IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20140020968 


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:

	a.  At the time of the imposition of the GOMOR, he was a mobilized Army Reservist on his fourth deployment.  His duty position was the Director of the Joint Legal Center, Combined Joint Inter-Agency Task Force (CJIATF) 435, in Bagram, Afghanistan.  

	b.  The Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation, as well as his rebuttal, were all classified secret/no foreign nationals (NOFORN).  

	c.  The basis for his petition is the fact the underlying AR 15-6 investigation and the specific allegations of misconduct made against him were essentially disapproved in their entirety on 12 May 2014 by the Department of Defense Inspector General (DoDIG).  In addition, the Army's Office of the Staff Judge Advocate General (OTJAG) Professional Responsibility Branch determined the findings of the subject AR 15-6 investigation had no credible evidence that raised any question as to his fitness as a lawyer.  The DoDIG specifically found he did not violate standards concerning the classified allegation, did not mistreat his personnel, and did not foster an unhealthy working climate.  They also found insufficient evidence to substantiate the conclusion he violated any rules of professional responsibility.
	d.  He made a Freedom of Information Act (FOIA) request after the DoDIG made its findings, asking that the investigation be provided to him so he could attach it to this petition for relief for the benefit of the Board.  He believes the DoDIG investigation, which he assumes contains the entire underlying investigation and his lengthy rebuttal (both classified) will show the Board he is absolutely innocent of the alleged misconduct.  However, that request remains pending.  Therefore, he cannot comment on the substance of the investigation as it is classified.  However, the DoDIG was able to provide a memorandum describing the depth of their investigation and how it was vastly more thorough than the underlying investigation that is the basis of the GOMOR filing.

	e.  The evaluations of his duty performance show his rating chain, Lieutenant General (LTG) H (his rater and senior rater during the duty period when the alleged misconduct occurred) and Major General (MG) H, who had full knowledge of the AR 15-6 investigation as Chief of Staff for U.S. Central Command (USCENTCOM), found no issues with his integrity or ethics.  LTG H non-concurred with the investigation and refused to give him an adverse Officer Evaluation Report (OER).  Both gave him strong OERs and he left active duty with an honorable discharge.  He was never relieved of his duty position.  During the time he was pending the adverse action, he was "suspended" by MG D, who was not in his chain of command.

	f.  Since the time of the completion of the DoDIG investigation and the fact it and the Army OTJAG Professional Responsibility Branch cleared him of any misconduct, he has been awarded his third Bronze Star Medal for his duty performance in Afghanistan; duty performance concurrent with the allegations of the GOMOR.

	g.  He also received an additional memorandum from his last active duty assignment at USCENTCOM that elaborates on his duty performance there and the trust and confidence he was given despite the adverse administrative action he had received in theater.  The fact that his top secret sensitive compartmented information clearance was never suspended at any time is further attestation to the fact his immediate superiors continued to have complete faith in him.  So it is clear to the Board, after the imposition of the GOMOR by MG D, he was transferred out of theater and reassigned to USCENTCOM for the balance of his active duty orders.  There he worked directly for MG H, the Chief of Staff.

	h.  He offers to allow a Board member, with appropriate clearance, to review the DoDIG's file/report.  The DoDIG maintains if this occurs, the Board "will have no doubt the AR 15-6 was deficient."  He hereby requests the Board avail itself of this offer if the Board has any doubt on his request for relief.

	i.  There were three other personnel who were alleged to have committed misconduct as part of the AR 15-6 investigation.  The convening authority, MG D, made and approved of adverse findings against all of them.  The first was (now) MG J, an active U.S. Air Force (USAF) general officer and his immediate supervisor at the time.  The original investigation started solely against her as the Deputy Commander of CJIATF 435 and she was suspended on 13 October 2012 and immediately sent to the U.S.  No formal action was ever taken against her by the USAF and as a result of the DoDIG's findings she was recently promoted to MG.

	j.  Major (MAJ) L, an active component USAF judge advocate, who was his subordinate, was suspended on 15 October 2012, the same day he was suspended.  She was immediately transferred back to the U.S. to the command she deployed from.  After a year-plus in a holding pattern while the DoDIG investigation proceeded, she has moved forward after being exonerated by a memorandum similar to the one he received from the DoDIG.  She is now assigned at Guam.  Like MG J, MAJ L never received any formal adverse action by the USAF.

	k.  Lieutenant Colonel (LTC) S, an Army National Guard (ARNG) judge advocate and his former deputy at the Joint Legal Center, had already left theater and demobilized from active duty by 15 October 2012, when he was suspended by MG D.  No action was ever taken against him by the ARNG, though he believes the AR 15-6 investigation was forwarded to National Guard Bureau for same.  LTC S was similarly exonerated by the DoDIG investigation.

	l.  He alone received adverse action.  He deduced the reason was because MG D had no jurisdiction over USAF officers or over LTC S as he had left theater.

	m.  He is willing to appear in front of the Board at his own expense, if necessary.  He respectfully requests the Board address the gross injustice that has occurred against him.  He had a flawless 27-year career and this GOMOR should be removed.  The above paragraphs and enclosures he is submitting show the DoDIG did a thorough and exhaustive investigation, exposing the flaws and unfairness in the original AR 15-6 investigation.  By a preponderance of the evidence, he has shown an error and/or injustice has occurred.

3.  The applicant provides:

* three documents pertaining to the filing determination of the GOMOR
* email and two letters from the Office of the DoDIG, Director, Investigations of Senior Officials 
* two emails and a letter from the OTJAG, Professional Responsibility Branch 
* FOIA request to the DoDIG Office submitted by the applicant 
* two emails form the Office of the DoDIG pertaining to the FOIA request 
* OERs for the periods 1 October 2011 to 15 October 2012 and 16 October 2012 to 26 April 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders and certificate for the Bronze Star Medal
* Letter of Evaluation from the USCENTCOM Deputy Chief of Staff

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Reserve commissioned officer serving in the rank of Colonel (COL), JAG Corps, was ordered to active duty on 10 March 2012 in support of Operation Enduring Freedom with duty in Afghanistan.  

2.  A review of the applicant's OMPF revealed the GOMOR and the AR 15-6 investigation were not filed in his OMPF; however, the performance section of his OMPF includes three documents related to the GOMOR, added to his OMPF on 26 November 2012.  The first document is a memorandum for the applicant from MG D, Commander, National Support Element Command-Afghanistan (USNSEC-A), dated 17 November 2012, subject:  Filing Determination of the Memorandum of Reprimand, which states:

	a.  "On 22 October 2012, I issued you a MOR and notified you that I was considering filing it in your OMPF.  I also informed you that I would consider any matters you submitted in response to the MOR before making my final filing determination."  

	b.  "After considering the matters you have submitted, I direct that the reprimand be placed permanently in the Soldier's OMPF.  All enclosures will be forwarded with the reprimand for filing as appropriate."  

3.  The second document is an undated memorandum for record (MFR) from the Administrative Law Attorney, U.S. Forces, Afghanistan, subject:  OMPF Filing Determination for [Applicant], which states:

	a.  "The purpose of this memorandum is to facilitate the permanent filing of the subject service member's GOMOR in his OMPF.  The GOMOR consists of four paragraphs, two of which are classified S//NF.  The general nature of the misconduct set forth in the GOMOR includes ethical violations, the dissemination of unethical guidance to subordinates, substantially contributing to the creation of a toxic command climate in violation of Article 92, Uniform Code of Military Justice [UCMJ] and Army Regulation 600-100, Army Leadership."

   b.  "In response to the GOMOR, [the applicant] submitted an 81 page rebuttal along with 14 attachments.  The rebuttal is classified at the S//NF level.  On 17 November 2012, MG D, the USNSEC-A Commander, determined that the GOMOR was to be filed permanently in [the applicant's] OMPF.  He further directed that the GOMOR, [the applicant's] rebuttal, and the filing determination be included in the member's file.  Due to the classification of the GOMOR and rebuttal, we recommend that only the filing determination along with this MFR be filed in [the interactive Personnel Electronic Records Management System (iPERMS)]."

4.  The third document is an undated MFR from the U.S. Army Human Resources Command (HRC), subject:  GOMOR-[Applicant], which states:

	a.  "Due to classification, 157 pages of additional pertinent information have been extracted and filed separately with the HRC [The Adjutant General Directorate] Army Personnel Records Division."

	b.  "Enclosed documents [were] extracted from the subject GOMOR.  They were removed for separate filing based on guidance received from the sending unit."

5.  The applicant was transferred to the Retired Reserve on 6 August 2013.

6.  The applicant provided a letter from the Office of the DoDIG, Director, Investigations of Senior Officials, dated 12 May 2014, which states:

	a.  "We recently completed a classified investigation regarding your alleged misconduct while serving as the Director, Joint Legal Center, CJlATF 435, USCENTCOM."

	b.  "We initiated our investigation based on our oversight review of a classified AR 15-6 report of investigation (ROI), which determined you engaged in misconduct and violated rules of professional responsibility regarding the classified allegation.  The AR 15-6 ROI was the basis for a GOMOR approved on 17 November 2012, and filed in your OMPF.  Our review, conducted in accordance with DoD Directive 5505.06, 'Investigations of Allegations Against Senior DoD Officials,' dated June 6, 2013, determined the preponderance of the evidence in the AR 15-6 ROI did not support the conclusions."

	c.  "We noted that you and other persons identified in the AR 15-6 ROI, all from separate Service components, were no longer assigned to USCENTCOM. Accordingly, we assumed responsibility for the investigation."

	d.  "Based upon our investigation, we did not substantiate the allegation.  We considered relevant documents, emails, and applicable standards and conducted interviews with persons knowledgeable of the events at issue.  We conclude you did not violate any standard regarding the classified allegation.  We also conclude you did not mistreat your personnel or foster an unhealthy working climate.  We also believe there is insufficient evidence to support the AR 15-6 ROI conclusion that you violated rules of professional responsibility."

	e.  "By separate correspondence, we notified the Army Inspector General of our findings.  We requested he refer the results of our investigation to the Army Judge Advocate General's Office of Professional Responsibility for final adjudication of the purported professional responsibility violation."

7.  The applicant provided an email from the OTJAG, Professional Responsibility Branch, dated 20 May 2014, addressed to him, which states:

	a.  "Please be advised that we (Professional Responsibility Branch, Office of The Judge Advocate General, U.S. Army) never opened a case on you, nor did we generate any documents concerning you, despite the AR 15-6 investigation that was forwarded to us from CENTCOM a few years back.  COL C reviewed that investigation and could find no credible evidence therein that raised any question as to your fitness as a lawyer.  We were chagrined that someone without professional responsibility expertise made a finding that you had violated any rules of professional conduct for lawyers."

	b.  "We'll keep a copy of your letter from the DoDIG.  If you are ever asked to identity [sic] allegations of professional misconduct lodged against you, you may state that these particular allegations were determined, by both the DoDIG and Army Professional Responsibility Office, to be lacking in merit due to the complete absence of credible evidence, or you may refer the requester to this office for an official response."

	c.  "May you sleep better tonight after all of this.  Although COL C has retired, I have informed him of the DoDIG's conclusion, because he (COL C) spent a great deal of time on this matter out of a sense of fairness and justice."

8.  The applicant provided a letter from the OTJAG, Professional Responsibility Branch, dated 10 June 2014, addressed to him, which states:

	a.  "On 27 November 2012, this office received a classified AR 15-6 ROI from the USCENTCOM which determined that you engaged in misconduct and violated the Rules of Professional Conduct for Lawyers.  Our review of the 
AR 15-6 ROI, however, came to the opposite conclusion, to wit: we found no credible evidence that you engaged in any misconduct or violated any of the Army Rules of Professional Conduct for Lawyers found in AR 27-26, Army Rules of Professional Conduct for Lawyers.  Accordingly, we never opened a case on you or generated any documents concerning you."

	b.  "On 13 May 2014, this office received a copy of a memorandum from the DoDIG to The IG of the Army, dated 12 May 2014, informing the latter that the former's investigation into the same matters in the AR 15-6 ROI, performed as part of the former's oversight responsibilities, determined that the preponderance of the evidence in the ROI did not support the findings that you engaged in any misconduct or violated any of the Army Rules of Professional Conduct for Lawyers.  Based on their investigation, the DoDIG did not substantiate the allegations against you.  Further, the DoDIG stated their belief that there is insufficient evidence to support the ROI conclusion that you violated professional responsibility duties, but they asked The IG of the Army to refer the results of the DoDIG's investigation to this office for final adjudication of the purported violation of the Army Rules of Professional Conduct for Lawyers.  You received a similar letter from the DoDIG, also dated 12 May 2014, and you forwarded a copy of it to this office."

	c.  "Based on the DoDIG's conclusion, we have affirmed our original determination not to open a case on you because there was no credible evidence that raised any question as to your honesty, trustworthiness, or fitness as a lawyer in other respects.  You are advised that this office will take no further action concerning this matter.  We regret this unfortunate situation, in which a joint command made professional responsibility findings against you regarding the Army Rules of Professional Conduct without the regulatory authority to do so and without providing you with the regulatory due process to which you were entitled under the provisions of AR 27-1, Judge Advocate Legal Services, Chapter 7."

	d.  "You may have to release information regarding the AR 15-6 ROI, the DoDIG's investigation conclusion, and this office's conclusion when you apply for bar membership or federal employment.  In such cases, you should review carefully the questions posed to you, as you may be required to respond affirmatively if asked whether your fitness to practice law or conduct as an attorney has ever been challenged.  If you are asked to identify the details of professional misconduct lodged against you, you may state that this particular allegation of professional responsibility misconduct was determined by the United States Army Professional Responsibility Branch to be lacking in merit due to the absence of credible evidence, or you may refer the requester to this office for an official response.  This office will not notify your State Bar regarding this professional responsibility allegation and our conclusion.  Consequently, it is incumbent upon you to determine whether you have a self-reporting requirement with your State Bar regarding either the allegation or our conclusion."

9.  The applicant provided a letter from the Office of the DoDIG, Director, Investigations of Senior Officials, dated 8 October 2014, which states:

	a.  "We initiated our investigation based on our oversight review of a classified AR 15-6 ROI that determined you engaged in misconduct and violated rules of professional responsibility regarding the classified allegation.  Our review, conducted in accordance with DoD Directive 5505.06, 'Investigations of Allegations Against Senior DoD Officials,' dated 6 June 2013, determined the preponderance of the evidence in the AR 15-6 ROI did not support the conclusions."

	b.  "During our 11 month investigation, we interviewed 50 witnesses, many who were not interviewed during the AR 15-6 investigation.  These witnesses included the former CJIATF 435 Commander, an Army lieutenant general; the former CJIATF Deputy Commander, a USAF brigadier general; the former Commander, Field Force Rule of Law, Afghanistan, CJIATF 435, a Navy rear admiral; the Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy, a Senior Executive Service (SES) member; and the former CJIATF 435 Civilian Deputy, SES; and a former CJIATF 435 Staff Judge Advocate, an Army colonel."

	c.  "In addition to reviewing the AR 15-6 ROI and its 47 sworn witness statements, we also reviewed relevant documents, including the legal review of the AR 15-6 ROI and a USFOR-A study of the classified matter conducted subsequent to the AR 15-6 investigation.  We reviewed a 6 February 2012, memorandum from the CJIATF 435 Commander to the USFOR-A Commander concerning the classified matter.  We also reviewed your 81-page rebuttal with 14 attachments you submitted in response to the GOMOR you received and the corresponding legal review.  Finally, we reviewed a Defense Equal Opportunity Management Institute Climate Assessment Survey administered to CJIATF 435 Headquarters published on 1 November 2012."

10.  AR 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in individual official personnel files.  

	a.  Paragraph 1-1 states the intent of AR 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files and to ensure the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	b.  Paragraph 1-4 provides that the objectives of AR 600-37 are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility.

	c.  Paragraph 7-2a states that once an official document is properly filed in the OMPF it is presumed to be administratively correct and 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a GOMOR and related documents should be removed from his OMPF.

2.  The evidence shows he was issued a GOMOR on 22 October 2012 for alleged acts of misconduct that include ethical violations, the dissemination of unethical guidance to subordinates, and substantially contributing to the creation of a toxic command climate in violation of Article 92 of the UCMJ and Army Regulation 600-100.

3.   The evidence also shows that after a thorough 11-month investigation, the DoDIG concluded he did not mistreat personnel, he did not foster an unhealthy working climate, and there was insufficient evidence to support the AR 15-6 ROI conclusion that he violated rules of professional responsibility.  

4.  The evidence further shows the OTJAG, Professional Responsibility Branch, concluded there was no credible evidence that raised any question as to his honesty, trustworthiness, or fitness as a lawyer.

5.  Based on the foregoing, it is evident the imposition of the GOMOR was unjust due to the fact that it was based on unsubstantiated allegations.

6.  The applicant provided clear and convincing evidence showing the GOMOR should have never been imposed.  

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

	a.  removing from the applicant's OMPF the three documents related to the GOMOR, which were added to his OMPF on 26 November 2012 and 

	b.  removing from the applicant's records the classified GOMOR and allied documents, currently filed at HRC, The Adjutant General Directorate, Army Personnel Records Division.




      _______ _   _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)                                         AR20140020968



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ABCMR Record of Proceedings (cont)                                         AR20140020968



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