IN THE CASE OF:  

		BOARD DATE:  12 March 2015

		DOCKET NUMBER:  AR20140011214 


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 a general officer memorandum of reprimand (GOMOR) and all related documents from his official military personnel file (OMPF).

2.  He states the claims and assertions in the GOMOR are untrue and unsupported in fact and law.  

3.  The applicant provides:

* his 3-page affidavit
* a 7-page memorandum from his counsel
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Review Boards Agency letter
* his request to the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR with three letters of support
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Headquarters, 82d Airborne Division memorandum, subject:  [Applicant's] Diagnosis and Impact on Alleged Behavior
* DA Form 3822 (Report of Mental Status Evaluation)


CONSIDERATION OF EVIDENCE:

1.  Following prior service in the U.S. Air Force (USAF), the applicant was appointed as a Signal Corps captain (CPT) in the U.S Army Reserve (USAR) on 
24 January 2008.

2.  He was ordered to active duty effective 13 April 2008.

3.  In a 15 March 2011 memorandum, subject:  AR 15-6 Investigation of Alleged Misconduct by [Applicant], Major (MAJ) S____ T. W____, states he was appointed to conduct an informal Commander's Inquiry into the facts and circumstances surrounding an incident that occurred on 2 February 2011 involving the applicant.

	a.  As the investigating officer (IO), MAJ W____ indicated in his Executive Summary that "For communicating threatening and other inappropriate comments to subordinates, peers and superior officers within his battalion, I recommend [the applicant] receive a general officer letter of reprimand with possible administrative separation procedures initiated." 

	b.  The IO outlines the evidence showing the applicant made threatening and violent statements on three separate occasions over a span of several hours at different locations and settings.

	c.  In describing the second incident, the IO reported, in part, "In an attempt to speak to [the applicant] in a calm and relaxed setting, Captain N____ invited him to lunch at the Airborne PX.  While at lunch, two threats were communicated.  Although these threats were communicated to a health care professional in a medical treatment context, and thus, are privileged, [the applicant] gave verbal consent both to myself and to Captain N____ to discuss and reveal these conversations."  

4.  In a 9 May 2011, memorandum MAJ E___ H. K____, Division Psychiatrist, reports that based on his psychiatric assessment of the applicant, which included individual interview and review of clinical records, the applicant's diagnoses at the time of the alleged behaviors were attention deficit hyperactivity disorder (ADHD) and adjustment disorder with mixed disturbance of emotions and conduct.  The level of impact of the applicant's undiagnosed and untreated ADHD was significant.  During the months leading up to the 2 February 2011 incident, the applicant was experiencing social and occupational stress exceeding his ability to control.  He is currently compliant and highly motivated in engaging in all forms of available treatment.  He requires further observation to ensure stability of symptoms and treatment regimen and is not currently deployable.

5.  On 6 October 2011, the applicant received a GOMOR from Colonel (COL) M____ A. M____, the Commander, Headquarters, 82d Airborne Division (Rear) (Provisional), Fort Bragg, North Carolina.  The GOMOR states, in part, 

On 2 February 2011, you were overheard making threatening statements regarding your leadership, peers, and subordinates.  More specifically, when referring to Lieutenant B____, you said that you would "snap his neck" if he continued on a course of action.  That same day, you said that you would "put one through his chest," referring to your Battalion Commander (Lieutenant Colonel (LTC) J____). On other occasions, you have treated others with disrespect, referring to your peers with derogatory language, specifically referring to female Soldiers in your units as "C____s."

6.  He acknowledged receipt of the reprimand on 13 October 2011, and elected to submit a rebuttal.

7.  He submitted his rebuttal through counsel on 10 November 2011.  In the rebuttal, counsel stated the applicant should not have been reprimanded for statements he made while experiencing an acute psychiatric episode and was candidly communicating his feelings to a medical provider.  Seven letters attesting to the applicant's character were included in the rebuttal along with an investigating officer's (IO) memorandum.

8.  His unit commander recommended filing the GOMOR in his OMPF and his Acting Brigade Commander recommended filing the GOMOR locally.

9.  On 17 November 2011, the Commander, Headquarters, 82d Airborne Division (Rear) (Provisional) ordered the GOMOR be filed in the applicant's OMPF.  (The GOMOR is currently filed in the performance section of his OMPF.)

10.  Based on the recommendation of a March 2012 Promotion Review Board, the U.S. Army Human Resources Command, ordered a Board of Inquiry (BOI) and notified the applicant that the Secretary of the Army decided to remove his name from the Fiscal Year 2011 promotion list.  He was subsequently not selected for promotion a second time.

11.  A BOI commenced on 18 April 2013 to determine whether the applicant should be eliminated from the Army under the provisions of AR 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b(5) and 4-2c(5).  After carefully considering all of the admitted evidence before it the BOI found that the Army would have been better served to have the GOMOR filed locally, and indicated, in part, that the applicant:

	a.  did, on or about 2 February 2011, make threatening statements;

	b.  did not, on or about 2 February 2011, make threatening statements that resulted in misconduct;

	c.  did, on or about 2 February 2011, make statements that were morally and professionally derelict but with mitigating factors;

	d.  did, on or about 2 February 2011, exhibit conduct unbecoming of an officer with mitigating circumstances; and

	e.  should be retained in the Army.

12.  He was honorably released from active duty on 1 September 2013 as a captain (CPT).  He had completed a total of 12 years, 2 months, and 3 days of active duty service.  The reason for his release is listed as Non-Selection, Permanent Promotion.  

13.  A review of the applicant's OMPF shows:

	a.  he received two Officer Evaluation Reports (OER) since imposition of the GOMOR - 

		(1)  as a Battle Command Officer for the period 7 May 2011 through 
6 May 2012; and 

		(2)  as Brigade Knowledge Management Officer for the period 7 May 2012 through 6 May 2013;

		(3)  both OERs show he was rated "Outstanding Performance, Must Promote" by his Rater and "Best Qualified" by his senior rater; and  

	b.  no additional derogatory information.

14.  In support of his request, the applicant submitted his affidavit stating:  

	a.  He joined the U.S. Air Force (USAF) and served for six and a half years.  He deployed twice with the USAF.  During his second deployment he was the Deputy Night Time Manager for the front help desk.  He left the USAF as a result of a reduction in force and entered the Army on 24 January 2008.

	b.  He was diagnosed with severe ADHD and takes various medications.  At the time of his discharge, he was regularly consulting with a psychiatrist but is currently able to cope very well without professional counseling.

	c.  Concerning the events of 2 February 2011, he recalls the unit was preparing for its rotation to the Joint Readiness Training Center.  He cannot independently remember saying the words he was accused of saying.  He recalls impressions and feelings, but not exact words.  He remembers feeling unusually uneasy and disheartened at the time.  He was getting little sleep and he was frustrated with the lack of support from the staff.  In his frustration he yelled at a noncommissioned officer (NCO).  CPT M____ apparently confronted him and asked what was wrong.  He recalls feeling exhausted and exacerbated but he does not recall specifically what he said.  He was referred to CPT N____, the Battalion Physician Assistant (PA). 

	d.  He tried to be honest and transparent with CPT N____.  He does not actually recall his exact words to CPT N____.  He does not recall the comment regarding LTC J____.  He  liked and admired LTC J____ and does not recall feeling any personal animosity towards him.  After talking with CPT N____, he was taken to the hospital.  He really has no recollection of that day.  He is unsure whether he drove or someone else drove him to the hospital.

	e.  He has little recollection of his conversations with anyone.  He remembers feelings of anxiety, frustration, and fear.  He admits using profanity on occasion but not the words referred to in the GOMOR.

	f.  In the months prior to his hospitalization, he was diagnosed with insomnia and was prescribed Seroquel, a medication that has some very nasty side effects.

	g.  He was in the hospital for five or six days.  After a brief period he discontinued taking Seroquel completely.  He is convinced that that medication contributed to his extreme feelings of anxiety and nervousness on 2 February 2011.

	h.  He never spoke to COL M____ regarding the GOMOR.  He found out about it because someone emailed it to him.  He was told by his commander at the time that this GOMOR would not affect his promotion to MAJ.

	i.  As a result of his treatment he learned to organize his priorities more effectively.  He currently is employed at Dell as a Project Manager and Program Management Advisor.  Nevertheless, he desires to serve his country in some capacity.

	j.  He does not believe he was treated fairly.  Fortunately with the help of his brigade commander he was able to tell his side of the story to the BOI.  In light of the BOI findings, he believes the GOMOR was not justified and he requests it be removed from his record.

15.  Counsel's memorandum states the GOMOR should be removed from the applicant's official records because it is untrue and unjust and is unsupported in fact and in law.  In the alternative, counsel asserts the GOMOR has served its purpose and it is in the best interest of the U.S. Army to move it and all the associated documents from the performance section of his OMPF.

	a.  On 18 April 2013, the applicant's case was reviewed by a formal board of officers pursuant to a BOI appointed by Major General (MG) J___ W. N____, Commander, 82d Airborne Division, Fort Bragg, North Carolina.  MG N____ now supports removal of the GOMOR on the basis of facts that were not available at the time of the filing decision. 

	b.  After considering the findings of the informal "15-6 investigation", and the testimony of COL P____ H____, Commander, 2nd Brigade Combat Team (BCT), various character witnesses, the battalion medical provider and the applicant, the board determined the applicant's statements "did not result in misconduct" and while the applicant made statements that might be characterized as moral and professional dereliction or conduct unbecoming an officer, there were nevertheless mitigating factors.  The BOI found that:

		(1)  The nature of the comments was not properly characterized by the chain of command; conversations were between friends, while his peer was executing the "ACE Protocol."

		(2)  The nature of the comment was not properly characterized by the chain of command; speech was made to medical providers who were executing a psychiatric assessment.

		(3)  The command was not informed of a medically diagnosed condition at the time of the 15-6 investigation.  The applicant's ADHD was determined to be a significant factor in this incident by the Division Psychiatrist.  

		(4)  The Investigating Officer (IO) did not account for the medical conditions.  He stated there were not any medical conditions which influenced his disposition.

		(5)  The applicant's medical condition was not conveyed to the convening authority prior to the disposition of the GOMOR.

	c.  In particular, the BOI revealed two essential facts:

		(1)  The alleged threatening comments by the applicant were made to a medical provider executing a psychological assessment; and

		(2)  At the time of the alleged unprofessional comments the applicant was suffering from an undiagnosed and untreated mental health condition which was determined by the Division Psychiatrist to be a significant factor in his conduct.

	d.  The applicant did not threaten fellow officers.  He communicated no threats.  He responded candidly to an inquiry of a fellow officer about his feelings and then spoke frankly to a medical provider pursuant to an order from a superior officer.  The conversation with the PA was a conversation that both parties considered confidential and for a potential medical diagnosis.  At the time the applicant was suffering from undiagnosed severe ADHD.  He was hospitalized that very day.  Thereafter, he was correctly diagnosed and he responded extremely well to treatment.  At the BOI, COL H____, Commander, 2nd BCT, stated he was aware that the applicant was under much professional strain due to the entire process.  COL H____ further stated he saw the GOMOR and thought it was unwarranted, unnecessary and largely inappropriate and the situation could have been resolved by better leadership.  Several other officers indicated the applicant seemed to handle stress very well, was passionate and focused on his job, he never used disparaging remarks against anyone and was a great officer.

	e.  To appreciate the injustice done to the applicant it is imperative that the Board understand the perspective of CPT L____ N____, the Battalion PA, and now a civilian medical provider.  Mr. N____ testifies that the conversation he had with the applicant was for the purpose of the medical assessment and he considered the conversation to be confidential.  He wanted the applicant to be honest; if he wasn't, there was no way to help him.  He feels like the comments the applicant made to him should be treated as an individual who was undergoing a nervous breakdown and was speaking privately to his physician.  Mr. N____ also conceded that his original diagnosis was inaccurate.  He told the BOI that he thought the applicant had manic bi-polar disorder, but it turned out he had a condition that can mimic that.  The applicant responded well to treatment for a severe case of ADHD.

	f.  Mr. N____'s assessment was confirmed by the findings of Dr. E____ K____, the Division Psychiatrist, who noted that the level of impact of the applicant's undiagnosed and untreated ADHD was significant.  During the months leading up to 2 February 2011, the applicant was experiencing both social and occupational stressors for which his ability to manage was impaired and exasperated by his ADHD.

	g.  Consequently, the evidence produced at the BOI demonstrated three important facts:

		(1)  The applicant was suffering from an extreme mental health condition that was undiagnosed and untreated and this significantly impaired his ability to cope with stress.

		(2)  The applicant's so-called threatening comments were made during a confidential medical conversation with a medical provider.  These comments were offered in response to questions from a medical provider and were for the purpose of a medical assessment.

		(3)  The threat and alleged inappropriate comments were completely out of character with the applicant's normal behavior.

	h.  It is important to appreciate that none of these facts were known or understood by COL M____ when he directed filing of the GOMOR in the applicant's OMPF.  COL M____ concluded that at the time he made the filing decision, with only the informal AR 15-6 investigation to provide context, he was concerned that the applicant was an officer with an anger management problem who was a potential danger to himself and others.  Based on the findings and recommendations of the BOI, COL M____ is now convinced that the applicant was an officer in the middle of a mental health crisis which was in fact appropriately handled by members of his unit in the form of an "ACE" intervention.  If he had been aware of the facts clearly established in the BOI, he would have made the decision to file the GOMOR locally.   

	i.  It is also important to recognize that honest answers in response to a mental health assessment cannot, as a matter of law, be unlawful.  In United States v. Gean, the Army Court of Criminal Appeals held:  "when a soldier is directed to undergo psychiatric evaluation, required to respond to questions about threats, or his thoughts of threats, as part of that evaluation, does so honestly, and in doing so communicates a threat, such a threat is not wrongful as a matter of law."  As the U.S. Court of Military Appeals has observed, "Even when the literal language appears to constitute a threat, the surrounding circumstances may so belie or contradict the language of the declaration as to reveal it to be mere jest or idle banter."  One of the significant factors in the applicant's case is the fact that the IO did not appreciate the principle of law.  Consequently, this officer did the Acting Division commander and the applicant a grave disservice by failing to clarify the surrounding circumstances of the applicant's comments.  

	j.  It is critically important to recognize that following an accurate mental health assessment and correct treatment, the applicant was fully restored to duty. The applicant's acute condition on 2 February 2011 was temporary and clearly alleviated with proper diagnosis and treatment.

	k.  While the ABCMR is not bound by the findings of the BOI, counsel contends that this Board should give great weight to the findings of this informal "15-6 board."  The BOI recommended retention, yet in doing so, made findings of fact that enabled the Commanding General to understand and appreciate the board's rationale.  The BOI's findings were consistent with its legal responsibility and are entitled to great respect.  

	l.  It is well settled that a reviewing authority should give great deference to those who have examined witnesses and assessed their creditability.  The members of the BOI had a duty to determine the believability of each witness.  Clearly, both COL M____ and BG N____ put great stock in the factual findings of that BOI.  The Board should give the same deference.

	m.  The imposition of the GOMOR imposed great hardship on the applicant.  The filing decision came nearly eight months after the incident.  By that time the applicant had been selected for promotion to MAJ.  Reviewing authorities took the reprimand and supporting 15-6 investigation at face value.  He consequently lost promotion and was subsequently passed over a second time and forced out of the Army. 

	n.  It is clear that on 2 November 2011, the applicant was suffering from an undiagnosed and untreated condition.  A BOI found there were "mitigating factors."  There is clear and convincing evidence that the GOMOR was untrue and unjust and warrants removal from the applicant's OMPF.

16.  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.

17.  A memorandum of reprimand 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 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 record, the recipient's submissions are to be attached.  Once filed in the record, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the record, 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 record.

18.  Army Regulation 600-8-104 (Army Military Human Resource Records
Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  A document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include the ABCMR.  Appendix B (Documents Authorized for Filing in the OMPF and/or interactive Personnel Electronic Records Management System (iPERMS), Table B-1 (Authorized Documents) states letters of reprimand, censures, and admonitions are filed in the performance section of the AMHRR unless directed otherwise by Department of the Army Suitability Evaluation Board. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the 6 October 2011 GOMOR he received was untrue and unjust and should be removed from his OMPF.  His counsel further asserted that the GOMOR has served its purpose and it is in the best interest of the U.S. Army to move it and all the associated documents from the performance section of his OMPF.

2.  The applicant received a GOMOR that states, "On 2 February 2011, you were overheard making threatening statements regarding your leadership, peers, and subordinates.  More specifically, when referring to Lieutenant B____, you said that you would ‘snap his neck’ if he continued on a course of action.  That same day, you said that you would ‘put one through his chest,’ referring to your Battalion Commander (Lieutenant Colonel J____).  On other occasions, you have treated others with disrespect, referring to your peers with derogatory language, specifically referring to female Soldiers in your units as ‘C____s.’  He submitted a rebuttal through counsel.  The GOMOR was filed in the performance section of his OMPF.

3.  All the evidence was reviewed.  It does not show the GOMOR was untrue or unjust.  However, the BOI examined all the available evidence, including medical evidence that was not available when the filing decision was made.

4.  Counsel's request that, in the alternative, the GOMOR be transferred from the performance section of the applicant's OMPF, has been carefully considered and is found to have merit.  By regulation, if at least 1 year has elapsed since imposition, an appeal related to a GOMOR can be approved based on proof the GOMOR has served its intended purpose.

5.  The evidence of record shows the GOMOR was based on an isolated incident.  The applicant's record shows he has performed his duties as an officer to a high degree of proficiency and that those efforts have not gone unnoticed by his chain of command as documented by his OERs.

6.  Therefore, there is substantial evidence to conclude that it would serve the best interest of the U.S. Army to grant the requested relief at this time by transferring the GOMOR and all related documents to the restricted section of his OMPF.

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:

	a.  transferring the GOMOR, dated 6 October 2011, and all allied documents to the restricted section of his OMPF; and

	b.  also filing this Record of Proceedings and associated documents in the restricted section of the individual's OMPF.

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 removing the GOMOR, dated 6 October 2011, from his 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)                                         AR20120011747



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ABCMR Record of Proceedings (cont)                                         AR20140011214



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