IN THE CASE OF: 

		BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130011040 


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 the general officer memorandum of reprimand (GOMOR), dated 14 June 2011, from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  He states the reported misconduct alleged his violation of Army Regulation 715-XX (Government Purchase Card (GPC) Program) (Draft).  However, Army Regulation 715-XX is not an Army regulation and no other regulations were cited.  It is unreasonable to hold a Soldier accountable for violating something that does not exist.

3.  He provides copies of the GOMOR; his DD Form 214 (Certificate of Release or Discharge from Active Duty); and a memorandum for record, dated 6 June 2011, subject:  Declaration of Research for Army Regulation 715-XX.

CONSIDERATION OF EVIDENCE:

1.  After having prior service in the Regular Army, the applicant enlisted in the California Army National Guard (CAARNG) on 10 March 1996.

2.  On 14 June 2011, he received a GOMOR for engaging in a pattern of behavior that was incompatible with the standard of conduct expected of a command sergeant major (CSM) in the CAARNG and the U.S. Army.  Specifically, the imposing authority stated the evidence was supported by an attached U.S. Army Criminal Investigation Command (CID) investigation.  He further stated:

	a.  The applicant participated in a plan to circumvent Army regulations, including Army Regulation 715-XX pertaining to GPC use, by splitting the purchase of various items, including but not limited to iPads and gift cards, and inappropriately charging them to the GPC's assigned to the Accessions Task Force (ATF).

	b.  When a Soldier correctly informed the applicant of the regulatory requirements required to make the purchase, he berated and intimidated the Soldier and threatened to replace her with a "team player" in order to procure the unauthorized items.

	c.  After the illegal purchases were made, the applicant did not ensure the property was properly accounted for in the unit's property book.  Instead, the property was distributed to select members of the unit without hand receipts or any property accountability safeguards.  The evidence shows that in some instances, personnel receiving illegally-purchased items were led to believe the items were a gift.

3.  On 17 June 2011, the applicant acknowledged receipt of the GOMOR and stated the CID final report was not attached as indicated in the memorandum.

4.  On 30 June 2011, the applicant responded to the GOMOR and requested its rescission or local filing rather than filing in his AMHRR.  He said his response to the underlying allegations was contained in his original response to the Active Guard Reserve (AGR) separation memorandum which was enclosed.

5.  The referenced AGR separation memorandum pertaining to the applicant was not in his AMHRR.  However, in his response to the separation memorandum he stated the following regarding the allegations contained in the separation memorandum as well as in his GOMOR:

	a.  He said he was sorry for their belief that he attempted to coerce a Soldier into violating the purchasing and procurement process and that was not his intent.  He explained that when the Soldier stated the command's request for birthday cards could not be filled, he asked the Soldier for the regulation that prohibited the purchase.  He wanted to review the regulation since it was a change in practice, which seemed appropriate.  After the Soldier provided the relevant regulation, the request was withdrawn.

	b.  He further stated the separation memorandum alleged that he violated the procurement regulation, including Army Regulation 715-XX.  However, Army Regulation 715-XX is not an Army regulation and no other regulations were cited. 
He reiterated the information he provided in his application to this Board.

	c.  In the matter pertaining to the iPads, he stated that he and another officer discussed the ATF obtaining iPads.  After their discussion, the matter was turned over to the budget officer who indicated he would get back to him.  He said he was not aware of how the iPads were purchased.  He added that neither he nor the other officer would condone an improper or illegal purchase.

	d.  In regard to the gift cards, he offered that the practice stopped and monies from the cards were returned once he was informed that the gift cards were no longer authorized purchases.  He said there was widespread confusion regarding gift cards and whether they could be purchased.  Until clarification was provided, gift cards were not purchased.

	e.  He stated it was further alleged that he did not ensure the property was properly accounted for in the unit's property books.  He added that the separation notice did not specify what property was unaccounted for.  As such, he was unable to sufficiently respond.  However, he stated that if it pertained to the iPads, it was his understanding that the iPads were to be added to the property book and subsequently placed on each individual's hand receipt.  He offered that he did not know how the iPads were distributed.

6.  In a memorandum, dated 6 June 2011, subject:  Declaration of Research for Army Regulation 715-XX, a paralegal specialist stated she attempted to verify whether Army Regulation 715-XX was an Army regulation.  She said she discovered no evidence of the regulation in the Army publications site of official Army regulations.

7.  On 8 July 2011 after reviewing the GOMOR and the applicant's rebuttal statement, the imposing authority directed filing the GOMOR in the applicant's AMHRR.

8.  On 31 October 2011, he was honorably retired.

9.  Army Regulation 715-XX (Draft) establishes policies and procedures required to implement, maintain, and operate a GPC Program within the Department of the Army, excluding non-appropriated fund activities.

10.  Army Regulation 600-37 (Unfavorable Information) 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR after a CID investigation was conducted and the evidence substantiated that he engaged in a pattern of behavior that was incompatible with the standards of conduct expected of a CSM in the CAARNG and the U.S. Army.  There is no evidence and he has not provided any to discount the information contained in the GOMOR.

2.  However, his argument that Army Regulation 715-XX (Draft) is not an Army regulation and it is unreasonable to hold him accountable for violating something that does not exist was considered and found to have merit.  Since the GOMOR specifically addressed that he "participated in a plan to circumvent Army Regulations, including AR 715-XX pertaining to Government Purchase Card (GPC)" it would be appropriate to redact the GOMOR by removing any reference to Army Regulation 715-XX.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the statement of "including AR 715-XX pertaining to Government Purchase Card (GPC) use" from the GOMOR, dated 14 June 2011.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the GOMOR.



      __________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)                                         AR20130011040



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ABCMR Record of Proceedings (cont)                                         AR20130011040



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