to the MOR.  He then sent a copy of his CID appeal to DFAS.  CID denied the applicant's appeal and DFAS denied his request to suspend the debt.

	f.  Counsel states that according to the CID report, MAJ B____ M____ submitted vouchers indicating he was renting his own (MAJ B____ M____'s) property from MAJ G____ A. C____ for $5,000.00 per month.

	g.  He states that according to the CID report, MAJ G____ A. C____ allegedly created a company called B____ K____ Management; entered into a fraudulent lease with it for property at XXX Q____ Street, Washington, DC; and submitted fraudulent lodging vouchers to DFAS for $4,200.00 per month based on that lease.  The CID report indicated the XXX Q____ Street, Washington, DC, property actually was owned by MAJ G____ A. C____'s wife, and MAJ G____ A. C____ and his wife lived in it during MAJ G____ A. C____'s deployment.  MAJ G____ A. C____'s fraudulent vouchers resulted in an overpayment to him of more than $50,000.00.  Apparently, MAJ G____ A. C____'s only punishment for his admitted fraud was an administrative Article 15 (Commanding Officer's Nonjudicial Punishment under the Uniform Code of Military Justice (UCMJ)) issued to him on 25 February 2009.

	h.  The applicant and his family live in Chicago when he is not mobilized.  He was mobilized from 1 May 2005 to 31 May 2007.  His duties required him to travel from his home station in Washington, DC, for periods of several days to several months on short notice.  These trips resulted in the applicant living at seven different places during this time.  One of these places was on XX Court North, Arlington, VA, which he leased from MAJ B____ M____.  Another was with his brother for which he submitted a memorandum to DFAS declining any lodging reimbursement, consistent with DFAS regulations.  CID does not challenge any of these arrangements.  CID does not allege that any of the applicant's leases or lodging vouchers for the time and any of the properties were false or otherwise unlawful.  CID's only allegation against the applicant is that he submitted a single lodging voucher for property at XXXX C____ Drive, Washington, DC (correctly located in Arlington, VA), for 5 days during the month of December 2005.  The total amount the applicant received was $994.00, which the applicant informed DFAS was an error and attempted to repay.  DFAS refused the payment.  Even though only one of the applicant's vouchers (for $944.00) was in question and the applicant had attempted to repay DFAS, DFAS wrongly concluded the applicant defrauded the U.S. Government of $35,181.42.  DFAS did not conduct its own investigation, provide any support for its debt calculation, or provide any support for its conclusion of wrongdoing.

	i.  Counsel states the CID report should be rescinded and the applicant's name should be cleared.  The action by DFAS to collect a debt from the applicant should be halted.  The amounts the applicant already paid to DFAS with respect to the alleged debt should be refunded to him with interest, less the $664.00 due under the December 2005 voucher.  The MOR should be rescinded and removed from his records.

	j.  Counsel states the burden of establishing fraud rests with the party alleging fraud, in this case DFAS.  A fraud claim may be sustained if proved by evidence sufficient to overcome the existing presumption in favor of honesty and fair dealing.  If the circumstances are as consistent with honesty and good faith as with dishonesty, the presumption of honesty will prevail (U.S. Government Accounting Office Decision B-230385, 16 January 1990).

	k.  There is no evidence that DFAS investigated and established an act of fraud by the applicant.  Even if DFAS had done so, DFAS would be only allowed to collect from him the amount he fraudulently received.  There is nothing in the records to support the finding of a $35,181.42 debt incurred by the applicant.  In the worst case, he erroneously received $664.00 and he tried to repay that amount.

	l.  Counsel states that because DFAS violated its own regulation by not investigating the alleged fraud, because CID's investigation does not establish fraud by the applicant, and because the amount of debt assessed against the applicant lacks foundation, the relief requested herein should be granted.

3.  Counsel provides an index with 15 exhibits.

CONSIDERATION OF EVIDENCE:

1.  On 8 May 2005, the applicant was recalled to active duty from the Retired Reserve in the rank of lieutenant colonel (LTC).

2.  Counsel provides the documents that DFAS provided in response to his request under the Freedom of Information Act.  Included in those documents is a DD Form 1351-2 (Travel Voucher or Subvoucher), dated 5 December 2005.  This travel voucher shows the applicant submitted an expense for lodging in the amount of $700.00 for the period 1-4 December 2005.  An invoice from B____ K____ Management, XXXX C____ Drive, Suite XXX, Arlington, VA, shows the applicant was charged $175.00 per day for 4 days for rent of Apartment XXX located at XXXX C____ Drive, Arlington, VA, for a total of $700.00.

3.  On 28 May 2007, the applicant was released from active duty and transferred to the Retired Reserve.

4.  Counsel provides a CID ROI (Final/SSI – 0087-07-CID041-XXXXX-XX), dated 28 February 2008, showing that on 13 August 2007 it was reported that multiple occurrences of fraud, wire fraud, larceny of government funds, and conspiracy were committed during the period 1 October 2005-31 January 2007 by three named commissioned officers.  The report indicates an investigation was initiated upon notification from a budget officer that these three officers submitted travel vouchers that appeared to be fraudulent.  The investigation determined the three officers committed the offenses of conspiracy, fraud, larceny of U.S. Government funds, and wire fraud when they submitted fraudulent TDY settlement vouchers to DFAS by creating a fictitious company which enabled them to provide false leasing documents and receipts in support of lodging claims for funds to which they were not entitled.  This resulted in a loss to the U.S. Government in the amount of $107,947.00.

	a.  The report states the applicant's documents (December 2005) indicated he rented Apartment XXX at XXXX C____ Drive, Arlington, VA, from B____ K____ Management for $175.00 per day.  Additional vouchers (January through March 2006) indicated he rented XXXX XX Court North, Arlington, VA, from MAJ B____ M____.  The January 2007 voucher's lodging expense for the above residence was also claimed by MAJ B____ M____.

	b.  A query of local files revealed that MAJ B____ M____ purchased the residence at XXXX XX Court North, Arlington, VA, in October 2004 and sold it in June 2007.

	c.  A search of the Internet revealed that the point of contact for B____ K____ Management was MAJ G____ A. C____.  The Chief Security Officer (CSO), XXXX C____ Drive, Arlington, VA, stated building XXXX was an office building and there were no apartments or any other type of designated living space in the building.  The CSO had never heard of B____ K____ Management and, according to the address, it was located in a demolished area of the building slated for renovation.  Both the 6th and 7th floors of the building where the applicant claimed to have lived were rented out to Raytheon Corporation.  The CSO added that B____ K____ Management did not exist at XXXX C____ Drive, Arlington, VA.

	d.  The special agent who interviewed the applicant on 12 October 2007 stated the applicant made several spontaneous statements regarding himself, MAJ B____ M____, and MAJ G____ A. C____ while he was attempting to advise the applicant of his rights.  The applicant originally stated he knew the other two officers were up to something, but didn't know what it was.  The applicant had related to the special agent that MAJ B____ M____ and MAJ G____ A. C____ had approached him regarding a way to make money to see if he wanted to become involved.  The applicant went on to say he had incurred a debt of several thousand dollars while serving on active duty and either MAJ G____ A. C____ or MAJ B____ M____ could have made the debt disappear.  The applicant then invoked his rights and requested legal counsel.  The special agent noted the applicant's hands were shaking during the entire interview and the applicant continued to make erratic spontaneous statements while attempting to dominate the interview.

5.  A letter from the applicant to DFAS, dated 17 December 2007, stated it had come to his attention that an error had occurred on Voucher 375460 
(1-5 December 2005) causing him to owe DFAS an amount of $664.00.  He requested that DFAS send him the required paperwork so he could forward a check for the amount of $664.00 for official annotation to his account.

6.  Counsel provided a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) which shows MAJ G____ A. C____ accepted nonjudicial punishment under the UCMJ on 25 February 2009 for preparing a voucher for presentation for approval or payment – to make a claim against the U.S. Government in an amount over $500.00 for rent, which claim was false and fraudulent in an amount of over $500.00 – that he claimed as rent for a property he owned and was then known by him to be false and fraudulent.  The punishment imposed was forfeiture of $3,361.00 per month for 2 months and a written reprimand.  In a sworn statement, dated 10 December 2007, MAJ G____ A. C____ stated he was naïve regarding travel vouchers when he was activated from the U.S. Army Reserve.  He stated the applicant was the finance officer at the time.  The applicant and many other members of his unit would hint and say things about ways to get paid per diem from the U.S. Government.

7.  On 4 March 2009, MAJ G____ A. C____ was issued an MOR for defrauding the U.S. Government by submitting false travel vouchers.

8.  An Indianapolis Travel Operations letter to the applicant, dated 16 June 2011, subject:  Temporary Change of Station (TCS) Debt Notification, stated that during the applicant's TCS orders, he received travel entitlements and or travel advances.  During or upon completion of his TCS travel, he filed a claim with Contingency Travel Operations for reimbursement, or on discovering his overpayment, DFAS-Indianapolis computed a voucher.  After computation of his claim, it was determined that he was overpaid on his prior payments, placing him in a "Due US Status [established debt to the U.S. Government]" in the amount of $35,181.42.

9.  The performance folder of the applicant's AMHRR contains a GOMOR, dated 13 January 2012, issued by MG J____ J. M____, Deputy Commanding General for Operations, U.S. Army Reserve Command.  MG J____ J. M____ reprimanded the applicant for submitting false and fraudulent documents to the U.S. Government in order to obtain approximately $35,181.00 that he was not entitled to receive.  A criminal investigation revealed that the applicant submitted false claims for travel reimbursement during his mobilization to the National Capital Region from October 2005 through January 2007.  The investigation revealed the applicant, MAJ B____ M____, and MAJ G____ A. C____ conspired to collectively defraud the U.S. Government of over $100,000.00 by submitting fraudulent leases from a fictitious company.

10.  MG J____ J. M____ stated the GOMOR was an administrative measure and was not punishment imposed pursuant to the UCMJ.  The applicant was advised that he could submit matters in defense, rebuttal, extenuation, and mitigation within 7 days of receipt of the GOMOR prior to his decision whether he would file the GOMOR in the applicant's AMHRR.

11.  The Chief, Investigative Operations, CID, stated in a memorandum, dated 19 April 2012, subject:  Request for Amendment of Record – (Applicant), that the credible information standard had been correctly applied when the applicant was indexed.  Based on the investigation, there was probable cause to believe the applicant committed the listed offenses of fraud, larceny of government funds, wire fraud, and conspiracy.  He stated the applicant obtained an attorney who detailed why the applicant should be removed from the subject block.  However, the attorney did not provide any new information that would aid in removing the applicant from the subject block.

12.  On 27 April 2012, a memorandum from the polygraph division to the U.S. Army Crime Records Center stated the applicant should be retained in the subject block of the CID ROI in question for the listed offenses.  Credible information existed at the time of the ROI to warrant titling the applicant as a subject of that investigation.  There was no error in mistaken identity or application of the credible information standard at the time of the initial ROI to support an amendment to this portion of the report.

13.  On 3 February 2012, the applicant appealed the CID's findings through his appointed counsel.

14.  On 3 February 2012, the applicant provided a response to the GOMOR through his appointed counsel.  His counsel stated neither the CID investigation nor the GOMOR identified a single false statement by the applicant or what monies the applicant received that he was not entitled to receive, or indicated how the $35,181.00 amount was determined.

15.  After careful consideration of the nature of the applicant's misconduct, as well as the matters he submitted in rebuttal, MG J____ J. M____ ordered filing of the GOMOR in the performance folder of the applicant's AMHRR.  The GOMOR is currently filed in the performance folder of his AMHRR.

16.  On 17 February 2012 through his appointed counsel, the applicant requested that the Contingency Travel Department cease its collection efforts until CID ruled on the applicant's appeal.

17.  On 21 March 2012, DFAS denied the applicant's request to suspend debt collection pending appeal of the CID report.  The response stated the applicant submitted false travel vouchers that contained false lodging receipts and a lease to DFAS.  The reimbursement of his lodging expenses was based upon false receipts that he submitted with his travel claims and thus resulted in erroneous payments to the applicant in the amount of $35,181.42.

18.  DFAS response further stated the debt amount was established as an erroneous and improper payment under the Department of Defense Financial Management Regulation, volume 5, and the Improper Payment Elimination and Recovery Act (Public Law 111-204, dated 22 July 2010).  The establishment of the applicant's debt was within the guidelines as set forth under the Comptroller Generals Decision B-230385 (6 January 1990).

19.  On 4 May 2012, the applicant's request to correct information from CID files, specifically ROI 0087-07-CID041-XXXXX-XX, was denied.

20.  On 24 September 2012, his appointed counsel requested that Travel Operations, Contingency Travel Department, provide a copy of the entire DFAS file with respect to the debt allegedly owed by the applicant.

21.  Counsel provided copies of numerous travel voucher-related documents for the applicant's period of mobilization from May 2005 to May 2007.  Included is a travel voucher summary, dated 13 June 2011, which shows the applicant was paid advances/prior payments of $52,139.42 with a total entitlement of $16,958.00, resulting in a debt due the U.S. Government of $35,181.42.

22.  Counsel provided a copy of a letter to DFAS, dated 17 December 2007, wherein the applicant stated that it had come to his attention that an error occurred on Voucher 375460 (1-5 December 2005) that was disbursed on 29 December 2005.  He stated he owed DFAS a check in the amount of $664.00 that corresponded to that over-payment.  He requested the required paperwork from DFAS so he could forward a check for $644.00 so his account could be annotated officially.  He also provided a copy of a letter with a personal check to DFAS for the amount of $664.00.  On 26 February 2008, DFAS indicated it was returning the applicant's check because there were no debts or allotment to post the money to.

23.  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.

	a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.  It states that once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with this chapter.

	b.  Paragraph 7-2a states 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.

24.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes Department of the Army policy for criminal investigation activities and constitutes the basic authority for the conduct of investigations and the collection, retention, and dissemination of criminal information.  It states that requests to amend or unfound offenses in CID ROI's will be granted only if the requestor submits new, relevant, and material facts that are determined to warrant revision of the report.  The burden of proof to substantiate the request rests with the individual.  Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person's name had been entered as a result of mistaken identity.  The regulation further states the decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action.  Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, CID.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.

25.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the Army Board for Correction of Military Records will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

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

2.  CID rightfully determined that probable cause or sufficient evidence did exist to believe the applicant committed the offenses of fraud, larceny of government funds, wire fraud, and conspiracy.  The applicant's request through his attorney for removal of his name from the subject block was denied by CID due to failure to provide any new information that would aide in removing the applicant from the subject block.  He provided no evidence to show credible information did not exist to believe that the applicant committed the offense for which titled or that the disclosure of this offense is in contravention of any law, regulation, or directive, as applied to law enforcement activities.

3.  The records show MG J____ J. M____ had the results of a CID investigation and the applicant's response to the GOMOR upon which to base his decision to impose the GOMOR and make a filing decision.  The evidence indicates the GOMOR accurately summarizes the behavior for which it was imposed.  His counsel contends that one of the other officers involved was apparently given only nonjudicial punishment for his admitted fraud.  However, this has no bearing on the applicant's alleged offenses or the administrative action taken.  The applicant was an LTC in a position of trust and responsibility.  The evidence shows 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.  The applicant's conduct was inexcusable and his actions brought discredit upon himself.

4.  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.  The GOMOR was correctly filed.  To remove a document requires evidence of a clear and convincing nature that the document is untrue or unjust.  In this case, there is a lack of clear and convincing evidence that the GOMOR was untrue or unjust.

5.  Counsel further contends that it is a "mystery" as to how DFAS determined the amount of the debt owed by the applicant.  However, he has not shown that DFAS incorrectly determined the applicant owed a debt due to claim(s) for travel expenses to which he was not entitled.  Therefore, there is an insufficient basis to recommend that DFAS remit the alleged debt, cease debt collection actions, or refund all monies already paid against the debt plus interest.

6.  In view of the foregoing and in the absence of substantive evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected.  The applicant did not provide evidence that establishes that the presumption of regularity should not be applied to the documents under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  As a result, there is insufficient evidence to grant him the requested relief.



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 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)                                         AR20130006888



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006888



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1