BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20140007764 


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 that a General Officer Memorandum of Reprimand (GOMOR), dated 29 June 2012, be removed from his Official Military Personnel File (OMPF) or transferred to the restricted portion of his OMPF.

2.  He states:

	a.  The GOMOR states he violated Central Command (CENTCOM) General Order (GO) Number 1B by possessing and consuming alcohol.  The GOMOR has served its purpose as it has greatly hindered his career advancement and eligibility for positions.  He has not been the subject of any other negative administrative actions prior to or since the incident.

	b.  An investigation under the provisions of Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) established that he made a false statement to the investigating officer (IO).  He did not.  The AR 15-6 investigation did not establish that he violated GO 1B and did not find that he had possessed and consumed alcohol during deployment in Afghanistan.  Staff Sergeant (SSG) T----- states he did not violate GO 1B because he did not possess or consume alcohol.  This statement demonstrates that he did not have knowledge of the contents of the garbage bag at issue in the investigation.  

3.  He provides nine documents identified in a list.



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of a GOMOR, dated 29 June 2012, from the applicant's record.

2.  Counsel states:

	a.  The applicant was issued the GOMOR because an investigation revealed that he violated CENTCOM GO 1B by possessing and consuming alcohol while in Afghanistan.  

	b.  The GOMOR places unsubstantiated and inaccurate information in the applicant's military record because there is no evidence that he possessed or consumed alcohol.  AR 600-37 (Unfavorable Information) requires that unfavorable information must be both substantiated and accurate to be placed in an individual's OMPF, and such information must meet Privacy Act standards of accuracy, relevance, timeliness, and completeness.  

	c.  There is no evidence indicating the applicant either possessed or consumed alcohol.  He was present when SSG T----- carried and threw into a dumpster a black trash bag that was later found to contain empty alcohol bottles.  This is the least favorable information the investigation found regarding the applicant.  

	d.  The IO was confident that two witnesses were completely credible.  The IO relied primarily on statements of First Lieutenant (1LT) C------ and Master Sergeant (MSG) D----.  Both spoke with the applicant and were close enough to him to have smelled alcohol on his breath or person on at least two occasions.  Neither witness reported observing any indication that the applicant had consumed alcohol.  Both witnesses reported that SSG T----- possessed the black trash bag that was believed to and most likely contained some empty alcohol bottles.  

	e.  The IO interviewed over 20 witnesses.  None provided any evidence that supported a determination that the applicant had consumed or possessed alcohol.  The IO made a specific finding that four other individuals had consumed or possessed alcohol.  

	f.  It was unfair and inequitable to place the adverse information in the applicant's OMPF because the applicant was simply in the wrong place at the wrong time.  He has and will continue to apologize for not being more aware of what was going on that evening.  The investigation found that Sergeant (SGT) 
F----- was very intoxicated, that Chief Warrant Officer 2 (CW2) G-------- and Mr. S---- drank alcohol, and that SSG T----- possessed alcohol.  There are several possible explanations of why the applicant was not aware of the situation on the evening in question.  

	g.  The commanding officer properly took disciplinary action against the Soldiers and civilian who committed misconduct on the evening in question.  The commanding officer was wrong to cast such a large net.  

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  On 18 May 2005, the applicant enlisted in the Regular Army, where he continues to serve.  He was promoted to SSG/E-6 effective 1 March 2012.  

2.  A memorandum, subject:  Findings and Recommendations for AR 15-6 Investigation of Suspected Violation of GO 1B, dated 2 June 2012, shows an IO had been appointed to conduct an inquiry into activity surrounding a suspected violation of GO 1B on 19 and 20 May 2012 at Camp Brown, Afghanistan.  

	a.  The IO found that Mr. S----, CW2 G--------, SSG T-----, and SGT F----- had consumed or possessed alcohol on the night of 19 May 2012 and/or the early morning of 20 May 2012.  This finding was based on statements given by 1LT 
C------, MSG D----, and others regarding what they had observed on the night in question.  

	b.  The IO found that Mr. S----, CW2 G--------, SSG T-----, and SGT F----- consumed or possessed alcohol on the night in question.  He did not find that the applicant had consumed or possessed alcohol.  

	c.  The IO found that SSG T----- and the applicant attempted to cover up possession of alcohol on the morning of 20 May 2012.  This finding was based on statements from 1LT C------ and MSG D---- placing the applicant walking with SSG T----- in the direction of a dumpster at which time SSG T----- was in possession of a black trash bag.  A black trash bag was later retrieved from the dumpster and found to contain alcohol bottles.  It was the only black trash bag in the dumpster.  The IO found it reasonable to conclude that SSG T----- had placed the black trash bag in the dumpster and that the applicant was present when he did so.  The IO noted that both SSG T----- and the applicant indicated by statements or omissions during their interview that they did not have any knowledge of a black trash bag.  

	d.  The IO further found that the applicant, SSG T-----, and others involved had provided false statements to him.  Regarding the applicant, the IO based his finding on the witness statements of 1LT C------ and MSG D---- cited above.  

	e.  The IO recommended that the service members involved receive nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, and that the civilian involved be dismissed from employment and barred from employment in theater.   

3.  A memorandum, subject:  Legal Review of AR 15-6 Investigation into GO 1 Violation, dated 2 June 2012, shows a Judge Advocate General's (JAG) Corps officer found the investigation was legally sufficient, the findings and recommendations were supported by the evidence, and the recommendations were reasonable and based on the facts and findings.  The JAG officer recommended approval of the facts and findings.  

4.  In a memorandum for the Commander, Combined Forces Special Operations Component Command–Afghanistan (CFSOCC-A), subject:  Recommendations for Disposition of Offenses from 19-20 May at Camp Brown, dated 12 June 2012, the AR 15-6 investigation appointing and approval authority stated:

* he concurred with the facts and findings of the investigation, but did not believe the recommendations sufficiently addressed the gravity of the offenses involved
* the applicant should receive an Article 15 at no lower level than the Combined Joint Special Operations Task Force – Afghanistan
* while it was clear the applicant did not actually possess or consume alcohol, he did participate in the disposal of a garbage bag containing alcohol bottles with the likely intent of removing evidence from the scene of the gathering
* the applicant contradicted his own statements and provided a statement that was fully untrustworthy
* the applicant's actions might also form the basis for an appropriate annotation for integrity on his next Noncommissioned Officer Evaluation Report (NCOER)

5.  On 29 June 2012, the Commanding General, CFSOCC-A, reprimanded the applicant for violating CENTCOM GO 1B "by possessing and consuming alcohol."  The imposing authority stated the GOMOR was imposed as an administrative measure and not as punishment under the UCMJ.  On 11 July 2012, the applicant acknowledged he had read and understood the unfavorable information and indicated he intended to submit matters on his behalf.  
6.  The applicant provides a memorandum, subject:  Memorandum of Consideration, dated 15 July 2012, from CW2 M-------, to the GOMOR imposing authority.  CW2 M------- described the applicant as an excellent Soldier who had made a poor decision.  CW2 M------- recommended the GOMOR be filed locally.

7.  The applicant provides the rebuttal statement he submitted to the imposing authority.  In his statement he asked that the GOMOR be placed in the local file.  He denied being aware of the contents of the trash bag and he denied any knowledge that alcohol was present on the night in question.

8.  A memorandum, subject:  Filing Determination on Reprimand, dated 8 September 2012, shows the Commanding General, Special Operations Joint Task Force–Afghanistan, directed the GOMOR be filed in the applicant's OMPF.  The GOMOR was filed as directed.  His rebuttal statement and the statement from CW2 M------- are not filed with the GOMOR.

9.  His NCOER for the period 26 March 2012 through 25 March 2013 does not mention the GOMOR.  He received four ratings of "excellence" and one rating of "success" from his rater, who found his overall performance to be "among the best."  His senior rater gave him the highest possible ratings for overall performance and overall potential for promotion and/or service in positions of greater responsibility.  

10.  On 25 July 2013, the Department of the Army Suitability Evaluation Board (DASEB) denied his request for removal of the GOMOR from his OMPF on the basis that the GOMOR was untrue.  

	a.  The DASEB analyst recommended denial of the applicant's request.  The analyst stated that the GOMOR imposing authority was not bound by the recommendations or findings of the AR 15-6 investigation.  The analyst stated, "The IA may have determined that since the appellant was not truthful when questioned about the disposal of the alcohol bottles, that he was not truthful about the consumption or possession of alcohol."  

	b.  The DASEB determined the evidence presented did not clearly and convincingly establish that the GOMOR was untrue or unjust and that the presumption of regularity should not be applied.  By unanimous vote, the DASEB determined the overall merits of the case did not warrant the requested relief.

11.  He provides:

	a.  a memorandum, subject:  Request for Removal of Letter of Reprimand from OMPF [Applicant], dated 7 February 2014, from SSG T-----, who states –
* he did not see the applicant consuming or in possession of alcohol on the evening in question
* he and the applicant were talking when the applicant went with him to dispose of the trash bag
* the applicant was unaware of the contents of the bag

	b.  a memorandum for record, dated 15 April 2014, from his battalion Command Sergeant Major, who states –

* he supports the request for transfer of the GOMOR to the restricted portion of the applicant's OMPF
* he has known the applicant for 5 years and has found him to be one of the best supply sergeants he has worked with
* the applicant is deserving of promotion to positions of greater responsibility
* transfer of the GOMOR would be in the Army's best interest as it has served its intended purpose

12.  AR 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual OMPF's; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual OMPF's; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from OMPF's.  Unfavorable information that should be filed in the OMPF includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation 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 filing determination is made.

	b.  A GOMOR may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder.  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 OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with AR 600-37, chapter 7.
	c.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

	d.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for removal of the GOMOR in question.  

2.  The IO did not find that the applicant had possessed or consumed alcohol in violation of CENTCOM GO 1B.  He did, however, find that the applicant had attempted to cover up other Soldiers' misconduct by providing false statements.  In his recommendation for appropriate punishment of the applicant, the AR 15-6 investigation approval authority stated it was clear the applicant did not actually possess or consume alcohol.  

3.  Notwithstanding the IO's findings and the statement of AR 15-6 investigation approval authority, the applicant received a GOMOR for violating CENTCOM GO 1B "by possessing and consuming alcohol."  The evidence indicates it would have been appropriate to reprimand the applicant for making a false statement to the IO; however, there was no evidentiary basis upon which to reprimand him for possessing and consuming alcohol.  

4.  Notwithstanding the DASEB determination that the overall merits of the applicant's case did not warrant removing the GOMOR from his OMPF, the evidence of record, specifically the IO's findings and the battalion commander's statement, are compelling evidence that the GOMOR is unjust based on its false assumption that the applicant consumed alcohol.  The IA clearly articulated an erroneous assumption when he presumed the applicant was guilty of the offense.    Therefore, as a matter of equity the GOMOR and associated documents should be removed from the applicant's OMPF.  

5.  Because these proceedings and any related correspondence may contain information that is prejudicial to the applicant, they should not be filed in his OMPF. 
BOARD VOTE:

__x______  ___x_____  ___x__  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the GOMOR dated 29 June 2012 and all associated documents from his OMPF.  

2.  These proceedings and correspondence related to these proceedings should not be filed in the applicant's OMPF.



      _______ _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)                                         AR20140007764





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ABCMR Record of Proceedings (cont)                                         AR20140007764



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