IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140018948 


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) from his Official Military Personnel File (OMPF).

2.  The applicant states he was ordered on temporary change of station (TCS) status in May 2006.  At that time he specifically asked an official in the Southern Command's (SOUTHCOM's) Reserve Affairs Office if it was legal for him to move into a family member's home with a lease contract.  He was given guidance that it was a legal action.  Based on the guidance he received, he completed a legal lease agreement with his brother and sister-in-law.

   a.  He submitted a DD Form 1351-2 (Travel Voucher or Subvoucher) every month to the SOUTHCOM Reserve Affairs Office to claim entitlement to lodging expenses.  If he was at fault, he should have been notified and the entitlement stopped; however, he was not notified nor was the entitlement stopped.

   b.  One year after the event, he was informed the action was not legal.  Two years after he had been ordered on TCS, the Defense Finance and Accounting Service (DFAS) started collecting for a debt in the amount of $42,492.54.  Six years after the event, he received a GOMOR.  The GOMOR is filed in his OMPF and indicates he did not appeal the GOMOR when it was first presented; however, the evidence shows otherwise.

   c.  On 20 March 2009, the U.S. Army Criminal Investigation Command (CID) concluded the applicant was the subject of an investigation pertaining to fraud, signing a false statement, and larceny of government property.
   d.  On 30 April 2009, an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was conducted.  The findings recorded on the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows, "This office after finishing all the findings and reading the CID Report of Investigation (ROI) concludes that the allegations against (the applicant) do not need to be recommended for any administrative action."  In addition, the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), completed on 4 May 2010, shows, "the Soldier was eligible for the benefits he received regardless of the stated actions."  

   e.  Collection of the $42,492.54 was completed in February 2012.

   f.  On 5 December 2012, five years after he had departed the duty location where the events took place, he was notified that he was receiving a GOMOR and he had 7 days to respond.  The GOMOR was sent to his residence, but he was on temporary duty (TDY) at Fort Knox, KY.  His wife forwarded the letter to him via email on 6 December 2012 and he responded to the GOMOR via email on 12 December 2012.  He adds that, "During this TDY he was not allowed to seek legal representation due to school hours."

   g.  On 12 February 2013, he received notification that new documentation had been filed in his OMPF.  When he reviewed his OMPF, he saw the memorandum, dated 14 January 2013, and it included information that he did not respond to the initial notification.

   h.  On 29 April 2014, he was notified of the initial process of the Qualitative Management Program (QMP) because he received a GOMOR.  He responded to the notification and, on 23 May 2014, he submitted matters in his own behalf to the Transition Branch, Enlisted Personnel Management Directorate.  However, on 19 August 2014, he received notification that he was selected for QMP with a separation date of 1 February 2015.

3.  The applicant provides numerous documents that he identifies in a listing of 22 enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a member of the Active Guard Reserve (AGR) program, in the rank of first sergeant/pay grade E-8, in military occupational specialty 25T (Satellite/Microwave Systems Chief).


2.  On 27 November 2012, Major General (MG) G---- J. L------, Deputy Commanding General (Support), U.S. Army Reserve Command (USARC), Fort Bragg, NC, issued a GOMOR to the applicant for submitting fraudulent documents to the U.S. Government in order to obtain approximately $42,492.54 that he was not entitled to receive.  A CID investigation revealed that the applicant submitted a fraudulent claim for lodging reimbursement from July 2006 to September 2007 during his mobilization to Headquarters, SOUTHCOM.  Specifically, the applicant claimed a home as a rental expense, despite the fact that he was residing with his brother and sister-in-law, who owned the property.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).

   a.  The applicant was instructed to reply by endorsement within 7 days by submitting his response to Headquarters, USARC, Office of the Staff Judge Advocate (SJA), Fort Bragg, NC.

   b.  On 14 January 2013, the approving authority directed filing the GOMOR in the applicant's OMPF.  The filing document shows the applicant was notified of the GOMOR, but did not respond.

3.  A review of the applicant's OMPF revealed the GOMOR, dated 27 November 2012; referral document with United States Postal System (USPS) tracking and delivery document; the format for applicant's response (sans signature); filing directive; and allied documents (a total of 185 pages) are filed in the performance folder of the applicant's OMPF.  This review failed to reveal evidence of the applicant's acknowledgement of, or a response to, the GOMOR.

4.  On 6 March 2014, the Deputy Chief of Staff for Personnel and Logistics, 
U.S. Army Human Resources Command (HRC), Fort Knox, KY, notified the applicant that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

5.  A review of the applicant's OMPF failed to reveal evidence that he petitioned the Department of the Army Suitability Board (DASEB) to appeal the GOMOR.

6.  The applicant provides the following documents in support of his request.

	a.  Fort Stewart CID Office, CID ROI, dated 20 March 2009 (pages 1 and 2) that shows an investigation revealed the applicant committed the offenses of fraud, larceny of government property, and signing a false statement when he claimed lodging expenses of $2,450.00 a month, from 1 April 2006 through 
23 September 2007, to pay rent for a house that was owned by a family member.

   b.  DA Form 1574, that shows the Commander, 35th Signal Battalion, appointed the investigating officer (IO) on 7 April 2009.  The IO recommended, "To conclude to this statement, in regards to the allegations that (the applicant) committed government fraud, larceny and signing a false statement, no legal or administrative action should be taken, clearly his intentions were not to commit fraud when he continued to pay rent for the time he was on orders at SOUTHCOM, FL, and the rent receipts were presents (sic) at all times which no one can question the validity of such and when housing and finance representatives do not require a lease agreement at any moment (as stated per phone conversations)."  On an unspecified date, the appointing authority approved the findings and recommendations.

   c.  DA Form 4833, dated 4 May 2010, that shows the Commander, 
35th Signal Battalion, indicated that he appointed an IO for an AR 15-6 investigation, the IO found the applicant was eligible for the benefits he received regardless of the stated actions, and no action was taken for any of the offenses because after review of the AR 15-6 investigation with an official of the Judge Advocate General's office, "it was legal's belief that the case was too weak to prosecute."

   d.  A Residential Lease Agreement that shows the applicant entered into an agreement with Rosita V---, on 17 March 2006, to rent a dwelling in Margate, FL, commencing 1 April 2006 until 31 December 2006 for the sum of $2,450.00 per month.

   e.  DA Form 1351-R, dated 3 May 2006, that shows the applicant claimed lodging expenses in the amount of $2,450.00 for the month of April 2006.

   f.  GOMOR, dated 27 November 2012, with USPS Track and Confirm that shows delivery on 5 December 2012 to an address in Colorado Springs, CO.

   g.  Affidavit of Service by Mail, that shows on 7 January 2013, Sergeant Dexter T-----, paralegal, USARC, Fort Bragg, NC, affirmed that he mailed the GOMOR to the applicant via certified mail on 28 November 2012.

   h.  Army Training Requirements and Resources System (ATRRS) report, dated 10 September 2014, that shows the applicant was enrolled in the USAR Unit Trainer Course, Fort Knox, KY, from 2 December to 14 December 2012.

   i.  Email message, sent 6 December 2012, subject:  Memo needs a response within 7 calendar days, that appears to have been sent by the applicant's spouse to the applicant with the message, "Hi Babe, Let me know if you need anything else."  The email message does not contain an attachment.  It does show a forwarding email, sent 4 September 2014 (emphasis added), with an attachment (i.e., "Memo 1SG LROD.pdf").

   j.  Email message, sent by the applicant on 12 December 2012 to MG L------, subject:  Letter of Reprimand, with the message, "Attached, please find my response to your letter of reprimand for misconduct, dated 27 Nov 2012."  It shows an attachment titled "Letter of Reprimand Response.pdf."

   k.  Memorandum, undated, subject:  Written Reprimand Acknowledgement, that shows the applicant acknowledged receipt of the written reprimand, dated "27 NOV 2012."

   l.  Memorandum, undated, subject:  Written Reprimand Acknowledgement, in which the applicant explained to MG L------ the guidance he received regarding leasing his brother's house, that he developed a lease agreement that would cover the cost of his brother's mortgage during the period of his mobilization, and he now understands that he was not provided the correct advice.  He stated that he agreed to pay the money back and that it was not an intentional act or attempt to defraud the government.  He concluded, "As a result, I violated the regulation and understand accountability and have learned an invaluable lesson through this experience."  It also shows, in pertinent part, At (sic) of this moment I have not had the opportunity to review the information in the packet sent to me.  I am currently TDY and will not be able to review this until next week.  However, I wanted to explain myself before your final decision."

   m.  DFAS Form 702 (Military Leave and Earnings statement) for the period
1 - 28 February 2012, that shows the applicant's total debt of $42,492.54 had a balance of $0.00.

   n.  HRC memorandum, dated 17 April 2014, subject:  Department of the Army Notification for Potential Denial of Continued Active Duty Service under the QMP, that notified the applicant a QMP Board would convene on 3 June 2014 as a result of information received for permanent filing in his OMPF.  He was advised he could submit matters of mitigation or extenuation for consideration by the President of the Board.

    	(1)  The applicant acknowledged receipt of the notification via email on
1 May 2014.  He indicated he would submit matters of extenuation or mitigation not later than 23 May 2014.  On 23 May 2014, the applicant submitted numerous documents (via email) to the QMP Board for consideration that included, in pertinent part, three letters of endorsement, as follows:

    		(a)  Memorandum from MG D----- L. Y---, Commander 78th ORC, Salt Lake City, UT, dated 22 May 2014, that shows he strongly recommends retention of the applicant in the Army.

    		(b)  Memorandum from Lieutenant Colonel C-------- A. H-----, Commander, USAR Strategic Command, Troop Program Unit, Peterson Air Force Base, CO, dated, 22 May 2014, that shows he reviewed the documents and email messages the applicant provided to MG L------ on 12 December 2012; it appears the documents were not presented to MG L------; and commanders at the highest level of the command have requested removal of the GOMOR from the applicant's OMPF.

    		(c)  Memorandum from Mr. J---- S. N-----, Legal Assistance Attorney, Office of the SJA, Fort Carson, CO, that shows, on 23 April 2014, he met with the applicant who presented documents relating to the GOMOR.  Mr. N----- states, "MG L------ was not presented these matters" and "(The applicant's) email is sufficient proof."

    	(2)  An HRC memorandum, dated 28 July 2014, subject:  Notification of Denial of Continued Active Duty Service under the QMP, that notified the applicant the QMP Selection Board recommended he be denied continued active duty service and the Director of Military Personnel Management approved the board's recommendation.  Accordingly, he will be involuntarily separated from the Army not later than 1 February 2015.
   
    	(3)  On 19 August 2014, the applicant indicated he would appeal, he requested retention on active duty, and acknowledged that he had 30 days to submit his appeal.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  

   a.  Chapter 3 (OMPF), paragraph 3-6 (Authority for filing or removing documents from the OMPF), in pertinent part, provides that once properly filed in the OMPF, the document will not be removed from the record unless directed by one of the following, and shows in pertinent part, the Army Review Boards Agency, Army Board for Correction of Military Records, Army Discharge Review Board, Department of the Army Suitability Evaluation Board, Army Special
Review Board, and the Department of Defense Physical Disability Review Board.


   b.  Table B-1 (Authorized Documents) provides guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It shows the letter/memorandum, referral correspondence, member's reply, and allied documents (if they are specifically directed for filing by the letter or referral correspondence) will be filed in the performance folder of the OMPF unless otherwise directed.  All other allied documents not listed will be filed in the restricted folder of the OMPF.

8.  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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	b.  Paragraph 7-2b (Appeals for Transfers of OMPF Entries) contains guidance on transfers of OMPF entries.  It states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.

		(1)  Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.  Appeals approved under this provision will result in transfer of the document from the performance folder to the restricted folder of the OMPF.

		(2)  GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR filed in his OMPF should be removed because he was given incorrect information about leasing a residence; the approving authority for the AR 15-6 investigation found the applicant was eligible for the benefits he received regardless of his actions; he has since reimbursed the government for the funds he received; he provided a response to GOMOR (and also appealed the GOMOR), but the approving official indicated that he did not respond to the GOMOR; and the GOMOR led to his involuntary separation from active duty.

2.  The evidence of record shows a CID investigation revealed the applicant committed the offenses of fraud, larceny of government property, and signing a false statement when he claimed lodging expenses of $2,450.00 a month from 
1 April 2006 through 23 September 2007 to pay rent for a house that was owned by a family member.

   a.  The Commander, 35th Signal Battalion, who appointed the IO to conduct the AR 15-6 investigation, consulted with an official of the SJA Office, Fort Bragg, NC, regarding the results of the AR 15-6, and decided the case was too weak to prosecute.

   b.  A DFAS collection action for $42,492.54 was initiated.  The total amount was collected as of February 2012.

3.  On 27 November 2012, MG L------ issued a GOMOR to the applicant for submitting fraudulent documents to the U.S. Government in order to obtain approximately $42,492.54 that he was not entitled to receive.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15, UCMJ.

   a.  The paralegal at the SJA Office, Fort Bragg, NC, affirmed the GOMOR was sent to the applicant via USPS certified mail and that it was delivered to his residence, on 5 December 2012, with instructions to respond within 7 days.
   
   b.  The evidence of record shows the applicant was TDY at Fort Knox, KY during the period 2 December to 14 December 2012.  On 6 December 2012, his wife forwarded the message, "Memo needs a response within 7 calendar days" and "Let me know if you need anything else."  There is no evidence of record that shows the GOMOR was attached to the email.  However, the document the applicant provides does show the email was forwarded to him again, on 
4 September 2014 (emphasis added), and it included an attachment titled, "Memo 1SG LROD."

   c.  In his application to this Board, the applicant indicated that, "During this TDY he was not allowed to seek legal representation due to school hours."  However, that is not an essential element in this case.

   d.  The evidence of record shows the applicant responded to the GOMOR via email on 12 December 2012, and it contained an attachment titled, "Letter of Reprimand Response."  In the "Written Reprimand Acknowledgement" (letter) he provides to this Board, the applicant acknowledged to MG L------ that he had not had the opportunity to review the information in the packet sent to him because he was TDY and he would not be able to review it until the next week.

   e.  Both the acknowledgement of the GOMOR and the applicant's response to the GOMOR that he provides in his application to this Board are undated.  In addition, the documents are not filed in his OMPF with the GOMOR.

   f.  The applicant provides evidence that he met with a Legal Assistance Attorney at the SJA Office, Fort Carson, CO, on 23 April 2014, and presented documents relating to the GOMOR.  The attorney opines that "MG L------ was not presented these matters" and that the applicant's email "is sufficient proof" to show he sent the documents.  It is noted that the legal assistance attorney is not an official of the SJA Office, Fort Jackson, SC, where the documents would have been received and processed.  Thus, he has no first-hand knowledge regarding the matter under review.

   g.  It cannot be determined from the available evidence the document(s) that the applicant said he had forwarded had actually been forwarded to the approving authority.

   h.  There is no evidence of record that shows the applicant forwarded a response or rebuttal to the GOMOR after completing his TDY any time during the period 13 December 2012 through 14 January 2013; the date the approving authority made his decision to file the GOMOR in the applicant's OMPF.  Thus, it is reasonable to conclude that the approving authority allowed the applicant an additional 30 days (from 14 December 2012) to review the GOMOR with the enclosures, seek legal assistance, and submit his response.  However, there is no evidence the applicant submitted a response during this timeframe.

   i.  The evidence of record shows the applicant acknowledged that he violated the governing regulation with respect to the incident that led to the GOMOR.

4.  On 14 January 2013, the approving authority directed filing the GOMOR in the applicant's OMPF.  The filing document shows the applicant was notified of the GOMOR, but "he did not respond."

   a.  The evidence of record shows the approving authority afforded the applicant more than the 7 days he initially allowed for him to submit his response because the approving authority did not make his filing decision on the GOMOR until more than 1 month after the applicant acknowledged receipt via email.

   b.  There is no evidence of record that shows the applicant sent a written response to the GOMOR via USPS certified mail.
   
   c.  His Written Reprimand Acknowledgement (emphasis added) is undated and he chose to send the document via email apparently without requesting a "Read Receipt" acknowledgement.

   d.  In view of all of the foregoing, and based on the available evidence of record, it is concluded that the statement in the filing directive that, "he did not respond" is accurate in this case.

5.  The evidence of record shows the GOMOR, allied documents, referral document, and filing directive are properly filed in the performance folder of the applicant's OMPF.

6.  There is no evidence of record that shows the applicant appealed the GOMOR to the approving authority or the DASEB.  Thus, his contention that he appealed the GOMOR is not supported by the evidence of record.

7.  By regulation, in order to remove a record from the OMPF, there must be compelling evidence to support its removal.

8.  After a careful review of the evidence of record, it is concluded that the applicant has not submitted compelling evidence to disprove the facially-valid GOMOR that is filed in the performance section of his OMPF.  Therefore, the GOMOR, dated 27 November 2012, along with the allied documents, are deemed to be properly filed and should not be removed from the applicant's OMPF.

9.  As a result of the aforementioned conclusions, there is no basis to grant the requested relief.

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 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)                                         AR20140018948



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ABCMR Record of Proceedings (cont)                                         AR20140018948



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