IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150003024 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150003024 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150003024 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 following documents be moved to the restricted section of his official military personnel file (OMPF) or entirely removed from his OMPF: * General Officer letter of reprimand (GOMOR), dated 30 May 2013 * Department of the Army Suitability Evaluation Board (DASEB) final determination, dated 20 October 2014 * Memorandum, dated 7 November 2014, closing a field board of inquiry (FBOI) elimination action 2. The applicant states the DASEB denied his request for removal of the GOMOR to the restricted section of his OMPF. However, his request was submitted prior to the convening of the FBOI. The FBOI unanimously recommended his retention for continued service. He believes his request for removal of the GOMOR to the restricted section of his OMPF would have been granted if the results of the FBOI had been included with his request. Granting his request would allow him to serve his last few years in the Army and retire without abatement. 3. The applicant provides: * Memorandum, dated 18 February 2014, from Major General (MG) M____ to the U.S. Army Human Resources Command (HRC) * Packet the applicant sent to the FBOI with a table of contents * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 11 September 2014 * Record of Proceedings for DASEB Docket AR20140012742, dated 18 September 2014 * Letter, dated 20 October 2014, from Army Review Boards Agency (ARBA) * Memorandum, dated 7 November 2014, from HRC CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. He previously served 4 years, 11 months, and 10 days in an enlisted status in the Louisiana Army National Guard. On 7 May 1993, he was commissioned a second lieutenant in the U.S. Army Reserve (USAR) and was ordered to active duty on 17 July 1994 for 3 years. 3. On 29 November 2004, he was commissioned a major in the Regular Army and on 1 May 2010, he was promoted to lieutenant colonel. 4. On 1 June 2011, he was assigned as the Commander, 4th Ranger Training Battalion (RTB) at Fort Benning GA. 5. On 30 May 2013, MG M____, Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, GA issued the applicant a GOMOR. The GOMOR stated: You are reprimanded for failing to enforce good order and discipline and fostering a poor command climate. Over the past year, you failed to act swiftly and appropriately to correct inappropriate behavior by your battalion command sergeant major [CSM] and another senior noncommissioned officer [NCO] in your command. You were aware of several occasions in which two [NCOs] belittled and embarrassed at least one subordinate by openly referring to him as "haji" and "terrorist," yet you failed to correct the misconduct. Your inaction contributed to an overall degradation of command climate in your battalion. Senior [NCOs], along with officers with significant experience, described the command climate as one of "fear of retribution," "bullying," and "poor." You failed your Soldiers. Commanding Soldiers is a privilege and bears significant responsibility to uphold and inculcate Army Values in the command. The Army charged you with establishing a positive command environment. Your actions clearly demonstrate your failure to either understand or grasp this duty. Fostering a hostile command climate is contrary to each Army Value I expect every commander to uphold. 6. The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). Information upon which the GOMOR was based was enclosed with the GOMOR. 7. MG M____ advised the applicant he was considering filing the GOMOR in his OMPF. He was advised that any matters he submitted in rebuttal, together with the recommendations from his chain of command, would be considered before the final filling decision. 8. On 7 June 2013, the applicant submitted matters on his own behalf. a. He sincerely apologized for the insensitive and derisive behavior of senior members of the battalion and he took full responsibility for their actions. He also sincerely apologized for his failure to better document his response to these matters. He requested that he be allowed to complete his command of the 4th RTB and that he be allowed to continue to serve as an Army officer. He also requested the GOMOR be filed locally. b. Less than a month after the applicant took command, Staff Sergeant (SSG) N____ alleged that an undercurrent of racism existed within the battalion. He took the allegation seriously and both he and the brigade commander agreed that a Command Climate Survey (CCS) was necessary. The CCS did not corroborate the allegation. He discussed the CCS with SSG N____ and stressed that if he felt discriminated against he should immediately see him with his concerns. c. A year later the brigade command directed another CCS as a standard procedure for his change of command. The survey alleged that CSM G___ called a junior NCO a "terp" in the applicant's presence. The applicant did not witness such conduct and did not recall hearing them or having anyone bring them to his attention. d. When he addressed the allegation with CSM G___, he denied it. When he spoke to SSG N___ he denied making the allegation. SSG N___ did reveal that the members of the battalion S3 section banter frequently. He addressed the CCS allegation and SSG N___'s comment with the S3 section and explained that racially insensitive comments are never appropriate, even in jest among friends. e. The applicant did not believe the situation required an Army Regulation 15-6 investigation. He decided that any further investigation would risk the cohesion of the command team and could unintentionally create problems with the S3 section. He addressed and handled the issue at his level. f. On 26 April 2013, the applicant became aware that SSG N___ intended to contact the Inspector General. He met with SSG N___, who felt he had received an unwarranted rating of his performance and potential in his NCO Evaluation (NCOER) from Sergeant First Class P___, his senior rater. SSG N___ also alleged that Master Sergeant (MSG) M___ suggested that SSG N___'s picture be placed on marksmanship targets and that he said this in front of CSM G___. He discussed with SSG N___ the conduct, his NCOER, and the possibility of his transfer from the S3 section to the battalion's Headquarters Company (HHC). He was surprised that SSG N___ made an equal opportunity complaint on 29 April 2013, regarding MSG M___'s comments before seeing if the move to HHC solved the problem. g. The applicant reviewed the Army Regulation 15-6 investigation into the matter. If the April 2012 CCS had contained the additional allegations provided to Colonel H___, the investigating officer, would have immediately ordered an Army Regulation 15-6 investigation. There was a factual disparity between the applicant's recollection of the conversations and that of SSG N___. h. He believed that he properly addressed the allegations in June 2011; however, he deeply regrets not better documenting conversations and allegations in April 2012. Allegations like these must be addressed immediately and thoroughly, regardless of the rank and position of those involved. 9. On 20 June 2013, after reviewing circumstances of the misconduct, all matters submitted by the applicant in defense, extenuation, or mitigation, if any, and along with recommendations of subordinate commanders MG M____ directed the GOMOR be placed permanently in the applicant's OMPF. All enclosures were to be forwarded with the reprimand for filing as appropriate. 10. On 18 July 2013, the applicant was awarded the Army Commendation Medal for exceptionally meritorious service while serving as the 4th RTB Commander for the period from 1 June 2011 to 25 June 2013. 11. On 25 August 2013, he was assigned to the Joint Close Air Support, Joint Task Force, Eglin Air Force Base as the Chief, Technical Solutions Branch. 12. A memorandum, dated 24 January 2014, from HRC notified the applicant he was identified by the Fiscal Year 2013, Army Competitive Category, Senior Service College Selection Board to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2(b), because of misconduct, moral or professional dereliction. 13. On 18 February 2014, MG M___ provided a memorandum, subject: Initiation of Elimination of (the applicant) to HRC. He stated: a. On 20 June 2013, he directed the GOMOR that he issued to the applicant on 30 May 2013 be filed in his OMPF. b. His intent in so filing was to guide the applicant's career path away from brigade command. Based upon his review of the applicant's overall service, his letters in support, and the factual basis behind the reprimand, it was never his intent that the GOMOR be used as a basis for involuntary separation or a reduction in rank in retirement. c. The applicant had served honorably, including during the incident and subsequent investigation. Any further negative impact based upon his reprimand and the underlying factors exceeds the intent of his action. MG M____ requested that his GOMOR not be used for these purposes. 14. A FBOI was conducted on 12 June 2014, to determine whether the applicant should be separated from the Army for misconduct, moral or professional dereliction. a. The FBOI found: (1) The allegation that applicant failed to enforce good order and discipline, resulting in a GOMOR, dated 30 May 2013, was supported by a preponderance of the evidence. (2) The allegation that the applicant fostered a poor command climate, resulting in a GOMOR, dated 30 May 2013, was supported by a preponderance of the evidence. (3) The allegation of conduct unbecoming an officer was not supported by a preponderance of the evidence. b. The findings did warrant separation; however, the FBOI recommended the applicant be retained in the U.S. Army. 15. On 18 September 2014, the DASEB denied his request to transfer the GOMOR to the restricted portion of his OMPF. The DASEB determined that due to the seriousness of the applicant's misconduct, along with his rank and duty position at the time of the GOMOR incident, he failed to provide evidence that it would be in the best interest of the Army to transfer the GOMOR. 16. A memorandum, dated 20 October 2014, from ARBA, subject: Resolution of Unfavorable Information for (the applicant), notified the applicant his request to transfer his GOMOR to his restricted section of his OMPF was denied. The memorandum directed that the memorandum was to be filed in the performance section of his OMPF and the appeal correspondence and the Record of Proceedings be filed in the restricted section of his OMPF. 17. A memorandum, dated 7 November 2014, from HRC, notified the applicant the FBOI determined that he would be retained on active duty. The elimination action was closed. 18. The applicant has received two Officer Evaluation Reports (OER) since the date of his GOMOR. The OERs for the periods from 1 May 2013 - 30 April 2014 and from 1 May 2014 - 30 April 2015 show he was rated "Most Qualified" for promotion by his senior rater. The senior rater also recommended the applicant for future assignment as a brigade commander. 19. A review of the applicant's OMPF shows the GOMOR, FBOI, and DASEB final determination memoranda are filed as follows: a. The GOMOR, dated 30 May 2013, along with the information upon which the GOMOR was based, is filed in the performance section of his OMPF. b. The memorandum, dated 20 October 2014, from ARBA, subject: Resolution of Unfavorable Information for (the applicant), notifying him the DASEB denied the transfer of his GOMOR, is filed in the performance section of his OMPF. The Record of Proceedings for this denial is filed in the restricted section of his OMPF. c. The memorandum, dated 7 November 2014, from HRC, subject: Closing of Elimination Action, notifying the applicant the FBOI determined that he be retained in the Army is filed in the performance section of his OMPF. The allied documents, including the results of the FBOI, for this action are filed in the restricted section of his OMPF. REFERENCES: 1. Table B-1, Appendix B, updated by the Army Personnel Records Division, of Army Regulation 600-8-104 provides a list of authorized documents for filing in the OMPF. Table B-1 shows a: a. GOMOR is filed as provided in Army Regulation 600-37, paragraph 3-4. b. BOI is filed in the performance section of the OMPF and allied documents are filed in the restricted section of the OMPF. c. DASEB denial is filed in the performance section of the OMPF. Allied documents relating to denied requests are filed in the restricted section of the OMPF. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies 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 incomplete is not filed in individual official personnel files * ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files a. Unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. b. 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. d. Paragraph 3-4 provides provisions for the filing of a letter of reprimand, censure, admonition in official files. (1) Paragraph 3-4b states a letter, regardless of the issuing authority, may be filed in the OMPF. Letters filed in the OMPF will be filed in the performance section. The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter. (2) Paragraph 3-4b(1)(c) states if it is desired to file allied documents with the letter, these documents must also be referred to the recipient for comment. This includes statements, previous reprimands, admonitions, or censure. Allied documents must also be specifically referenced in the letter or referral document. Care must be exercised to ensure additional unfavorable information is not included in the transmittal documentation unless it has been properly referred for comment. DISCUSSION: 1. The applicant contends his GOMOR, dated 30 May 2013, the DASEB final determination, and the FBOI determination should be moved to the restricted section of his OMPF or completely removed from his OMPF. 2. The available evidence indicates the information contained in the GOMOR is accurate and the GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the performance section of his OMPF. He has not provided clear and convincing evidence that the GOMOR was not true or is unjust or that the presumption of regularity should not be applied. 3. Army Regulation 600-37 makes it clear that one of the purposes of permanently filing a GOMOR is to alert personnel managers and selection board members of an individual's substandard leadership ability, promotion potential, morals, and integrity; and for use in making such personnel decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. 4. MG M___ stated his intent on filing the GOMOR in the applicant's OMPF was to guide his career path away from brigade command. However, the applicant's subsequent OERs both recommend him for brigade command. 5. The OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF. 6. It is acknowledged the applicant has continued to honorably serve and without incident. Nevertheless, the Army has an interest in maintaining the integrity of its records. The fact that the GOMOR may affect future promotions or future assignments is a natural outcome of his behavior/performance. 7. The GOMOR, dated 30 May 2013, the DASEB final determination, and the FBOI determination are properly filed in his OMPF in accordance with Army Regulation 600-8-104. There is a reluctance to remove adverse information from an OMPF when it was not erroneously filed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003024 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003024 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2