BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20140001064 


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 the removal from the restricted folder of his Army Military Human Resource Record (AMHRR) of a:

* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 12 June 2012 
* memorandum, dated 2 July 2013, issued by Lieutenant General (LTG) WP

2.  The applicant states:

	a.  Army Regulation (AR) 15-185 (Army Board for Correction of Military Records (ABCMR)) requires an applicant to prove by a preponderance of evidence that an injustice has occurred that supports a correction to their military records.  The inclusion of these documents in his AMHRR is a violation of ARs that may improperly influence future decisions about his career.  The great preponderance of evidence shows that inclusion of the memorandum is an injustice.  Therefore, the documents should be removed from his AMHRR.

	b.  He was previously the respondent in an AR 15-6 (Procedures for Investigating Officers and Board of Officers) investigation based on an accusatory statement about events that took place in 2010 and 2011 and which was completed in June 2012.  Two of the three charges against him were determined to be unfounded.  For the third charge of conduct unbecoming an officer and a gentlemen, he received a counseling statement which was filed in his local file with no intent that it continue beyond his current duty station.

	c.  Since the original investigation, the AR 15-6 Record of Proceedings (ROP) and subsequent punishment have been reviewed twice because of harassing, slanderous, anonymous letters sent to general officers (GOs) in and outside of his chain of command.  The first letter was sent shortly before the lieutenant colonel (LTC) promotion board to Major General (MG) ML, Commander, Military District of Washington.  MG ML reviewed the investigation with Army Judge Advocate General (JAG) officers and determined the findings and punishment were correct and adequate.  He was allowed to proceed with the promotion board.  

	d.  Several months later, and shortly before the announcement of the LTC board results, a second similar slanderous, anonymous letter was sent to multiple high-level GOs to include the Chief of Staff of the Army and the Director, Acquisition Career Management (DACM).  At that point more than 1 year had passed since the completion of the AR 15-6.  After being reviewed by two commanders to include MG ML, two Program Executive Officers (PEO) at the brigadier general (BG) level, and several military attorneys, the findings and punishment had been repeatedly upheld.  

	e.  The second anonymous letter presented no new accusations or evidence and his performance before and since the AR 5-6 investigation has been stellar.  Although he was counseled based on the findings of the original investigation, it was his commander’s intent to ensure he was allowed to continue to serve in the Army with the same skill and dedication he had shown throughout his career. 

	f.  However, serving in the non-command position as DACM, and based solely on the anonymous letter, LTG WP chose to insert a cover memorandum and the AR 15-6 ROP in his AMHRR over 2 years after the alleged events.  LTG WP did this without informing him or his chain of command.  He only learned this when he received an automated notice from the interactive Personnel Electronic Records Management System (iPERMS) that a new record had been added to his AMHRR.  

	g.  LTG WP never counseled him or provided him any indication of his intent to take this action, nor has he counseled him since.  Inserting unfavorable information in his records without notification effectively serves as additional punishment and both violates ARs and circumvents the intent of commanders in his chain of command.  He appealed the filing to LTG WP and then to the Department of the Army Suitability Board (DAESB).  LTG WP referred him to the DAESB and the DASEB directed him to file an appeal with the ABCMR.

	h.  AR 600-37 (Unfavorable Information), paragraph 3-2(a) states unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and makes a written statement, or declines in writing, to make such a statement.  He was not afforded the opportunity to do so as he was not given the proper notice.  The AR 15-6 findings were from 2012 and LTG WP's 2013 memorandum constituted new unfavorable information as it shows a GO conducted a more recent investigation.

	i.  The filing of the AR 15-6 ROP in his AMHRR is an injustice as demonstrated by the great weight of evidence.  AR 600-37, paragraph 7-2(a) states if a document is unjust it should be removed from the Soldier's record.  Although it may be unintended, the AR 15-6 will have direct, serious, and unjust consequences for his career.  Filing this document in his AMHRR violates traditional principles of fair play as recognized in several ARs.  As a LTC, all future command, promotion, and separation boards will consider his entire AMHRR either during the board or during the follow-on mandatory records review.

	j.  Recently released military personnel (MILPER) messages stated the Secretary of the Army has authorized officer separation boards and early retirement boards.  These boards will be screening restricted folders of the AMHRR and using derogatory information as criteria for separation.  The filing of the memorandum in his restricted folder is tantamount to filing it in his performance folder and is clearly unjust.  Additionally, this serves as additional punishment for the original AR 15-6 investigation by placing his career at risk.

	k.  Filing the AR 15-6 ROP and memorandum in his AMHRR without proper notification is a violation of ARs that creates a potentially career-ending situation for him, contradicts the intent of his commanders, and contradicts the determinations of both other GOs and military attorneys.  Furthermore, because his entire record will be reviewed during every future board he appears before, these documents in his restricted folder have no mediating effect.  This means that the letter serves as a second, double punishment and is analogous to an increase in nonjudicial punishment (NJP). 

	l.  AR 27-10 (Military Justice), paragraph 3-6(b) states the decision to file the results of an investigation in a personnel file should be based on the interests of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  Only one charge was founded and the two unfounded charges are now visible in his AMHRR.  The fact the AR 15-6 ROP was originally not filed in his AMHRR provides clear evidence that his commander intended for it to never be filed.  

	m.  AR 27-10, paragraph 3-10 states when NJP has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15, Uniform Code of Military Justice (UCMJ).  Though he did not receive NJP as defined by AR 27-10, he had been punished under ARs.  The AR 15-6 ROP is equivalent to a memorandum of reprimand (MOR) being added to his AMHRR.  The filing of these documents serves to increase the original imposed punishment and is analogous to a violation of AR 27-10.  Therefore, they should be removed from the restricted folder of his AMHRR.

3.  The applicant provides three memoranda, DA Form 1574, five letters of support, a certificate, two letters of congratulations, a DA Form 1059 (Civilian Institution Academic Evaluation Report), seven DA Forms 67-9 (OER), a letter, and an ABCMR ROP.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army Acquisition Corps (AC) commissioned officer and he held the rank/grade of major (MAJ)/O-4.  He was assigned to Fort Belvoir, VA.  

2.  On 8 May 2012, the Garrison Commander, Fort Belvoir, VA, appointed an AR 15-6 investigating officer (IO) to investigate the allegations that:

* the applicant and MAJ JZ had an adulterous relationship 
* the applicant and MAJ JZ violated Article 133, UCMJ, conduct unbecoming an officer and gentleman
* the applicant and MAJ JZ committed travel fraud

3.  The IO subsequently completed his investigation.  The DA Form 1574, section IV (Findings) shows the IO found, in part, that:

   a.  The evidence was insufficient to support that MAJ JZ and the applicant had an adulterous relationship.  Although the evidence was sufficient to support two of the three elements described as adultery, there was not sufficient evidence to validate that the accused wrongfully had sexual intercourse with a certain person.
   
   (1)  The evidence substantiated the accused or the other person was married to someone else.  MAJ JZ and the applicant were both still married although exhibits indicated both were pursuing divorces. 
   
   (2)  Based on evidence provided, it was more likely than not the relationship substantiated that the conduct of the applicant and MAJ JZ was prejudicial to good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces.
   
   (3)  Several co-workers reported the relationship was not detrimental to the organization but was deemed inappropriate by one co-worker.  MAJ JZ’s spouse indicated it had a [negative] impact on their family.  Both the applicant and MAJ JZ expressed remorse and decided to end the relationship.

	b.  The evidence was sufficient to believe the applicant and MAJ JZ violated Article 133, UCMJ - conduct unbecoming an officer and a gentleman.  The evidence substantiated the applicant and MAJ JZ did or omitted to do certain acts that constituted conduct unbecoming an officer and a gentleman.

		(1)  MAJ JZ's spouse stated he caught his spouse in their home with the applicant and he also stated the applicant went to Michigan to meet MAJ JZ in January 2011.

		(2)  Their ability to meet outside of work and home was supported by their travel schedules and the statement that they met in Michigan was supported by the exhibits.  Subsequent statements and exhibits supported that both officers were married, aware the other was married, and that their relationship was perceived as inappropriate.

	c.  The evidence was insufficient to believe the applicant and MAJ JZ committed travel fraud.  The exhibits include 11 instances where their travel schedules overlapped, with four of the dates over weekends.  Their schedules provided opportunities to facilitate a relationship; however, there was no evidence their government official travel itineraries were changed in order to facilitate their relationship.

4.  The IO recommended disciplinary or administrative action as deemed appropriate by each officer’s chain of command.  The AR 15-6 findings and recommendations were approved by the approving authority on 12 June 2012.

5.  The applicant stated he was counseled by his commander and the counseling was filed in his local file.  His AMHRR is void of any counseling, disciplinary, or other administrative actions taken by his chain of command as a result of the AR 15-6 findings that he and MAJ JZ did or omitted to do certain acts that constituted conduct unbecoming an officer and a gentleman.

6.  By memorandum, dated 2 July 2013, LTG WP forwarded the DA Form 1574 to the Office of the Deputy Chief of Staff, G-1.  LTG WP stated that as the DACM he was requesting the DA Form 1574 be placed in the restricted folder of two Army acquisition officers, the applicant’s and MAJ JZ’s AMHRR, in accordance with AR 600-8-104 (AMHRR Management).  This memorandum and the AR 15-6 ROP are filed in the restricted folder of the applicant's AMHRR.

7.  The applicant was promoted to the rank of LTC on 1 December 2013.  

8.  In January 2014, he received a change of duty OER covering the rating period 7 January to 30 November 2013 while serving at as the Executive Officer, PEO Soldier, Fort Belvoir, VA.  His rater and senior rater was BG PO.  He received an “outstanding performance, must promote” and “best qualified” rating by BG PO.

9.  The applicant provides a letter of support from:

	a.  Ms. CS, Acting Deputy, PEO Soldier, dated 2 January 2014, wherein she stated the applicant was the top 1 percent of the best officers she has worked with.  She was constantly impressed with his professionalism, dedication, loyalty, and strength of character.  She believed the imposing authority overstepped the boundary by placing the memorandum and AR 15-6 in his AMHRR.

	b.  BG PO, PEO Soldier, dated 6 January 2014, wherein he stated the applicant stands at the top of the list with the hundreds of officers he has worked with in terms of professionalism, discipline, and leadership.  Placing the AR 15-6 in his AMHRR sends the wrong message to Soldiers while undermining the actions of his chain of command.

	c.  Mr. KF, Chief of Staff, PEO Soldier, dated 6 January 2014, wherein he stated the applicant was highly energetic, smart, and conscientious.  The placement of the AR 15-6 in his AMHRR was a travesty of command influence.

	d.  LTC JE, Program Director Army Space Forces, Peterson Air Force Base, CO, dated 6 January 2014, wherein he stated the applicant was the most talented, capable, and trustworthy officer he had ever met.  Placing the memorandum and AR 15-6 in his AMHRR by a staff officer who never directly worked with the applicant was an unfair action typically reserved for commanders.

	e.  Captain (CPT) SC, JA, Office of the Staff Judge Advocate, Fort Belvoir, VA, dated 3 February 2014, wherein he stated:

		(1)  LTG WP placed the AR 15-6 in the applicant’s AMHRR after he received an anonymous letter.  The memorandum and AR 15-6 should be removed from his AMHRR because it was an injustice.  The applicant was not notified unfavorable information was going to be placed in his records in accordance with AR 600-37, paragraph 3-2(a).  His commander made a decision not to file the AR 15-6 in the applicant’s AMHHR.  His restricted file will eventually be considered by future boards; this was comparable to double punishment.

		(2)  The ABCMR previously considered that similar records being placed the restricted file of a Soldier constituted an injustice and should be removed.  On 6 December 2005, the Board reviewed the filing of an AR 15-6 ROP that resulted in filing of a General Officer Letter of Reprimand (GOMOR).  The case involved a young officer [CPT], deployed to Kosovo in 1999 - 2000, and concluded he failed to maintain proper control of his Soldiers for which he was issued a GOMOR to be filed in his local file.  A second investigation was conducted and as a result, the original AR 15-6 ROP and the GOMOR were filed in the restricted folder of his AMHRR.

10.  The applicant provides ABCMR ROP AR2005007123, dated 6 December 2005, wherein the applicant, a junior CPT, requested the removal of 117 pages of information, to include an AR 15-6 ROP from the restricted folder of his AMHRR as he had been denied due process.  

	a.  In January 2000, an AR 15-6 investigation was conducted into the climate and state of discipline into the applicant's unit.  The AR 15-6 ROP contained several findings and recommendations regarding a myriad of command climate issues and specific acts of indiscipline in the unit.  The applicant was cited by name in three of the findings.  In May 2000, the applicant received a GOMOR for failing to properly supervise his subordinate Soldiers during a 2-month period.  The issuing commander directed the filing of the GOMOR in the applicant's local file.  

	b.  Subsequently, a team was appointed to review the concerns and other factors suggested by the AR 15-6 investigation and to take appropriate corrective actions.  The review was completed and the November 2000 report stated the crimes and abuses outlined in the AR 15-6 investigation were the result of failures in leadership in the applicant's company.  It was further stated appropriate action had been taken against the responsible leaders; however, a review of any favorable actions these leaders received since the investigation was recommended.  The DAESB subsequently conducted a review into any favorable actions the various leaders had received since the AR 15-6 investigation.

	c.  As a result, of the two additional reviews, 117 pages of documents, to include the AR 15-6 ROP and GOMOR, were filed in the restricted folder of the applicant's AMHRR.
	d.  The Board determined the applicant had not been denied due process but questions were raised as to the filing of all the documents in his AMHRR.  The Board determined that although the applicant had leadership lapses during a short period of time, his overall performance indicated he was a top performer and it was in the best interests of the Army to remove the documents in question.

11.  AR 600-8-104 prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Paragraph 1-6 states, in part, the AMHRR is an administrative record as well as the official permanent record of military service.  The purpose is to preserve permanent documents pertaining to enlistment, appointments, training, performance, awards, disciplinary actions, and any other personnel actions.  Table B-1 (Authorized Documents) states a DA Form 1574 will be filed in the restricted folder of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the memorandum and AR 15-6 ROP should be removed from the restricted folder of his AMHRR because the filing of these documents by LTG WP contradicts the imposing commander's intention, is an injustice because he was not notified of the filing, and constitutes double punishment.

2.  The evidence of record confirms an AR 15-6 investigation was conducted in 2012 to determine if the applicant, a MAJ at the time, had an adulterous relationship with another field-grade officer, if he committed conduct unbecoming an officer and gentleman, and if he committed travel fraud.  He was found to have committed conduct unbecoming an officer by engaging in an inappropriate relationship.  The AR 15-6 findings and recommendations were approved by the appropriate authority on 12 June 2012.  The applicant stated he was made aware of the findings of the AR 15-6 at the time, he was counseled by his immediate commander as a result, and his commander directed the counseling be filed in his local file only.

3.  Notwithstanding his contention that the filing of the AR 15-6 ROP contradicts the imposing commander's intention, the filing of an AR 15-6 is directed by governing regulations and, unlike an Article 15 or GOMOR, the filing is not the decision of a commander.  

4.  It appears in 2013 when, according to the applicant, LTG WP received allegations that the applicant was involved in an adulterous relationship and committed travel fraud, LTG WP found these allegations had previously been investigated.  However, it also appears he found the AR 15-6 ROP was not properly filed as required by regulatory guidance and he then forwarded it for filing in the restricted folder of the applicant's AMHRR.  This action did not require notification to the applicant, was not an injustice, and did not constitute double punishment.  The AR15-6 ROP is currently properly filed in the restricted folder of his AMHRR.

5.  The applicant states a case previously considered by the ABCMR directed the removal of documents to include an AR 15-6 ROP from an applicant's AMHRR.  However, the circumstances of the case were different as the case involved a junior CPT, not a field grade officer, and the AR 15-6 investigation was conducted into the climate and state of the unit and not on specific allegations of wrongdoing by the CPT himself.  It was determined the CPT had a lapse of judgment for a period of 2 months; he was not found to have engaged in misconduct conducted of over a long period of time.

6.  In addition, the AR 15-6 ROP in the previous case was not filed as a stand-alone document; rather it was part of 117 pages of documents to include a GOMOR that had been directed for filing in the applicant's local file only.  Furthermore, the case was considered 9 years ago when the Army was extremely short of officers and in the midst of two ongoing wars.  The Army in 2014 is a different Army than it was in 2005; the Army and society's tolerance today for misconduct by senior military officers is not the same as it may have previously been.

7.  In view of the foregoing, he is not entitled to the removal of the AR 15-6 ROP from the restricted folder of his AMHRR.

8.  However, the governing regulation does not require the memorandum forwarding the AR 15-6 to be filed in the AMHRR.  Therefore, it would be appropriate to remove the memorandum from his AMHRR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 memorandum, dated 2 July 2013, from the restricted folder of his AMHRR. 

2.  The Board further determined that 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 the removal of the AR 15-6 ROP from the restricted folder of his AMHRR.  



      _______ _   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)                                         AR20140001064





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ABCMR Record of Proceedings (cont)                                         AR20140001064



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