BOARD DATE:	 1 September 2015 

		DOCKET NUMBER:  AR20140021604 


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), dated 8 March 2013, and all allied documents from his Official Military Personnel File (OMPF).

2.  The applicant states that the GOMOR is unjust and in error because neither he nor his attorney were shown all of the allied documents, he never had the opportunity to comment on them, and the underlying investigation was completed by an investigating officer (IO) who made changes to the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation after it was referred to him and he had provided his response.  He adds that the GOMOR is procedurally defective and unjust, and it has served its purpose.

   a.  In a 25-page, self-authored statement he states that he was promoted to major (O-4) on 1 August 2006.  His Officer Record Brief shows that he deployed eight times during his military service, he completed several military and civilian schools, and he received numerous awards and decorations.  In addition, he was selected by the Lieutenant Colonel (LTC) Promotion Board in July 2012.

   b.  On 13 March 2013, he received the GOMOR, but he was never shown all of the materials the general officer relied upon.  On 9 April 2013, he saw that the one-page GOMOR, along with 105 other pages, was filed in his OMPF.  He states that he never had the opportunity to comment on all the allied documents.

   c.  In the summer off 2010, he was assigned to the Asymmetric Warfare Group (AWG), Fort George G. Meade (FGGM), MD.  His positon required him to travel and use his Government Travel Credit Card (GTCC).  He did not see his spouse and children for extended periods of time.

   d.  As of December 2011, he incurred a positive credit of about $1,040 on his GTCC.  In order to correct this and track new charges, he incrementally withdrew the positive credit.  He was not aware this violated any aspect of GTCC use.  At the same time, he began having marital and financial problems, and he moved out of his house in January 2012.

   e.  On 6 February 2012, he was counseled about the improper withdrawal of the overpayment.  At that time he informed his chain of command that he had moved from his residence due to marital problems.

   f.  In June 2012, he was assigned as the Director, Asymmetric Operations Working Group (AOWG), AWG, FGGM, MD.  His rater was Colonel (COL) P___ M____ and senior rater was Lieutenant General D___ D. H____.

   g.  His duties required constant official travel.  A Combating Terrorism Technical Support Officer (CTTSO) conference held on 2–5 October 2012 in McLean, VA, was retroactively changed to local temporary duty travel (TDY).  On 9 October 2012, the unit travel approval authority advised him that he had audit concerns regarding his CTTSO conference purchases.  Concerns were also raised about charges during the period 10–14 October 2012. 

	h.  In November 2012, his unit initiated an AR 15-6 investigation based on misuse of the GTCC, false statements, and larceny, as well as complaints lodged by his spouse of infidelity and abuse.  In an email on 12 December 2012, his spouse informed him that the IO was telling her to think about filing criminal charges, obtaining a restraining order, and opening a case at Family Advocacy (FA) against the applicant.  

   i.  The IO substantiated the misuse of the GTCC, false statements, and larceny allegations.  On 7 January 2013, he received the AR 15-6 investigation.  On 15 January 2013, he requested a 5-day extension.  He provided his response to the IO findings on 25 January 2013.

   j.  On 12 February 2013, he received a telephone call from a Soldier in the unit who informed him that the IO had added pages to the AR 15-6 investigation after he had submitted his rebuttal.  He contacted the IO about the matter and the IO stated there were no changes.  Then, his spouse recanted her allegations and, in March 2013, the FA Case Review Committee (CRC) found the abuse allegations were unsubstantiated.

   k.  On 12 March 2013, the GOMOR was shown to him.  When he asked for a copy he was advised that his attorney had to get it.  His attorney made a request.  On 18 March 2013, his attorney received the one-page GOMOR but not the enclosures.  Specifically, the AR 15-6 investigation (enclosure 2) was missing.

   l.  He contacted the AWG Judge Advocate and asked for all information that Major General (MG) M___ S. L____, Commander, U.S. Army Military District of Washington (MDW), relied on in issuing the GOMOR.  He did not receive all the enclosures and he was forced to write his response without the benefit of seeing all the evidence.  On 25 March 2013, he included information about the missing enclosures in his response to MG L____.

   m.  On 9 April 2013, he learned that the GOMOR, along with 105 pages of allied documents, had been uploaded to his OMPF.  There were 22 new pages that had not been provided to him that included six pages added retroactively to the AR 15-6 investigation, the unsubstantiated allegations of infidelity and abuse, and documents that he challenges as to their validity/appropriateness (e.g., chain of command filing recommendations).  He later learned that MG L____ directed the filing of the GOMOR on 10 April 2013.

   n.  Subsequent to the GOMOR, he performed his duties and used his personal credit card without any issues and his expenses were never questioned.
He describes meeting with his senior rater about not receiving the entire GOMOR packet, his Officer Evaluation Report (OER), revocation of his security clearance, deletion of his military email account and issuance of a "guest" email account, and a notification of administrative separation.

   o.  He states the legal issues surrounding the AR 15-6 investigation include failing to comply with AR 600-37 (Unfavorable Information) when processing a GOMOR (i.e., referral of the GOMOR and all allied documents to the recipient for comment and filing documents related to unsubstantiated allegations).  He adds that the IO showed bias and partiality by encouraging his spouse to lie and file criminal charges against him.  In addition, the IO did not interview the unit travel approval authority.

   p.  He states that, on 10 June 2003, the Department of Defense (DoD) set out disciplinary guidelines for misuse of GTCC that recommend "a progression of increasingly severe disciplinary measures" as most appropriate in cases of minor instances of abuse.  He adds that he did not willfully violate the GTCC rules and outlines the actions he took and his intentions.


   q.  He cites Army Board for Correction of Military Records (ABCMR) Docket Number AR20090017281 that granted the petitioner relief by removing a letter of reprimand (LOR) which, on its face, did not comply with AR 600-37.  Specifically, there was no evidence the imposing authority considered the petitioner's responses to the LOR.

   r.  He states that he has exhausted all other administrative remedies with respect to the GOMOR.  On 10 April 2014, he was recommended for separation based on the GOMOR as the only misconduct.  His name was then removed from the promotion list.

   s.  He states that this was his first, last, and only incident during his entire military career of almost 18 years.  He requests that the Board consider all of his evaluation reports that document his performance in combat, garrison, and at school.  He offers extracts of comments from some of his evaluation reports.
He also offers comments from the individuals who have written letters of recommendation on his behalf with regard to matters under consideration.
	
3.  The applicant provides 53 documents, including and/or relating to:

* the GOMOR, dated 8 March 2013, and allied documents
* Officer Record Brief
* two DA Forms 4856 (Developmental Counseling Statements)
* two GTCC Cardholder Statements
* Family Advocacy Case Review Committee Incident Determination
* Security Badge Access Events Report
* AR 15-6 investigation and related correspondence
* multiple email messages/exchanges
* Memorandum For Record, dated 15 May 2013
* 33 letters of recommendation and/or statements of support

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the GOMOR, dated 8 March 2013, and all allied documents from the applicant's OMPF.

2.  Counsel states, in effect, he defers to the applicant.

3.  Counsel provides/forwards the applicant's application.


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant on 14 May 1996 and he entered active duty on 27 October 1996.  

2.  He served in a variety of stateside and/or overseas assignments, including Bosnia, Iraq, and Afghanistan.  He was promoted to major on 1 August 2006. 

3.  He was assigned as the Director, AOWG, D Squadron, AWG, FGGM, MD, on 13 July 2012.

4.  On 21 November 2012, the Commander, AWG, FGGM, MD, appointed an IO (LTC G___ L___) to investigate allegations of adultery, domestic violence, and improper use of government funds against the applicant.  The IO submitted his AR 15-6 Investigation Findings and Recommendations on 14 December 2012.

	a.  The IO found, based on the preponderance of the evidence, the applicant did improperly use government funds in violation of Article 92 (Failure to obey order or regulation) of the Uniform Code of Military Justice (UCMJ).  The IO also determined there was insufficient evidence to support allegations of adultery or domestic violence although there was sufficient evidence to show violation of Article 107 (False official statements) and Article 121 (Larceny and wrongful appropriation) of the UCMJ. 

	b.  The IO recommended the applicant be relieved from his duties within the AWG and that he receive a GOMOR.  

   c.  The IO summarized the applicant's improper use of government funds between October 2011 and January 2012, and also beginning in July 2012 of more than 50 purchases totaling in excess of $3,000 during periods in which the applicant was not in a TDY status.

   d.  On 25 January 2013, the applicant provided detailed comments in a 
4-page rebuttal to the IO's AR 15-6 investigation, along with seven enclosures (Annexes A – F).

   e.  On 29 January 2013, the IO offered the appointing authority two pages of information that specifically addressed the applicant's rebuttal comments and enclosures regarding improper use of a GTCC and false official statements.

	f.  On 31 January 2013, the AWG Judge Advocate reviewed the findings and recommendations and found the report of investigation legally sufficient.  He opined that he had no legal objection to the findings and recommendations, that the IO's findings were supported by the evidence discovered, and the recommendations were consistent with those findings.

   g.  The appointing authority approved the findings and recommendations of the IO.

5.  On 8 March 2013, the applicant was reprimanded by MG M___ S. L____, Commanding General (CG), MDW, for misusing his GTCC and claiming entitlements to which he was not permitted.  The CG, MDW, noted that the enclosed AR 15-6 investigation substantiated that the applicant used his GTCC during times when he was not on TDY and that there were purchases that were not incidental expenses related to his local travel.  It also noted that he made more than 50 local purchases worth more than $3,000 in and around his home after being counseled not to do so by his squadron commander.  Furthermore, he wrongfully accepted money from the government by filing travel vouchers claiming per diem during days in which he was no longer in TDY status.

   a.  It shows the reprimand was imposed as an administrative measure and not as punishment pursuant to the UCMJ.  In accordance with AR 600-37, paragraph 3-6, the CG, MDW, advised the applicant that he was considering filing the reprimand in his OMPF, but he would consider any written matters the applicant wished to submit before making his filing decision.

   b.  The applicant was provided seven calendar days from receipt to submit any written matters in rebuttal.  He was advised that, if he failed to respond within the time and without an approved extension by the CG, MDW, he would assume that the applicant elected not to submit matters and he would take final filing action without his input.

   c.  The GOMOR lists four enclosures:

* Commander's Recommendation
* AR 15-6 Investigation
* excerpt of AR 600-20 (Army Command Policy)
* excerpt of DoD Financial Management Regulation

6.  A memorandum to the Commander, MDW, Fort Leslie J. McNair, DC, subject:  Acknowledgement of Receipt, shows, "I acknowledge receipt of the GOMOR, dated 8 March 2013, presented against me on 12 March 2013."  It also shows the applicant elected to submit matters in defense, extenuation or mitigation and that the applicant placed his signature on the document on 12 March 2013.

7.  On 25 March 2013, the applicant submitted matters for consideration to the CG, MDW.

   a.  It shows, "On 13 March 2013 was given the opportunity to read the letter of reprimand (GOMR), signed by you and dated 8 March 2013.  I signed acknowledging I had been given GOMR.  When I asked for a copy I was told to request it through my lawyers.  I did that, and on 18 [March] 2013.  However, I was not given a copy of the enclosures identified in the GOMR.  I was given an extension of time until 2 [April] 2013 to submit matters for your consideration."

   b.  It also shows, "Because I am unaware of what was submitted as ultimate findings, for the purpose of this response I will address two issues:  alleged misuse of my [GTCC] and claiming 'entitlements' for which I was not permitted.  Those are the issues that seem to be addressed and covered in the GOMR."

   c.  The applicant provided rebuttal comments to the IO's findings.  He also provided 11 enclosures (Annexes A – K) in support of his rebuttal.

8.  On 10 April 2013, after careful consideration of the facts and circumstances pertaining to the applicant's case, the chain of command recommendations, and the rebuttal matters submitted in accordance with AR 600-37, paragraph 3-6, the CG, MDW, directed the GOMOR be filed in the applicant's OMPF.

   a.  The GOMOR filing directive lists four enclosures:

* Chain of Command Recommendations
* Rebuttal Matters, dated 25 March 2013
* Acknowledgement of Receipt, dated 12 March 2013
* Letter of Reprimand, dated 8 March 2013

   b.  It also shows a copy was furnished to the Soldier concerned without enclosures.

9.  A review of the applicant's OMPF shows the GOMOR, dated 8 March 2013, along with 105 pages of allied documents (i.e., identified as enclosures to the GOMOR and filing directive) are filed in the performance folder of his OMPF.

10.  After receiving the GOMOR, the applicant received two DA Forms 67-8 (OERs):  a Relief for Cause OER for the period 12 July 2012 through 21 February 2013 and a Senior Rater Option OER for the period 22 February 2013 through 22 August 2013.

11.  On 2 December 2013, the applicant was advised that the Secretary of the Army had directed the removal of his name from the Fiscal Year 2013 LTC Maneuver, Fires, and Effects Promotion Selection List in accordance with Title 10, U.S. Code, section 629; Executive Order 12396; and AR 600-8-29 (Officer Promotions).

12.  On 25 August 2014, a Board of Inquiry recommended the applicant be involuntarily eliminated from the Army based on misconduct and moral or professional dereliction with an honorable characterization of service.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged from the Regular Army on
19 September 2014 under the provisions of AR 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, based on unacceptable conduct.  He completed
17 years, 10 months, and 23 days of total active service and 5 months, and
13 days of total prior inactive service.

14.  An Army Review Boards Agency (ARBA), Arlington, VA, memorandum, dated 11 June 2014, Docket Number AR20140006783, shows the applicant was advised that, prior to consideration of his application by the ABCMR, his request pertaining to removal of an OER from his OMPF must be appealed to the 
U.S. Army Human Resources Command and his request for removal of the GOMOR from his OMPF must be appealed to the Department of the Army Suitability Evaluation Board (DASEB).

15.  ABCMR Docket Number AR20140016240, dated 7 October 2014, denied the applicant's request to remove from his OMPF two DA Forms 67-8 spanning the period 12 July 2012 through 22 August 2013.

16.  An ARBA memorandum, dated 4 November 2014, Docket Number AR20140015553, shows the President, DASEB, advised the applicant that, based on his discharge on 19 September 2014, the ABCMR was the proper authority to consider his application to remove the GOMOR from his OMPF.

17.  The applicant provides the following documents (that were not previously addressed above) in support of his request.

   a.  A DA Form 4856 and two GTCC Cardholder Statements show the applicant was counseled on 6 February 2012 on the use of his GTCC between October 2011 and January 2012 when he was not in a TDY status.

   b.  An Access Denied, Granted, and Other Badge Events with a Report Date of 5 June 2013, for the period 5 October 2012 through 22 October 2012, shows the applicant's access to entryways in the Medical, Operations, and Squadron facilities.
   
   c.  An email message string shows Major S___ C____, Integration Troop Commander, D Squadron, AWG, wanted to talk to the applicant regarding the "CTTSO authority" and potential audit issues.  It also shows the applicant was in Carlisle (5:01 PM, 9 October 2012); he emailed a portal link to K___ M____ 
(3:17 PM, 12 October 2012); he provided a summary of "Fire as a Weapon" initial coordination meeting (3:33 PM, 12 October 2012); and he inquired about the timeline for the 20 October 2012 meeting (1:40 PM, 19 October 2012).

   d.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), pertaining to the applicant shows a Flag was initiated by LTC M___ R____, Commander, D Squadron, AWG, based on a commander's investigation, effective 8 November 2012. 

   e.  An email message to the applicant from his spouse, dated 12 December 2012, shows she identified LTC R____ as having contacted and advised her to obtain legal counsel.  She offered several other comments and recommendations made by him, including filing criminal charges and a restraining order against the applicant.  It also shows she went to Army Community Services and opened a case against the applicant based on her belief that the applicant was opening a case against her.

   f.  A DA Form 4856 shows the applicant was counseled on 16 December 2012 on his professional duties and responsibilities.

   g.  A letter from the applicant's spouse, addressed "To Whom It May Concern", dated 19 December 2012, shows, "I completely recant my allegations against [the applicant].  I made these statements out of anger due to the state of the relationship at the time.  I have recanted and closed my case with FAP [Family Advocacy Program].  I deny all the portions of my verbal statements to
LTC R____."

   h.  A Move-in Statement from Camden Russett Leasing Consultants, sent to the applicant via email, on 28 December 2011, shows the applicant had a lease from 3 January 2012 to 23 December 2012 for a property on Summit View Road, Laurel, MD.  It also shows the monthly payment schedule through December 2012.  (It was printed from an email account on 13 December 2012.)

   i.  Two memoranda show, on 7 January 2013, the applicant acknowledged receipt of the AR 15-6 investigation and, on 15 January 2013, he requested a 
5-day extension to provide his response to the IO findings.
   j.  An email message from the applicant to the IO, dated 12 February 2013, shows he reserved his right to see/potentially rebut any changes.  The IO informed the applicant that there were no changes to the base document.

   k.  An email message from the AWG Judge Advocate to (presumably an MDW staff officer), dated 14 February 2013, forwarded the completed AR 15-6 investigation.  He added that the Commander, AWG, concurred in the findings and recommendation of a GOMOR.

   l.  An email message from the applicant to the AWG Judge Advocate, dated 19 March 2013, requested extension (to 2 April 2013) to submit written matters in rebuttal based on not having received a copy of the GOMOR until [either] 
17 or 18 March 2013.  He also requested copies of all documents referred to and relied upon by the CG, MDW, in issuing the GOMOR.  The AWG Judge Advocate advised him if that [date] were the case, the seven calendar-day period [from 18 March 2013] would equate to an extension to 25 March 2013.  He further advised that he would forward the request to the MDW Staff Judge Advocate for a decision.

   m.  Headquarters, U.S. Army Medical Department Activity, FGGM, MD, memorandum, dated 21 March 2013, subject:  FA CRC Incident Determination, shows the CRC determined the incident on "20130021" (sic) did not meet criteria for adult physical abuse or emotional abuse.

   n.  USA MDW, GOMOR Filing Recommendations, dated 3 April 2013, show LTC J___ C. S____, Squadron Commander, AWG, and COL P___ J. M____ Jr., Commander, AWG, recommended the GOMOR be filed in the applicant's OMPF.  COL M____ also noted, "Sir – in [the applicant's] rebuttal submissions (including 'Matters for Consideration') there are demonstrably untrue or misleading statements.  Strongly recommend filing in OMPF."

   o.  An email message from the AWG Judge Advocate to (presumably an MDW staff officer), dated 8 April 2013, with two attachments (i.e., the applicant's rebuttal comments and the chain of command's recommendations) shows he also provided some talking points after speaking with the IO and chain of command.

   p.  An AWG, FGGM, MD, MFR, dated 15 May 2013, subject:  Office Call with COL M____, 15 May 2013, shows the applicant made note of the representations made by COL M____ during the office call.  It shows, in pertinent part, he stated, "Under UCMJ the [AR] 15-6 and resulting GOMOR was fully and wholly done correctly and [the applicant] didn't help [his] cause with 'bizarre' matters for consideration."  The MFR also shows additional discussions and comments pertaining to the GOMOR packet and filing recommendation, FAP determination, false accusations, his OER, and removal from the promotion list.

   q.  An email message (response) from the Group S1, AWG, to the applicant, dated 15 May 2013, confirmed that M___ M___ "stands as" the applicant's rater.
   
   r.  An email message string, dated 29 August 2013 and 20 November 2013, shows the AWG Special Security Officer was contacted by an adjudicator in reference to the applicant's case.  The adjudicator indicated he had not received the information that the applicant's extension was based on and he requested a copy of the documents.

   s.  Thirty-three letters of support were summarized in the applicant's 25-page, self-authored statement.  As such, they will not be resummarized.

18.  AR 15-6 prescribes procedures for investigations and boards of officers not specifically authorized by any other directive.

   a.  Chapter 1 (Introduction), paragraph 1-9 (Use of results of investigations in adverse administrative actions), shows this regulation does not require that an investigation be conducted before adverse administrative action, such as
relief for cause, can be taken against an individual.  However, if an investigation is conducted using the procedures of this regulation, the information obtained, including findings and recommendations, may be used in any administrative
action against an individual, whether or not that individual was designated a respondent, and whether formal or informal procedures were used, subject to the limitations below.

    	(1)  Except as provided below, when adverse administrative action is contemplated against an individual (other than a civilian employee), including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:

    	(a)  Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based.

    	(b)  Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material.

    	(c)  Review and evaluate the person's response.

    	(2)  There is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and
opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards.

   b.  Chapter 3 (Responsibilities of the Appointing Authority), paragraph 2-3 (Action of the Approval Authority), discusses the effect of errors and shows, generally, procedural errors or irregularities in an investigation or board do not invalidate the proceeding or any action based on it.

19.  AR 600-37 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.  Paragraph 3-2 (Policies) states, except as indicated in paragraph 3-3, unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.

   b.  Paragraph 3-4 (Filing of nonpunitive administrative letters of reprimand, admonition, or censure in official personnel files) provides guidance for filing in the OMPF.  A letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed in the performance portion.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  A letter to be included in a Soldier's OMPF will be referred to the recipient concerned for comment according to AR 600-37, paragraph 3-6.
   	(1)  The referral will include reference to the intended filing of the letter.  This referral will also include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the letter, providing the recipient was not previously provided an opportunity to respond to information reflected in that documentation.  Additionally, documents, the release of which requires approval of officials or agencies other than the official issuing the letter, will not be released to the recipient until such approval is obtained.

    	(2)  Statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing in the OMPF.  This will be done before a final determination is made to file the letter.  Should filing in the OMPF be directed, the statements and evidence, or facsimiles thereof, may be attached as enclosures to the basic letter.

    	(3)  If it is desired to file allied documents with the letter, these documents must also be referred to the recipient for comment.  Care must be exercised to ensure additional unfavorable information is not included in the transmittal documentation unless it has been properly referred for comment.  It will:

    	(4)  Contain a statement that indicates it has been imposed as an administrative measure and not as a punishment under UCMJ, Article 15.

    	(5)  Be signed by (or sent under the cover or signature of) an officer authorized to direct such filing.

    	(6)  Be forwarded for inclusion in the performance portion of the OMPF only after considering the circumstances and alternative nonpunitive measures. Minor behavior infractions or honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier's OMPF.  Once placed in the OMPF, however, such correspondence will be permanently filed unless removed through the appeal process.

	c.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2b (Appeals for Transfers of OMPF Entries) contains guidance on transfers of OMPF entries.

    	(1)  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.  Such appeals will be considered only from enlisted Soldiers in grades E–6 and above and officers.
	
    	(a)  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.

		(b)  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.
 
    	(2)  An officer who directed the filing in the OMPF of an administrative letter of reprimand, admonition, or censure may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in
part.  The basis for such determination must be provided to the DASEB in sufficient detail so as to justify the request.  An officer who directed the filing of such a letter in the OMPF may not initiate an appeal on the basis that the letter has served its intended purpose.  However, a letter of support may be submitted with the recipient's appeal.

20.  AR 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.  The Authorized Documents table 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 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.

21.  AR 15-185 (ABCMR) provides DA policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.




DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the GOMOR, dated 8 March 2013, and all allied documents should be removed from the applicant's OMPF because the process was procedurally defective, in error, and unjust (i.e., neither he nor his attorney were shown all of the allied documents and he never had the opportunity to comment on the allied documents).  In addition, the GOMOR has served its purpose.  Further, the investigation was completed by an IO who showed bias and partiality by encouraging the applicant's spouse to lie and file criminal charges against him, and the IO made changes to the Army AR 15-6 investigation after it was referred to the applicant and he provided his response.

2.  Records show, on 21 November 2012, the Commander, AWG, appointed 
LTC G___ L___ as IO to investigate allegations of adultery, domestic violence, and improper use of government funds against the applicant.  

   a.  In an email, on 12 December 2012, the applicant's spouse informed him that LTC R____, the applicant's commander (emphasis added), had contacted her and provided advice on matters relating to their marital/domestic issues.  Thus, the evidence of record does not support the applicant's contention that the IO (emphasis added) encouraged his spouse to lie and/or file criminal charges against him.

	b.  The IO found, based on the preponderance of the evidence, the applicant did violate Article 92 (Failure to obey order or regulation), UCMJ, and that there was sufficient evidence to show he violated Article 107 (False official statements) and Article 121 (Larceny and wrongful appropriation), UCMJ.  The IO also determined there was insufficient evidence to support allegations of adultery or domestic violence.  Thus, the evidence of record does not support the applicant's contention that the IO demonstrated bias or partiality in his investigation.

    	(1)  The applicant was counseled, on 6 February 2012, on the misuse of his GTCC between October 2011 and January 2012.

    	(2)  The IO summarized the applicant's improper use of government funds between October 2011 and January 2012, and also beginning in July 2012 of more than 50 purchases totaling in excess of $3,000 during periods in which the applicant was not in a TDY status.

   c.  The IO recommended the applicant be relieved from his duties within the AWG and that he receive a GOMOR.  

    	(1)  On 25 January 2013, the applicant provided the Commander, AWG, detailed comments in a 4-page rebuttal to the IO's AR 15-6 investigation.

    	(2)  On 29 January 2013, the IO offered the Commander, AWG, two pages of information that specifically addressed the applicant's rebuttal comments regarding improper use of a GTCC and false official statements.

    	(3)  The applicant does not specifically identify the six pages that he contends were added to the AR 15-6 investigation subsequent to him submitting his rebuttal.  Thus, based on the available evidence, his contention cannot be substantiated.

   d.  The AR 15-6 was reviewed and was found legally sufficient.

   e.  The commander approved the findings and recommendations of the IO.

3.  On 8 March 2013, the applicant was reprimanded by MG M___ S. L____, 
CG, MDW, for misusing his GTCC and claiming entitlements to which he was not permitted.

   a.  The reprimand was imposed as an administrative measure and not as punishment pursuant to the UCMJ.  The CG, MDW, advised the applicant that he was considering filing the reprimand in his OMPF, but he would consider any written matters the applicant wished to submit before making his filing decision,

   b.  Records show the applicant acknowledged receipt of the GOMOR on
12 March 2013.  On 19 March 2013, he requested an extension to submit written matters in rebuttal based on not having received a copy of the GOMOR until [either] 17 or 18 March 2013.  He also requested copies of all documents referred to and relied upon by the CG, MDW, in issuing the GOMOR.

   c.  The evidence of record indicates the applicant was given an extension to submit written matters in rebuttal.
   
   d.  On 25 March 2013, the applicant submitted matters for consideration to the CG, MDW.  He noted he was not given a copy of the enclosures identified in the GOMOR:  specifically, "Enclosure 2:  AR 15-6 investigation was missing."  He addressed the two issues specified in the GOMOR (i.e., alleged misuse of his GTCC and claiming entitlements for which he was not permitted).

   e.  The evidence of record shows a letter to be included in a Soldier's OMPF will be referred to the recipient concerned for comment according to AR 600-37, paragraph 3-6.  It also shows this referral will include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the letter, providing the recipient was not previously provided an opportunity to respond to information reflected in that documentation (emphasis added).  The evidence of record shows the applicant was previously provided and afforded the opportunity to respond to the AR 15-6 investigation.  Thus, there was no requirement to provide the applicant another copy of the investigation.

   f.  On 10 April 2013, after careful consideration of the facts and circumstances pertaining to the applicant's case, the chain of command recommendations, and matters in rebuttal submitted by the applicant (emphasis added), the CG, MDW, directed the GOMOR be filed in the applicant's OMPF.

   g.  The applicant cites ABCMR Docket Number AR20090017281 that granted the petitioner relief by removing a LOR because there was no evidence the imposing authority considered the petitioner's rebuttal to the LOR or that he took final action on the LOR  (emphasis added).  The evidence of record clearly shows those matters are not at issue in the applicant's case.  Thus, the cited case is not applicable to the applicant's case.

4.  The evidence of record shows that, in accordance with the DoD guidance, "a progression of increasingly severe disciplinary measures" was appropriately used in the applicant's cases of instances of abuse.  He received counseling, on 
6 February 2012, on the use of his GTCC between October 2011 and January 2012 when he was not in a TDY status.  Then, on 8 March 2012, he was issued a GOMOR after having made more than 50 purchases worth more than $3,000 after being counseled (emphasis added) not to do so by his squadron commander and for wrongfully accepting money from the government by filing travel vouchers claiming per diem during days in which he was no longer in TDY status.  The GOMOR was imposed as an administrative measure and not as punishment pursuant to the UCMJ.  Thus, it is concluded that the chain of command acted prudently, reasonably, and proportionately in the administrative actions taken in the matter that is under review in this case.

5.  The evidence of record shows the GOMOR, dated 8 March 2013, along with the allied documents, are filed in the performance folder of the applicant's OMPF.
The applicant contends the intended purpose of the GOMOR has been served.

6.  By regulation, in order to transfer a GOMOR from the performance folder to the restricted folder of the OMPF there must be proof that the intended purpose has been served or that the transfer would be in the best interest of the Army.

   a.  The evidence of record shows that the Commander, AWG, advised the CG, MDW, "there are demonstrably untrue or misleading statements" in the applicant's rebuttal submissions to the GOMOR.

   b.  Throughout his 25-page, self-authored statement, the applicant contends that the IO was biased and lacked impartiality.  He supports his contention by continuously stating the IO improperly influenced his spouse in her statement and actions.  However, the evidence of record fails to support his contention.  In fact, records show the applicant's commander provided advice to the applicant's spouse.  
   
   c.  The evidence of record fails to show that the intended purpose of the GOMOR has been served and/or that the GOMOR should be transferred to the restricted portion of his OMPF.

7.  By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the GOMOR that is filed in the performance folder of his OMPF is untrue, in error, or unjust.  Therefore, the GOMOR, along with the allied documents, is deemed to be properly filed and should not be removed from the applicant's OMPF.

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)                                         AR20140021604



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ABCMR Record of Proceedings (cont)                                         AR20140021604



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