IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20160006201 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: 21 July 2016 DOCKET NUMBER: AR20160006201 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: 21 July 2016 DOCKET NUMBER: AR20160006201 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 unauthorized/unfavorable information attached to a General Officer Memorandum of Reprimand (GOMOR), dated 8 October 2014, permanently filed in his official military personnel file (OMPF). 2. The applicant states: a. He was found guilty of recruiting violations and received a GOMOR as a result. In July 2105, a separation board determined that there were no violations and the allegations were not supported by a preponderance of evidence. As a result of the board's findings the process was started to remove the GOMOR from his records and reinstate him to active duty. He was considered for separation under the Qualitative Management Program (QMP) based on the GOMOR with unfavorable information being filed in his record. The process to remove the GOMOR ceased once he was informed that he was selected for involuntary QMP separation. He requested assistance from the Commanding General (CG) during his out-processing. He recently received a memorandum supporting/requesting the removal of the GOMOR from his OMPF. b. His record is unjust because he was found not guilty of the allegations pertaining to the GOMOR in his record. His entire chain of command, including the CG, supported that the GOMOR is unwarranted and unjustly filed in his records. His entire chain of command submitted memoranda requesting removal of the GOMOR and his reinstatement, yet he was involuntarily separated as a result of the unjust GOMOR. He does not know the reason for the error from July through October 2015 and he was not provided further assistance to clear his record. His immediate chain of command was under the impression and kept informing him that the brigade was clearing his record. They were waiting on the brigade to forward the paperwork for his reinstatement. They now know this was not the process and they should have contacted the Department of the Army Suitability Evaluation Board (DASEB) in July 2015 after his separation board. 3. The applicant provides: * GOMOR * Notification for Potential Denial of Continued Active Duty Service under the QMP memoranda * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) * Administrative Separation Board Findings and Recommendations * Request to Rescind Relief Action and Change GOMOR Filing Determination memorandum * Notification of Denial of Continued Active Duty Service under the QMP memorandum * Recommendation memorandum * Chapter 14 separation memorandum * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 9 April 2003 and he held military occupational specialty 79R (Recruiter). He reenlisted in the RA on 6 May 2005. He served in Afghanistan from 22 January 2007 through 30 November 2007. 2. He again reenlisted in the RA on 17 August 2008 and 11 April 2012. He was promoted to the rank/pay grade of sergeant first class/E-7 on 1 March 2014. 3. He received an "Annual" Noncommissioned Officer Evaluation Report (NCOER) for the rating period 29 May 2013 through 28 May 2014 for his duties as a Center Commander, Army Recruiting Center. He received ratings of "Excellence," "Success," and "Among the Best." 4. On 8 October 2014, he was reprimanded by the CG, U.S. Army Recruiting Command (USAREC), Fort Knox, KY for recruiting violations by engaging in social activities of a personal and unofficial nature with two females, both subjects of a recruiting effort, without at least one qualifying person present. The GOMOR stated: a. He engaged in social activities of a personal, unofficial, nature with private (PVT) AC and Ms. AB, both subjects of a recruiting effort, which violated USAREC Regulation 600-25 (Personnel – General Prohibited and Regulated Activities), paragraphs 2-1a(1)(a) and 2-1a(1) (d). Additionally, he violated USAREC Regulation 600-25, paragraph 2-1 a(4), by wrongfully, on separate occasions, being with PVT AC and Ms. AB, who are of the opposite gender, without at least one qualifying person present. In accordance with Army Regulation (AR) 27-10 (Military Justice), paragraph 3-3b, he was hereby reprimanded. b. As an NCO, he was charged with the responsibility of setting the example for Soldiers to emulate. Clearly, his actions fell below the standards expected of an NCO in the Army. There is no excuse for his irresponsible and improper behavior. This was an administrative reprimand imposed under the provisions of AR 600-37 (Unfavorable Information) and not as punishment under Article 15, Uniform Code of Military Justice. 5. On 15 October 2014, the applicant acknowledged receipt of the GOMOR and elected to submit a rebuttal. In his rebuttal, dated 20 October 2014, he stated: * a considerable amount of deficiencies occurred during his investigation, and there was a huge flaw in the policy that he was found to have violated * three sworn statements identifying a possible conspiracy against him were omitted from the findings * he accepted full responsibility for his actions that had bestowed the perception of any possible inappropriateness * he had never "discouraged anyone against any regulation or policy," nor had he ever intentionally violated any policies * the only true infraction that he committed was not properly annotating that he participated in physical training at a public park with a future Soldier of the opposite gender * he requested the GOMOR be locally filed in his OMPF and his retention as a recruiter 6. In December 2014, his chain of command recommended the GOMOR be permanently filed in his OMPF. 7. On 23 January 2015, after careful consideration of the applicant's case and his rebuttal, the imposing CG ordered the filing of the GOMOR in the applicant's OMPF. The GOMOR is currently filed in the performance folder of his OMPF. 8. He received a "Relief for Cause" NCOER for the period 29 May 2014 through 23 January 2015 for his duties as a Center Commander, Army Recruiting Center. His rater was the first sergeant, his senior rater (SR) was the company commander, and his reviewer was the battalion commander. The NCOER shows in: a. Part IIIf (Counseling Dates): Initial – 28 June 2014, Later – 24 September 2014, and Later – 19 December 2014 b. Part IV (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" blocks for "Honor" and "Integrity" and entered the comments: * did not enforce strict adherence to Army Regulations (AR) * an NCO who did not do what's right both legally and morally c. Part IV (Values/NCO Responsibilities): (1) Section b (Competence), the rater placed an "X" in the "Success" block and entered favorable comments. (2) Section c (Physical Fitness & Military Bearing), the rater placed an "X" in the "Excellence" block and entered favorable comments. (3) Section d (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the comments: * voraciously attacked every recruiting mission given to him without fail; the Center excelled due to his innate ability to take charge, stand out front, and lead * could use refresher on Equal Opportunity and Sexual Harassment/Assault Response and Prevention Program (4) Section e (Training) the rater placed an "X" in the "Success" block and entered favorable comments. (5) Section f (Responsibility & Accountability) the rater placed an "X" in the "Needs Improvement (Much)" block and entered the comments: * the rated NCO has been notified of the reason for relief * relief for cause was directed by 1st General Officer in Chain of Command d. Part V (Overall Performance and Potential): (1) Section a, the rater placed an "X" in the "Marginal" block and commented that the applicant could best serve the Army at his current grade or next higher grade as a Platoon Sergeant, Section Chief, or Heavy Equipment Operator. (2) Section e (SR Bullet Comments), the SR entered the comments: * do not promote * do not send to school * does not have potential for high positions due to lack of trust worthiness * not fit for recruiting duty, recommend reclassification (3) Sections c (SR – Overall Performance) and d (SR – Overall Potential), the SR gave a rating of "Fair" and placed an "X" in the "4" blocks. e. The NCOER was digitally signed by his rater and SR on 11 March 2015 and the reviewer and he signed it on 18 March 2015. 9. He provides: a. Memorandum, dated 22 April 2015, subject: Notification for Potential Denial of Continued Active Duty Service Under the QMP. In this memorandum, the U.S. Army Human Resources Command (HRC) advised him and his chain of command that a QMP board would convene on 14 July 2015 to consider the applicant for separation as a result of the information received from the permanent file in his OMPF. b. A DA Form 1574 showing an administration separation board convened on 23 July 2015 and found the allegations of commission of a serious offense against the applicant and his separation were not supported by the preponderance of evidence and did not warrant separation. The administrative separation board recommended his retention. c. Memorandum, dated 27 September 2015, subject: Request to Rescind Relief Action and Change GOMOR Filing Determination. His battalion commander stated that based on the circumstances there was no evidence to substantiate a serious offense. He recommended the applicant's relief action be rescinded and the GOMOR be filed in the restricted section of the applicant's OMPF. d. Memorandum, dated 28 September 2015, subject: Notification of Denial of Continued Active Duty Service under the QMP. The Chief, Force Alignment Division, HRC, advised the applicant and his chain of command that a QMP board recommended the applicant be denied continued active duty service with an involuntary discharge date no later than 1 April 2016. He also advised the applicant of his rights for appeal within 30 days of the memorandum. e. Memorandum, dated 13 October 2015, from his company commander. He stated: (1) On 16 September 2015, the applicant was suspended from positions of significant trust and authority and removed from his duties as a recruiter based on credible evidence that he received a relief for cause NCOER while serving in the current grade or within the past 5 years. He recommended the applicant be retained in the Army. (2) The applicant was identified for QMP based on the GOMOR being placed in his permanent record. Subsequently, a separation board found insufficient evidence to separate him on the same incident in which his GOMOR was issued for. The applicant had received administrative punishment filing for his actions and had been out of the center leader position since 6 July 2014 pending the outcome of the investigation. (3) It was his belief that the applicant had learned from his actions and as a result would be a better leader from all that he had endured. He recommended the applicant be afforded an administrative transfer to another battalion with the possibility of assuming a center leader position based on the assessment of company commander and first sergeant. f. Memorandum, undated, subject: Separation under AR 635-200, (Active Duty Enlisted Administrative Separations), chapter 14-12c, Commission of a Serious Offense, in which the applicant's brigade commander recommended approval of the findings/recommendations of the separation board to retain the applicant in the Army. g. Memorandum, dated 11 March 2016, subject: Request for Removal of Reprimand. The CG, USAREC, advised the applicant and his chain of command that an administrative separation board found the allegations against the applicant to be untrue, were not supported by a preponderance of the evidence, and did not warrant the applicant's separation. He also stated that in accordance with AR 600-37, paragraph 7-2a, he believed the GOMOR was unjust, in whole or in part, thereby warranting its removal from the applicant's OMPF. h. Memorandum, dated 21 March 2016, subject: Request for Transfer of GOMOR. He requested the DASEB transfer the GOMOR from the performance to the restricted section of his OMPF. He also requested assistance with enlisting and continuing to serve on active duty. 10. He was honorably discharged in pay grade E-7 on 1 April 2016, under the provisions of AR 635-200, chapter 4, by reason of non-retention on active duty, with entitlement to separation pay. He completed 12 years, 11 months, and 23 days of net active service. 11. There is no evidence the DASEB approved the removal of the GOMOR or its transfer from the performance to the restricted section of his OMPF. REFERENCES: 1. AR 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. The regulation stipulates 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. Chapter 7 (Appeals and Petitions) of the regulation provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. The regulation states in: a. Paragraph 7-2 (Policies and Standards), subparagraph b (Appeals for Transfers of OMPF Entries) – the guidance on transfers of OMPF entries and states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF. (1) Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim. It also shows that appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the OMPF. (2) Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of the regulation. GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met. 2. AR 600-8-104 (Army Military Human Resources Records Management) provides policies, operating tasks, and steps governing the OMPF. This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. The regulation states in: a. Table 2-1 (Composition of the OMPF) – the regulatory guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature. It states the letter, referral correspondence, member's reply, and allied documents (if they are specifically directed for file by the letter or referral correspondence) will be filed in the performance section of the OMPF. All other allied documents not listed will be filed in the restricted section of the OMPF. Once a document is placed in the OMPF it becomes a permanent part of that record and will not be removed from or moved to another folder/section unless directed by the proper authorities listed in the regulation. b. Paragraph 2-3 – the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this section is controlled. It may not be released without written approval from the Commander, HRC, or the Headquarters, Department of the Army, selection board proponent. This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. 3. Military Personnel (MILPER) Message 15-394 (Procedures for the Fiscal Year 2016 QMP), dated 7 December 2015, provides guidance and procedures in support of the QMP. The purpose of this board is to identify selected NCOs for possible involuntary separation. Specifically those with a GOMOR, conviction by a court-martial or Article 15, Relief for cause NCOER, a "NO" in the Army Values on an NCOER, an SR rating of "4" on an NCOER, and NCO Education System failures. The messages states: a. Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.). b. Soldiers may appeal on the basis of a material error in their records when reviewed by the board. The chain of command, all the way to a general officer, must recommend approval or disapproval. c. Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge. The Director of Military Personnel Management is the final authority for disposition of appeal. DISCUSSION: 1. The evidence shows the applicant was issued a GOMOR for engaging in unofficial social activities of a personal nature with two females, both subjects of a recruiting effort, without at least one qualifying person present. He accepted responsibility for his actions. His chain of command recommended and the CG ordered the reprimand be placed permanently in his OMPF. He was subsequently issued a "Relief for Cause" NCOER for recruiting violations. 2. An administration separation board found the allegations of commission of a serious offense against the applicant and his separation were not supported by the preponderance of evidence and recommended his retention. 3. The purpose of the administrative separation board was to give him a fair and impartial hearing to determine if he should be retained in the Army. The board recommendations were limited to either retention or elimination and its findings had no bearing on whether he was guilty of recruiting violations as noted in the GOMOR. 4. By regulation, once filed in the OMPF, the reprimand and associated documents are permanent and will not be removed from or moved to another folder unless directed by an appropriate authority (DASEB or ABCMR). The GOMOR and all allied documents are properly filed in the performance section of his OMPF. 5. The QMP MILPER Message outlined the criteria for consideration and the actions by those selected for non-retention. His records contain a reprimand and at least one negative NCOER. As a result, the QMP selected him for non-retention. He was discharged on 1 April 2016. 6. An appeal of the QMP is appropriate when there is a material error in the Soldier's records when reviewed by the board. Cases with material error, newly-discovered evidence, or the removal of documents from the OMPF are eligible for a QMP appeal. This is not the case here. There is neither a material error nor a reason to overturn the QMP's decision not to retain him. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006201 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006201 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2