IN THE CASE OF:	  

		BOARD DATE:  19 March 2014

		DOCKET NUMBER:  AR20130009424 


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 his reconsideration request to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for:  

* removal of the General Officer Memorandum of Reprimand (GOMOR) from the applicant's Army Military Human Resource Record (AMHRR)
* promotion to lieutenant colonel (LTC) by the Department of the Army (DA) Reserve Component Selection Board (RCSB) under the Fiscal Year (FY) 2006 or 2007 criteria
* in the alternative, consideration of the applicant's records under the FY 2006 or FY 2007 Promotion Selection Board (PSB) criteria 

2.  Counsel states the applicant received an unjust GOMOR in April 2003.  The imposing officer directed filing of the GOMOR in the performance folder of the applicant's AMHRR.  He petitioned the Department of the Army Suitability Evaluation Board (DASEB) which rendered a favorable decision by transferring the GOMOR to the restricted folder.  He petitioned this Board but his request was denied.  The Board obtained an advisory opinion from the U.S. Army Human Resources Command (HRC), which evaded the issue and recommended disapproval.  Counsel argues: 

* the GOMOR misstated the facts of the events surrounding the applicant's alleged defiance upon his entry onto McChord Air Force Base (AFB), WA
* although he was apprehended for disobeying a lawful order, he was released on his own recognizance with no charges
* the GOMOR overstated the facts and circumstances of the events that took place and exaggerated his actions as "out of control"
* the applicant took responsibility for his actions and acknowledged the grave mistake in judgment
* he acted the way he did out of concern for his Soldiers and accomplished his mission for the sake of his Soldiers
* the imposing General Officer (GO) received poor advice from the officer who conducted the legal review
* misstating the events constitutes a material error that warrants reconsideration by a special selection board (SSB)
* although the DASEB ordered the transfer of the GOMOR to the restricted folder, the action was not timely executed
* the applicant was fully qualified for the FY 2007 board because he thought his previous education waiver was valid and remained in place
* no one told the applicant his waiver was only valid for the FY 2006 board; he had no reason to believe it would not apply during the FY 2007 board

3.  Counsel provides:

* Contested GOMOR, acknowledgement memorandum, legal review, and filing decision (previously submitted)
* 2006 Military education waiver (previously submitted)
* 2007 Notification of promotion status (previously submitted)
* Appeal to HRC to remove the GOMOR (previously submitted)
* DASEB decision (previously submitted)
* Selective Continuation (SELCON) on the Reserve Active Status List Memorandum (previously considered)
* Request for SSB (previously submitted)
* HRC response to the request for an SSB (previously submitted)
* Previous application to the Board with supporting documents
* Security Force Incident/Traffic Report (previously considered)

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 AR20110016774, on 28 August 2012.

2.  The applicant provides a new argument through counsel.  This new argument is considered new evidence and as a result warrants consideration by the Board. 

3.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and the California Army National Guard on 
17 August 1985.  He completed the Quartermaster Basic Officer Course.  

4.  He served in a variety of staff or command assignments and he was promoted to captain (CPT) on 15 August 1992.  He completed the Quartermaster Officer Advanced Course in December 1998. 

5.  On 14 January 2000, the U.S. Total Army Personnel Command (now HRC) notified him that he was considered for promotion to major (MAJ) by the mandatory RCSB that convened on 2 March 1999 but he was not selected. 

6.  On 20 September 2000, HRC notified him that he was considered for promotion to MAJ a second time by the mandatory 2000 RCSB and this time he was selected for promotion.  He was promoted to MAJ on 21 August 2000.

7.  On 28 April 2003, the applicant was reprimanded by the Commanding General (CG), 91st Division for willfully entering McChord AFB, WA, after Air Force security personnel ordered him not to enter on 11 February 2003.  The GOMOR states:

	a.  The military police advised the applicant he did not have the proper identification papers for the rental van he was driving.  He responded by running the gate.  The military police actually had to pursue him for several blocks and apprehend both him and his enlisted Soldier-passenger when he refused to stop. This act put him and his passenger in danger.  Dressed in an Army MAJ uniform, he was defiant in front of not only military personnel but also civilians.  In the process, he violated a lawful order and engaged in conduct unbecoming an officer.  If the above was not enough, his written statement, dated 12 March 2003, demonstrates he refused to accept responsibility for his actions. 

	b.  His conduct demonstrated a flagrant disregard for the requirements of security, good order, and discipline on a military installation.  Particularly in these Post 9/11 times, his disrespect of air base security is reprehensible.  His conduct embarrassed this command, the officer corps, and the Army before another Department of Defense Agency.  His lack of judgment calls into question whether he deserved the special trust or confidence reposed in him as a field grade commissioned officer. 

8.  On 5 May 2003, the applicant acknowledged receipt of the GOMOR.  He indicated he read and understood the unfavorable information presented against him, and that the GOMOR would be considered for filing in his AMHRR.  He also acknowledged that he would submit a written rebuttal on his behalf.  In his rebuttal, dated 7 May 2003, the applicant:

* requested the CG not file the GOMOR in the performance folder of his AMHRR
* indicated he wanted to take full responsibility of his actions and he presented a candid and detailed account of the incident
* acknowledged his actions reflected a grave mistake of judgment and he was truly sorry for his actions 

9.  On 28 July 2003, a military attorney from the Office of the Staff Judge Advocate recommended filing of the GOMOR in the applicant's AMHRR.  The attorney indicated that while the applicant cited the regulatory provisions of chapter 3, Army Regulation 600-37 (Unfavorable Information), this provision does not prohibit filing the reprimand in the AMHRR.  The officer also stated "there is a legal sufficient basis to support the allegations in the reprimand."

10.  On 25 September 2003, the CG, 91st Division, having considered all of the facts pertaining to the applicant's case and his rebuttal comments, directed that the GOMOR be filed in the applicant’s AMHRR.

11.  On 10 March 2004, the applicant received notification of his enrollment in the Command and General Staff Officers Course (CGSOC), beginning on 3 October 2004.  He was given 36 months to complete this 400-hour course.

12.  On 14 April 2004, the 653rd Area Support Group published Orders Number 04-105-00007, ordering the applicant to active duty in support of Operation Enduring Freedom for 1 year.

13.  A memorandum, issued by Headquarters, U.S. Army Reserve Command, on 26 April 2004, provided a change to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than GOs) with respect to the military education.  It shows "the military education requirement for promotion from MAJ to LTC will require the completion of the Intermediate Level Education (ILE) course prior to selection for promotion.  This removes the requirement for completion of 50% CGSC."

14.  On 16 June 2006, the applicant received notification of his enrollment in the ILE-CC.  He was given 18 months to complete this 343-hour course.

15.  On 17 August 2006, the Chief, Office of Promotions, Reserve Components, granted the applicant a waiver for board purposes only of the military education requirement for promotion consideration to LTC.

16.  On 4 January 2007, HRC notified the applicant he was considered for promotion to LTC by the RCSB that convened on 12 September 2006 but he was not selected. 

17.  On 20 February 2007, the applicant submitted a request through HRC to the DASEB for removal or transfer of the GOMOR from the performance to the restricted folder of his AMHRR.  On 23 May 2007, the DASEB voted to transfer the GOMOR to the restricted folder of his AMHRR.

18.  The applicant was considered for promotion to LTC by the 2007 and the 2008 RCSBs/DA RC Promotion Selection Boards but he was not selected by either promotion board.  

19.  On 22 January 2008, the Missouri Army National Guard notified the applicant that although the PSB did not select him for promotion, the SELCON board recommended him for continuation in his present grade and Secretarial approval.  

20.  On 1 May 2008, the applicant submitted a request for SSB consideration under the 2006, 2007, 2008, and 2009 criteria.  However, on 11 August 2010, an official at DA Promotions, HRC responded to the applicant's request and provided the following reasons for denying his request for an SSB for the calendar year as indicated:

	a.  2006 - although educationally qualified with a waiver, two officer evaluation reports (OER), ending 18 April 2004 and 29 August 2006, were missing from his board file and an adverse document was seen in the applicant's AMHRR.

   b.  2007 - the education waiver used before the 2006 LTC PSB does not carry forward for subsequent boards.  Because the applicant was not educationally qualified, the missing OERs did not provide a basis for an SSB.  In addition, the DASEB’s decision to remove the GOMOR was not retroactive and therefore did not constitute a basis for referral to an SSB.

   c.  2008 - He was not educationally qualified for promotion by the FY 2008 LTC Selection Board and therefore the missing OERs from his record and continued filing of the GOMOR in his AMHRR, subsequent to the DASEB's determination to remove it, did not constitute required consideration by an SSB.
   d.  2009 - he was not educationally qualified for the FY 2009 LTC Selection Board, and as a result, the missing OERs ending 18 May 2008 and 3 May 2009 did not form a basis for promotion consideration by an SSB.  Finally, the chief indicated, once again, the applicant did not review his board consideration file when given the opportunity.

21.  On 17 June 2011, the applicant completed the ILE-CC course.  He was promoted to LTC on 3 January 2012.
	
22.  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/ GOMOR is filed in the performance section of the AMHRR.

23.  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 GO 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.

24.  A memorandum of reprimand/GOMOR may be filed in a Soldier's AMHRR only upon the order of a GO-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.

25.  Army Regulation 135-155 states promotion consideration reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The regulation further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date.

26.  DA policy regarding military education waivers are contained in a 31 August 2006, Office of the Deputy Chief of Staff, G-1 Memorandum, Subject:  Reserve Component Promotion Board Military Education Waiver Guidance.  It states, in pertinent part, that for LTC promotion boards, the military education requirement is 50% completion of legacy CGSOC or 100% completion of ILE-CC or equivalent.  In order to be eligible for a waiver, the officer must have completed at a minimum Phase I and Phase II of ILE-CC.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the GOMOR:  

	a.  The evidence of record shows the applicant committed a serious offense by running the gate at McChord AFB, displaying a flagrant disregard and disrespect toward security personnel and most importantly placing himself and his passenger in clear and present danger as a result of being pursued by gate security.  As a result, he was reprimanded by the CG.  

	b.  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.  He did so and acknowledged his lapse of judgment and/or his error in his rebuttal.  After careful consideration of the applicant's case and his rebuttal, the imposing GO ordered filing of the GOMOR in the applicant's AMHRR.  The GOMOR was filed in the performance folder of his AMHRR as required by the governing regulation and as ordered by the imposing officer.  

	c.  The DASEB did not remove the GOMOR from his AMHRR.  The DASEB transferred the GOMOR to the restricted folder of his AMHRR.  This action did not negate his misconduct or erase what happened.  The DASEB did so not because the GOMOR was in error.  It did so because this action was in the best interest of the Army.  Additionally, the transfer was neither retroactive nor entitled the applicant to an SSB.

	d.  The quality of a Soldier's service is affected by conduct that is of a nature to bring discredit upon 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.

	e.  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.  The GOMOR is properly filed and he provides an insufficient evidentiary basis to support removal of the GOMOR from the restricted folder of his AMHRR. 

2.  With respect to the education waiver: 

	a.  Generally speaking, officer promotion boards convene annually to consider officers for promotion to the next higher grade.  Announcements are made via a Military Personnel (MILPER) Message.  Each promotion board MILPER Message establishes clear guidance and deadlines for zones of consideration, dates of rank, required civilian and military education, and other administrative requirements, and the submission of documents, OERs, waivers, and letters to the board.  As circumstances change, these messages change.  While the goal remains the same (promotion), the requirements vary from one board to another. 

	b.  The applicant's records at the time were being considered for promotion to LTC by the FY 2006 RCSB/PSB.  He was not educationally qualified.  He was granted an education waiver which, in effect, waived this requirement.  His contention that he was unaware the 2006 educational waiver was only valid for that one board is without merit.  

	c.  Although the governing regulation does not stipulate the waiver was only good for the 2006 selection board, it also does not indicate that it was valid for any subsequent boards or an indefinite waiver.  As a field grade officer in the rank of MAJ he knew or should have known that this waiver was not an indefinite exemption from completing the military education requirements, or he should have checked before the next board convened.  

	d.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and workings of the system are widely known and specific details such as RCSB dates and promotion zones, military and civilian education requirements, are widely published in official, quasi-official and unofficial publications, and in official communications.  Had the applicant exercised due diligence by maintaining reasonably careful records, he would have known that an approved waiver neither constitute constructive credit or any other equivalency for the military education requirement nor carries forward indefinitely.  

3.  With respect to the SSB, in order to support an SSB, there has to be a material error.  Since there is no ground to remove the GOMOR, there is no material error.  

	a.  Although the applicant received a military education waiver for the FY 2006 promotion board, that particular board did not select him for promotion.  At that point, the GOMOR was properly filed in the performance folder of his AMHRR.  It is possible that the GOMOR affected his non-selection by this board. However, this would speculative since promotion boards do not disclose the reason for selecting or non-selecting an officer for promotion.  There is no error here.

	b.  The applicant's approved military education waiver did not carry forward to 2007 or any other future year.  There was no stipulation that it would.  The MILPER Message that announced the criteria, zones, etc. of the 2007 promotion board spelled out the requirements for consideration and/or promotion. The applicant was not educationally qualified.  As such, he was not considered.  Again, regardless of the GOMOR situation - which incidentally was not retroactive - there is also no error here. 

	c.  The applicant remained educationally unqualified in FY 2008 and FY 2009. Even if each promotion board saw his GOMOR, the fact remains he was still not educationally qualified.  There is also no error here.  Once the applicant became educationally qualified - he completed ILE on 17 June 2011, he was selected for promotion and promoted to LTC on 3 January 2012.  

4.  After a comprehensive review of the applicant's records, it is clear he has shown neither an error nor an injustice.  His dissatisfaction with how things unfolded since receiving the GOMOR does not entitle him to special consideration.  He is not entitled to any 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110016774, dated 28 August 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)                                         AR20130009424



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ABCMR Record of Proceedings (cont)                                         AR20130009424



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