IN THE CASE OF BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20160008348 BOARD VOTE: ___x_____ ___x___ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20160008348 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned by corrected by: a. removing from his Official Military Personnel File the General Officer Memorandum of Reprimand dated 31 January 2014 and all allied documents and b. showing he has not been selected for separation by an Officer Separation Board as described in the notification sent to him by the U.S. Army Human Resources Command on 8 February 2016. _____________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: 2 August 2016 DOCKET NUMBER: AR20160008348 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 General Officer Memorandum of Reprimand (GOMOR), dated 31 January 2014, and all associated documents be removed from his official military personnel file (OMPF) * his name be removed from the Officer Separation Board (OSB) list and he be permitted to continue to serve 2. The applicant states: a. He requests his application be processed as rapidly as possible as he has been identified to separate from the Army on 1 December 2016 due to the erroneous reprimand and discredited relief for cause (RFC) officer evaluation report (OER). b. In January 2014, he was reprimanded and relieved of his command for allegedly not reporting a rumor of steroid abuse that was determined to have been legal supplements, his unintentional attribution of a conversation to the wrong medical professional, and administering Uniform Code of Military Justice (UCMJ) with (sic) the full knowledge and support of the chain of command and brigade legal advisor in accordance with all applicable rules and regulations. c. The allegations resulted in administrative charges against him for [making] a false statement, dereliction in the performance of his duties, fostering an abusive command climate, and conduct unbecoming an officer in failing to set an example. d. Major General (MG) CKC approved his RFC and reprimanded him on 31 January 2014. MG CKC directed a field board of inquiry (FBOI) to determine his suitability for continued service. On 2 October 2014, the FBOI met, cross-examined him and all witnesses called by the government and his attorney, and reviewed all relevant information. By unanimous vote, the board found that the government failed to provide a preponderance of evidence to support the allegations. A board member felt compelled to illustrate that he had actually performed contrary to the allegations, that he had reported the rumor, that he had no intent to deceive, and that overwhelming evidence contradicted the charge of an abusive command climate. MG CKC approved the FBOI findings and requested the GOMOR be removed from his record. e. Based on the FBOI findings and MG CKC's request, he appealed on 18 March 2015 to the Department of the Army Suitability Evaluation Board (DASEB). On 9 July 2015, the DASEB found he did not meet their burden of proof (clear and convincing). They cited the FBOI's lower burden of proof (preponderance of the evidence) as the reason they denied his appeal. However, the burden of the evidence of the FBOI is to determine if allegations are supported by a preponderance of evidence (emphasis added). f. It appears the DASEB did not grant his appeal due to the government's failure at the FBOI to show the preponderance of the evidence supported the allegations against him. The DASEB findings provide no explanation as to why the government's failure to meet the lowest burden of proof negates the FBOI findings that the accusations are not supported by fact. The DASEB did not consider MG CKC's request to remove the GOMOR. g. Concurrent to his DASEB appeal, he requested that the U.S. Army Human Resources Command's (HRC) evaluation appeals remove the erroneous RFC OER; the accusations in the OER are the same as those in the GOMOR. The Officer Special Review Board (OSRB) removed the RFC OER from his records because clear and convincing evidence proved the OER was based on inaccurate and unjust allegations. h. All allegations against his misconduct are based on a single flawed Army Regulation (AR) 15-6 (Procedures for Investigation Officers (IO) and Boards of Officers) investigation that was authored by the brigade S-4, Major (MAJ) GS (i.e., JS). Her accusations were made in spite of the evidence, not supported by it. He clarified his unintentional attribution regarding the conversation immediately upon realizing his mistake; MAJ J's sworn statement to MAJ JS confirmed their conversation. i. The U.S. Army Criminal Investigation Command (CID) agent and brigade legal advisor, Captain (CPT) B, both confirmed that no evidence of steroid use existed on 6 January 2014. On 12 January 2014, he stated that after there was confirmation that no steroid use had been confirmed, that he had reported the rumor by cell phone which is indicated in the cell phone record. Lieutenant Colonel (LTC) C stated he did not remember if he had or had not reported the rumor. j. MAJ JS entirely fabricated the accusation that he fostered a negative command climate. She interviewed him, his first sergeant (1SG), and one platoon leader. Her investigation of his command climate lasted an hour. Two weeks prior to her investigation, the Kosovo Force (KFOR) Inspector General (IG) spent a week interviewing every single Soldier in his company. They anonymously provided specific statements regarding his command climate. The KFOR IG's summary did not find that he had fostered a negative climate. k. The squadron S-3, MAJ JN, delivered 70 preformatted sworn statements to the leaders of his company on 23 January 2014. Every available Soldier in the company completed the statements and returned them. The vast majority of the Soldiers stated he consistently taught and enforced a culture of dignity and respect. Among other superlative comments, they recalled his teaching field craft and perseverance in the worst conditions and cited providing an example of leadership as the reason they reenlisted. l. An indication of why this AR 15-6 is so egregiously flawed can be found in the statement of the brigade S-3 who took great issue with the brigade command climate and cites that as the reason this whole incident happened. m. He wishes to continue his vocation and serve honorably as a professional officer. He has demonstrated excellence and aptitude for future service in every position he has held as evidenced by senior leaders identifying his continued service and promotion as in the best interest of the Army. n. Since August 2015, he has been the battalion (BN) operations officer, a MAJ's key developmental (KD) position, for the 1st BN, 509th Parachute Infantry Regiment (PIR). In this position, he has planned and directed the employment and maneuver of nine company elements and brigade enablers to defeat U.S. Army Brigade Combat Teams in simulated combat. These exercises include airborne and helicopter insertions; integration of cyber warfare; technical information collection; and the maneuver of irregular, motorized, and armor companies as part of a combined arms BN task force in high intensity conflict. o. Previously, he served as the BN S-3, Headquarters and Headquarters Battalion (HHBN), XVIII Airborne Corps, a MAJ's KD position, where he was enumerated as first among his peers, and received an "Above Center Mass" OER with superlative comments; he also received a Meritorious Service Medal. p. Based on his performance as a Long Range Surveillance (LRS) platoon leader, he was selected to command the elite LRS Company (CO) 2 months after his promotion to CPT and prior to attending the Maneuver Captains Career Course. This exception to policy was vocally approved at the Corps level. During this command, all of his peers stated they would seek to serve with him in combat. The XVIII Airborne Corps deputy commander commended him for his performance as the LRS CO commander. His Soldiers, noncommissioned officers (NCOs), and Officers provided sworn statements in testament to his command. The Organization for Security and Cooperation in Europe regional security officer, LM, attributed his leadership in part to Kosovo's safe elections. q. As a platoon leader, each of his senior raters enumerated him as first among his peers in both the 82nd Airborne Division and the LRS CO, XVIII Airborne Corps. He is a distinguished military graduate and received the leadership awards in all of his professional schools to include the Primary Leadership Development Course, Basic NCO Course, Officer Basic Course, Ranger school, and the Maneuver Captains Career Course where he was board-selected as class leader. He graduated at the top of his Ranger class and at or near the top of every other course. 3. The applicant provides: * five certificates, dated between 3 February 2005 and 22 January 2010 * two DA Forms 1059 (Service School Academic Evaluation Report), dated 22 October 2009 and 14 July 2015 * two DA Forms 67-9 (OER), dated 1 November 2011 and 22 April 2013 * letter of appreciation, dated 3 December 2013 * two pages titled [The Applicant's] Cell Phone Record listing phone numbers from 1 December 2013 to 31 December 2013 * page 5 of CID Form 94 (Agent's Investigation Report), dated 6 January 2014 * five memoranda, dated between 7 January 2014 and 3 September 2015 * 74 DA Forms 2823 (Sworn Statement), dated between 12 January 2014 and 19 February 2014 * GOMOR, dated 31 January 2014 * 15 statements of support, one undated and 14 dated between 18 February 2014 and19 April 2016 * DA Form 1574 (Report of Proceedings by Investigation Officer (IO)/Board of Officers), dated 2 October 2014 * DA Form 638 (Recommendation for Award), dated 12 January 2015 * DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) OER), dated 18 March 2015 * DASEB Record of Proceedings (ROP), dated 9 July 2015 * two letters, dated 3 September 2015 and 28 February 2016 * OSRB ROP, dated 11 March 2016 CONSIDERATION OF EVIDENCE: 1. The applicant was serving on active duty in the enlisted rank of staff sergeant (SSG) and was honorably discharged on 8 May 2009 to accept an appointment as a commissioned officer. He was appointed as a second lieutenant Reserve Infantry Officer and executed an oath of office on 9 May 2009. He served continuously on active duty and was promoted to the rank/grade of CPT/O-3 in the Regular Army on 1 December 2012. 2. He was assigned as the company commander to C Troop, 1st Squadron, 38th Cavalry Regiment, 525th Battlefield Surveillance Brigade (BSB), Fort Bragg, NC. In 2013, his unit was serving in Kosovo and assigned to the Forward Command Post, Multi-National Battle Group-East (MNBG-E). 3. The applicant provides: a. Page 5 of a CID Form 94, dated 6 January 2014, wherein it stated, in part, about 1200, 6 January 2014, Special Agent (SA) P coordinated with CPT B who concurred that no probable cause existed to believe SSG D committed the offense of wrongful use and possession of a controlled substance (steroids). b. A memorandum with the names redacted, dated 7 January 2014, for the Commander, MNBG-E, wherein the IG stated, in part: (1) On 23 December 2013, he was directed to visit the applicant's unit to get a better understanding of the command climate. The visit was based upon concerns from comments made in previous command climate surveys and records of nonjudicial punishment (NJP). (2) With the exception of a few cases within a small group of NCOs not treating their subordinates with dignity and respect or exemplifying the highest ethical and professional standards embodied in the Army Values, he did not find the unit had any issues beyond that of a normal company within the Army. (3) The unit had many examples of outstanding NCOs. When asking Soldiers who they would want to model their leadership style after or whom they most looked up to, the 1SG and three NCOs were often mentioned. An MNBG-E command climate survey was conducted prior to December 2013 and comments attributed to Soldiers of the unit referenced a lack of communication, assault, hazing, belittling, bullying, and double standards within the company. (4) A perception within the company existed that if you were an NCO or had a Ranger Tab, you were untouchable and did not have to play by the same rules. Junior Soldiers cited multiple incidents where NCOs were not punished or things were "swept under the rug." Soldiers at all levels in the unit believed there was a problem with communication. 4. His record contains a memorandum for the Commander, MNBG-E, dated 7 January 2014, subject: Referral of non-CID purview offense (False Official Statement), wherein the CID SA in Charge (SAIC) stated, in part: a. During a recent investigation into SSG D that had reportedly possessed and used a controlled substance (steroids) the applicant knowingly provided false statements to the CID office relating that he had personally confirmed information and had spoken with individuals about the incident in question which he had not. b. On 1 January 2014, SA P met with the applicant who relayed he was aware of the incident and had already verified the information provided by SSG D. The applicant stated he coordinated with the "doctor" [who provided the substance] and then verified through his physician assistant (PA) that this was the treatment for injuries like the one SSG D had. SA P requested any information or emails and the applicant provided a single email that appeared to be from SSG D to the applicant. SA P watched as the applicant pulled up the email then deleted portions of it before providing it to SA P. The applicant stated he had investigated it, determined it was not criminal, and that he had briefed LTC C on his findings. c. SA P contacted the individual in CA who provided the stuff being injected and he relayed he was not a doctor; he gave massages to make a living and had treated SSG D for his shoulder pain. He researched treatments online and had mixed dextrose (sugar) with a saline solution to be used to inject in the shoulder and mailed it to SSG D. The individual stated no one except SA P had contacted him requesting information about what was in the shots except for SSG D. d. On 4 January 2014, SA P relayed the information to the applicant and the applicant responded that it was what he confirmed through the PA. SA P subsequently contacted the PA and the PA had no knowledge of the incident. In accordance with investigative guidelines this matter was outside the normal investigative responsibility of CID and was referred to the commander for appropriate action. 5. In a memorandum, dated 10 January 2014, subject: AR 15-6 Investigation Findings and Recommendations (#MBE-17-014), MAJ HC stated, in part: a. On 28 December 2013, she was appointed as the AR 15-6 IO to conduct an informal investigation into allegations of maltreatment within the applicant's unit. The allegations were derived from anonymous statements made through a 12 November 2013 command climate survey and statements obtained by the approving authority through an unrelated AR 15-6 investigation. b. The purpose was to address whether two NCOs hazed enlisted Soldiers in July 2013; if a team leader consumed alcohol while stationed in Kosovo and threatened a subordinate about reporting it; if unit NCOs engaged in patterns of behavior amounting to hazing, improper corrective training, or maltreatment of subordinates; and if NCOs created, or otherwise allowed to persist, a working environment that was characterized by low morale, mistrust, abuse, or an otherwise negative atmosphere. c. An informal commander's inquiry had been conducted after receiving reports of improper corrective training measures being used. The inquiry did not discuss whether hazing occurred but found corrective training had been excessive and two Soldiers had made physical contact with subordinates. Two NCOs received NJP as a result with 7 days restriction and 7 days extra duty as the imposed punishment. However, most unit Soldiers stated the NCOs were required to pull "chow guard" for 2 to 3 days as the extra duty. The punishment of the NCOs was ineffective in that it was not visible or communicated in any manner so the degradation of morale caused by the incident was never addressed. As a result, Soldiers continued to note the maltreatment was ignored and this was the source of low morale within the unit. d. The LRS company had a serious identity problem. One question the leadership could not agree on was if they were an infantry company with an LRS mission or an LRS company with an infantry mission. Addressing the identity issue and providing opportunities to all Soldiers within the unit may significantly increase unit morale and motivation. e. The recommendations were for three NCOs to receive formal counseling and training, two NCOs receive NJP for misconduct, one NCO receive a formal reprimand, the appointing authority further investigate the allegations involving drug use by two NCOs, and the appointing authority further investigate allegations that an NCO consumed alcohol and had inappropriate sexual relations with a local Kosovo female. 6. In a memorandum, dated 15 January 2014, subject: AR 15-6 Investigation (#MBE-17-015), MAJ JS stated, in part: a. On 11 January 2014, she was appointed at the AR 15-6 IO to conduct an informal investigation into allegations of misconduct against the applicant raised during a recent CID and commander's investigation. b. On 13 December 2013, it was reported by first lieutenant (1LT) MM to the applicant that SSG PD was seen injecting an unknown substance into SSG D in the presence of other Soldiers. This was reported to the applicant both verbally and then by email with written evidence. c. On 31 December 2013, CID SA P opened a criminal investigation after receiving a report of allegations of one Soldier injecting an unknown substance into the shoulder of another Soldier. Following an initial inquiry, he determined the wrongful use of an illegal substance such as steroids was unfounded but referred matters to the MNBG-E commander as a result of other evidence collected. Per CID SA P's referral memorandum, dated 7 January 2014, he determined the applicant may have made false official statements during his inquiry. He also noted that the applicant stated he had investigated the matter himself prior to the CID investigation, although the matter could have involved possible drug use and the applicant did not have the authority or expertise to investigate the matter. d. 1LT MM reported the incident to the applicant; however, there is no evidence to support that the applicant or the 1SG made any action or decision further than to receive the information. No reporting action was taken by the applicant in accordance with MNBG-E reporting requirements and ARs. The applicant admitted that he never formally reported it higher but stated that he had a conversation with LTC C about it. However, due to inconsistent statements given by the applicant to CID and the AR 15-6 IO, she could not judge the reliability of the self-serving statements indicating he reported it to LTC C. Additionally no other statements corroborated that the applicant informed or reported the matter to LTC C. e. The applicant stated in an interview with her that he was not aware of command policy that stated he must report any allegations of drug use higher. He blamed his lack of proper reporting due to the initiation of another investigation involving the same personnel. The only action he took was to inform the unit prevention leader and 1SG that he wanted a probable cause urinalysis or 100 percent unit urinalysis for the company; however, the timing of his request could not be confirmed due to his lack of credibility. His request for a probable cause urinalysis suggested he believed there was sufficient evidence to suggest that his Soldier(s) had used illegal substances. f. The finding was that the applicant was derelict in his duties by failing to report allegations that might amount to wrongful use of illegal drugs through his chain of command as required by MNBG-E Command Policy. g. In an email, dated 2 January 2014, the applicant told CID that he asked for the specific ingredients of the unknown substance from the "doctor" and verified it through their PA. On 3 January 2014, he again stated that the substance ingredients provided to CID by a "doctor" involved were also what he had confirmed with the PA. CPT W (the PA) told CID that he had not spoken with the applicant about the ingredients and reiterated that verbally with her. The applicant later stated he did not know why CPT W denied talking to him and insisted he spoke to him telephonically on 13 or 14 December 2013, prior to talking to LTC C. She asked the applicant twice more if he ever spoke to any other PA, doctor, or anyone about the alleged drug situation for advice and both times he stated no. h. After reviewing his statement to CID and preparing a written sworn statement for the AR 15-6 investigation, the applicant then informed her that a verbal interview question had jarred his memory. The applicant then provided several conflicting statements in follow-up correspondence about whom he had spoken to resulting in a final statement that he did not recall who he had spoken with about the incident, specifically about the legality or the ingredients of the unknown substances. i. The applicant indicated to both CID and to her that he talked to LTC C about the injections. While he was apparently unaware of a policy to report the issue, he had an "intuition" that it should be reported and had a brief, informal conversation with LTC C about the subject but did not complete any formal report. There was no indication that the specific allegation involving possible drug use was reported to LTC C. j. The findings were: (1) The applicant made a false official statement to a CID agent when he stated in an email, dated 2 January 2014, that he asked for the specific ingredients of the unknown substance from the "doctor" and verified it through the PA. (2) The applicant made a false official statement to a CID agent when he stated on 3 January 2014 that he had confirmed with the PA certain ingredients of the unknown substance. (3) The applicant made conflicting statements about the method of reporting the injection incident to LTC C and what precisely was reported; however, there is insufficient evidence to conclude that he made any statements about the report with the intent to deceive or mislead. k. In July 2013, the applicant issued two summarized Article 15s to NCOs at Gate 1. The NCOs were found guilty of all offenses and the punishment imposed was 14 days extra duty and 14 days restriction. The 1SG accepted the responsibility for ensuring the execution of the actions. There were several communication problems between the applicant and the 1SG. The applicant stated his specific orders were to improve base defense and fill sand bags at Gate 1 as part of the extra duty. The 1SG either chose not to follow the orders or did not fully understand them. He had the NCOs serve the extra duty in the dining facility by monitoring food rations to prevent unauthorized "stealing of food" and never reported this choice to the applicant. l. The applicant believed the two NCOs might have been unable to complete the full 14 days of the extra duty due to conducting patrols. However, the 1SG stated he ensured they did not go out on patrols because they were on "restriction." At no time did the applicant and 1SG discuss that the restriction was preventing the execution of normal duties and responsibilities of the NCOs, nor did they communicate about the progress or impact of the punishments despite the serious nature of the original offenses, which included the maltreatment of subordinates in his unit. Regardless of the lack of communication and misunderstanding, both the applicant and the 1SG believed the punishment was effective and improved the morale with the unit by showing accountability for misconduct regardless of rank. However, 1LT MM observed that the punishment had no impact on the unit. m. The findings were: (1) It was apparent that there were clear signs of ineffective communication and integrity problems between the company command team and possible lack of command and control of personnel within the unit. The issues symbolized a lack of loyalty and sincere care for their Soldiers and for each other as a command team. (2) The applicant and the 1SG believed that the punishment was effective and improved unit morale by showing accountability for misconduct regardless of rank. However, there was no evidence to corroborate whether the punishment was effective particularly due to the nature of how it was carried out. n. The recommendations were: (1) Immediate implementation of a professional development program for Officers and NCOs within the company with emphasis on topics like leadership vice toxic leadership, effective communication, Army Values, and the role of the NCO. Direct and transparent dialogue with the Soldiers within the company. (2) The applicant receive a GOMOR to be filed in his OMPF for his misconduct to deter future integrity violations. Leadership failures to this extent be documented in his performance evaluation. (3) The 1SG receive an administrative reprimand and extra training with potential for rehabilitation for continued future service. 7. The applicant was subsequently relieved of his command and returned to the United States. On 27 January 2014, he was assigned to the Rear Detachment, 1st Squadron, 38th Cavalry Regiment, 525th BSB, Fort Bragg. 8. On 31 January 2014, he received a GOMOR from MG CKC, Commander, Headquarters (HQ), Fort Bragg. MG CKC stated: a. An investigation conducted pursuant to AR 15-6 revealed that he made false official statements, was derelict in the performance of his duties, and fostered an abusive command climate. Specifically, in December 2013 he was notified by a subordinate that he witnessed one of his Soldiers injecting an unknown substance into the shoulder of another Soldier and he failed to report it. b. Additionally, when a CID SA questioned him about the incident he falsely stated that he had verified the ingredients of the unknown substance and had reported it to his next higher command. Another investigation conducted between December 2013 and January 2014, revealed a command climate which condoned instances of improper corrective training and verbal abuse and suggested his Soldiers feared coming forward with complaints. His lack of communication and failure to serve as a visible leader within his organization contributed to this climate. He was hereby reprimanded. c. His behavior demonstrated a complete lack of discipline and poor judgment that betrayed the trust placed in him as a commissioned officer in the Army. His misconduct not only undermined his credibility but also any confidence and trust he may have earned from his chain of command, peers, and subordinates alike. His actions were unacceptable and he (MG CKC) would not tolerate further misconduct of this nature. He expected him to conduct himself with the highest standards of professionalism, discipline, and integrity. d. The GOMOR was imposed as an administrative measure and not as punishment under Article 15, UCMJ. He intended to direct filing the GOMOR in his OMPF; however, he would consider any matters submitted in rebuttal before he made a final decision. 9. In a response to the GOMOR, dated 27 February 2014, the applicant stated he requested the GOMOR be rescinded based on erroneous and false information. He further requested appropriate action be taken to repair the damage that had been done to his professional reputation and career. a. The investigation that led to the reprimand was fundamentally flawed in both its legal integrity and the facts gathered. Due to the false information, COL W reached an inaccurate conclusion which was reasonably based on the flawed information. b. He categorically rejected assertions that he condoned, fostered, or allowed a negative command climate within his company. His subordinates identified him as an excellent commander and he refuted in detail the erroneous and false information. He demonstrably improved the company climate and systems despite relocating the company every 3 weeks throughout the deployment. The AR 15-6 investigation conducted by MAJ JS did not meet the standard of a fair and impartial determination of the facts and findings, and presented unsubstantiated recommendations with an unprofessional tone. c. He also categorically rejected that he made false official statements regarding his inquiry of the steroid use rumor with his company. He did not write a false statement, nor did he make any statement with the intent to deceive. In both matters, the AR 15-6 IO failed to present a preponderance of evidence to show that he made a statement that he knew to be false or that his intent in making the statement was to deceive. He cooperated with every investigation and followed up with each IO in the context of the many conversations they had. He reported the matter to LTC C and pursued his inquiry into the facts of the situation exactly as he had done regarding every other rumor/allegation of misconduct during the deployment. d. He believed, and provided evidence, that there was a pattern of commanders and staff officers failing to confront unethical and fraudulent behavior in the organization. He believed his willingness to confront those issues caused him to be viewed as a threat to the reputation of senior officers and NCOs. He believed this contributed to the negative connotation of the investigations of his command. These incidents were detailed in the rebuttal and supporting exhibits. e. He believed that he could continue to serve the Army as an exceptional officer. He had exceeded the standard in every aspect of his military career. He was asked to command the LRS Company prior to attending the Maneuver Captain's Career Course because of his proven capacity and professionalism. Each of his previous senior raters, to include his current squadron commander, LTC C, recognized him as the first among his peers in annual evaluations. f. He requested the reprimand be withdrawn and cancellation of the RFC with [the issuance of] an appropriate OER reflecting his actual contributions that would be just, accurate, and in the best interests of the Army. At the very least, the information he provided in rebuttal should be sufficient for him (MG CKC) to appoint a new AR 15-6 IO to conduct an investigation which would be thorough and accurate and provide information upon which he could determine if he was deserving of the reprimand and relief for cause. 10. Part of the exhibits he provided MG CKC with his rebuttal included the 74 DA Forms 2823 and several statements of support he provided with this application. 11. On 13 May 2014, the Commander, 525th BSB, COL DJW, recommended the GOMOR be filed in the applicant's OMPF. He stated he was making the recommendation because after conducting multiple AR 15-6 investigations, he determined the applicant had made false statements, was derelict in the performance of his duties, and fostered an abusive command climate. 12. On 22 May 2014, MG CKC directed the GOMOR be filed in the applicant's OMPF. The GOMOR is currently filed in the performance folder of his OMPF. 13. The applicant subsequently received a RFC OER covering the rated period 8 February 2014 through 14 May 2014. He alleged the OER was improper and requested a commander's inquiry be conducted. This OER is not available for review for this case. 14. In a memorandum, dated 14 September 2014, MG CKC, notified the applicant that he had completed the commander's inquiry into his RFC OER. a. He (MG CKC) concluded the following: * the allegation that the OER was not objective was unsubstantiated * the assertion that the applicant did not make false official statements, was not derelict in his duties, and did not foster an abusive command climate was unsubstantiated * the allegation that he was not properly counseled in accordance with AR 623-3 (Evaluation Reporting System) was substantiated; however, he found he had been counseled within the spirit of AR 623-3 * the allegation the OER was improperly delayed was unsubstantiated * the allegation he was improperly denied the ability to submit comments to the OER was unsubstantiated b. He had recommended the OER be processed as written and filed in his OMPF and advised him of his right to appeal the OER as outlined in AR 623-3. 15. In a memorandum to HRC, dated 4 September 2014, MG CKC stated he completed a commander's inquiry into the applicant's OER. a. The commander's inquiry was conducted to look into alleged errors, injustices, or legalities pertaining to the OER. His inquiry was focused on the objectivity of OER, the truthfulness of the senior rater's statements, whether proper counseling was conducted, whether the OER was improperly delayed, and whether the subject Soldier was improperly denied the ability to submit comments to the OER. b. As a result of his inquiry, he determined the allegation the OER was not objective was unsubstantiated and the assertions that the applicant did not make false official statements, was not derelict in his duties, and did not foster an abusive command climate were unsubstantiated. The allegation the applicant was not properly counseled in accordance with AR 623-3 was substantiated; however, he found he had been counseled within the spirit of AR 623-3. The allegation the OER was improperly delayed was unsubstantiated, and the allegation the applicant was improperly denied the ability to submit comments to the OER was unsubstantiated. c. He recommended the OER be processed and filed in the applicant's OMPF. The applicant had been informed of his (MG CKC's) findings and his right to appeal. He had enclosed sufficient documentation to this report to justify the conclusions stated above. 16. On 2 October 2014, an FBOI convened to determine if the applicant should be retained on active duty. The DA Form 1574 shows the board carefully considered all of the admitted evidence and found: a. The allegation that on or about December 2013 the applicant failed to report allegations of unlawful drug use as reflected in a GOMOR filing determination was not supported by a preponderance of the evidence. b. The allegation that on or about December 2013 the applicant made false official statements to a CID SA as reflected in a GOMOR filing determination was not supported by a preponderance of the evidence. c. The allegation that between on or about March 2013 and January 2014 the applicant fostered a negative command climate by failing to communicate with his Soldiers as reflected in a GOMOR filing determination was not supported by a preponderance of the evidence. d. The allegation that between on or about March 2013 and January 2014 the applicant fostered a negative command climate by showing a lack of integrity and concern for his Soldiers as reflected in a GOMOR filing determination was not supported by a preponderance of the evidence. e. The allegation that the applicant's conduct, as reflected in a GOMOR filing determination, was unbecoming of an officer was not supported by a preponderance of the evidence. f. The board recommended the applicant be retained in the Army with reassignment. 17. On 31 October 2014, MG CKC approved the board's findings and recommended approval of the board's recommendation that the applicant be retained on active duty with reassignment in the Army. The recommendation was subsequently approved and the applicant was subsequently reassigned to the 1st BN, 509th PIR, Joint Readiness Training Center (JRTC), Fort Polk, LA. 18. On 9 July 2015, the DASEB denied the applicant's request for the removal of the GOMOR from his OMPF and determined: a. The evidence presented did not clearly and convincingly establish the GOMOR was untrue or unjust and determined the overall merits of the case did not warrant the requested relief. b. The findings and recommendations of the FBOI had no bearing on whether the applicant's misconduct was untrue or unjust. The FBOI did not unsubstantiated any of the investigations on the validity of the GOMOR. The burden of proof for removal of a GOMOR is clear and convincing evidence; an FBOI's findings are based on a preponderance of evidence which is a lower burden of proof. 19. In an MFR, dated 11 August 2015, MG CKC stated, in part: a. On 31 January 2014, he signed a GOMOR concerning allegations against the applicant. The applicant steadfastly denied the allegations which resulted in multiple investigations both directly and indirectly into the allegations. He directed the GOMOR should be filed in his OMPF based on the information available to him at the time. Shortly after the filing determination, the applicant requested he write a letter on his behalf regarding the GOMOR filing determination. He advised the applicant that he would consider doing so after at least a year had passed if he continued to Soldier on and demonstrated his capacity to effectively service and lead Soldiers. b. He recently learned the applicant successfully completed the Maneuver CPTs Career Course where he earned the leadership award and was selected as an honor graduate. He also received additional information concerning the underlying allegations of misconduct that were the basis for the GOMOR. The additional information significantly mitigates the applicant's culpability; however, competence and character should not be confused. He believed leaders could learn and grow from mistakes and given these additional facts, together with the applicant's demonstration of dedicated service and superior leadership potential, he believed the intended purpose of the GOMOR had been served. He recommended the GOMOR be removed from the applicant's OMPF as it was in the best interest of the Army. 20. The applicant provides a letter he received, dated 8 February 2016, from the Director, Officer Personnel and Management Directorate, HRC, wherein it stated, in part: a. Based on the Army restructuring into a smaller force, several of the most experienced and professional officers will be required to separate from the Army. These painful decisions had been made very carefully to ensure officers affected were treated fairly and with dignity and respect. His personal contributions and selfless service have made a tremendous difference in the security of our Nation. b. It was the official's difficult duty to notify him of his selection for separation by a board convened under the provisions of Title 10, U.S. Code, section 638a. As a result of this board, many highly qualified officers were selected for involuntary separation and he would be separated from the Army on 1 December 2016. 21. The applicant subsequently appealed the RFC OER he received for the rated period 8 February 2014 to 14 May 2014 and requested it be removed from his OMPF. He stated the OER was not objective and was a reflection of the rater and senior rater's prejudice against him taking and completing his command. 22. On 11 March 2016, the OSRB granted the applicant's request and determined that based on the available evidence the applicant had provided, there was clear and convincing evidence that showed the ratings on the contested report were in error or were not the considered opinions and objective judgements of the rating officials at the time the report was rendered. The RFC OER was removed from his OMPF and the rated period was declared nonrated. 23. The applicant provides statements of support as follows: a. One dated 14 April 2016, wherein LTC CLR stated, in part, he was the Commander, 1st BN, 509th Infantry and the applicant had served under his command for a year. He was the number one officer in the BN, regardless of rank, which was no surprise when one considered his outstanding service record. This was his strongest endorsement of the applicant's character and the Army was best served by grooming him for future service and increasing responsibility. b. One dated 18 April 2016, wherein COL CCL stated, in part, he fully endorsed actions to correct the applicant's record and retain him on active duty. As the Commander of Operations Group, JRTC, he had observed the applicant's exceptional performance as the operations officer of 1st BN, 509th Infantry, a position above his pay grade. His maturity, candor, and leadership had consistently exceeded expectations. His overall performance, selfless service, and unlimited potential were indicative of the highest caliber of future service; he must be retained. c. One dated 19 April 2016, wherein Brigadier General (BG) XTB stated, in part, he served as the applicant's brigade commander from 23 September 2011 until 22 March 2013. He was an officer of the highest moral bearing. His dedication to his Soldiers, drive to accomplish his assigned missions, and intelligent leadership were the reasons he selected him to command his LRS CO. The applicant was highly regarded by his peers and subordinates alike and he had his (BG XTB's) unqualified trust. This trust leads him to respectfully ask that he have the privilege to continue to serve in the Army. Consider this as his continued strongest recommendation of the potential that he has seen and continues to observe in the applicant. His continued service in our Army is warranted and he looked forward to continuing watching him grow as a man, leader, and Soldier in the future. REFERENCES: 1. AR 600-37 (Unfavorable Information) provides that: a. An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made. b. A GOMOR may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the GOMOR is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the GOMOR and associated documents are permanent unless removed in accordance with AR 600-37, chapter 7. c. An officer who directed the filing in the OMPF of a GOMOR may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in part. The basis for such determination must be provided DASEB in sufficient detail so as to justify the request. An officer who directed the filing of such a letter in the OMPF may not initiate an appeal on the basis that the letter has served its intended purpose. However, a letter of support may be submitted with the recipient’s appeal. 2. AR 600-8-24 (Officer Transfers and Discharges) provides that: a. The Board of Inquiry's (BOI) purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army. The BOI establishes and records the facts of the respondent's alleged misconduct, substandard performance of duty, or conduct incompatible with military service. Based upon the findings of fact established by and recorded in the report, the board then makes a recommendation for the officer's disposition. b. Based on the evidence presented at the hearing, the board will make a separate finding on each factual allegation. The board will render findings of fact supported by a preponderance of the evidence. The board may not recommend the removal of documents such as OERs, Article 15s, and memoranda of reprimand (MOR) from an officer's OMPF. The board recommendations are limited to either retention, with or without reassignment, or elimination. 3. AR 623-3 provides that: a. Rating officials will prepare evaluation reports that are forthright, accurate, and as complete as possible. This responsibility is vital to the long-range success of the Army's mission. With due regard for the rated Soldier's current rank or grade, experience, and military schooling, evaluations will cover failures as well as achievements. Evaluations normally will not be based on a few isolated minor incidents. Rating officials have a responsibility to balance their obligations to the rated Soldier with the obligations of the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated Soldier for their achievements and potential. On the other hand, rating officials are obligated to the Army to be honest and discriminating in their evaluations so Army leaders, selection boards, and career managers can make intelligent decisions. b. Each report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period. An evaluation report will not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time. The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation. c. Exceptions to this policy are granted only, in part, when RFC evaluation reports are based on information pertaining to a previous reporting period (for example, relief of a Solder found to be involved in some illegal activity during a previous reporting period), they may refer to a prior rating period to explain the reasons for relief. DISCUSSION: 1. The evidence of record shows the applicant received a GOMOR in January 2014 for making false official statements, being derelict in the performance of his duties, and fostering an abusive command climate. He was provided with an opportunity to submit matters in his own behalf and he did so. The GOMOR was ultimately filed in the performance folder of his OMPF as directed by the GO that issued the GOMOR. 2. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, 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. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. Generally, unfavorable information is removed, it is only done so if it is untrue or unjust. 3. In July 2015, in accordance with governing regulations the DASEB denied his request to remove the GOMOR from his OMPF as the evidence presented did not show the GOMOR was untrue or unjust. 4. The fact that in October 2014 an FBOI convened and found the preponderance of the evidence they reviewed did not support the allegations in the GOMOR is noted. However, as stated in the DASEB ROP, the purpose of the FBOI was to give him a fair and impartial hearing to determine if he should be retained in the Army. An FBOI cannot recommend the removal of a GOMOR from a Soldier's OMPF. The FBOI recommendations were limited to either retention or elimination and its findings, based only on evidence they reviewed, had no bearing on whether or not he was actually guilty of the allegations in the GOMOR. It appears the FBOI did not have had the complete evidence that was available to the applicant's leadership, MG CKC, and this Board. 5. Notwithstanding his contention that the GOMOR should be removed from his OMPF because the filing authority supported the request, MG CKC did not recant the assertions he made in the GOMOR, did not state the GOMOR contained false information, and did not state the applicant should not have been given the GOMOR. Rather, he recommended removal based upon the applicant's learning and growing from his mistakes that led him to believe the intended purpose of the GOMOR had been served. This indicated MG CKC still adhered to his initial finding that the applicant was guilty of the misconduct outlined in the GOMOR. Regardless, MG CKC did not conduct a later investigation that determined the GOMOR was untrue or unjust. 6. In addition, the evidence of record shows the applicant did not receive the GOMOR based on just the one AR 15-6 investigation that he contends was flawed. It is evident that the memorandum from the CID SAIC, in addition to several commander's inquiries, command climate surveys, and/or AR 15-6 investigations that had been conducted prior to the one conducted by MAJ JS were considered by his leadership and MG CKC and the results supported that statements in the GOMOR were true and based on fact. This included the applicant making the false official statement that he verified the begin nature of the injected liquid with the "doctor" who sent the liquid to the SSG and then discussed the safety of the injection with the PA. The CID SA's investigation disclosed the "doctor" was an unlicensed massage therapist and both he and the PA confirmed they had not spoken with the applicant. 7. While it is noted that the OSRB removed the RFC OER from the applicant's OMPF, the available evidence shows the OSRB determined that, based on the available evidence the applicant had provided, there was clear and convincing evidence that showed the ratings on the contested report were in error or were not the considered opinions and objective judgements of the rating officials at the time the report was rendered. It is also noted that MG CKC conducted a commander's inquiry into the OER in September 2014 and determined the misconduct detailed in the GOMOR had occurred. It is not known if the OSRB had the complete evidence that was available to the applicant's leadership, MG CKC, and this Board. 8. The evidence of record clearly shows the GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance folder of his OMPF. There is no evidence of an error or an injustice that would support its removal. 9. With respect to his request to be removed from the OSB list, as stated in the HRC letter, based on Army restructuring, many experienced and professional officers such as the applicant will be required to separate from the Army. The specific reasons for his selection for separation are not known and the applicant has not submitted any evidence that shows the separation board selection process was flawed, the board improperly selected him over less qualified officers, or that his selection was unjust or in error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008348 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008348 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2