MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 February 2001                   
	DOCKET NUMBER:   AR2000048254

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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:  That the General Officer Memorandum of Reprimand (GOMOR) dated 1 September 1998 and all related documents be removed from his Official Military Personnel File (OMPF).  He also requests that all documents concerning his removal from the 1998 Lieutenant Colonel (LTC) Army Promotion List be removed and that he be reinstated on the same promotion list and promoted to LTC with a date of rank of 1 March 1999.

APPLICANT STATES:  That Brigadier General (BG) C___ failed to give him a fair opportunity to defend himself, issued the GOMOR based on false or incomplete information, and imposed excessive punishment for an offense he did not commit.  This is an injustice not only to him professionally but also to the Army and his family.  He was involved in a minor collision with a stationary car, total damage less than $350, with no alcohol or personal injury involved, just lack of sleep.  He reported the accident immediately and fully cooperated by giving the military police a statement and even taking a polygraph test.  No action was taken by the German authorities.  BG C___ did not appoint an independent investigating officer in accordance with Army Regulation 15-6.  He has proof that on 31 August 1998 BG C___ was already considering filing the GOMOR in his permanent fiche before it had even been issued.  BG C___’s illegal order to refer him for a mental health evaluation, substantiated by the Department of the Army Inspector General (DAIG), proves that he convicted him from the very beginning. He told the truth in his first sworn statement.  The polygraph questions were not worded in such a way as to verify what he knew.  He objected to the questions but was informed that they could not be changed. The sworn statement that resulted from his post-polygraph interview was not a complete reflection of what he said or the truth he tried to convey.  Unfortunately, after the 4-hour ordeal he did not take the time to read the statement and he did not have his reading glasses with him.  He trusted the Criminal Investigation Command (CID) agent to represent him as he had no legal representation.  BG C___ disregarded the character statements from general officers and colonels he presented.  BG C___ believed that though the applicant’s integrity and honesty had impressed those senior leaders in the past he had succumbed to the pressure of this minor incident and lied about it.  His Officer Evaluation Report (OER) that covers the period during which the GOMOR was issued gave him top blocks in Army Values, further attesting to his character.  In addition, he should not have been taken off the promotion list because one member of the Promotion Review Board (PRB) worked directly for BG C___.  In his exemplary career he faced countless situations that put him under far greater pressure and he always performed beyond reproach.  The greatest injustice is the impact the GOMOR is having on his family.  Due to a misdiagnosis at the Fort Leavenworth, KS Army Medical Center, his wife lost the use of both kidneys.  She has been on the European kidney transplant list for more than two years and should receive a kidney within the next 18 months.  Since he received the GOMOR her health has taken a turn for the worse.  If he is forced out of the Army, she will be forced to leave the European kidney transplant list and forced to start all over again.
In the applicant’s appeal to the Department of the Army Suitability Evaluation Board (DASEB), the applicant noted that on 27 July 1998, after arriving in Germany earlier in the day from the U. S., he drove from his office in Grafenwoehr to his quarters in Vilseck.  He fell asleep at the wheel and struck a road marker.  He maintained control and continued home.  He fell asleep again.  He awoke to seeing a road marker fly off his car’s right, front bumper.  He had no idea that he had struck another car.  He arrived home and notified his insurance company that his vehicle had struck road markers and that no other vehicle was involved.  Additionally, he called the 7th Army Training Command Emergency Action Center and reported the accident and asked for the number to the military police.  While calling the military police, his wife got upset with him so he hung up and began to console her.  He then finished preparations for a planned temporary duty (TDY), for which he departed the next morning.  While TDY, his wife informed him that the German police told her their car had been in an accident with another vehicle.  At the TDY site, he reported the incident to the Command Executive Officer and the G4.  The Command Executive Officer offered that he would be charged with leaving the scene of an accident but opined, unofficially, that he would not have reported the incident.  The G4 basically opined the same.  He conferred with BG C___’s Staff Judge Advocate who stated that he did not need to hear this and it was a good thing that no one was hurt.  No one suggested that he should report it to the military police.  He reported the incident to every possible military authority including the entire chain of command before they ever received a Military Police Blotter or German Polizei Report.  

COUNSEL CONTENDS:  Counsel makes no additional contentions.

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

After having had prior enlisted service, he was commissioned as an Air Defense Artillery officer on 31 March 1982.  On 16 January 1986, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for operating a passenger car while drunk and fleeing the scene of an accident.  He was promoted to Major 1 May 1994.  On an unknown date, he was recommended for promotion to LTC.

On 11 May 1998, the applicant was assigned to the 7th Army Training Command as the Inspector General.  BG C___ was the applicant’s rater and senior rater.  

On 31 July 1998, the applicant went to the military police and made sworn statement regarding the accident.  On 7 August 1998, he took a polygraph examination and signed a post-polygraph sworn statement.  In the second sworn statement, he was asked in part why he did not report the traffic accidents.  He answered that he was scared of losing his job as the incoming IG, scared about losing his wife’s medical benefits if they kicked him out of the Army, and scared of the impression he would make on his new chain of command.

The 1 September 1998 GOMOR noted that the applicant left the scene of an accident and failed to report the matter to the German Police or the U. S. military authorities.  He only reported the incident when his wife informed him the German police had identified his vehicle as having fled the scene of an accident. On 31 July 1998, he had rendered a sworn statement admitting to being involved in an accident but denying he knew he hit another vehicle.  Subsequently, he rendered a second sworn statement in direct contradiction to the first one, admitting that he knew he had struck the vehicle.  The applicant was reprimanded for engaging in a pattern of lies and deceit in the matter.  The GOMOR was referred to him for acknowledgment and rebuttal within five working days of receipt.

On an unknown date, the applicant acknowledged receipt of the proposed GOMOR and checked that he submitted a statement(s) or document(s) for BG C___’s consideration.  

The applicant’s rebuttal is dated 18 September 1998.  He provided basically the same arguments addressed in APPLICANT STATES above.  He also stated that he did not lie in his first statement nor in his second statement.  In the second statement, he said that he saw the vehicle in the rear view mirror and saw no damage.  Therefore he assumed that he did not hit another vehicle.

The applicant was recommended by the Army LTC, Combat Arms Command Board, which recessed on 22 October 1998, for command.

On 16 November 1998, BG C___ sent a memorandum to the U. S. Total Army Personnel Command (PERSCOM) informing them that he had decided to file a GOMOR in the performance portion of the applicant’s OMPF.  He stated that he lost confidence in the applicant as a field grade officer and recommended he not be promoted to LTC.  

BG C___ prepared an undated 4 ¼ page memorandum for record which outlined his conclusions about the applicant’s actions and specified what he believed should result.  On an unknown date, BG C___ directed that the GOMOR be permanently filed in the applicant’s performance fiche of his OMPF.  He noted that he had reviewed the basic correspondence and all attached documents, to include the sworn statements and the applicant’s rebuttal.

On 12 January 1999, PERSCOM informed the applicant that his records would be referred to a Headquarters, Department of the Army (HQDA) PRB due to the GOMOR.  

The applicant’s OER for the period 12 May 1998 through 11 May 1999, Part IV, shows that all Army Values blocks, including “honor” and “integrity,” were checked “yes.”  Part IJ shows his Rated Months as “12” and Part IK, Nonrated Codes, is blank.  His principal duty is listed as Chief, Virtual Training Program, neither his rater nor his senior rater is BG C___.

On 12 July 1999, the DAIG concluded that the allegation that BG C___ improperly referred him for a mental health evaluation was substantiated.  

On 14 December 1999, PERSCOM informed the applicant that since he had been removed from the fiscal year 1998 LTC promotion list he was no longer eligible for command and therefore his name had been removed from the fiscal year 2000 LTC Combat Arms Command Selection List.  On 19 April 2000, the applicant appealed to the DASEB.

A 6 July 2000 statement from Command Sergeant Major (CSM) P___ notes that on 31 August 2000, after speaking with BG C___ about the incident, the CSM met with the applicant.  He informed the applicant that BG C___ was considering filing a letter of reprimand in his permanent record.

On 26 September 2000, the DASEB voted to deny the removal/transfer of the GOMOR.  The DASEB did not believe that the applicant was unaware of his responsibility to report a traffic accident to the German and military police.  He had had multiple previous assignments in Germany and had received an Article 15 in 1986 for fleeing the scene of an accident.  The DASEB noted that applicant made a sworn statement following the polygraph exam which would be acceptable evidence in any court of law.  The DASEB did not believe that the applicant was naïve to the significance of signing a sworn statement and, as an experienced officer, should have known better than to sign and swear to a statement that he had not read.  The DASEB stated that Army Regulation 600-37 does not require a face-to-face discussion before issuance of a GOMOR.  The GOMOR was properly referred to the applicant.  The regulation does not mandate a notification sequence, so it was proper that the imposing authority request his removal from the promotion list prior to notifying him of his filing decision.  The DASEB acknowledged that a GOMOR issued to a senior officer may be career ending but that the evidence showed that the imposing authority was aware of this fact and believed that such an integrity breach warranted his actions.  The DASEB noted that the DAIG made no finding that BG C___ was 

engaging in a “personal vendetta” against the applicant.  The DASEB noted that a formal investigation is not required before issuing an administrative reprimand. The DASEB noted that the applicant provided no new evidence that would cause them to believe that the imposing authority was not convinced that the applicant had lied when he stated he did not know he had hit another car.  The DASEB finally noted that the imposing authority does not appoint members to the PRB and the applicant provided no evidence other than a duty assignment list to show that a member of the PRB was biased.  

Army Regulation 600-37 sets forth policy 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 inaccurate is not filed in an individual’s official personnel files; and ensure that the best interest 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.  Paragraph 3-2 provides that 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. 

Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Paragraph 3.3B states that commanding officers have authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment.  Paragraph 3.4 states that a commander will personally exercise discretion in the nonjudicial punishment process by evaluating the case to determine whether proceedings under Article 15 should be initiated.  Paragraph 3.14 states that the commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover whether the offense was committed; whether the soldier was involved, and the character and military record of the soldier.  Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports.  If, after the preliminary inquiry the commander determines, based on the evidence currently available, that the soldier probably has committed an offense and that a nonjudicial punishment procedure is appropriate, the commander should take action.

Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  Paragraph 8.2 states that HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally 

unqualified to perform the duties of the higher grade.  An officer may be referred to a PRB for a number of reasons, including having a memorandum of reprimand filed in the OMPF.  Appropriate officials, including commanders, may recommend at any time that an officer’s name be removed from a promotion list.  The recommendation must contain detailed justification.  Paragraph 8.7 states that a PRB will consider an officer’s official military personnel records, including relevant portions of the restricted fiche of the OMPF.  Paragraph 8.8 states that the PRB’s recommendation is only advisory to the Secretary of the Army.  In cases involving promotion to the grade of colonel or below, the board’s report will be forwarded to the Secretary of the Army (SA) who, on behalf of the President, may remove an officer’s name from the promotion list.

Army Regulation 623-105 prescribes the officer evaluation function of the military personnel system.  Paragraph 3-16c(1) states that the “Period Covered” by an OER is the period extending from the day after the “Thru” date of the last report to the date of the event causing the report to be written.  The rating period is that period within the “Period Covered” during which the rated officer serves in the same position under the same rater who is writing the report.

Army Regulation 600-20 prescribes the policies and responsibilities of command. It defines “chain of command” as the sequence of commanders in an organization who have direct authority and primary responsibility for accomplishing the assigned unit mission while caring for personnel and property in their charge.

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 this requirement.

2.  The Board concludes that BG C___ followed proper procedures in investigating the incident in which the applicant was involved and in issuing a GOMOR as an administrative measure.  The requirement for a formal or informal investigation under the provisions of Army Regulation 15-6 does not apply.  BG C___ made his preliminary investigation into the incident under the provisions of Army Regulation 27-10 by reviewing the police reports and the applicant’s sworn statements.  Face-to-face discussion with the applicant was not required.  Based upon his review, BG C___ determined that the applicant probably engaged in a 

pattern of lies and deceit and determined that nonjudicial punishment was appropriate.  He could have given the applicant an Article 15; instead he chose to issue the GOMOR as an administrative measure.

3.  The Board concludes that BG C___ followed proper procedures in directing the GOMOR be filed in the applicant’s OMPF and recommending him for removal from the promotion list.  The applicant was issued the GOMOR on 1 September 1998.  He was given five working days to submit a rebuttal.  His rebuttal is dated 18 September 1998.  Although BG C___’s memorandum for record outlining his conclusions about the applicant’s actions in the case is undated, it is more than four pages long.  The Board concludes therefrom that BG C___ put much thought into the case before deciding to file the GOMOR on the applicant’s OMPF.  BG C___ may very well have reached his decision by 16 November 1998, when he recommended that the applicant be removed from the promotion list, even though he may not have been able to inform the applicant of his decision until 3 December 1998.  A face-to-face discussion with the applicant prior to making his decision was not required by regulation.

4.  The Board is not convinced by the applicant’s “proof” that BG C___ had already made up his mind he was going to issue the GOMOR because on         31 August 1998 he was already considering filing it in his permanent fiche before it had even been issued.  Rather, the Board finds that this was a reasonable action on BG C___’s part – he was considering such action on 31 August 1998 and informed the applicant the next day, on 1 September 1998, that he was considering it.

5.  The Board notes that, although the applicant stated in his appeal to the DASEB that he reported the incident to every possible military authority including the entire chain of command, he never reported it to BG C___, his immediate rater and the 7th Army Training Command commander. 

6.  The Board is not convinced by the applicant’s argument that BG C___’s illegal order to refer him for a mental health evaluation proves that he convicted him from the very beginning.  Even though the allegation was substantiated by DAIG, the DAIG made no finding that the order was made because BG C___ had a personal vendetta against him.

7.  The Board agrees with the DASEB that BG C___, the commander on the scene, was convinced by the evidence he reviewed that the applicant lied about the incident.  The applicant provides no evidence to show otherwise.

8.  The Board is not convinced by the applicant’s argument that he did not take the time to read the second sworn statement before signing it.  He was a Major, on a promotion list to LTC and selected for LTC command, who was going to be the Inspector General of the 7th Army Training Command.  It is reasonable to presume that he knew what it meant to sign a sworn statement.

9.  The applicant provides no evidence to show that BG C___ disregarded the character statements he presented.  Since the Board concludes that BG C___ was convinced the applicant lied about the incident and could have resorted to harsher punishment, it is reasonable to conclude that he considered the character witness statements in determining the type of punishment to administer. 

10.  The Board notes that the applicant’s OER for the time period during which the GOMOR was issued gave him “yes” checks in Army Values.  However, the applicant was initially assigned as the IG.  The Board presumes that at some point around 31 July 1998 he was relieved from those duties and reassigned to duties as Chief, Virtual Training Program.  This gave him a new rating chain.  The OER was an independent evaluation by his new rating chain.  It was their prerogative to rate the applicant as they saw fit and they were not required to mention or to have considered the GOMOR in their rating.  This does not mean that the OER negates the GOMOR.  The Board notes that the applicant could have received a relief-for-cause OER from BG C___.  (The Board also notes that parts lj and lk should have indicated this nonrated time.)

11.  The Board notes that PRB members are not appointed by field commanders. The member of the PRB whom the applicant states worked directly for BG C___ was only one of four PRB members, plus the president.  The Board concludes that there is no evidence of impropriety or bias in the PRB’s recommendation or on the part of that PRB member in particular.  In addition, a PRB’s recommendation is only an advisory to the SA.  The Board notes that a PRB reviews all of an officer’s official records, including the restricted fiche.  The Article 15 on the applicant’s restricted fiche was given for a incident similar to the one for which he received the GOMOR and showed that the applicant did not always perform beyond reproach.  In addition, the applicant’s consideration by a PRB would have been triggered by PERSCOM’s receipt of the GOMOR itself even without BG C___ having previously recommended his removal.

12.  The Board regrets the effect the applicant’s behavior and resulting GOMOR will have on his spouse.  However, this factor does not warrant the relief requested.

13.  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

__rvo___  __wtm___  __tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048254	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.01	
2.	131.10	
3.		
4.		
5.		
6.