BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150003515 


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, in effect, a waiver of 38 days until he reaches 
15 years or a separation extension granted until 7 June 2015, for the purpose of retiring under the Temporary Early Retirement Authority (TERA).

2.  The applicant states, in effect: 

	a.  The viewing of his General Officer Memorandum Of Reprimand (GOMOR) by the Officer Separation Board (OSB) due to the reduction in force was an infraction because he was not given the opportunity to review the GOMOR documentation or provide comments since it did not post into his official military personnel file (OMPF) (previously known as the Army Military Human Resource Record) in iPERMS until 23 April 2014.  

	b.  Per My Board File (MBF) email notification, his MBF closed on 21 April 2014.  The purpose of the U.S. Army Human Resources Command (HRC) MBF was for every Soldier to view, verify, and if necessary, provide comments on all documents posted for the reduction in force OSB.  The GOMOR, dated 19 December 2013 and initially filed within his local file, did not post to his OMPF in iPERMS until 23 April 2014.  He was not given the opportunity to review the GOMOR documentation, which did not include the complete final civilian court findings throwing out the blood alcohol content from the record, within his board file.  Therefore, he was neither provided the opportunity to comment on the GOMOR nor note within his MBF a future appeal of the unfavorable information.   

	c.  Per the Inspector General (IG) letter, his GOMOR was viewed by the OSB. The GOMOR addition to his file missed the OSB file closing suspense and he was not able to review or comment on the documentation; therefore, its inclusion within his MBF was an infraction.  According to Military Personnel (MILPER) Message Number 13-374 (Amendment to the Fiscal Year 2014 (FY14) OSB and Enhanced Selective Early Retirement Boards (E-SERB), Major (MAJ), Army Competitive Category (ACC)).  HRC must receive all OMPF update submissions no later than 11 April 2014.  He was not notified by his supervisor until 18 April 2014 to acknowledge the Commanding General’s decision, dated 9 April 2014 (included within the GOMOR packet), to post the GOMOR into his permanent file.  He provided an immediate response to this notification on 18 April 2014.

3.  The applicant provides:

* Legal opinion from his legal Assistance Attorney
* Personal statement 
* MF Notification 
* IG letter
* MILPER Message 13-374
* Response to officer elimination
* Leave and Earnings Statement
* Chronological Record of Medical Care

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve on 19 July 1996 for the purpose of attending the U.S. Military Academy Preparatory School, Class 1996/1997. 

2.  He entered active duty on 19 July 1996 and he was honorably released from active duty on 29 June 1997 to enter a service academy.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 
11 months and 11 days of active service. 

3.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 2 June 2001.  

4.  He entered active duty on 2 June 2001 (not 21 June 2000 as his final 
DD Form 214 shows) and he completed the Infantry Officer Basic Course.  He served in a variety of stateside or overseas assignments, including Kuwait, Iraq, and Afghanistan, and he was promoted to MAJ on 1 June 2011. 

5.  He was assigned as the Command Deputy Officer for the Army Cyberspace Operations and Integration Center, Network Command, Fort Belvoir, VA. 

6.  On 19 December 2013 he was reprimanded by the Commanding General (CG), U.S. Army Military District of Washington (MDW) for misconduct.  The GOMOR states on 17 November 2013, he was pulled over for speeding in Prince William County and as the investigating officer approached the applicant’s vehicle, he smelled alcohol.  The applicant performed poorly on a series of field sobriety tests and was later administered a breathalyzer test that indicated his blood alcohol content (BAC) was .21g/210L of breath, which is a violation of Virginia law and the Uniform Code of Military Justice.  The GOMOR also stated the applicant could have killed or injured someone or himself driving with such high level of intoxication.  His actions indicated poor judgment and brought discredit on himself and his unit. 

7.  On 2 January 2014 the applicant acknowledged receipt of the GOMOR and on 4 January 2014, he submitted a response to mitigate the GOMOR.  He stated that he had some beers throughout the evening and with poor judgment, he decided he was not too impaired to drive.  He took full responsibility for his actions but disagreed with a statement in the arresting officer's report.  He added that he had not drank any alcohol since this "driving under the influence (DUI)" incident and he was enrolled in the Army Substance Abuse Program.  

8.  On 9 April 2014 after careful consideration of the applicant's case, his rebuttal, and the chain of command’s recommendations, the imposing officer, the CG, MDW ordered filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance folder of his OMPF.

9.  On 9 January 2015 a field Board of Inquiry (BOI) convened to consider whether the applicant should be eliminated from the service for acts of personal misconduct.  The board recommended separation with a general discharge.  The applicant submitted appellate matters and on 9 February 2015, the General Officer Show Cause Authority recommended the applicant’s separation with a general discharge.  It was noted in the appellate matters and by his chain of command that the applicant had been selected for separation by the OSB that convened in April 2014.  His designated date was 1 May 2015.  

10.  On 12 February 2015, by letter to the Deputy Under Secretary of the Army (Review Boards) (DASA (RB)), an official at HRC stated elimination action was initiated by the CG, U.S. Army Installation Management Command, Fort Belvoir, on 15 October 2014, in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4, paragraph 4-2(b), for misconduct, moral or professional dereliction of duty.  The General Officer Show Cause Authority approved the Field BOI and recommended that the officer be discharged with a General, Under Honorable Conditions characterization of service.  

11.  On 11 March 2015 by memorandum, the DASA (RB) ordered and stated on 9 January 2015, a BOI recommended [Applicant] be involuntarily eliminated from the United States Army based on misconduct and moral or professional dereliction, with a General (Under Honorable Conditions) characterization of service.  An Ad Hoc Review Board subsequently reviewed this case.  The DASA (RB) determined the applicant would be involuntarily eliminated from the United States Army with a General (Under Honorable Conditions) characterization of service.  This elimination is based on misconduct and moral or professional dereliction (Army Regulation 600-8-24, paragraph 
4-2b) and recoupment action would be conducted in accordance with Army Regulation 600-8-24, paragraph 1-16, and Title 10, U.S. Code, section 2005.

12.  The applicant was discharged from active duty on 10 April 2015.  His 
DD Form 214 shows he was discharged by reason of unacceptable conduct with an under honorable conditions (general) characterization of service.  His 
DD Form 214 also shows: 

* he entered active duty on 21 June 2000 (instead of 2 June 2001)
* he completed 13 years, 10 months, and 9 days of active service (from 
21 June 2000 to 10 April 2015)
* he completed 11 months and 26 days of prior active service
* his total active service equals 14 years, 10 months, and 5 days 

13.  He provides, in effect: 

	a.  A letter dated 29 October 2014, from the Fort Meade, MD Office of the Inspector General that states this letter was in response to his request concerning assistance with determining if his GOMOR was reviewed by his OSB, and the process for appealing the results of the OSB.  The IG initiated a thorough inquiry into his request for assistance.  After consulting with HRC IG, the inquiry determined that his GOMOR was permanently filed and reviewed by the OSB. 

	b.  A letter, dated 27 February 2015, from a Fort Belvoir Legal Assistance Attorney who states: 

		(1)  He reviewed documents provided by the applicant to this Board relating to the decision of the OSB.  It appears the GOMOR, dated 19 December 2013 was unjustly considered without providing all opportunity to the applicant to address this issue in his board packet.  Given the OSB's decision to separate him, he requests the ABCMR alter the OSB's decision to allow him to retire under TARA rather than merely overturn the separation.

		(2)  According to the applicant's statement to this board and the supporting evidence, the file that was to be presented to the OSB was available from 20 January to 21 April 2014.  However, the 19 December 2014 GOMOR was not added to the file until after that date, specifically on 23 April 2014.  As such, the applicant was not able to review any documentation provided to the OSB concerning the GOMOR and to address it in any way with the OSB.  This is a substantive and procedural due process violation.

		(3)  While it is impossible to know how the GOMOR actually affected the OSB's decision, to consider a piece or information as important as a GOMOR without the knowledge of a member and thus preventing an opportunity to address the issue to the OSB is all obvious injustice.  Due to these facts, he is not seeking to reverse the OSB's decision, only alter it.  He is seeking the Board's authority to remove this injustice.  He has presented evidence in support of allowing him to retire under TERA.

14.  An advisory opinion was received from the G-1/Officer Division at HRC on 8 September 2015 in the processing of this case.  An advisory official considered the documents provided by the applicant, including the IG's statement and the legal Assistance Attorney's argument, and recommended disapproval of his request.  The advisory official stated: 

	a.  This responds to the applicant's application for a waiver of 38 days of active service or an extension of his mandatory separation date in order to qualify for retirement under TERA.  The applicant was processed for elimination by a BOI convened under the provisions of AR 600-8-24, chapter 4, as a result of conduct for which he received a GOMOR, and was afterward considered for early separation by the FY14 OSB, ACC. 

	b.  Official Army records maintained by HRC indicate that on 19 December 2013, the Commanding General, U.S. Army MDW, issued a GOMOR to the applicant for failure of a Breathalyzer and poor performance on a series of field sobriety tests that occurred on 17 November 2013.  [Applicant] acknowledged receipt of the GOMOR on 2 January 2014 and submitted written matters on his behalf on 4 January 2014.  On 9 April 2014, after consideration of his response, the imposing officer directed filing of the GOMOR in his OMPF in accordance with Army Regulation 600-37 (Derogatory Information). 


	c.  On 15 October 2014, the CG initiated a BOI and notified [Applicant] he was required to show cause for retention.  He acknowledged the notification on 17 October 2014 and the BOI convened on 9 January 2015.  The BOI recommended elimination and the DASA ARBA approved his elimination on 
11 March 2015.  As a result, on 10 April 2015, the applicant was discharged for unacceptable conduct with a characterization of service as under honorable conditions (general).  

	d.  He contends he suffered an injustice because his GOMOR was filed in his OMPF and in his MBF after the date he reviewed and certified his MBF (21 April 2014), and he was not given the opportunity to review the GOMOR documentation and provide comments prior to the convening of the OSB.  A review of his OMPF confirms the GOMOR was added on 23 April 2014 and was included in his MBF and considered by the OSB.  However, certification by an officer of his or her MBF only indicates agreement by the officer that the record is accurate and complete as of the date of certification; it does not prohibit or prevent filing of authorized documents in the officer's OMPF at any time subsequent to MBF certification.  Nevertheless, his contention that he was not given the opportunity to review the GOMOR documentation and provide comments prior to the convening of the OSB is untrue because he previously received and provided comments in response to the GOMOR.  On 9 April 2014 when the imposing officer provided a copy of the decision, which was 13 days before he certified his MBF.

	e.  While he was selected for early separation by the OSB, his separation from the Army was as a result of the approved elimination by the DASA ARBA, and not the OSB selection.  Therefore, a review of the GOMOR by the OSB is immaterial as it relates to his discharge from the Army.  He was not qualified for TERA on the date of his discharge because he had less than 15 years of active service and was otherwise ineligible to request TERA because he was not separated as a result of a centralized selection board. 

15.  The applicant was provided a copy of this advisory opinion but did not respond. 

16.  Army Regulation 600-8-24 prescribes the officer transfers from active duty (AD) to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  

	a.  Chapter 4 states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.

	b.  Paragraph 4-2 (Reasons for elimination) states elimination action may be or will be initiated as indicated in this paragraph.  One of the reasons listed in sub-paragraph 4-2(b) is misconduct, moral or professional dereliction, or in the interest of national security. 

	c.  Paragraph 4-6 (BOI) states the Board of Inquiry’s purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army.  Through a formal administrative investigation and this regulation, the BOI establishes and records the facts of the Respondent’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer’s disposition, consistent with this regulation.  The Government is responsible to establish, by preponderance of the evidence, that the officer has failed to maintain the standards desired for their grade and branch in the absence of such a showing by the Government, the board will retain the officer.  However, the respondent is entitled to produce evidence to show cause for his retention and to refute the allegations against him.  The Respondent’s complete OMPF will be entered in evidence by the Government and considered by the Board of Inquiry.  

	d.  Paragraph 4-17 (Board of Review) states an officer recommended for elimination by a BOI will have their case referred to a Board of Review.  The Board of Review is appointed by the Secretary of the Army or his designee and has the same board composition as the BOI.  The Board of Review, after thorough review of the records of the case, will make recommendations to the Secretary of the Army or his designee as to whether the officer should be retained in the Army.  

17.  MILPER Message 14-308 (TERA), dated 17 October 2014 provides guidance in support of TERA.  TERA offers voluntary early retirement, at a reduced monthly retirement pay, to eligible members prior to completing 20 years of active service.  It applies to Soldiers who are denied continued service with an established involuntary separation date of 30 September 2018 or earlier, as a result of Department of the Army centralized separation board process.  TERA is not an entitlement and eligible members must apply for consideration.  Officers who are twice non-selected for promotion to the next higher grade or who have been selected for separation by a force-shaping centralized board selection process may apply.  In all cases, early retirement will not occur prior to attainment of 15 years of service on the established separation date.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR for misconduct on 19 December 2013.  He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision and he did so.  After careful consideration of the applicant's case, his rebuttal, and the chain of command's recommendations, the imposing officer ordered filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance folder of his OMPF.

2.  Because his OMPF contained derogatory information, his file was considered by a BOI which did not select him for retention.  The GOMOR was filed in his OMPF on 23 April 2014 and was included in his MBF that was considered by the OSB.  His certification of his MBF only indicates his agreement that the record is accurate and complete as of the date of certification.  This did not prohibit or prevent filing of authorized documents in his OMPF any time subsequent to the MBF certification.  Additionally, he previously acknowledged receipt of the GOMOR and provided a rebuttal which was considered by the imposing officer.  The review of the GOMOR by the OSB is immaterial as it relates to his discharge from the Army.

3.  He does not meet the criteria for early retirement for two reasons: 

	a.  First, TERA applies to Soldiers who are denied continued service with an established involuntary separation date of 30 September 2018 or earlier, as a result of the Department of the Army centralized separation board process.  The applicant was separated by reason of misconduct.  He was neither twice non-selected for promotion to the next higher grade nor selected for separation by a force-shaping centralized board selection process.

	b.  Second, he did not have 15 years of active service on the date of discharge.  

4.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit upon the Army or is prejudicial to good order and discipline.  The applicant was a commissioned officer in a position of trust and authority.  He violated this trust. 






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)                                         AR20150003515



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ABCMR Record of Proceedings (cont)                                         AR20150003515



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