MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            19 January 2000
	DOCKET NUMBER:   AR2000034980

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  The removal of a general officer memorandum of reprimand (GOMOR) dated 11 March 1997, a letter from an attorney dated 21 March 1997, and an officer evaluation report (OER) from his Official Military Personnel File (OMPF). 

APPLICANT STATES:  In effect, that he received the GOMOR in March 1997 for the wrongful use of a government credit card, for failure to pay his just debts, and for writing bad checks.  In November 1997 he was removed from the Command and General Staff College (C&GSC) selection list and was subjected to elimination action (show-cause) in April 1999.  He goes on to state that the Commanding General (CG) who imposed the GOMOR informed the Commander, Total Army Personnel Command (PERSCOM) in writing that it was his intent that he (the applicant) not attend C&GSC but that the applicant should be retained on active duty and that he not have to show cause for retention on active duty at that time.  As a result, the Commander, PERSCOM  terminated the show-cause action.  He goes on to state that while he did not have to appear before a show-cause board at that time, he will be subject to show cause in future boards because of the presence of the GOMOR and the OER in his records.  This amounts to double-jeopardy because he has already been acquitted of the charge and may in effect be tried for the same offense twice.  He goes on to state that his top secret security clearance was also suspended when he received the GOMOR and has since been reinstated in May 1999, once he got his personal affairs in order.  He continues by stating that he received the GOMOR and OER for the same personal hardship, that he was in serious financial hardship, that he made several bad decisions in addressing the problems, that he accepts full responsibility but that his financial crisis was caused in part, by the fact that he was not paid, through no fault of his own during 7 months of deployment during Operation Desert Storm.  He goes on to state that one mistake in a spotless 14 year career should not end his career or ruin the lives of his wife and six children.  He also states that he did not appeal the OER to the Officer Special Review Board (OSRB) because they do not have the authority to remove the report and it does not contain administrative or substantive error.  He further states that his demonstrated performance and potential have been exemplary both prior to and subsequent to the incident in question, that by having his security clearance restored and not having to show cause for retention should be sufficient to show that he should be afforded the opportunity to continue his service in the Army and to have the documents removed from his records.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned as a USAR second lieutenant on 11 June 1983.  He entered active duty on 26 July 1985 and accepted a Regular Army appointment on 27 August 1985.  He was promoted to the rank of major on 1 May 1996.

On 11 March 1997, while serving as an instructor at the United States Military Academy (West Point), he was issued a GOMOR by the Commandant, in which he was reprimanded for his conduct in wrongfully and intentionally using his government sponsored American Express (AMEX) card for personal expenses not relating to his official duties, dishonorably failing to pay his just debts, and writing checks with insufficient funds to pay the AMEX bill.  The details of his misconduct in the matter are explained in the enclosed GOMOR.

The GOMOR was referred to the applicant, who elected on 13 March 1997 to submit matters in his own behalf before a final filing decision was made.

The applicant retained civilian counsel who submitted a statement (see attached) on behalf of the applicant on 21 March 1997 to the Commandant, explaining in detail the events that occurred, to include the corrective actions taken by the applicant and requesting that the Commandant consider not only the applicant’s outstanding record of service but the desire of his family to remain in the service as well.   His counsel also noted that the applicant had not been paid for the 7 months he served in Southwest Asia and while he has not denied the mistakes he made, he deserves another chance to prove his value to the Army.

On 18 April 1997, the Commandant directed that the GOMOR be filed in the applicant’s OMPF.

The Commandant subsequently sent a memorandum to the Commander, PERSCOM on 5 May 1997 indicating that it was his intent that the GOMOR be placed in his OMPF and that he be prevented from attending C&GSC.  He further stated that he believed that those two actions were appropriate and sufficient in light of the applicant’s inability to manage his personal finances.  He also stated that the applicant should be allowed to remain of active duty for a reasonable period of time during which he should demonstrate that he has truly put his personal affairs in order.  He recommended that a show-cause board not be convened at that time and indicated that aside from the incident involving his personal finances, his duty performance had been commendable and that his talents will benefit the Army at the field grade level. 

On 22 July 1997 the applicant received an annual OER covering the period from 11 July 1996 to 10 July 1997 evaluating him as an operations officer, Cadet basic training instructor.  

In part IVa, under Performance Evaluation/Professionalism he received a “2” rating under “displays sound judgement”.  The supporting comments indicate that he made a poor personal financial management decision.  He received “1” ratings in the remaining 13 areas.

The rater also deemed that the applicant always exceeded requirements and that he should be promoted ahead of his contemporaries.  The supporting comments were very complimentary of his performance and potential.

In part VII, under senior rater (SR) potential evaluation, the SR (a colonel) placed the applicant in the second block under potential evaluation.  This placed the applicant below center of mass (COM) in the SR’s profile.  The supporting comments indicate that the applicant should be promoted to the rank of lieutenant colonel, that he had excellent potential, and that he was a solid infantry officer.  The report was considered adverse and was referred to the applicant for comment; however, the applicant did not submit a rebuttal to the OER.  

He was transferred to Fort McPherson, Georgia with temporary duty en route to attend the Public Affairs Officers (PAO) Course.

The applicant was notified on 21 October 1997 that his security clearance access was suspended pending final adjudication by the Army Central Clearance Facility.  The applicant was given until 1 December 1997 to submit matters in his own behalf.

On 25 November 1997 the applicant was notified by the PERSCOM, Director of Officer Personnel Management, that based on his having received a GOMOR for the wrongful and intentional use of a government AMEX card, his records were placed before the Fiscal Year (FY) 1997 Command and Staff College Selection Board for revalidation and that the board did not revalidate him for attendance based on the presence of the GOMOR in his OMPF and his blatant disregard for established Army policy and procedures.

On 26 February 1999 the Commander, PERSCOM notified the applicant that the FY98 Command and Staff Selection Board had identified him to show cause for retention on active duty based on the presence of the GOMOR and the contested OER in his OMPF. 

The applicant’s chain of command submitted memorandums of support to the Commander, PERSCOM and recommended that he be retained on active duty.  The chain of command also lauded his duty performance.

On 11 May 1999 the Commander, PERSCOM terminated the elimination action against the applicant and informed him that the documents would remain in his file and could only be removed through an appeal.

In July 1999 he was transferred to Germany for duty as a division PAO.

A review of the applicant’s records shows that he served as a supply officer in Saudi Arabia for 7 months and returned in March 1991.  He was awarded the Combat Infantryman Badge, the Bronze Star Medal for meritorious service, and the appropriate service medals for duty in the Southwest Asia theater of operations.

A review of the applicant’s OER history shows that he has always been rated by his senior raters in the top two blocks.  He has also served as an infantry company commander and the majority of his reports recommend him for command.

Army Regulation 600-37 sets forth the basic authority for filing of unfavorable information in the OMPF.  Paragraph 3-4 of that regulation provides, in pertinent part, that a non-punitive MOR or admonition will be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction of the recipient.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Paragraph 5-33, states, in pertinent part, that if rating officials become aware of information that would have resulted in a higher evaluation of the rated officer, they will take action to alter or remove the report in accordance with the appeal procedures stated in chapter 9.

Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

Army Regulation 600-8-24 prescribes the policies and procedures  governing the transfer and discharge of Army officer personnel.  It states, in pertinent part, that 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 can not maintain those standards will be separated.  Reasons for separation include substandard performance of duty, misconduct, moral or professional dereliction, and derogatory information contained in the OMPF.  

Paragraph 4-6 of that regulation provides that the purpose of the Board of Inquiry (also known as a show-cause board) is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  The Government is responsible for to establish, by preponderance of the evidence, that the officer failed to maintain the standards desired for his grade and branch or that the officer’s conduct has been prejudicial to national security.  In the absence of such a showing by the Government, the board will retain the officer.  However, the respondent is responsible for producing evidence to disprove the Government’s position.

That regulation also provides that an officer will not be considered for involuntary separation because of conduct that has been the subject of judicial proceedings that resulted in acquittal nor will he be considered for elimination if he has been the subject of elimination proceedings that resulted in a final determination that the officer should be retained in the Service.  An officer will be considered to have been the subject of elimination proceedings only if allegations against the officer were acted on by a board of inquiry.  Exceptions to this policy provide that an officer may be considered for elimination for misconduct, moral or professional dereliction, or in the interest of National security at any time subsequent to the closing of the prior case that resulted in the officer’s retention on active duty.  However, an officer may not again be required to show cause for retention on active duty solely because of conduct that was the subject of previous proceedings.  However, the grounds for elimination in the earlier case may be joined with the new grounds in the later case.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The GOMOR was properly imposed as an administrative measure and filed in the OMPF in accordance with the filing instructions of the imposing officer and applicable regulations.

3.  It appears that the applicant’s appeal of the GOMOR was properly considered and that it was not inappropriate to file the GOMOR in the applicant’s OMPF.

4.  The contested OER appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his records.

5.  The applicant’s contentions have been noted by the Board; however, he has not shown to the satisfaction of the Board that he was not rated properly or that the SR violated proper rating procedures.  He has failed to overcome the presumption that the contested OER represents the considered opinion and objective judgment of the rating officials at the time of preparation.
6.  The Board notes that in his rebuttal to the GOMOR, his counsel cited that the applicant had not been paid for 7 months while serving in Southwest Asia in the 1990 – 1991 timeframe, which contributed to his financial problems.  Although the applicant has provided no proof of such, nor has he explained what corrective actions he took during the 7 months of non-payment, it is reasonable to presume that when he did get paid it was in a lump sum, and that those monies should have been used to satisfy debts he incurred.  However, the GOMOR clearly indicates that he applied for and received his AMEX card in November 1994 and that he used his AMEX card to purchase eight airline tickets for personal use and charged almost $20,000.00 to his account in an 8-month period before his card was revoked in August 1995. 

7.  The applicant’s contention that the presence of the GOMOR and the contested OER in his OMPF constitutes double jeopardy because he has already been effectively acquitted and may be required to show cause for the same issue is without merit.  The imposing commander made it perfectly clear at the time that it was his intent that the applicant not be required to show cause for retention at that time; but that he be allowed to remain on active duty for a reasonable period of time during which he could demonstrate that he has truly put his affairs in order.  Accordingly, it appears that the PERSCOM commander acted within his authority and terminated the proceedings at that time based on the intent of the imposing commander and the recommendations of the applicant’s subsequent chain of command.  In doing so, the applicant was afforded what amounts to a probationary period in which to demonstrate that he could put his personal affairs in order and consistently maintain them.  

8.  The Board finds that had the applicant wanted to appear before a show-cause board to put the matter behind him, he could have made his desires known at the time instead of remaining in what amounts to a probationary status.  In any event, the applicant has not appeared before a board of inquiry and therefore has not been exonerated or acquitted, but simply given what the Board considers an unusual second chance to prove that he has overcome the mistakes of the past and that he is worthy of the trust placed in him as a commissioned officer. 

9.  The Board commends the applicant for accepting responsibility for his actions and maintaining an excellent record of performance; however, this in itself does not constitute a basis to remove documents from his records that were properly issued and filed in his OMPF nor does it constitute error or injustice on the part of the Department.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ___jpi ___  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rvo __  ________  ____clg__  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR2000034980	
SUFFIX		
RECON		
DATE BOARDED	2000/01/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221 	111.0100/VOID OER	
2.  328 	134.0000/REM GOMOR	
3.		
4.		
5.		
6.