MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  30 November 2000
	DOCKET NUMBER:  AR2000036680

	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. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Celia L. Adolphi		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:  Through counsel, removal of a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF).

APPLICANT STATES:  Applicant defers to counsel.

COUNSEL CONTENDS:  In an 18 page summary provided by counsel, that the GOMOR was prepared and filed in the applicant’s OMPF in violation of Army regulations (AR); that the investigation conducted under AR 15-6 was not proper because the applicant was not advised of his rights before questioning or making any statements; that prior to the imposition of the GOMOR the applicant was not provided the supporting evidence on which the GOMOR was based in accordance with AR 600-37, paragraph 3-4b; and the GOMOR issued to the applicant was an injustice because he was never counseled concerning his alleged disrespectful and insubordinate behavior and was in no position to know that his performance or conduct were viewed as substandard.

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

At the time the applicant was issued the GOMOR he was assigned as an aviation battalion commander in Korea and had been in that position for approximately 21 months.  On 6 June 1996 the applicant’s commander forwarded a memorandum to the assistant division commander concerning the applicant’s misconduct.  The memorandum noted that the applicant had been difficult to work with and beginning on 6 May 1996, the date the applicant was informed that his end of tour award had been downgraded, he began a series of exchanges that were disrespectful, argumentative, and unprofessional.

The commander stated that he should have acted sooner but he was trying to protect the transition process and the reputations of the battalion and the brigade.  The applicant’s insubordination could no longer be tolerated and he requested assistance from the assistant division commander.

On 10 June 1996 the division chief of staff appointed another colonel from the division as an investigating officer pursuant to AR 15-6 (Procedures for Investigating Officers and Boards of Officers).  The stated purpose was to investigate the command relationship between the applicant and his commander and whether the brigade and subordinate battalion staffs were engaging in effective inter-staff coordination, communication, and cooperation for mission accomplishment.  The appointment memorandum stated that the investigating officer was not required to advise anyone of their rights under Article 31b of the UCMJ unless they were suspected of having committed a criminal offense.

On 17 June 1996 the investigating officer forwarded his findings and recommendations to the division commander.  He found the command relationship between the applicant and his commander had become totally ineffective and disruptive within the brigade.  He also found the applicant had been insubordinate toward his commander as evidenced by the E-mail exchanges between them.  There was no evidence that the brigade commander had abused his power with any of his subordinates and the command climate within the brigade was satisfactory with the above exception.

The investigating officer recommended the division commander administer a letter of reprimand to the applicant for his insubordination, via E-mail, to the brigade commander.  Further insubordination should result in relief and UCMJ action.  He also recommended that the brigade commander and his battalion commanders should increase their efforts toward more open and positive communications.

In his discussion of the investigation the investigating officer noted the information contained in the commander’s 6 June 1996 memorandum to the assistant division commander.  He stated that this memorandum described the unfriendly manner in which the two commanders worked with each other but contained no hard evidence of insubordination.  The investigating officer went on to state that the 
E-mails sent by the applicant to his commander from 8 May to 5 June 1996, contained numerous insubordinate remarks and/or phrases.

Counsel only provides one of the ten pages of the applicant’s statement to the investigating officer.  On this page (page 8 of 10) the applicant is asked if he thinks he sent E-mail to his commander that was insubordinate or written in an insubordinate manner.  The applicant responded “No” but he could see “how it would be taken that way, and if it was, I was insubordinate.  Bottom line.”

The investigating officer believed it was pertinent to note that this E-mail went on for a month with little face-to-face or telephone calls.  The lack of action by the brigade commander attributed to the situation but did not excuse, by any means, the actions of the applicant.  Insubordination by the applicant was clear in the 
E-mails.

On 9 July 1996 the division commander issued the applicant an administrative reprimand for repeated disrespect and insubordination toward the brigade commander.  “The electronic mail communications with (the brigade commander), in which you repeatedly addressed him in an accusatory, disrespectful, and demeaning manner, violated the high standards of conduct and professional behavior demanded of a commissioned officer.”  The division commander also informed the applicant that he was not imposing punishment under Article 15, UCMJ but he did intend to direct filing of the reprimand in his OMPF.  

He required the applicant to provide any rebuttal comments he may want considered within 6 days and notified him that the documents that formed the basis for the reprimand were enclosed for his review.  The GOMOR shows “Encl” at the bottom but does not list each separately.

On 18 July 1996 the applicant submitted a memorandum to the division commander requesting that the GOMOR be filed locally and not in his OMPF.  He also apologized for his actions that he said arose from feelings of frustration because he and his commander did not share the same standards with respect to leadership, integrity, and soldiers.  “My actions, and the language I chose to use in my E-mail messages, left little to the imagination.”  After explaining more of his frustrations in accomplishing his missions he went on to state that ‘None of what I wrote justified my actions.  I was wrong.”  He regretted the tone and the choice of language in his E-mail messages but he believed that he never compromised his integrity or anyone else’s.  He recognized that punishment was warranted and “My conduct could not be ignored and goes against the very grain of command, good order, and discipline that I’ve upheld for over twenty-one years of service.”.  He respectfully requested that the GOMOR not be filed in his OMPF.

The division commander reviewed the matters the applicant submitted in rebuttal along with the documentation supporting the reprimand and the circumstances surrounding the incidents that led to the reprimand.  He determined that the GOMOR should be filed in the applicant’s OMPF.

The division commander also issued the brigade commander a Memorandum of Admonition.  The division commander expressed his concern that the brigade commander had allowed the professional relationship between himself and the applicant to deteriorate to the point where they were only communicating by lengthy E-mail in which the applicant was repeatedly insubordinate.  The brigade commander was admonished for having permitted the applicant to engage in disrespectful and insubordinate conduct without earlier, direct corrective action.

On 25 October 1996 the applicant forwarded a formal request to the Department of Defense (DOD) Inspector General (IG) for a reprisal investigation under the Military Whistleblower Protection Act.  That portion of the allegations that pertain to this case are that he alleged that his chain of command had reprised against him for making a protected communication regarding flight safety issues by giving him an undeserved GOMOR.  The DODIG referred the case to the Department of the Army (DA) IG.

The Board was provided with a redacted copy of the Report of Investigation (ROI) which had been previously provided to the applicant.  Pertinent documents used in the investigation of this allegation were the brigade commander’s 6 June 1996 memorandum to the assistant division commander, the AR 15-6 investigation, the E-mail messages that formed the basis for the AR 15-6 investigation and the GOMOR, and the applicant’s rebuttal to the GOMOR.  In his testimony, the applicant stated his belief that a flight safety issue he raised through the chain of command was held against him for possible reprisal.

The investigation by the DAIG found the preponderance of evidence indicated there was no reprisal in the issuance of his GOMOR and that the applicant was insubordinate and disrespectful to his commander.  The recommendation that the allegation be found unsubstantiated and the case closed was approved by The Inspector General and the Vice Chief of Staff of the Army.

On 12 June 1997 the Eighth US Army Inspector General issued a ROI initiated by the applicant against his brigade commander.  The applicant claimed that his commander had given false testimony and made a false official statement against him during the conduct of the AR 15-6 investigation.  He also claimed that his commander made false written comments on the Officer Evaluation Report for the applicant’s operations officer and had improperly directed the amendment of an aircraft accident investigation report to reflect unfavorably upon the applicant.

The ROI report stated that none of these allegations were found to be substantiated.  The investigating officer did believe that the brigade commander’s written assertions to the assistant division commander, and testimony during the AR 15-6 investigation, about the applicant contained some opinions and perceptions that lacked strong validity or were based on arguable evidence.  The report also stated that the brigade commander made some statements that were poorly supported opinions or suppositions.

The investigating officer also reviewed several aspects of the prior AR 15-6 investigation during the course of his inquiry.  In discussions with the AR 15-6 investigating officer the ROI noted that the AR 15-6 directive contained no requirement that the investigating officer address any of the specific allegations of improper conduct by the applicant claimed by his commander in the 6 June 1996 memorandum to the assistant division commander.  The AR 15-6 investigating officer acknowledged that he probably should have advised the applicant of his rights under Article 31, UCMJ but he also stated that, even if he had not interviewed the applicant, he would have drawn the same conclusion based solely on the available E-mail documents.

On 29 March 1999 the applicant, through counsel, applied to the Office of the Deputy Chief of Staff for Personnel (ODCSPER), Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR removed from his OMPF.  Counsel averred the same issues as brought to this Board which included a declaration from the applicant.

The DASEB Decision Summary provided by counsel primarily relies on a legal review.  The summary of the legal review notes that the applicant was provided an opportunity to review the documents upon which it was based, was notified that it may be directed for filing in his OMPF, and was given the opportunity to respond to the reprimand.  In his appeal the applicant did not dispute that the nature of the reprimand was true.

The legal summary goes on to note that the E-mails formed the basis for the reprimand, which he did receive copies of, and any alleged irregularities in the 
AR 15-6 investigation does not require removal of the GOMOR from his OMPF.  Additionally, the poor command climate between the applicant and his commander does not prove that the GOMOR was untrue or unjust.  In fact the applicant had admitted that none of what he wrote justified his actions and punishment was warranted.

The DASEB noted that the applicant did not contest the misconduct that formed the basis for the GOMOR and had failed to provide evidence that the GOMOR was untrue or unjust.  The DASEB concluded that there was no legal requirement to remove the GOMOR from the applicant’s OMPF.

In the processing of this case an advisory opinion was obtained from the legal counsel for the Army Review Boards Agency (ARBA) who recommended denial of the requested relief.  The applicant’s disrespect through E-mail was generally of a contemptuous and protracted nature, detracting from the respect due a superior officer.  The applicant’s division commander exercised his discretion in a lawful manner in issuing a reprimand and filing it in his OMPF.  The legal and procedural objections raised by the applicant through counsel do not constitute prejudicial errors, and lack any meaningful impact on the outcome of the case.

The applicant, through counsel, provided a rebuttal to the advisory opinion.  Counsel contends that the advisory opinion violates Title 10, USC, section 1552, in that it was provided by a military member “who is apparently employed by the Board “and that” the ABCMR is by law required to be composed of civilians“.  “The Board is not acting pursuant to its statutory mandate.”

Counsel again contends that the procedures for preparing the GOMOR were not complied with and it must be removed because it was not properly filed in accordance with AR 15-6, paragraph 1-8c(1).
In reviewing the applicant’s appeal to the DASEB and their subsequent action the ARBA legal counsel noted that the DASEB determined that the issue of a “rights warning” was inconsequential since the basis for the GOMOR was applicant’s 
E-mail, not the comments he made to the investigating officer.  The standard applied here is that the applicant must first establish an error and then show that it was sufficiently prejudicial to warrant correction.  The division commander plainly stated he believed the applicant’s E-mail messages constituted a pattern of insubordinate behavior.  Therefore, the applicant has not demonstrated a prejudicial error as required for relief.

Additionally, the applicant admitted his wrongdoing to the division commander in his rebuttal to the GOMOR and stated that he deserved punishment.  The lack of being advised of his rights during the AR 15-6 investigation becomes inconsequential by the applicant’s freely provided admission.

The applicant had also alleged that he did not receive a complete copy of the enclosures to the AR 15-6 investigation in accordance with AR 600-37, and he was not able to rebut comments provided by his commander to the investigating officer.  If he had received those documents he could have addressed those “mistaken and incorrect assertions by (the brigade commander)”.  The applicant had access to and knowledge of the E-mails that formed the basis for the GOMOR and it is unlikely that the brigade commander’s statements were meaningful in the division commander’s reprimand or filing decision.

From the date of the reprimand to the date of his rebuttal, there is no evidence that the applicant requested or was denied access to additional documentation that was a part of the AR 15-6 investigation.  Moreover, it is highly unlikely that any rebuttal by the applicant would have overcome the clear and convincing evidence established by his own persistently disrespectful E-mail.  By his own admission to the division commander “Punishment is warranted”.  “My conduct cannot be ignored and goes against the very grain of command, good order, and discipline.”  The applicant raised no objection regarding access to any documents at the time of his rebuttal, which materially diminishes the significance of any unreferred documents, and any error in this regard is harmless error.

The applicant contends that the filing of the reprimand constituted an injustice because of the poor command climate as evidenced by the brigade commander’s lack of support and failure to counsel him earlier about his conduct.  Counsel states that the applicant cannot be held accountable for his behavior because he received “no counseling”.  Although the applicant had initially stated his belief that he was not disrespectful to his commander, his rebuttal to the reprimand clearly acknowledged his comments were disrespectful.  The disrespectful comments in his E-mail to his commander were plentiful and the division commander exercised lawful and appropriate judgment in issuing a reprimand and directing filing in the applicant’s OMPF.
As a United States Military Academy graduate with over 20 years commissioned service, the applicant had been repeatedly schooled and knew the customs and rules of the military concerning respect for a superior officer.  The brigade commander occupied a class (superior officer) protected by Congress and the applicant was duty bound to honor that requirement for respect.

A review of the pertinent E-mail correspondence between the applicant and his commander show several instances when the commander attempted to counsel the applicant about the tone and words used by him.  In an 11 May 1996 E-mail the brigade commander informed the applicant 

“You crossed the line of respect for the position of the brigade commander, your immediate superior.”  “I intend to deal with that aspect in a far more formal manner.”  “Given the seriousness of this situation, face to face meetings with a senior officer present is probably the preferred communications.”

In a 15 May 1996 E-mail to the applicant the brigade commander directly addressed the applicant’s repeated insubordinate E-mail.

	“I am trying very hard to approach your misgivings in a professional
manner.  It’s becoming apparent that you intend to continue condemnation
of this chain of command without regard to professional approach, subordinate Bn (battalion) to MSC (major subordinate command) relationship, or military discipline.  I do object to your approach to disagreement.  With only 30 days remaining until the flag is cased, I initially believed that we could get through this, no matter how painful, without a more formal address of these differences.  I was wrong.  Please make an appointment to see me later next week concerning these matters.  I cannot allow this to continue.”

	In a 19 May 1996 E-mail to the applicant the brigade commander stated
	“Not looking for a truce (between you and I).  Looking for a subordinate-
	superior relationship”.

Between 28 May and 5 June 1996 the applicant and his commander exchanged E-mail concerning a brigade staff officer, equal in rank to the applicant, that the applicant felt had made a personal attack on him that had been overheard by his staff.  The brigade commander informed the applicant that he planned to discuss with the division commander administrative action against the brigade executive officer for disrespect.

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

1.  AR 15-6, paragraph 3-6c(5) states that no military witness will be compelled to incriminate themselves or to make a statement or produce evidence that might tend to degrade them.  It also states that an investigating officer should explain the rights under Article 31, UCMJ, when it appears that a soldier is suspected of an offense under the UCMJ before being asked any questions concerning the suspected offense.  Paragraph 3-6c(6) states that an admission obtained by unlawful coercion, that is likely to affect its truthfulness, will not be accepted as evidence.  Additionally, the fact that an individual was not advised of his rights under Article 31, UCMJ, does not, of itself, prevent acceptance of admission as evidence.  In the one page of the applicant’s ten page statement to the investigating officer, that was provided to the Board by counsel, applicant answers “No sir, I don’t” when asked if he thought his E-mail to the brigade commander was insubordinate.  There was no self-evident requirement for a rights waiver before asking questions of the applicant and there is no evidence that he provided self-incriminating statements to the AR-15-6 investigating officer.

2.  AR 15-6, paragraph 1-8c(1), states that before taking final adverse administrative action the person will be notified in writing of the proposed action and provided a copy, if not previously provided, “of that part of the findings and recommendation of the investigation or board and the supporting evidence on which the proposed adverse action is based.”  The applicant was provided the proposed GOMOR and the E-mail, which he authored, which formed the basis for the adverse administrative action and the provisions of AR 15-6 were complied with.  In his rebuttal, the applicant admitted to insubordinate behavior and acknowledged that punishment was warranted.

3.  AR 15-185 (Army Board for Correction of Military Records) promulgates Title 10, USC, section 1552.  The regulation authorizes the ABCMR to obtain advisory opinions on matters within others areas of expertise.  Title 10, USC, section 1555, provides for the assignment of a military or civilian legal staff, not as a member of the ABCMR, to serve as a legal advisor on matters that are being considered by the Agency.  The legal opinion obtained from the ARBA legal advisor is consistent with law and regulation.

4.  AR 600-37 (Unfavorable Information), paragraph 3-4b(1)(a), states that a letter intended for filing in the individual’s OMPF, will be referred to the recipient for comment and 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”.  The GOMOR clearly stated that the applicant was found by the division commander to be disrespectful and insubordinate toward his commander through E-mail that he authored between 6 May and 5 June 1996.  The GOMOR also states that the documents (E-mail) that form the basis for this reprimand are enclosed in accordance with AR 600-37.

5.  After over 20 years as a commissioned officer in positions of increasing responsibility, who was a graduate of the United States Military Academy, he knew what conduct would be considered disrespectful and insubordinate.  The brigade commander made it perfectly clear in several E-mail to the applicant that he expected a professional subordinate-superior relationship and that the applicant had crossed the line of respect for his immediate superior.

6.  There appears to be no error or injustice in the issuing of a GOMOR to the applicant by the division commander or in the filing action in his OMPF.

7.  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 this requirement.

8.  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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__js____  __tl______  ___ca____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036680	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001130	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.