IN THE CASE OF: BOARD DATE: 26 June 2020 DOCKET NUMBER: AR20200000309 APPLICANT REQUESTS: through counsel, correction of his records to show the: * award of the Distinguished Service Cross (DSC) * award of the Silver Star * reinstatement of his Special Forces (SF) Tab * removal of a General Officer Memorandum of Reprimand (GOMOR), dated 24 April 2014 from his official military personnel file (OMPF) * removal of his Board of Inquiry (BOI) and allied documents from his OMPF APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Counsel's letter to the Army General Counsel, dated 19 November 2019 and 6 December 2019 * Counsel's letters to the Secretary of the Army (SECARMY), dated 19 November 2019 and 6 December 2019 * Counsel's letters to the Commander, U.S. Army Special Operations Command (USASOC), dated 17 November 2019, 21 November 2019, and 6 December 2019 * Presidential Pardon, dated 15 November 2019 * Nomination and revocation of Silver Star (interim award) and DSC award * Revocation of SF Tab and supporting documents FACTS: 1. The applicant’s counsel wrote a letter to the SECARMY, dated 19 November 2019, and 6 December 2019 wherein he states, in effect, respectively: a. The President of the United States (POTUS) issued a full and unconditional pardon to [the applicant] on 15 November 2019 under Article II, Section 2, Clause 1 of the Constitution. Additionally, a conference call on 15 November 2019 with [the applicant], the Vice President, and the White House Counsel, the POTUS explicitly stated that [the applicant’s] record would be cleared, that “everything would be expunged,” and that “[he is] allowed everything, [he is] just as if this never happened.” b. As such, counsel requested that the SECARMY immediately reverse the unjust action of 31 October 2014, by the previous SECARMY, when he revoked the DSC he had previously approved/signed on 25 October 2011, and the Silver Star that he previously approved/signed on 3 March 2011. Secretary M_ took this action is direct contravention of the Army’s Senior Army Decorations Board (SADB), who recommended on 29 September 2014, that the DSC be approved/retained and issued. While several of the facts contained in the Information Paper are wrong in a way that prejudices [the applicant], the SADB still recommended the DSC be awarded, because the valorous conduct occurred prior to and is distinctly separate from the actions that were once alleged against [the applicant]. c. Since the first letter, [the applicant] has been medically retired. This should not in any way diminish the necessity to issue to him his DSC for valorous conduct in combat actions against the enemy. I will remind you that the POTUS has directed that [the applicant’s] record be “expunged” during his call with [the applicant], the VPOTUS, and White House Counsel. Additionally, the POTUS explicitly stated that “[he is] allowed everything, [he is] just as if this never happened.” If verification is necessary, which I do not believe it is, you [SECARMY] should call the White House Counsel through the White House Switch at [number] and ask to be transferred to the White House Counsel’s office, and the switch will transfer you or take a message for them to return the call to you regarding [the applicant]. d. As such, I am again requesting you immediately reverse the unjust action of 31 October 2014 by your predecessor when he revoked the DSC he had previously approved/signed on 25 October 2011 and the Silver Star that he previously approved/signed on 3 March 2011. Secretary M_ took this action is direct contravention of the Army’s SADB, who recommended on 29 September 2014, that the DSC be approved/retained and issued. SECARMY, politics aside, this is an easy fix that can be completed with a phone call and a signature for a deserving warrior and it should be done immediately. 2. The Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) replied to the applicant’s counsel on 9 January 2020 stating, in effect, that: a. I am writing this letter on behalf of the SECARMY. This letter responds to the letters you sent to the Secretary of the Army dated 19 November 2019 and 6 December 2019. The Commanding General (CG), USASOC, already responded to your request for pardon documents, dismissal of the charge, closure of the board of inquiry, and removal of any flags. b. In light of [the applicant’s] recent medical retirement, we offer our best wishes to him and his Family. The Army has treated your letters as formal requests on behalf of [the applicant] and processed the requests with the appropriate agencies. In particular, we forwarded the request for reinstatement of the DSC, removal of his GOMOR from his OMPF, and removal of any BOI documents from his OMPF to the Army Board for Correction of Military Records (ABCMR). c. I am aware that the CG, USASOC denied your request to reinstate the SF Tab. Enclosed is his notification to the Army leadership of his 3 December 2019 decision. At the time of your request and his subsequent decision, the CG, USASOC was the appropriate appeal authority. Given this, I have taken the liberty of forwarding your request and the CG, USASOC decision to the ABCMR for its consideration. If you wish to supplement any of the requests, submit your matters to the ABCMR within 10 calendar days from receipt of this letter. 3. The applicant was appointed as a Reserve commissioned officer of the Army, after graduating from the U.S. Military Academy (West Point) on 1 June 2002, in the rank of second lieutenant in the Infantry Branch. 4. The applicant's record shows he deployed in support of Operation Iraqi Freedom (OIF) from 22 June 2003 through 20 January 2004. 5. DA Form 1059 (Service School Academic Evaluation Report), dated 11 July 2008 shows the applicant successfully completed the SF Detachment Officer Qualification Course from 30 April 2007 through 11 July 2008 at Fort Bragg, NC. It further shows he completed the Special Operation Language Training (SOLT) Arabic course and the Survival, Evasion, Resistance and Escape (SERE) Level C course during this time frame. Additionally, it shows his branch/specialty as SF/18A (SF Officer). 6. Permanent Orders 179-81 issued by U.S. Army John F. Kennedy Special Warfare Center and School, Fort Bragg on 27 June 2008 awarded him the SF Tab effective 11 June 2008 by graduating from the SF Detachment Officer Qualification Course. 7. The applicant's record shows he deployed in support of Operation Enduring Freedom (OEF) from 15 January 2009 through 30 July 2009 and again from 8 January 2010 through 31 July 2010. 8. A DA Form 638 (Recommendation for Award), dated 12 May 2010 shows he was recommended for the Silver Star for gallantry in action as Detachment Commander, Operational Detachment Alpha (ODA) 3121 in the Helmand Province of Afghanistan in support of OEF on 20 February 2010. His chain of command recommended approval of the award. However, the approval authority, the Deputy Commander, U.S. Forces- Afghanistan (USFOR-A), recommended an upgrade of the award to the DSC and in the interim approved the awarding of the Silver Star. 9. A DA Form 4980-4 (The Silver Star Medal Certificate) shows he was awarded the Silver Star for gallantry in action on 20 February 2010 as promulgated by Permanent Orders 062-082 on 3 March 2011. Subsequently, The SECARMY approved the recommendation for the DSC on 25 October 2011. 10. A letter from the Associate General Counsel, Central Intelligence Agency (CIA) to the Office of General Counsel, Department of Defense dated 14 September 2011 noted as a result a routine processing at the CIA, an individual stated the following: a. He was with the U.S. Army 3rd Special Forces Group - Airborne as the Detachment Commander/Captain (O3) from June 2008 - Present. b. Subject stated that while serving as the 3rd Special Forces Group - Airborne Detachment Commander, he reported shooting and unarmed combatant. According to Subject, the unarmed combatant had been released from custody, following the detonation of a remote controlled improvised explosive device (IED) in February 2010. Subject stated he shot the unarmed combatant out of concern for the life of a local tribal leader's family as the unarmed combatant had been placed to mount an offensive against U.S. troops. Subject advised he elected to terminate the life of the unarmed combatant because he knew that obtaining evidence in order to convict this individual of the detonation would be "hard to get." c. The letter also noted the incident was being reported per Executive Order 12333 and the 1995 Crimes Reporting Memorandum of Understanding (MOU) between the Department of Justice and the Intelligence Community in reporting possible violations of federal and state criminal law. It further stated upon request the CIA would provide the name and address of the individual. 11. A U.S. Army Criminal Investigation Command (USACIC), (referred to as CID) Report of Investigation - Initial, out of the CID Office at Fort Bragg, dated 4 October 2011 noted an investigation was initiated based on a request from Headquarters, USACIC, Quantico, VA where it was reported (Applicant) allegedly committed war crimes when he shot an unarmed combatant. Preliminary investigation revealed during a pre-employment polygraph examination with the CIA, (Applicant) disclosed that he shot an unarmed combatant in February 2010, while in Afghanistan. He related he elected to terminate the life of the unarmed combatant because he believed obtaining evidence against the combatant in an IED detonation would be "hard to get," and he also felt the combatant was a direct threat to a local tribal leader's family. 12. Order NO: 285-022 issued by Headquarters, U.S. Army Human Resources Command (AHRC) on 12 October 2011 promoted the applicant to the rank of major (MAJ) effective 1 November 2011. 13. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 8 December 2011, shows the applicant received an Adverse Action Flag backdated to an effective of 3 October 2011. (Although the reason is not identified it is presumed it was as a result of the CID investigation). 14. A memorandum from Chief, Military Justice, Headquarters, U.S. Army Special Forces Command - Airborne to CID, Fort Bragg, dated 12 November 2013 stated that based on the evidence of the CID investigation that probable cause existed to believe that the applicant committed murder and conspiracy under the Uniform Code of Military Justice (UCMJ) in violation of Articles 118 [Murder] and 81 [Conspiracy], respectively. 15. In February 2014, Commander, 3rd Special Forces Group notified the applicant of his intent to recommend to higher authority that the applicant’s SF Tab be revoked and that he be involuntarily transferred out of the SF Branch. The Commander stated the applicant's conduct reflected a deficiency in his professional judgment and demonstrates an inability to adhere to personal or professional standards. The reasons for his intended action were: a. On 6 September 2011, during an interview with the CIA, you admitted to committing various crimes after being advised of your rights under Article 31 of the UCMJ. b. Specifically you admitted to the theft of US Property, as well as the murder of an Afghani that you suspected of causing the death of US Marines. You admitted to detaining (individual), murdering (individual), and then disposing of his body with another member of your Detachment. 16. The Commander, Special Forces Command - Airborne, issued the applicant the contested GOMOR on 24 April 2014 stating: a. On 6 September 2011, during an interview with the CIA, you admitted to committing a Law of Armed Conflict violation. b. You are hereby reprimanded. Your behavior in this matter manifests a complete lack of judgment and responsibility. You have discredited yourself, USASOC, and the U.S. Army. Your conduct constitutes a serious departure from the high standards of integrity and professionalism expected of a Commissioned officer of this command. This behavior cannot and will not be tolerated, and it forces me to seriously consider your suitability for continued service as a Commissioned officer in the U.S. Armed Forces. c. This reprimand is administrative in nature and is not imposed as punishment under the Uniform Code of Military Justice (UCMJ). I have enclosed the information upon which I based this reprimand. Under the provisions of AR 600-37 [Unfavorable Information], paragraph 3-6 you will acknowledge this memorandum in writing. You may submit a written rebuttal to this reprimand and should include any other documents or statements you would like me to consider. You have seven days to submit your written rebuttal. I have not made a determination regarding the filing of this reprimand and will carefully consider any matters you submit in rebuttal before making the final decision. I will notify you in writing of the final filing decision. 17. The applicant acknowledged receipt of the memorandum on 29 April 2014 and elected to submit matters in his own behalf. He provided an undated co-authored letter between himself and his counsel stating, in effect, that while he is disappointed the GOMOR was issued and disagreed with some of the language, he is pleased that this chapter of his life and Army career can be closed. He wants to continue to serve, requests the GOMOR be filed locally, and that he not be processed for separation (see attachment). 18. After considering all supporting documents and the applicant's chain of command recommendations of filing the GOMOR in his OMPF, the issuing authority directed the GOMOR to be filed in the OMPF on 11 June 2014. The contested GOMOR, with allied documents, is located in his OMPF. 19. The Commander, U.S. Army John F. Kennedy Special Warfare Center and School, directed revocation of the applicant’s SF Tab, terminated him from further ARSOF duties, and recommended an involuntary branch transfer on 29 July 2014. 20. Orders 211-08, issued by U.S. Army John F. Kennedy Special Warfare Center and School on 30 July 2014 revoked the award of the SF Tab in accordance with Army Regulation 600-8-22 (Military Awards). 21. In an information paper regarding the current status of the DSC nomination for the applicant to the SECARMY, dated 29 September 2014, it noted: a. The Deputy Commander, USFOR-A awarded an interim Silver Star on 3 March 2011 to (Applicant) and further recommended upgrade to the DSC for actions in Afghanistan on 20 February 2010. b. The SECARMY approved the DSC on 25 October 2011; however, the action was suspended when the applicant was flagged on 8 December 2011 as a result of the CID investigation. c. Upon discovery of the derogatory information and resulting CID report of investigation (that closed on or about 27 November 2013), the SECARMY must determine if the incident casts the applicant’s service as less than honorable. The SADB recommended he received the DSC. The SECARMY options were to confirm his previous decision to award the applicant the DSC or revoke the DSC award. If the Secretary chooses to revoke the DSC, he should also consider the disposition on the interim Silver Star that was presented on 3 March 2011. d. The SECARMY determined the DSC and the Silver Star would be revoked on 31 October 2014. 22. In a memorandum from Chief, Awards and Decorations Branch, AHRC to Commander, 3rd Special Forces Group - Airborne, subject: Revocation of Silver Star Award to (Applicant), dated 17 November 2014 noted the SECARMY's decision and that Permanent Orders 062-082 (awarding the Silver Star) has been revoked by Permanent Orders 321-12. The applicant acknowledged receipt per regulatory guidance and non-concurred on 21 November 2014. 23. The Commander, AHRC notified the applicant on 3 February 2015 that he was identified to "Show Cause" for retention on active duty because of misconduct, moral or professional dereliction as a result of his substantiated derogatory activity that resulted in the GOMOR filed in his OMPF. This action also initiated a HQDA DA Form 268, dated the same day. On 28 February 2015, he acknowledged receipt of the elimination memorandum and elected to submit a retirement in lieu of elimination or in the alternative to submit a request for a BOI. 24. The Commander, U.S. Army Special Forces Command - Airborne, directed a BOI be convened and the applicant be required to "Show Cause" for retention on active duty on 12 March 2015. 25. After a requested delay by his counsel, a BOI was convened on 23 June 2015 and adjourned on 28 June 2015. The BOI determined: a. The allegation (#1) of substantiated derogatory activity resulting in a GOMOR dated 24 April 2014, filed in his OMPF, in the notification of proposed separation, is not supported by a preponderance of the evidence. This finding did not warrant his separation. b. The allegation (#2) he engaged in conduct unbecoming an officer as indicated by the substantiated derogatory activity that resulted in a GOMOR dated 24 April 2014, in the notification of proposed separation, is supported by a preponderance of the evidence. This finding did warrant his separation. c. The BOI found the applicant did commit "misconduct, moral, or professional dereliction" and recommended he be eliminated from the Army with an under honorable conditions (general) characterization of service. 26. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) convened on 10 March 2016 and found him physically unfit for military service due to his medical conditions. a. The Board determined his condition was not permanent and stable and as a result recommended he be placed on the temporary disability retired list (TDRL) with a disability rating of 80% (percent). b. This form superseded a DA Form 199 dated 4 February 2016. The United States Army Physical Disability Agency (USAPDA) approved the findings on behalf of the SECARMY on 22 March 2016. 27. After a review of the BOI by AHRC on 29 March 2016, it was determined the recommendations were insufficient due to the lack of a brief statement of the factual predicate supporting the Board's findings on each allegation. a. On 22 April 2016, the Board reconvened, deliberated, and produced a clarified findings vote sheet. The Board's findings and recommendation did not change, but provided a written statement supporting its findings on allegation 2. The clarified BOI findings state, the factual predicate which supports the Board's finding that [Applicant's] conduct does warrant his separation from the Army is as follows (requires): As an officer in command of Soldiers in combat, [Applicant] failed in his duties to own all the circumstances of the incident in its entirety. Specifically, he shot an Afghan known as [X] and then took steps to cover it up. He omitted key facts in his reporting. He failed to report all the facts officially and for the record over an extended period of time. He failed those he led by engaging in activities during the incident that sought to cover up the circumstance in question. b. On 19 May 2016, the applicant acknowledged receipt of the Board's report of proceedings. c. On 27 May 2016, the applicant, through counsel, submitted rebuttal matters to the general courts-marital convening authority. d. On 3 June 2016, a legal review determined the reconvened Board proceedings were legally sufficient. On 9 June 2016, the general courts-martial convening authority recommended to AHRC the findings and recommendations of the Board be approved. 28. CID Form 94 (Agent's Investigation Report), dated 9 December 2016 notes that the investigation into the applicant's admission to killing an Afghan on or about 19 February 2010 was being reopened as a result of his interview with Fox News. Numerous CID documents indicates his family, friends, and detachment personnel, some given immunity for their testimony, were interviewed again over the next two plus years. 29. The POTUS granted a full and unconditional pardon to the applicant on 15 November 2019 under Article II, Section 2, Clause 1 of the Constitution. It noted that it was for the offense charged in violation of Article 118 [Murder], UCMJ, while serving as a commissioned officer in the U.S. Army, which was referred for trial to the U.S. Army general court-martial. 30. In a letter to the applicant, dated 19 November 2019, the Acting Pardon Attorney, U.S. Department of Justice notified him that the President granted him a full and unconditional preemptive pardon. The letter further stated: A presidential pardon is a sign of forgiveness. It does not erase or expunge the record of offense charges and does not indicate innocence. On any application or other document that requires arrest, charging, or referral information, the recipient of a preemptive pardon should disclose the fact of his or her arrest or charging. However, the information that the pardon has been granted preemptively may be included and the warrant may be shown. 31. The Commander, USASOC in a memorandum for The Director of the Army Staff, dated 3 December 2019, subject: Review of Special Forces Tab Revocation stated: a. I have carefully reviewed the 2014 administrative proceeding by the U.S. Army Special Forces chain of command to revoke (Applicant's) Special Forces Tab. That decision was based upon (Applicant's) actions which demonstrated a lack of adherence to the Special Forces Creed, and our American and Army values. b. We explicitly adhered to the Presidential Pardon dated 15 November 2019 and immediately terminated all criminal proceedings against (Applicant). The 19 November 2019 letter from the Department of Justice Acting Pardon Attorney further explained that this Pardon was preemptive, and that a Presidential Pardon" ... does not erase or expunge the record of offense charges and does not indicate innocence." c. Based upon the above, I decline to reverse the 2014 administrative revocation of the Special Forces Tab. (Applicant) remains authorized to wear the Green Beret and retains his Branch designation. 32. The applicant was honorably retired on 5 December 2019. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), chapter 4 by reason of disability, temporary (enhanced). He completed 17 years, 6 months, and 5 days of net active service. His DD Form 214 does not list the DSC, Silver Star, or the SF Tab as authorized awards or badges. In addition, item 14 (Military Education) does not list his SF Qualification course. 33. Documents referring to the applicant's BOI and CID investigation were obtained through legal channels; however, a review of his military personnel file does not contain the BOI or its associated allied documents nor the investigation documents. 34. The applicant's interim award of the Silver Star, and later the Distinguished Service Cross, were based on actions that took place on 20 February 2010. The revocations of these awards were based on actions, which the CIA and CID report were alleged to have occurred in February 2010. 35. In compliance with legal review guidance and upon request, the Board members may review video recordings of law enforcement interviews of the applicant's fellow service members, i.e. SFC C., MSG D., and the several Afghan nationals, as well as the FOX News interview of the applicant. The written statements of his fellow service members - SFC C., MSG D., and the Afghan nationals (translated) are contained in the case file. Additionally, the CID records of investigation are provided with this case, in evidence, for the Board's review. 36. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. Paragraph 1-17 (Character of Service) states a medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable. The determination of "honorable" will be based on such honest and faithful service according to the standards of conduct, courage, and duty required by law and customs of the service of a Service member of the grade to whom the standard is applied. b. Paragraph 1-20 (Interim awards and awards of a lesser decoration) states to ensure that a deserving act, achievement, or service receives prompt recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award. When a higher award is approved, the approving authority will revoke the interim award using a separate permanent order (PO). The decoration will be returned by the recipient, unless the higher award is approved posthumously, in which case the primary next of kin will be permitted to retain both awards. c. Paragraph 1-32 (Revocation of Badges, Ranger Tab, Special Forces Tab, and Sapper Tab) states commanders authorized to award combat and special skill badges are authorized to revoke such awards. The Special Forces Tab may be revoked by the awarding authority if the recipient has been convicted at a trial by courts-martial or has committed offenses which demonstrate severe professional misconduct, incompetence, or willful dereliction in the performance of Special Forces duties. 37. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the Army Military Human Resource Record (AMHRR) (of which the OMPF is contained within), it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. BOARD DISCUSSION: 1. Distinguished Service Cross / Silver Star Award. With respect to the applicant’s counsel’s request that he be awarded the Distinguished Service Cross (DSC) or the Silver Star Award (SSA), the Board unanimously determined that relief was not warranted. The Board noted the 9 November 2019 Department of Justice (DOJ) letter to the applicant indicating that the Presidential pardon is a sign of forgiveness and “does not indicate innocence.” The Board was persuaded by the Board of Inquiry (BOI) records and the CID Investigation that the applicant’s overall behavior also did not indicate innocence. The Board found substantial evidence that the applicant engaged in an unjustified killing of an Afghan National; that the applicant conspired with at least one Soldier subordinate to him to hide and destroy evidence; and that he later admitted this misconduct to the CIA and to the media. The Department of Defense has directed that awards such as the DSC and SSA should be revoked if subsequently determined facts would have prevented the original approval or presentation of the award. Department of Defense Instruction (DODI) 1348.33, Section 8 (20 June 2019). The Board noted that in 2019 Congress revoked the statutory requirement for honorable service for the Medal of Honor, the DSC, and the Distinguished Service Medal. However, the aforementioned DODI provides that the requirement for honorable service “is expanded herein to encompass all” personal military decorations, which the DODI defines as including the DSC and the SSA. The DODI’s provision in this regard is also mirrored in Army Regulation 600-8-22, para. 1-30 (5 March 2019). Although these regulations caution that revocations in these circumstances should be used sparingly, the Board found that the applicant’s actions were not compatible with continued military service and revocation of the awards was, and remains, justified. In light of this information, the Board found that the applicant has failed to demonstrate by a preponderance of evidence that an error or injustice occurred such that the applicant should be awarded either the DSC or the SSA. 2. Special Forces Tab. The applicant’s counsel requests reinstatement of the applicant’s Special Forces Tab. On 3 December 2019, the Commanding General of U.S. Army Special Operations Command (USASOC) declined to reverse the 2014 administrative revocation of the applicant’s Special Forces (SF) Tab. The applicant’s counsel asserts that the Presidential pardon warrants a rescission of the USASOC Commander’s decision to not reinstate to the applicant the Special Forces Tab. The Special Forces Tab may be revoked if the recipient has committed offenses which demonstrate severe professional misconduct, incompetence, or willful dereliction in the performance of SF duties; if the recipient has committed any misconduct, which is the subject of an administrative elimination action under the provisions of AR 600–8–24; or if the recipient committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a SF Soldier, as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS). AR 600-8-22, para. 1-32.c(9) (5 March 2019). As was the case with the applicant’s DSC (and SSA), the applicant’s Special Forces Tab was revoked due to the aforementioned allegations of misconduct. The Board unanimously determined that the Presidential pardon was insufficient to justify rescinding the USASOC Commander’s decision to revoke the Special Forces Tab. The Board was again persuaded by the DOJ letter indicating that a Presidential pardon does not equate to a finding of innocence. The Board’s findings in this regard were supported by the CID investigation, which contained significant evidence that the applicant engaged in an unjustified killing of an Afghan National; that the applicant conspired with at least one Soldier subordinate to him to hide and destroy evidence of his misconduct; and that the applicant later admitted this misconduct to the CIA and to the media. Consequently, the Board believed that appropriate deference is owed to the 3 December 2019 determination made by the USASOC Commander that the applicant’s misconduct warranted revocation of the Tab. However, even without deference to the USASOC Commander’s determination, the Board on its own accord found that the applicant’s behavior demonstrated severe professional misconduct, incompetence, and willful dereliction in the performance of Special Forces duties. The Board also found that the applicant’s misconduct triggered an administrative elimination action and that his misconduct is inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier, as determined, in this case, by the USASOC Commanding General. The Board therefore determined that the applicant’s misconduct satisfied the criteria for revocation in accordance with AR 600-8-22. Consequently, the Board unanimously found that the greater weight of the evidence did not warrant reinstatement of the Special Forces Tab. 3. GOMOR. The applicant’s counsel requests removal from the applicant’s military records a 24 April 2014 General Officer Memorandum of Reprimand (GOMOR). The GOMOR reprimands the applicant for the alleged misconduct previously discussed. The Board unanimously determined that the President’s pardon did not extend to all of the misconduct cited and condemned in the GOMOR. The Board noted that the Presidential pardon covered misconduct charged under Article 118, UCMJ. But the GOMOR reprimands the applicant for having committed a “Law of Armed Conflict violation.” The reprimand therefore addresses and condemns behavior beyond conduct proscribed by Article 118, UCMJ. In addition to the fact that GOMOR extends to conduct beyond Article 118, UCMJ, the Board was persuaded by the DOJ letter that it was not necessary, or even desirable, to expunge all records describing or condemning the applicant’s now-pardoned conduct. The Board therefore determined that the applicant failed to demonstrate by a preponderance of evidence that an error or injustice occurred or that the GOMOR was procedurally or substantively defective. Nor did the Board find that the GOMOR was in any way untrue or unjust. The Board therefore found that the 24 April 2014 GOMOR should not be removed from the applicant’s military records. 4. BOI Transcript and Allied Documents. The applicant’s counsel requests removal from the applicant’s military records the Transcript and Allied Documents pertaining to the field Board of Inquiry (BOI) that recommended the applicant be eliminated from the Army with a General Discharge. However, a review of the applicant’s records indicates these documents are not contained in the applicant’s military records. The Board therefore could not provide the relief requested. Consequently, the Board did not review or adjudicate this portion of the applicant’s request. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. ? REFERENCES: 1. The U.S. Constitution, Article 2 (Executive Branch), section 2 - Civil Power over Military, Cabinet, Pardon Power, Appointments states - The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive Departments, upon any subject relating to the duties of their respective offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment. 2. Army Regulation 600-8-22 provides the Army policy, criteria, and administrative instructions concerning individual military decorations, Army Good Conduct Medals, service medals and ribbons, combat and special skill badges and tabs, unit decorations, trophies, and similar devices awarded in recognition of accomplishments. a. Paragraph 1-17 (Character of Service) states the following: (1) Personal decorations. A medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable. The determination of "honorable" will be based on such honest and faithful service according to the standards of conduct, courage, and duty required by law and customs of the service of a Service member of the grade to whom the standard is applied. (2) Commanders will ensure that individuals on whom favorable personnel actions have been suspended are neither recommended for, nor receive an award, decoration, or a badge during the period of the suspension. (3) Badges. A badge will not be awarded to any person who, subsequent to qualification, has been dismissed, received a punitive discharge, or convicted of desertion by court martial. b. Paragraph 1-20 (Interim Awards and Awards of a Lesser decoration). (1) To ensure that a deserving act, achievement, or service receives prompt recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award, except for retiring U.S. Army general officers. When a higher award is approved, the approving authority will revoke the interim award using a separate permanent order (PO) in accordance with Army Regulation 600–8–105 [Military Orders]. The decoration will be returned by the recipient, unless the higher award is approved posthumously, in which case the primary next of kin will be permitted to retain both awards. (2) The authority taking final action may award the decoration recommended, award a lesser decoration (or consider the interim award as adequate recognition), or, in the absence of an interim award, disapprove award of any decoration. c. Paragraph 1-30 (Revocation of Personal decorations and Suspension of Authority to Wear). (1) Once an award has been approved, the same command may revoke the award if facts subsequently determined would have prevented original approval of the award had they been known at the time of approval. Failure to be reassigned or separated as originally scheduled does not constitute grounds for revocation of an award which has been presented. An order revoked based on the reconsideration, appeal, or upgrade of previously approved award, will refer to paragraph 1–16 as the authority for revocation. (2) The revocation of decorations under the “honorable” service requirement should be used sparingly and should be limited to those cases where the Service member’s actions are not compatible with continued military service, result in criminal convictions, or result in determinations that the Service member did not serve satisfactorily in a specific grade or position. (3) The decision to revoke an award may not be delegated by the awarding authority. (4) If the award has not been presented, the awarding authority may revoke the award without informing the affected Soldier. However, if the award has been made a matter of permanent record, the command must inform the Soldier and correct the permanent record. (5) Once the Soldier has received the award, the awarding authority must notify the Soldier in writing of his/her intent and justification for revoking the award. Presentation of a decoration is the physical act of pinning or clipping the medal on a Soldier’s chest or handing the Soldier the medal, certificate, or orders. The affected Soldier is entitled to provide a response with any appropriate supporting documentation within 10 working days upon receipt of the notification of revocation. The revocation authority will consider any information provided prior to making a determination. (6) Upon revocation, the affected individual will be informed that he or she may appeal the revocation action through command channels to Commander, U.S. Army Human Resources Command (AHRC–PDP–A), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5408 for review. (7) When the original awarding command is unable to act on the revocation action the revocation request will be referred to the Commander, HRC (AHRC–PDP–A) for appropriate action. (8) The authority to wear an award may be suspended by the award approval authority or higher authority. An award will be suspended when an investigation has been initiated by proper authority to determine the validity of the award. The authority directing the suspension will notify, in writing, the individual concerned and the Commander, HRC (AHRC–PDP–A) by the most expeditious means possible when suspension is initiated, and when it is terminated, and the reason(s) for termination. d. Paragraph 1-32 (Revocation of badges, SF Tab, Ranger Tab, and Sapper Tab). (1) Only the command authorized to award combat and special skill badges is authorized to revoke such awards. An award, once revoked, will not be reinstated except by Commander, U.S. Army Human Resources Command (AHRC–PDP–A), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5408 when fully justified, unless otherwise noted below. When the original awarding command is unable to act on the revocation action, the revocation request will be referred to Commander, U.S. Army Human Resources Command (AHRC–PDP–A), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5408, for appropriate action. (2) Revocation of badges will be announced in POs, except that revocations which are automatically affected, as prescribed in this regulation, need not be announced in orders (see paras 1–32c(1) through 1–32c(9)). (3) Special Forces Tab. The Special Forces (SF) Tab may be revoked by the awarding command (listed in see para 8–41) if the recipient — a. Has his Parachutist Badge revoked. b. Initiates action which results in termination or withdrawal of the SF specialty or branch code prior to completing 36 months of SF duty. Requests for advanced schooling that may lead to another specialty or branch code being awarded instead of SF will not be used as a basis for revocation of the tab. c. Has become permanently medically disqualified from performing SF duty when the disqualification was found to have been not in the line of duty. Has been convicted at a trial by courts-martial or has committed offenses, which demonstrate severe professional misconduct, incompetence, or willful dereliction in the performance of SF duties. d. Has committed any misconduct, which is the subject of an administrative elimination action under the provisions of Army Regulation 635–200 [Active Duty Enlisted Administrative Separations] or Army Regulation 600–8–24 [Officer Transfer and Discharges]. e. Has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a SF Soldier, as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS). f. Appeals of revocation of the SF Tab for Regular Army and RC Soldiers will be submitted to Commander, U.S. Army Special Operations Command (USASOC), 2929 Desert Storm Drive, Fort Bragg, NC 28310–9112, for final review. Soldiers must submit requests through their chain of command, the USAJFSWCS, to the Commander, USASOC for final decision. Veterans, retirees, or primary next of kin should submit requests to Commander, U.S. Army Human Resources Command (AHRC–PDP–A), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5408. g. Refusal to accept assignment to a special forces coded position. e. The Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguishes himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor. The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. f. The Silver Star is awarded for gallantry in action against the enemy. The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. 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 a filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's AMHRR 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 reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). c. Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. d. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000309 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1