IN THE CASE OF:  	  

		BOARD DATE:  28 July 2015	  

		DOCKET NUMBER:  AR20150005447 


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:

* the removal from the performance folder of his official military personnel file (OMPF) of a General Officer Memorandum of Record (GOMOR) and all related documents
* promotion consideration to lieutenant colonel (LTC) by a special selection board (SSB) under the fiscal year 2012 (FY12) criteria
* as an alternative, the GOMOR and all related documents be moved to the restricted folder of his OMPF

2.  The applicant states: 

	a.  On 23 September 2013, he appealed to the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR issued to him on 12 September 2012 from his OMPF.  On 6 March 2014, the DASEB denied his request but determined there was sufficient substantial evidence to warrant the transfer of the GOMOR to the restricted folder of his OMPF.  

	b.  On 28 March 2014, Colonel (COL) MB issued a letter relating that Mr. WS, Deputy Director, Army Review Boards Agency (ARBA), unilaterally rejected the DASEB decision to transfer the GOMOR to the restricted folder of his OMPF.  On 28 March 2014, Mr. WS authored a memorandum for the Commander, U.S. Army Human Resources Command (HRC) stating the DASEB, by majority vote, recommended denial to remove the GOMOR but to approve transfer of the GOMOR.  However, after careful consideration of the facts and evidence, he decided to reject the Board's decision and denied the transfer of the GOMOR.

	c.  Due to the timing of the issuance of the GOMOR, 5 days prior to his being promoted to LTC, he was removed from the promotion list.  This was followed by a mandatory 1 year waiting period before he could submit an appeal, in addition to administrative delays at HRC.  Thus, he was not afforded an opportunity to have the GOMOR removed and be seen by a promotion board without prejudice for two promotion boards following the GOMOR.

	d.  In the DASEB decision, Mr. WS outlined a number of concerns and factors that contributed to the denial of the transfer of the GOMOR.  He asserted that:  (1)  The appellant received one officer evaluation report (OER) outside the period of the reprimand; (2)  He had not presented supporting statements from his chain of command recommending transfer of the GOMOR; (3)  He had not presented sufficient evidence to show why transfer of the GOMOR would be in the best interest of the Army; and, (4)  At the time the GOMOR was issued, he accepted it as proper and just.

	e.  Mr. WS alone asserted that he (the applicant) believed the action was untrue and/or unjust and that he did not accept responsibility for his role in the matter.  He asserted that "insufficient foundation for a transfer existed owing to an absence of supporting recommendations from appellant's leadership, and limited evaluations allowing full assessment of potential for continued service, last OER had a through date of 3 May 2013."  Since his appeal to the DASEB, he has worked diligently to address and satisfy the concerns set forth by Mr. WS.

	f.  Mr. WS related that he received one additional OER since the reprimand depicting a solid performance but it only covered 7 months.  He failed to take into account the OER he received 15 days after the GOMOR wherein his senior rater, COL MG, and the brigade commander that initiated the GOMOR stated that he provided, "An excellent performance by a truly dedicated member of the team, excellent potential for positions of increased responsibility in the Logistics Corps, promote to LTC and assign to positions of increased responsibility."  There were no character flaws annotated on this OER and no mention of the GOMOR. 

	g.  Since the second OER after the GOMOR, he received an additional OER covering the rated period 4 May 2013 through 30 April 2014.  His rater, LTC KN, maintained that he was essential to the Army and was one of the top majors (MAJs) she had known in her 18 year career.  She evaluated his performance over the past year as "Outstanding Performance, Must Promote."  His senior rater, COL DP, proclaimed that he was in the top two of all the MAJs he had served with in 24 years.  He further related that he had unlimited potential for continued service at any level and should be promoted to LTC immediately.  None of his raters made mention of the GOMOR and they all supported his retention and promotion to the next level.

	h.  Mr. WS discussed the fact that he had not received any awards or completed any military schooling since the GOMOR.  In October 2012, approximately 15 days after the GOMOR, he received the Bronze Star Medal for meritorious service in support of Operation Enduring Freedom (OEF) when he was in Afghanistan.  During 2013, he completed the Joint Humanitarian Operations Course (JHOC).  The course was established in 2004 by the Department of Defense for a select group of military leaders/planners to discuss the relationship between the Office of Foreign Disaster Assistance and its partners. 

	i.  In addition to the letter of support from Brigadier General (BG) AH, he is providing seven additional letters of support from his subordinates, peers, chain of command, and a general officer (GO).  Without exception, everyone of them recommends removal or transfer of the GOMOR and asserts it would be in the best interest of the Army to retain him and promote him.  As evidenced by his latest OER and letters of support, his command and peers truly believe the GOMOR was either unjust or has served its intended purpose and it would be in the best interest of the Army to transfer or remove the GOMOR.

	j.  In the DASEB Record of Proceedings (ROP), the analyst stated at the time the GOMOR was issued he indicated he accepted it as just and proper and he now contends it was untrue and/or unjust and does not accept full responsibility for his role in the incident.  He believes he should not be prejudiced for taking the legal advice provided to him at the time.  When he received the GOMOR, he had no idea of the devastating effect it would have on his distinguished and coveted career.  He had limited time to respond to the GOMOR and received limited support by his legal counsel, Captain (CPT) JS, who was located in Bagram while he was located at Forward Operating Base (FOB) Salerno.

	k.  At the time, his objective was to accept what was issued to him and attempt to mitigate his action by explaining the motive behind his actions rather than get into the legal and administrative arguments.  Primarily this was because he did not have ample time to prepare such arguments and he was told by his legal counsel that the GOMOR was expected to be a brigade level reprimand.  The entire reason he flew to Hawaii was to be with his wife who just received news that she tested positive for cancer.  After understanding the long-lasting and destructive effect of the GOMOR, he had no choice but to fight for his career and this included a legal attack on the GOMOR itself.

	l.  On 17 November 2014, HRC directed a board of inquiry meet and, while finding he had a GOMOR in his record, the board recommended he be retained on active duty.  On 26 January 2015, Major General (MG) D, the general court-martial convening authority, recommended he be retained and forwarded the action to HRC.  His entire chain of command spoke and/or provided written support on his behalf requesting for him to be retained, the GOMOR be removed, and he be allowed the opportunity to be promoted.

	m.  COL LK, the U.S. Army Pacific (USARPAC) G-4, testified that he easily performed at LTC capacity, stated he had great values, never questioned his character, and recommended he continue to serve in the Army.  He also stated the fact that he had a GOMOR in his record and was still rated for promotion said a lot.  COL DP, his current senior rater, and COL (Retired) FB, his previous senior rater, recommended retaining him, removing the GOMOR, and sending him to an SSB.

	n.  If he had the opportunity to do it again, there is no doubt he would do it differently.  He must be accountable for everything he does.  He recognizes that he is bound by Army rules and regulations and that ignorance is never an excuse (emphasis added).  He made an error in judgment; he now holds himself against much higher standards than before and will never make such a mistake again.  As displayed by his Army career and the people who surround him, he believes he is a tremendous asset to the Army.  Ultimately, it would be in the best interest of the Army if he is allowed to continue to serve, the GOMOR is removed from his OMPF, and he is considered for promotion to LTC by an immediate SSB.  Alternatively, he requests the GOMOR be transferred to the restricted portion of his OMPF.

	o.  He asks this request be expedited as, although he would like to be promoted to LTC and continue to serve, due to a result of administrative actions by the DASEB and administrative delays by HRC, he anticipates retiring on 30 September 2015.

3.  The applicant provides a/an:

* memorandum, dated 27 February 2015, with attached Summary of Proceedings (SOP)  
* DASEB memoranda, dated 28 March 2014
* letter, dated 28 March 2014
* DASEB ROP, dated 6 March 2014, with attachments
* seven letters of support
* a letter to the promotion review board from BG AH, dated 4 October 2012
* two DA Forms 67-9 (OER)
* DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-C5) OER)
* two certificates
* four pages of email, dated between 25 August and 6 September 2012

CONSIDERATION OF EVIDENCE:

1.  Having had prior Reserve service, the applicant was serving on active duty as a Regular Army CPT and he was promoted to the rank/grade of MAJ/O-4 on 2 April 2006.  

2.  On 10 December 2011, he was assigned to Headquarters and Headquarters Company (HHC), 4th Brigade Combat Team (BCT), 25th Infantry Division (ID), FOB Salerno, Afghanistan, in support of OEF, as the Executive Officer (XO) for the Security Forces Assistance Team (SFAT) Afghanistan.

3.  He was considered and selected for promotion to LTC by the FY12 LTC, Army, Force Sustainment Promotion Selection Board.

4.  In July 2012, he was sent from Afghanistan on temporary duty (TDY) to the Joint Readiness Training Center (JRTC), Fort Polk, LA, and he returned to his unit in Afghanistan on or about 10 August 2012.  

5.  On 12 September 2012, he was issued the GOMOR by BG JC, Deputy Commanding General, Combined Joint Task Force (CJTF)-1, Regional Command-East, Afghanistan.  BG JC, in part, stated:

	a.  He was reprimanded for conduct unbecoming an officer and for taking unauthorized travel from 4 to 8 August 2012.  While awaiting a military flight back to Afghanistan, he traveled to Hawaii without the proper request or approval.  Furthermore, he failed to notify anyone in his command about the unauthorized travel.  He (BG JC) would not tolerate this type of behavior by a member of his command.

	b.  The applicant lacked judgment, maturity, and discretion when he, an experienced commissioned officer, failed to follow proper procedures to obtain leave or a pass before departing his duty location.  As a commission officer and standard-bearer, his actions must be without reproach.  It was his duty to lead by example and he had clearly failed to do so.  By making no effort to notify anyone in his chain of command about his travel, he brought discredit upon himself and required BG JC to seriously question his integrity, judgment, and sense of responsibility.  

	c.  The reprimand was administrative in nature and was not imposed as punishment under Article 15, Uniform Code of Military Justice.  He was considering filing the GOMOR in the applicant's OMPF but would consider any written matters he submitted prior to making the final filing decision.

6.  In a statement dated, 14 September 2012, the applicant, in part, stated:

	a.  He regretted not informing his chain of command of his change in locations, he accepted the GOMOR as just and proper, he asked the GOMOR be filed in his local file, and that mitigating circumstances be considered before the filing decision was made. 

	b.  His team arrived at Fort Polk on 20 July 2012, conducted the training, and departed on 2 August on 2012, on different flights to Baltimore, MD, to catch the weekly flight to Afghanistan.  Through no fault of his own, his flight arrived in Baltimore after the flight to Afghanistan departed.  He informed his CJTF point of contact (POC) that he would be delayed approximately 9 days until the next scheduled flight and he would be staying with his brother in Baltimore to save money on billeting.  No further direct contact was received or sent from his team or CJTF until he was boarding the flight to return to Afghanistan on 9 August 2012

	c.  Originally, he intended to stay with his brother in Baltimore (not Alabama as referenced in the packet), saving over $1,000 in hotel charges while spending a week with brother and his son that he had not seen since birth.  Two days into his stay, he received a call from his wife stating she needed him and that she had already purchased him a plane ticket.  She told him she had received the results from a precautionary test she took after her sister was diagnosed with breast cancer the previous year.  His wife's test came back positive for the same type of caner.

	d.  The plane ticket she purchased had him departing within a couple of hours and returning over 36 hours prior to manifest of the flight back to Afghanistan.  He had not had any contact with his POC for 2 days and the last time it took several hours to receive a reply.  At this point, he had to make the decision to use the $2,000 plane ticket or email his POC and wait for approval.  Understanding there was no impact to the mission, he chose to be with his wife in this time of family crisis.

	e.  Once he arrived home to Honolulu, HI, his wife informed him that she required further testing to discover the full extent of upcoming surgeries.  Not counting travel time, he was home for about 60 hours.  They spent the first night talking, crying, going over courses of action, and planning upcoming surgeries.  The next 2 days they spent trying to occupy themselves with something more joyful, including going to the beach. 

	f.  He left for Baltimore on 7 August 2012 and arrived on 8 August 2012.  He spent the night with his brother and boarded the plane on 9 August 2012 for his return flight to Afghanistan.  Upon his return to FOB Salerno, he went directly to COL MG in order to back brief him on the TDY trip.  It was evident that LTC JK informed COL MG about his trip home from information he received from his (the applicant's) Facebook account.  His loyalty to COL MG was beyond approach but he was unable to inform him of the purpose of his trip home without his wife's consent.  He fumbled to explain but at no time did he lie, mislead him, or deny the trip; he remained silent and waited to be dismissed.

	g.  Without a doubt, it had been the most difficult time of his and his wife's life. His decision to return home was not made with malice or forethought, and he did not intend to mislead his chain of command.  He failed to inform his chain of command because he was not thinking straight, he was confused, worried, and his mind was in a different place.  His sole focus was the health and welfare of his wife and family.  He deeply regretted his failures and apologized to his chain of command for the time and problems this had caused.  

7.  On 21 September 2012, after reviewing the applicant's response and his chain of commander recommendations, BG JC, the imposing commander directed the GOMOR be filed in his OMPF.  In a handwritten note on the filing determination, BG JC wrote that "I have considered all matters of extenuation and/or mitigation and this field grade officer knowingly went absent without leave (AWOL) and made no attempt to gain permission for emergency or ordinary leave."  

8.  This GOMOR, his rebuttal, and the filing decision are currently filed in the performance folder of his OMPF.

9.  In September 2012:

	a.  He was awarded the Bronze Star Medal for exceptionally meritorious service in support of OEF Afghanistan from 10 December 2011 to 20 September 2012.

	b.  He received an OER covering the rated period 16 May 2012 through 6 October 2012 wherein he received "Outstanding Performance, Must Promote" and "Best Qualified" ratings.

10.  In October 2012, he was assigned to Headquarters and Headquarters Battalion (HHB), USARPAC, Fort Shafter, HI, as the Army Service Component Command (ASCC) Logistics Planner.

11.  A promotion review board (PRB) subsequently convened and recommended the applicant's name be removed from the promotion selection list.  In a memorandum, dated 11 February 2013, the Secretary of the Army directed the applicant be removed from the FY12 LTC, Army, Force Sustainment Promotion Selection Board List under the provision of Army Regulation 600-8-29 (Officer Promotions), paragraph 8-1b.

12.  In April 2013, he received an OER covering the rated period 7 October 2012 through 3 May 2013 wherein he received "Outstanding Performance, Must Promote" and "Best Qualified" ratings.

13.  The applicant provides a certificate, undated, wherein is shows he completed the JHOC in Honolulu, HI, 2013.

14.  On 23 September 2013, he submitted a request to the DASEB requesting the GOMOR be removed from his OMPF as it was untrue and unjust.

15.  On 6 March 2014, the DASEB determined by a unanimous vote that the GOMOR was not untrue or unjust and did not merit the removal from his OMPF.  By a majority vote, the DASEB determined there was sufficient evidence to warrant partial relief by transferring the GOMOR to the restricted folder of his OMPF.  However, acting within his proper authority, the Deputy Director, ARBA, subsequently rejected the DASEB decision and denied transfer of the GOMOR.  In a memorandum, dated 28 March 2014, the applicant was notified of the denial and that it was determined there was an insufficient foundation to transfer the GOMOR at that time.

16.  On 28 March 2014, by memorandum, DASEB notified HRC of the DASEB determination and subsequent action by the Deputy Director.  This memorandum is filed in the performance folder of the applicant's OMPF.

17.  In July 2014, he received an OER covering the rated period 4 May 2013 through 3 May 2014 wherein he received "Excels" and "Highly Qualified" ratings.

18.  The applicant provides seven letters of support, dated between 8 July and 18 September 2014, wherein his superiors, peers, and subordinates stated that since the GOMOR the applicant had made positive changes to improve at the professional and personal level, he learned from his transgression, he was a critical asset to the Army, he was a great officer and leader, and it was in the best interest of the Army for him to be retained and promoted to LTC.

19.  On 28 January 2015, the results of a board of inquiry was approved and the it was determined the applicant would be retained on active duty without reassignment.

20.  Army Regulation 600-37 (Unfavorable Information) provides that:

   a.  An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

   b.  A GOMOR may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the GOMOR is to be filed in the OMPF, the recipient's submissions are to be attached.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

21.  Army Regulation 600-8-22 prescribes the officer promotion function of the military personnel system.  

	a.  Chapter 7 provides for SSBs and states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:  (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list; (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or (3) The board that considered an officer from in or above the promotion zone did not have before it some material information.
	b.  Paragraph 8-1b states, in part, The President, or his designee, may remove the name of an officer in a grade about second lieutenant from a list of officers recommended for promotion by a board of officers.  This authority has been delegated to the Secretary of the Army.  PRBs are used to advise the Secretary of the Army in any case in which there is cause to believe an officer on a promotions list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected from promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR, received on 12 September 2012, should be removed from his OMPF and he should be given an SSB for promotion consideration to LTC, or, as an alternative, the GOMOR should be transferred to the restricted folder of his OMPF.  

2.  The evidence of record confirms he received a GOMOR for taking unauthorized travel to Hawaii while awaiting a military fight to travel back to Afghanistan.  

3.  The applicant, a field grade officer and promotable MAJ, was reprimanded for conduct unbecoming an officer by failing to obtain leave, a pass, or letting his chain of command know about his travel when he essentially went AWOL for 4 days.  He failed to lead by example and his actions showed he lacked judgment and maturity.  

4.  In February 2013, acting within his authority and in accordance with governing regulations, the Secretary of the Army directed he be removed from the FY12 LTC promotion selection list.  

5.  In March 2014, acting within his authority and in accordance with governing regulations, the Deputy Director, ARBA, rejected the DASEB decision to transfer the GOMOR to the restricted folder of the applicant's OMPF and determined he had not presented a sufficient foundation that showed the transfer was in the best interest of the Army at that time.

6.  This Board is generally reluctant to remove adverse information from an OMPF when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does remove



unfavorable information, it only does so if it is untrue or unjust.  In this case, the evidence presented does not show that the GOMOR is untrue or unjust.  

7.  However, a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  There is no doubt that after his mistake in 2012 the applicant has rebounded in an outstanding manner.  He accepted responsibility for his actions and has taken steps toward improving himself both personally and professionally.  Since the GOMOR, he received two best qualified OER ratings, one highly qualified rating, and he was awarded the Bronze Star Medal.  It has now been almost 3 years since he received the GOMOR and the GOMOR appears to have served its intended purpose.

8.  Therefore, in the interest of justice, the GOMOR issued on 12 September 2012 and the DASEB memorandum dated 28 March 2014 should be transferred to the restricted folder of his OMPF.

9.  With respect to an SSB, promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The applicant has not provided any evidence that shows a material error existed in his records that would meet the criteria for consideration by an SSB.  His records show he was appropriately removed from the LTC promotion list by the Secretary of the Army.  There was no error or injustice.  Therefore, there is no basis for an SSB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring from the performance folder to the restricted folder of his OMPF the:

* GOMOR, issued on 12 September 2012, and related documents
* DASEB memorandum, dated 28 March 2014
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the GOMOR from his OMPF and an SSB. 



      ___________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)                                         AR20150005447





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ABCMR Record of Proceedings (cont)                                         AR20150005447



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