BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160018377 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ ___x_____ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160018377 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by moving the GOMOR, dated 17 March 2010, and allied documents (to include previous denials of his request to remove and/or transfer the GOMOR) from the performance portion to the restricted portion of his OMPF. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing the 17 March 2010 GOMOR from his OMPF. __________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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160018377 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, in effect: * removal of the General Officer Memorandum of Reprimand (GOMOR), dated 17 March 2010 from his official military personnel file (OMPF), or its transfer to his restricted folder * removal of his name from the title block of the U.S. Army Criminal Investigation Command (USACIDC) (also known as CID) Report of Investigation (ROI) 2008-CID219-54XXX-XX, dated 7 January 2010 2. The applicant states: a. The GOMOR he received was in relation to a suicide by a member of his platoon. The incident occurred in May 2008 and the GOMOR was not served until 22 months later. An initial interview by CID titled other noncommissioned officers (NCOs) in the platoon but he was not titled. He continued his career, proceeded on a permanent change of station, and became a drill sergeant when he was informed that he had been titled. No reason was given on any new information nor was he contacted by CID at that time or any time after. b. The GOMOR was imposed for "failing to uphold the Army values." His entire chain of command at the time, from the brigade commander down to the first sergeant, recommended local filing; however, the imposing officer opposed all them and filed it in his official file. The imposing officer then told him in front of his chain of command that if he were to excel at his performance for the next year to schedule a meeting with him, and he could help him move the GOMOR or remove it. The officer then retired and he (the applicant) was unable to contact him. He requested a meeting with his replacement, a lieutenant general (then a major general), who gave him a favorable recommendation for the Department of the Army Suitability Evaluation Board (DASEB), stating he thought the GOMOR was unjust. DASEB denied his request to transfer or remove the GOMOR. c. In the time between the actual suicide (of his Soldier) and his titling action, another high profile suicide garnered media attention. It is his belief that he was arbitrarily titled for cruelty and maltreatment following this event. He believes that his years of dedicated service to the Army and for America have been smeared without thought or consideration of his individual performance prior to or since these events unfolded. d. Since the events occurred, he has continued to excel in his military career, both as a senior NCO and as a warrant officer; however, these events, which he believes are unwarranted and without due process, are affecting his ability to advance in his current assignment. All supporting documentation can be found in his OMPF. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. With respect to the removal of the applicant's name from the title block of the CID ROI 2008-CID219-54XXX-XX, dated 7 January 2010, his request is premature: a. Department of Defense Instruction 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense (DOD)) establishes policy and assigns responsibilities providing a uniform standard for titling and indexing subjects of criminal investigations in the DOD. It states that titling only requires credible information that an offense may have been committed. The primary purpose for titling an individual as the subject of a criminal report of investigation is to ensure that information contained in the report can be retrieved at some future point in time, for law enforcement and security purposes. This is strictly an administrative function. Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the procedure to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. b. Army Regulation (AR) 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-5, Section II, of AR 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him/her. There is no evidence that the applicant has petitioned the U.S. Army Criminal Investigation Command, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253, and was denied relief. As a result, this portion of his request will not be considered further by the Board. 2. The applicant enlisted in the Regular Army on 17 June 1998 and he held military occupational specialty 31B (Military Police (MP)). He served through multiple reenlistments and attained the rank/grade of sergeant first class (SFC)/E-7. 3. His service also includes a variety of stateside or overseas assignments, including service in Iraq from 23 January to 9 August 2003, 10 January 2005 to 14 January 2006, and 9 May 2007 to 12 July 2008. 4. At the time of the incident, he was assigned as a squad leader to Headquarters and Headquarters Company (HHC), 2nd Battalion, 3rd Brigade Troops Battalion (BSB), Forward Operating Base Kalsu, Iraq. 5. On 9 May 2008, the Battalion Command Sergeant Major reported a Soldier of the MP platoon was found in a containerized housing unit with a gunshot wound to the head. a. The CID investigation revealed that the Soldier died as a result of a self-inflicted gunshot wound to the head. The investigation found no evidence or information to suspect the death was the result of an accident or foul play. The results of the autopsy conducted by the Armed Forces Medical Examiner's Office were consistent with the findings of the investigation. b. Further investigation revealed there was "probable cause" to believe the applicant and two of his sergeants committed the offense of "cruelty and maltreatment" when they were abusive in their disciplinary treatment toward unit members, including the deceased Soldier. The platoon sergeant committed the offense of willful dereliction of duty when he did not take corrective action (to stop) the abusive treatment by his subordinates to lower enlisted Soldiers. Further, a staff sergeant committed the offense of assault when he kicked a subordinate Soldier during a period of corrective physical training. 6. Following this incident, an investigating officer (IO) was appointed. The IO submitted his findings and recommendations in December 2008. He concluded that the Soldier died as a result of a self-inflicted gunshot wound to the head on 9 May 2008. The IO recommended: a. That the command evaluate appropriate disciplinary actions against the NCO chain of command, platoon leader, and company commander whose actions fell below acceptable standards. (As a result of this recommendation, three sergeants were given brigade commander letters of reprimand. All three letters were filed locally. No action was taken against the applicant). b. That the unit conduct additional leadership education/training for how to handle or deal with Soldiers stress in a stressful environment; how NCOs (should serve) as mentors, teachers, advisors; how to handle Soldiers with mental health issues; how to better monitor junior leaders, and how to get more involvement by senior leadership in platoon, squad, and team operations. 7. Following redeployment from Iraq, the applicant completed the Drill Sergeant Course from July through September 2009 and he was reassigned to the Combat Training Company, Training Support Battalion, Fort Leonard Wood, MO. 8. On 5 October 2009, nearly 10 months after the IO completed his investigation, CID published a "Supplemental Report" concerning the initial report of the Soldier's suicide. The Supplemental Report was dispatched based on CID's request for investigation which identified additional investigative activity and further identification of subjects and victims. The supplemental report added the names of several NCOs including the applicant's name to the initial report where he was cited for "cruelty and maltreatment" towards his Soldiers. 9. On 17 March 2010, the Commanding General (CG), U.S. Army Maneuver Support Center of Excellence, Fort Leonard Wood, MO, reprimanded the applicant for failing to conduct himself in accordance with the Army Values. His actions demonstrate a serious failure of judgment. He, as an NCO, is expected to set the example. The GOMOR stated: a. On 8 May 2008, a Soldier in his platoon spoke to the platoon leader about cohesion problems in the platoon. The platoon leader informed the platoon sergeant who then informed the applicant and his fellow squad leaders that a Soldier was complaining about how poorly the platoon worked together. That evening, at approximately 2300 hours, the applicant led the platoon in a "smoke session" that lasted between 45 and 50 minutes. The session ceased only when one Soldier admitted speaking to the platoon leader and then that Soldier underwent four additional "smoke sessions," the last session ending at approximately 0200 hours on 9 May 2008. At approximately 0640 hours that morning the Soldier committed suicide. b. The applicant's conduct is inexcusable for an NCO and leader. His actions, coupled with the subsequent actions of other NCOs, arguably led to the death of a fellow Soldier. His actions caused the imposing officer to have grave doubts concerning the applicant's judgment and fitness for future military service. In the future, the imposing officer stated he expected the applicant to strictly adhere to the Army Values. Specifically, the applicant was expected to treat his fellow Soldiers with respect and to use better judgment when leading his Soldiers and building cohesion. c. This reprimand was imposed in accordance with Army Regulation 600-37 (Unfavorable Information) as an administrative measure and not as punishment under the provisions of Article 15, Uniform Code of Military Justice. The imposing officer intended to direct placement of the reprimand into the applicant’s OMPF, but withheld a final decision pending his review of matters the applicant could submit in his defense. 10. The applicant acknowledged receipt of the GOMOR and, on 25 March 2010, he submitted a statement. He expressed remorse for the deceased Soldier who took her life and indicated he was deeply saddened by her death. He stated: * his involvement in the actions that preceded her death were minimal and the platoon's physical fitness was intended to re-instill military discipline * he did not ostracize or single out the Soldier and the corrective measures were intended for the entire platoon * he did not participate in nor had any knowledge of any additional corrective action the Soldier underwent * he already feels the psychological and emotional implications of losing a Soldier to suicide * he understands that he is expected to uphold a higher standard and that his decisions should be more measured * he was surprised he was receiving the reprimand 22 months after the death of the Soldier * he identifies his awards and exemplary evaluations showing his capabilities * he accepts responsibility for the decisions he made and requests the reprimand be filed locally 11. The applicant's chain of command (company, battalion, and brigade commanders) recommended filing the GOMOR in the applicant's local file. All three commanders opined that the applicant's actions in this incident were minimal. The platoon's physical training that he supervised with several other NCOs was directed and observed by the platoon leadership. He had no interaction with the Soldier. Although the Soldier's death was tragic, his involvement was only a small portion of the events that led to her untimely passing. 12. On 15 April 2010, after careful consideration of the applicant's record, his rebuttal, and the chain of command's recommendations, the imposing officer ordered the filing of the GOMOR in the applicant's OMPF. (The GOMOR is filed in the performance portion of his OMPF.) 13. On 18 May 2011, he petitioned the DASEB to transfer the GOMOR from the performance to the restricted portion of his OMPF. On 20 October 2011, the DASEB determined the overall merits of his case did not warrant removal or transfer of the GOMOR. The DASEB unanimously voted to deny him relief. The DASEB decision is also filed in the performance folder of his OMPF. 14. He was honorably discharged from active duty on 5 June 2013 to accept a commission or warrant in the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed nearly 15 years of active service. His awards included two awards of the Bronze Star Medal, the Iraq Campaign Medal with 3 campaigns stars, two awards of the Meritorious Service Medal, two awards of the Army Commendation Medal, six awards of the Army Achievement Medal, and several other awards. 15. He was appointed as an aviation Reserve warrant officer of the Army and executed an oath of office on 6 June 2013. He holds MOS 152H (AH-64D Pilot). His promotion selection to chief warrant officer two (CW2) was referred to a Department of Army Promotion Review Board. Upon review, the Secretary of the Army retained the applicant and recommended to the Secretary of Defense that the applicant be promoted to CW2. Subsequently, promotion orders were published showing his date of rank and effective date of promotion are 16 September 2016. 16. He continues to serve on active duty and is currently assigned to A Troop, 3rd Squadron, 6th Cavalry, 1st Combat Aviation Brigade, Fort Bliss, TX. REFERENCES: 1. AR 600-37 provides that 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 a filing determination is made. a. When a former commander or supervisor discovers misconduct warranting a reprimand, an admonishment, or censure, he or she may send pertinent information to the individual's current commander for action. b. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is normally filed in the performance section. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with regulatory guidance. c. When an individual changes from enlisted to officer status on or after 16 December 1980, letters of reprimand, admonishment, or censure received while in an enlisted status, which are filed in the performance portion of the OMPF, will be moved to the restricted portion of the OMPF. d. 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, the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 2. AR 600-8-104 (Army Military Human Resource Record Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. Table B-1 states a memorandum of reprimand is filed in the performance section of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board). The Army Personnel Records Division (APRD) of the U.S. Army Human Resources Command (HRC) updates the list of Require Documents for filing in the AMHRR quarterly. The new list of Required Documents will supersede the list in Table B-1, AR 600-8-104. The last update is dated 23 June 2017 and states Letters of reprimand, admonition, or censure received while in an enlisted status which are filed in the performance portion of the OMPF will be moved to the restricted portion of the OMPF on change from enlisted to officer status. 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. DISCUSSION: 1. The evidence of record shows the applicant received a GOMOR for failing to conduct himself in accordance with the Army Values and what was expected of him as an NCO. He was afforded the opportunity to review the evidence against him and to submit matters in his own behalf prior to a final filing decision. His response was received and considered. Subsequently, the GOMOR was referred for filing in his OMPF. It appears the GOMOR was properly administered in accordance with applicable regulations and currently is filed in the performance folder of his OMPF. 2. When the applicant became a warrant officer, the regulation provided for the transfer of derogatory information from the performance to the restricted section of his OMPF. This did not happen, and the DASEB decision is also filed in the performance section of his OMPF. Transferring the GOMOR without transferring the DASEB decision would defeat the purpose of transferring the GOMOR. 3. A GOMOR is primarily used as a tool for teaching proper standards of conduct and performance. Despite the tragic death of a Soldier in his unit by suicide in 2008, the applicant appears to have rebounded. The evidence shows: * he completed drill sergeant school and received multiple awards and decorations * he successfully completed several assignments and completed other training courses serving as an Army aviator * he was honorably discharged from his enlisted status and was accepted into a warrant officer program * he was appointed as a warrant officer and he was promoted to CW2 * he continues to serve the Army faithfully 3. Since his GOMOR, he has shown progressively noteworthy advancement, both in achievements and maturity. He has shown through his duty performance that he is dedicated to bettering himself and generating a positive influence on those with whom he associates. His attitude, which is normally recognized as a major influence in the success or achievement of an individual, is that of an officer who, despite the setback, has soldiered on with a strong desire to serve and grow. 4. Concerning removal of the GOMOR, the only place the applicant can seek relief is through this Board. To remove a GOMOR, the record should show the GOMOR served its intended purpose. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160018377 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018377 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2