IN THE CASE OF:	  

		BOARD DATE:	  25 MARCH 2014

		DOCKET NUMBER:  AR20140003613 


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 a transfer of the General Officer Memorandum of Reprimand (GOMOR), dated 23 December 2011, from the performance folder to the restricted folder of his Army Military Human Resource Record (AMHRR). 

2.  The applicant states he requests transfer of the GOMOR in order to continue his progression as an officer.  He believes the GOMOR was unjustly placed in the performance folder of his AMHRR.  He feels the transfer is warranted due to his demonstrated proven performance, and in opposition to the imposing official’s intended purpose as a means to rehabilitate his actions.  Furthermore, the imposing official sent a removal request of his own accord before he (the applicant) was able to submit a thorough and complete removal request of his own.

3.  The applicant provides:

* decision by the Department of the Army Suitability Evaluation Board (DASEB)
* personal request to the U.S. Army Space and Missile Command
* imposing official's statement
* support letter
* Retention Board Packet/Board of Inquiry and allied documents
* Officer Evaluation Reports (OER)



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a commissioned officer on 2 June 2001.  He initially completed the Infantry Officer Basic Course but later completed the Adjutant General Captain's Career Course. 

2.  He served in a variety of stateside or overseas assignments and he was promoted to captain on 1 November 2004 and major (MAJ) on 1 November 2010. 

3.  At the time of his incident, he was assigned to Headquarters and Headquarters Company, 1st Space Brigade, Colorado Springs, CO, as the Assistant Brigade S-3, Commercial Imagery Team Program.

4.  On 23 December 2011, he was reprimanded by the Commanding General (CG), U.S. Army Space and Missile Command, Army Forces Strategic Command for willful dereliction in the performance of his duties.  The GOMOR stated: 

	a.  He improperly collaborated with a military defense contractor in developing a Performance Work Statement (PWS) for a contract proposal.  In July 2011, he was tasked to draft a PWS for a $10 million contract proposal.  He was advised by the contract representative that he could not receive contractor assistance to develop this particular PWS.  The representative further and specifically advised him not to contact the military defense contractor, whom he worked with in the past, for assistance on the PWS.  Lastly, he was instructed to seek contract representative assistance if he needed help with the technical aspects of the PWS.  He chose to ignore the contract representative and collaborated with the military defense contractor on the PWS.  The contractor, in turn, improperly released the PWS to another defense contractor that planned to compete for this particular contract.   

	b.  He exercised extremely poor judgment and violated the integrity of the contracting process, permitting a defense contractor to receive government requirements prior to public release.  His actions needlessly put the award of a multi-million dollar contract at risk.  His conduct is especially egregious as he was specifically advised not to collaborate with the contract individual.  As a field grade officer, he was expected to adhere to the highest standards of ethical conduct.  His actions caused the CG to have serious doubts concerning his future as a military leader.  

5.  On 4 January 2012, the applicant acknowledged receipt of the GOMOR and submitted a statement wherein he stated he willfully and dutifully accepted the consequences of his actions as he now fully realizes the repercussions associated with his egregious lapse of judgment by collaborating with a government contractor in the drafting of the PWS. 

6.  On 5 March 2012, after careful consideration of the applicant's case and his rebuttal, the imposing CG ordered the filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

7.  On 4 April 2013, the applicant petitioned the DASEB for removal or transfer of the contested GOMOR.  However, on 30 April 2013, the DASEB concluded that he did not provide clear and convincing evidence to show the GOMOR is untrue or unjust.  As such, the DASEB unanimously voted to deny the removal or the transfer of the contested GOMOR. 

8.  On 23 December 2011, he was also notified by memorandum to show cause for retention on active duty because of misconduct, moral or professional dereliction. Accordingly, on 31 August 2012, the Commander, U.S. Army Space and Missile Command. U.S. Army Strategic Command directed a Field Grade Board of Inquiry (FBOI) be conduced.  The FBOI convened on 21 September 2012 and determined he should be retained on active duty without reassignment.  The results of the FBOI were approved on 18 November 2012.  Accordingly, the elimination action against him was closed. 

9.  He provides a memorandum, dated 22 January 2013, from the imposing CG who requests the GOMOR he issued to the applicant be removed from his official records.  The CG states that after he directed an FBOI that board determined the applicant should be retained.  He approved the recommendations of the FBOI and feels the GOMOR has served its purpose.  The applicant has been fully rehabilitated by this entire process and the incident mentioned in the GOMOR should not impede his progression as an officer. 

10.  Since receiving the GOMOR, he has received:

* Army Commendation Medal for meritorious service, on 2 July 2013, and for meritorious performance on 23 May 2013
* Change of Rater OER for the rating period 27 June 2012 through 7 June 2013, Center of Mass
* Annual OER for the rating period 27 June 2011 through 26 June 2012, Center of Mass

11.  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 general officer 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.

12.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-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.  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. 

13.  Army Regulation 600-37 states only letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

14.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by an appropriate authority (DASEB or this Board). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was derelict in the performance of his duties in that he improperly collaborated with a military defense contractor in 

developing a PWS for a contract proposal.  He exercised poor judgment and violated the integrity of the contracting process, permitting another defense contractor to receive government requirements prior to public release.  His actions needlessly put the award of a multi-million dollar contract at risk.

2.  His conduct is especially egregious as he was specifically advised not to collaborate with the defense military contractor.  Accordingly, he received a GOMOR.  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 and he did so.  

3.  After careful consideration of the applicant's case and the applicant's rebuttal, the imposing general officer ordered filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

4.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was a field grade officer in the rank of MAJ, performing duties of increased responsibility, and 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.  

5.  There is a reluctance to transfer adverse information to the restricted section of an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does move unfavorable information, it only does so if it has truly served its intended purpose. 

6.  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 the applicant has not proven this GOMOR to be either untrue or unjust or that it has served its purpose, 

7.  There is insufficient evidence to support removal of this GOMOR from his records or its transfer from the performance to the restricted folder of his AMHRR.  He is not entitled to the requested relief.


BOARD VOTE:

________  ________  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____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 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)                                         AR20140003613





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ABCMR Record of Proceedings (cont)                                         AR20140003613



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