IN THE CASE OF:	  

		BOARD DATE:  12 March 2014

		DOCKET NUMBER:  AR20130020206 


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 his request to remove the General Officer Memorandum of Reprimand (GOMOR) and all related documents from his official records and promote him to the rank of lieutenant colonel (LTC) with a date of rank (DOR) of 19 January 2012 and entitlement to all back pay and allowances.  Additionally, he requests a personal appearance before the Board.

2.  The applicant states, in effect, that he was not guilty of misconduct and the GOMOR issued in March 2009 was unjust and untrue.  Accordingly, the GOMOR and all related documents should be removed from his official records and he should be promoted to the rank of LTC with a DOR of 19 January 2012 with entitlement to all back pay and allowances and any other relief the Board deems appropriate.  

3.  The applicant provides copies of the Involuntary Separation Board Results and transcript, his previous Board proceedings (AR20120001859), copies of his Officer Evaluation Reports (OERs), and two third party letters of support. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s request to remove the GOMOR and all related documents from his official records and to promote him to the rank of lieutenant colonel (LTC) with a DOR of 19 January 2012 and entitlement to all back pay and allowances. 

2.  Counsel states, in effect, that the applicant’s request should be approved because the Board moved the GOMOR to the restricted section of his Army Military Human Resource Record (AMHRR), formerly known as the official military personnel file, and a subsequent board of inquiry found unanimously that he had not committed misconduct and recommended that he be retained on active duty.  Accordingly, the GOMOR was unjust and should be removed from his records. He also states that the imposing officer did not consider the applicant’s rebuttal to the GOMOR because he directed that it be filed before the applicant rebutted the GOMOR.  Accordingly, he should be promoted to the rank of LTC with a retroactive DOR and all back pay and allowances.  

3.  Counsel provides a seven- page brief explaining his arguments.

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 AR20120001859, on 20 November 2012.

2.  The applicant was serving on active duty as an Active Guard Reserve (AGR) major on12 March 2009 when his Commanding General (CG) issued him a GOMOR on or about 28 January 2004 for:

   a.  conspiring to steal government funds and providing a false official statement;
   
   b.  creating a lease agreement for another officer to rent property which that officer already owned;
   
   c.  drafting a provision that ensured he would receive a percentage of each month's rent resulting in his receipt of $900.00 a month for the agreement;
   
   d.  listing his personal business as the lessor on the agreement and the other officer as the lessee to accomplish the fraud;
   
   e.  telling the investigators that the owner of the property was a woman from Georgia, who did not know how to create a lease, you did not remember the woman's name or contact information, and you did not retain that information; and 
   
   f.  telling the investigators you received the rent check from the other officer, deposited it in your personal bank account, and then wrote a new check each month to the woman in Georgia for the rent minus your portion.

3.  The applicant submitted his response to the GOMOR on 27 April 2009 and after considering the applicant’s response and supporting documents, on 13 May 2009, the CG directed that the GOMOR and the applicant’s response be filed in the performance section of his AMHRR.  

4.  On 2 May 2011, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of or transfer of the GOMOR to the restricted section of his AMHRR.  On 15 May 2011, the DASEB determined the evidence presented in the applicant's case did not clearly and convincingly establish that the GOMOR was untrue or unjust and unanimously voted to deny this request.  In addition, the evidence presented did not provide substantial evidence that the GOMOR had served its intended purpose.

5.  The applicant was considered by the fiscal year (FY) 2010 (below the zone), FY 2011, and FY 2012 LTC Army Promotion List boards and he was not selected for promotion.

6.  On 15 November 2010, the applicant petitioned the CG who imposed the GOMOR requesting reconsideration of the adverse action taken against him by removing the administrative reprimand from his AMHRR; however, the CG responded to the applicant's request indicating he would not revise, alter, or remove the GOMOR from his military record.

7.  On 19 January 2012, the applicant applied to this Board requesting the removal of the GOMOR and all associated documents from his AMHRR or as an alternative transferring them to the restricted section of his AMHRR based on intent served.  After reviewing the available evidence, the Board determined that while there was not clear and convincing evidence that the GOMOR was untrue or unjust, he had provided sufficient evidence in the form of support by his chain of command to show that the GOMOR had served its intended purpose and voted to transfer the GOMOR and associated documents to the restricted section of his AMHRR on 20 November 2012.

8.  On 9 July 2013, the applicant appeared before a show-cause board at the Army Reserve Command at Fort Bragg, North Carolina represented by both civilian and military counsel.  After hearing all testimony and reviewing the available evidence, the board members unanimously found that:

* the applicant did not knowingly create a false lease with another officer
* the applicant did not know that Ms. L---- Fender was the other officer’s wife
* the applicant did not know the property in Alexandria, Virginia was owned by the other officer

9.  The board found the applicant's separation was not warranted and recommended that he be retained on active duty.  The CG approved the findings and recommendations on 8 October 2013.

10.  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.  Paragraph 7-2 (Policies and Standards) states, in pertinent part, 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, or that it has served its intended purpose to support transfer from the performance portion to the restricted section of the AMHRR.  

11.  Army Regulation 15-185, the regulation under which this Board operates, states that 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 and his counsel’s contentions and supporting documents have been carefully considered and found to lack merit.

2.  Notwithstanding the decision of the show-cause board, the applicant has failed to show through the evidence of record and the evidence submitted with his application that the GOMOR is unjust or untrue.

3.  The Board in its previous decision found the applicant had learned from the GOMOR and transferred it to the restricted section of his AMHRR based on intent served; however, he has not provided sufficiently convincing evidence showing the GOMOR was unjust or untrue.

4.  It is also noted that while the Board did not have the benefit of reviewing the complete investigation conducted in his case, the imposing CG saw something that convinced him to support the issuance and filing of this GOMOR.  This is further supported by the fact that the applicant was subsequently unsuccessful in convincing the imposing CG to remove the GOMOR from his record.

5.  The applicant indicated that he would like to personally appear before this Board to show and explain his innocence.  However, there is sufficient evidence available for a fair and impartial consideration of his case.  Therefore, a personal appearance is not required in this case.

6.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  

7.  Accordingly, there appears to be no valid basis to grant the applicant’s requests.

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 AR20120001859, dated 20 November 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)                                         AR20130020206



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ABCMR Record of Proceedings (cont)                                         AR20130020206



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