IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20160002874 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: 14 April 2016 DOCKET NUMBER: AR20160002874 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: 14 April 2016 DOCKET NUMBER: AR20160002874 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 removal of a General Officer Memorandum of Reprimand (GOMOR), dated 27 October 2014, and all allied documents from his Official Military Personnel File (OMPF). 2. The applicant states the GOMOR issued by the Commanding General (CG), 2nd Infantry Division (2ID) is unjust and in error because all of the facts were not known. Nor was a proper investigation conducted to produce facts which would have provided evidence of no malicious intent to commit fraud. He states witnesses were not contacted or interviewed to provide facts demonstrating his innocence. The U.S. Army Human Resources Command subsequently initiated a Board of Inquiry to investigate the circumstances relating to the GOMOR. The Board of Inquiry was conducted by the Commander, U.S. Army Military District of Washington (MDW) at the Staff Judge Advocate's Office, Fort McNair, Washington, DC. The findings of the allegations were erroneous, and the allegation of conduct unbecoming an officer was not supported by a preponderance of evidence and did not support or warrant separation. 3. The applicant provides copies of his: * Officer Record Brief (ORB) * DA Form 67-10-1 (Officer Evaluation Report (OER) * Procedure for Board of Inquiry (15 pages), dated 9 October 2015 CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the U.S. Army Reserve, Regular Army, and Army National Guard during the period from 1 August 1990 to 20 August 2008. He held military occupational specialty (MOS) 77F (Petroleum Supply Specialist), MOS 75C (Personnel Management Specialist), and MOS 79R (Recruiter), respectively. He attained the rank of sergeant first class/pay grade E-7 on 1 January 2007. 2. He was appointed as a Regular Army commissioned officer in the rank of second lieutenant on 21 August 2008. He served at Fort Bliss, TX and Fort Sill, OK, and overseas in Afghanistan and Korea. He was promoted to captain on 1 October 2011. 3. On 27 October 2014, the applicant was reprimanded by Major General (MG) Thomas S. V____, CG, 2ID, for larceny, fraud, and knowingly providing false official statements to the U.S. Army for his financial gain. A U.S. Army Criminal Investigation Command (CID) investigation revealed that he knowingly and wrongfully received an unauthorized amount of Basic Allowance for Housing (BAH) and that he claimed Temporary Lodging Expense (TLE) for dependents who were not in his custody. a. The reprimand was imposed as an administrative measure and not as punishment pursuant to the Uniform Code of Military Justice (UCMJ). In accordance with Army Regulation (AR) 600-37 (Unfavorable Information), paragraph 3-4(b), the CG, 2ID, advised the applicant that he was considering filing the reprimand in his Army Military Human Resource Record (AMHRR), now known as the OMPF, but he would consider any written matters the applicant wished to submit before making his filing decision. b. A review of the GOMOR failed to reveal any reference to an allegation of conduct unbecoming an officer. c. The GOMOR lists the following five enclosures: * CID investigation * Chain of Command recommendations * Acknowledgement * FLAG (Suspension of Favorable Personnel Actions) * ORB 4. A memorandum to the CG, 2ID, subject: Acknowledgement of Receipt of Reprimand, shows the applicant acknowledged receipt of the GOMOR presented to him by the CG, 2ID, on 12 November 2014. It also shows he elected to submit matters in extenuation, mitigation, or rebuttal within seven calendar days and that the applicant placed his signature on the document. 5. On 17 November 2014, the applicant submitted matters for consideration to the CG, 2ID. a. He requested withdrawal of the GOMOR or, in the alternative, that the GOMOR be filed in his local file. b. It shows he stated, "I fully accept responsibility for my actions and understand there will be a resulting punishment." He offered a brief explanation of the circumstances surrounding his situation. He concluded, "[l]ooking back, I know I did not exercise good judgment in filing the TLE claim." He added, "[t]here was an additional accusation of receiving unauthorized BAH entitlements, but I was and still am authorized the BAH entitlements that I have received to-date. Once informed of a U.S. debt, I paid the entire amount of $1,280.56." c. In support of his rebuttal the applicant provided six character reference letters, along with his ORB, three most recent OERs, awards, and debt payment letter. A review of the character reference letters failed to reveal evidence that any of the authors offered eyewitness testimony to provide facts demonstrating the applicant's innocence regarding the circumstances identified in the GOMOR. 6. On 8 December 2014, after careful consideration of the facts and circumstances pertaining to the applicant's case, the chain of command's recommendations, and the rebuttal matters submitted by the applicant in defense, the CG, 2ID, directed the GOMOR and all enclosures be permanently filed in the applicant's OMPF, as appropriate. The GOMOR filing directive lists three enclosures: * Chain of Command recommendations * Administrative Reprimand with enclosures * Applicant's Rebuttal Matters 7. A review of the applicant's OMPF shows the GOMOR, dated 27 October 2014, along with 290 pages of allied documents (i.e., identified as enclosures to the GOMOR, including the applicant's rebuttal and supporting documents, the chain of command's recommendations, and the filing directive) are filed in the performance folder of his OMPF. 8. A further review of his military service records failed to reveal any evidence that he applied to the Department of the Army Suitability Evaluation Board for transfer of the GOMOR to the restricted folder of his OMPF. 9. In support of his application the applicant provides the following documents. a. His ORB, dated 2 February 2016, that shows, in pertinent part, his military and civilian education, awards and decorations, and that he is currently serving in the Office of the Deputy Chief of Staff, G-3, Pentagon, Washington, DC. b. An OER covering the period 8 January 2014 through 17 March 2015, for the principal duty of Division Air and Missile Defense Operations Officer, Company A, Headquarters and Headquarters Battalion, Camp Red Cloud (Korea). It shows the rater evaluated the applicant as "proficient" and stated his performance was commendable. The senior rater assessed his potential compared with officers he rated in the same grade as "highly qualified." c. Procedure for Officer Board of Inquiry by Appointment by Commander, U.S. Army MDW, Fort McNair, Washington, DC, dated 9 October 2015. (1) It shows the board: * found the allegation of knowingly and wrongfully receiving unauthorized TLE resulting in a GOMOR, issued on 27 October 2014, in the notification of proposed separation, is supported by a preponderance of the evidence * the allegation of conduct unbecoming an officer, in the notification of proposed separation, is not supported by a preponderance of the evidence (3) The findings do not warrant separation with respect to the applicant. (4) The board recommended the applicant be retained in the U.S. Army. (5) The document does not include the approval authority's decision. REFERENCES: 1. AR 600-8-104 (Military Personnel Information Management/Records) provides policies, operating tasks, and steps governing the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. The Authorized Documents table provides guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature. It shows the letter/memorandum, referral correspondence, member's reply, and allied documents will be filed in the performance folder of the OMPF unless otherwise directed. All other allied documents not listed will be filed in the restricted folder of the OMPF. 2. AR 600-37 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; and ensure that the best interests 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. DISCUSSION: 1. The applicant contends the GOMOR, dated 27 October 2014, and all allied documents should be removed from his OMPF because it is unjust and in error. A proper investigation was not conducted to produce facts which would have provided evidence of no malicious intent to commit fraud. Additionally, a Board of Inquiry found the allegation of conduct unbecoming an officer was not supported by a preponderance of evidence and did not support or warrant separation. 2. The available evidence shows a CID investigation revealed the applicant knowingly and wrongfully received an unauthorized amount of BAH and that he claimed TLE for dependents who were not in his custody. 3. On 27 October 2014, the applicant was reprimanded by MG Thomas S. V___, CG, 2ID for larceny, fraud, and knowingly providing false official statements to the U.S. Army for his financial gain. a. The reprimand was imposed as an administrative measure and not as punishment pursuant to the UCMJ. b. The applicant acknowledged receipt of the GOMOR on 12 November 2014. c. On 17 November 2014, the applicant submitted matters for consideration to the CG, 2ID. In his statement, the applicant accepted full responsibility for his actions and indicated that he understood there would be a resulting punishment. He offered no official documentary evidence or witness statements rebutting the circumstances that were the basis for the GOMOR. d. On 8 December 2014, the CG, 2ID, considered the applicant's rebuttal and directed the GOMOR and all enclosures be permanently filed in the applicant's OMPF. e. A review of the applicant's OMPF shows the GOMOR and allied documents are filed in the performance folder of his OMPF as directed by the imposing general officer. 4. On 9 October 2015, a Board of Inquiry found the allegation of knowingly and wrongfully receiving an unauthorized amount for his TLE resulting in a GOMOR, issued on 27 October 2014, is supported by a preponderance of the evidence. a. It also found the allegation of conduct unbecoming an officer, in the notification of proposed separation, is not supported by a preponderance of the evidence. b. There is no evidence of record that shows an allegation of conduct unbecoming an officer is specified in the GOMOR. 5. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that the GOMOR that is filed in the performance folder of his OMPF is untrue, in error, or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002874 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002874 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2