ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 December 2020 DOCKET NUMBER: AR20200001257 APPLICANT REQUESTS: * removal of the general officer memorandum of reprimand (GOMOR), dated 29 May 2014, and all associated negative documents from his Army Military Human Resource Record (AMHRR) * retroactive promotion to the rank/grade of colonel/O-6 * reversal of the Army Grade Determination Review Board decision to retire him at the rank/grade of major/O-4 instead of retiring him at the rank/grade of lieutenant colonel/O-5 * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Letter, Counsel, dated 19 November 2019 * Email, Resource Management Officer, Army Field Support Center, Fort Meade, and Government Purchase Card (GPC) Official, dated 10-11 September 2012, subject: Question Regarding the Use of the GPC for Training * Memorandum, U.S. Army Intelligence and Security Command, dated 14 May 2014, subject: Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation – Improper Use of GPC at Army Field Support Center * Memorandum, U.S. Army Intelligence and Security Command, dated 29 May 2014, subject: Memorandum of Reprimand * Memorandum, Applicant, dated 10 June 2014, subject: Rebuttal for GOMOR * Memorandum, Applicant, dated 20 June 2014, subject: Additional Background for Rebuttal for GOMOR * 13 DA Forms 2823 (Sworn Statement), dated 21 January 2014 through 25 August 2014 * Memorandum, U.S. Army Criminal Investigation Command, dated 25 August 2014, subject: Letter of Endorsement – (Applicant) * Memorandum, Counsel, dated 27 August 2014, Regarding: Application of (Applicant) * Memorandum, Applicant, dated 28 August 2014, subject: Matters for Consideration for GOMOR, with 25 References * Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings, dated 19 March 2015 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), in effect at the time, established procedures for investigations and boards of officers not specifically authorized by any other directive. 4. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. A post-board screening will be conducted for officers selected for promotion to colonel. A board will review any adverse information in other official files including the restricted portion of the official military personnel file. The files are screened to ensure that officers who have engaged in conduct that would warrant their nonselection for promotion, if known by the original board, are not promoted. The files of those officers, along with the derogatory information, may be presented to a promotion review board to reevaluate the recommendation for promotion to colonel. The promotion review board will be conducted as prescribed in chapter 8 (Promotion Review Boards). 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. 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. 6. 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 6-3 (DASEB Process) provides that Soldiers who believe unfavorable information filed in their AMHRR, in the form of a memorandum of reprimand, admonition, or censure, or records or proceedings pursuant to Article 15, UCMJ, have served their intended purpose, may submit an appeal in the case of an Article 15, UCMJ, to request its transfer to the restricted folder of the AMHRR. Such appeals must include evidence that: (1) the intended purpose has been served, (2) the Soldier has received at least one evaluation report since its imposition, and (3) the Soldier's chain of command at the time of the imposition and/or imposing authority support the transfer in the form of a memorandum. d. 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. e. 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. FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The GOMOR was based on a biased and faulty investigation. The investigation violated the provisions of Army Regulation 15-6. The investigating officer did not include exculpatory witness statements, failed to interview all known witnesses with relevant information, and included conjecture as facts with no supporting evidence. b. The GOMOR does not accurately reflect the facts as it was based on a faulty investigation, making the GOMOR unjust and untrue. 3. The applicant's counsel states: a. The GOMOR is the only negative information that kept the applicant from being promoted to the rank/grade of colonel/O-6. The GOMOR was erroneously and unjustifiably placed in his AMHRR after his selection for promotion to colonel/O-6. The GOMOR was issued to him after a review of an incomplete and biased investigation. b. Had the investigating officer provided all statements and documents, completed a thorough investigation, considered all possibilities, made appropriate findings of facts supported by corroborated evidence, and then made conclusions based only on those established findings and not conjecture, the general officer would have had an unbiased investigating officer report to rely on in making his decision. Because of the incomplete and biased investigation, the applicant gathered an enormous amount of exculpatory evidence to refute the allegations relied upon by the general officer and contained in the GOMOR. c. Upon review of all the enclosures and matters presented, there is no doubt that it was a grave error and injustice for the applicant to receive a GOMOR, to withhold his promotion to colonel/O-6, and remove him from the Senior Service College List and the Brigade Command List. It was further inappropriate to retire him in a paygrade lower than that in which he honorably served. d. The applicant requests consideration of the sworn statements of the 10 witnesses who stepped forward to clarify the egregious errors and false accusations within the investigation. Of the 10 witnesses who had direct pertinent knowledge of the specific and irrefutable facts in this case, 7 were interviewed by the investigating officer. The investigating officer excluded six of those statements from his final report, demonstrative of the biased-outcome orientated investigation that sabotaged the applicant' career. e. The investigating officer's close association with a witness's spouse was clearly a conflict of interest and shows repulsive impropriety that should be admonished and scorned. f. Throughout the investigation, the investigating officer unethically cherry-picked only the narrow parts of witnesses' statements that might have sounded incriminating without providing the full context of the statement, eliminating the exculpatory portions of the statements. g. The appointing authority disagreed with several of the investigating officer's findings. The investigating officer also mislabeled 18 of the exhibits of his report, making it impossible to read the entire investigative report with its respective references. h. The investigation alleged the applicant inappropriately used a GPC and directed the purchase of approximately $117,000.00 of unit training, and then split the purchase for a $36,775.00 training event into two separate purchases to avoid exceeding the $25,000.00 maximum allowance for a single event. The allegation was clearly refuted in a sworn statement that was omitted by the investigating officer in his report. i. The investigating officer did not produce any evidence showing the applicant committed misconduct. There was no evidence that he inappropriately directed or pressured others to make unauthorized purchases. The investigating officer ignored the brigade commander's initial statement of taking full responsibility for the training and the use of the GPC to purchase the training. The applicant acted in support of his unit's mission as directed by the brigade commander and in a way that was consistent with previous years. k. Had the investigating officer performed a proper and thorough investigation, he would have asked witnesses to provide specific examples of the allegations of mistreatment and harassment. Instead, the witness statements include glaring generalities without providing any specifics. He failed to interview people who were named as witnesses in allegations or he interviewed people specifically named who refuted the allegations, but he decided their statements and testimonies were not relevant and did not include them in his report. l. The investigating officer disregarded a mountain of relevant exculpatory evidence that corroborates the applicant's statement. The applicant requests that the Board set aside the GOMOR that incorporated and was supported by the biased and incomplete facts, findings, and recommendations. m. The investigating officer did not disclose the fact that his deputy director and close colleague was married to a complainant, creating a perception of bias and at its worst provides a plausible explanation as to why the investigating officer cherry-picked the evidence to support the spouse's allegations. The investigating officer did not provide the commanding general with sufficient information to make an informed decision before issuing the GOMOR. n. The applicant was the victim of an incomplete, inadequate, and biased investigation that was not conducted in accordance with Army regulations. The investigation clearly did not comply with Army Regulation 15-6. The investigating officer appears to have made up his mind during the investigation that the applicant had committed misconduct and was determined to have the evidence meet this conclusion. o. The commanding general's action violated the applicant's fundamental constitutional due-process rights. If the commanding general believed the allegations were serious enough to warrant filing the GOMOR in the applicant's AMHRR, he should have afforded the applicant the rights under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). The applicant could have then exercised his right to demand a trial by court-martial and could have called those witnesses whose statements were suppressed by the investigating officer. Thus, the issuance of the GOMOR was for the purpose of punishment, not an administrative correction. 4. HRC Order Number 201-008, dated 20 July 2009, promoted the applicant to the rank/grade of lieutenant colonel/O-5 effective 1 August 2009. 5. The email between Mr. L_ , Resource Management Officer, Army Field Support Center, Fort Meade, and Mr. M , a GPC official, dated 11 September 2012, shows Mr. L asked if his unit can schedule periodic training events on an as-needed basis throughout the year that do not exceed the $25,000.00 threshold per event and treat each such event separately. Mr. M responded that he checked with the legal office and the legal office agreed that the use of the GPC as indicated is not a problem. The $25,000.00 threshold is for a particular event or instance. 6. The applicant's DA Form 1613 (Records Cross Reference), dated 22 October 2013, shows a cross reference to a classified evaluation report covering the period 25 May 2012 through 24 May 2013 with a senior rater profile of Above Center of Mass. 7. The memorandum from the investigating officer, U.S. Army Intelligence and Security Command, dated 14 May 2014, subject: Army Regulation 15-6 Investigation – Improper Use of GPC at Army Field Support Center, determined: a. The allegation of the applicant's misuse of the GPC to pay for $100,000.00 in unit training from the Arbinger Company (doing business as the Arbinger Institute) was substantiated. b. The allegation that the applicant had personal interest in and/or a personal connection to the Arbinger Company was substantiated. c. The allegation of harassment and/or maltreatment of personnel and negatively impacting morale was substantiated. d. The allegation of his use of contractors to perform Government work that was not authorized for contractors to conduct was substantiated. e. The allegation that the applicant's brigade commander was aware of the alleged acts of misconduct and failed to take appropriate action was not substantiated. f. The investigating officer recommended issuance of a GOMOR to the applicant based on his misuse of the GPC, the wrongful use of his rank and position to provide unfair business opportunities to the Arbinger Company; his toxic leadership; and violations of the Joint Ethics Regulation; Code of Federal Regulations; and Article 93 (Maltreatment), Article 107 (False Official Statements), and Article 133 (Conduct Unbecoming an Officer) of the UCMJ. g. Based on the findings, the investigating officer strongly recommended consideration of removing the applicant from any promotion and command selection list. 8. The memorandum for record from the Army Regulation 15-6 investigation appointing authority, U.S. Army Intelligence and Security Command, dated 29 May 2014, subject: Appointing Authority Action on Army Regulation 15-6 Investigation Concerning Improper Use of GPC at Army Field Support Center – (Applicant), shows the appointing authority reviewed the Army Regulation 15-6 investigation and stated: a. The applicant misused the GPC by splitting a purchase, procuring services with a GPC subsequent to contracting for associated training, and failing to provide appropriate processing forms. b. He did violate the Federal acquisition regulation by sole-source contracting for Arbinger Institute training. c. He created an appearance of impropriety based upon his relationship with the Arbinger Company. d. He did not violate Article 107, UCMJ, and he did not accept a gift of lunch from the Arbinger Company. e. He negatively impacted morale by both the leadership he exhibited and the command he created. f. He harassed a civilian employee by going to the employee's house against the wishes of the employee, a violation of Article 93 and Article 133, UCMJ. g. He did improperly use contractors to perform inherently governmental functions. Specifically, using a contractor as a member of the battalion staff, authorizing her to work on fiscal policy affecting future contractor use. h. He did not misuse his Government cell phone. He did disobey orders in not ceasing use of his cell phone after being ordered to do so by the brigade commander. i. He directed the misleading of a U.S. Army Intelligence and Security Command attorney, causing the violation of Secretary of the Army policy on fiscal restraint. j. In accordance with the Army Regulation 15-6 investigation, he recommended that the commanding general issue a GOMOR to the applicant. 9. On 29 May 2014, the Commanding General, U.S. Army Intelligence and Security Command, reprimanded the applicant in writing for deliberately violating the rules and policies applicable to the use of the GPC, harassing and maltreating subordinates, directing subordinates to provide incomplete or inaccurate information during the course of their official duties, directing a contracted employee to perform inherently governmental functions, and failing to demonstrate professionalism and exemplify the highest professional standards expected of a leader. The commanding general stated: a. The applicant demonstrated a clear and deliberate disregard of GPC and fiscal rules and policy. He directed the purchase of over $117,000.00 of unit training from the Arbinger Company. In late 2011, he knowingly violated GPC purchase rules when he directed a GPC cardholder to split the purchase for a $36,775.00 training event into two separate purchases to avoid exceeding the $25,000.00 maximum allowance. b. He directed a subordinate to purposefully mislead a legal advisor to obtain a favorable legal opinion regarding conference funding. c. He failed to demonstrate professionalism and exemplify the highest professional standards expected of a leader when he harassed and maltreated his subordinates, creating a toxic environment. d. He failed to adhere to the published rules and laws for the use of contract employees when he used a contractor to perform inherently governmental functions. e. The reprimand was imposed in accordance with Army Regulation 600-37 as an administrative measure and not as punishment under the provisions of Article 15, UCMJ. 10. The applicant's memorandum, dated 10 June 2014, subject: Rebuttal for GOMOR, states: a. He takes complete responsibility for his actions which led to the GOMOR and recognizes that as a commander, he let down the officers, Soldiers, and civilians of the U.S Army Field Support Center. b. He recognizes now that he would have performed better for the command had he sought formal legal review or U.S. Army Intelligence and Security Command G-4 clarification prior to making decisions regarding the proper use of the GPC for unit training. c. There are parts of the investigation wherein the findings are incomplete, having omitted positive comments on his leadership from witnesses. He firmly denies having directed a subordinate to mislead the command legal section. He takes strong exception to the conclusion that he disobeyed an order or favored a business for personal gain. d. He requested filing the GOMOR locally. 11. The applicant's memorandum, dated 20 June 2014, subject: Additional Background for Rebuttal for GOMOR, responds to a request from the Deputy Commander, U.S. Army Intelligence and Security Command, for more information regarding the allegations contained in his GOMOR and the Army Regulation 15-6 investigation. 12. On 24 June 2014, the Commanding General, U.S. Army Intelligence and Security Command, having carefully considered the GOMOR; the circumstances of the misconduct; and all matters submitted by the applicant in defense, extenuation, or mitigation directed permanently filing the GOMOR in the performance folder of the applicant's AMHRR. He further stated his perspective of the allegations against the applicant. 13. The U.S. Army Human Resources Command memorandum, dated 3 July 2014, subject: Delay of Promotion and Referral to a Promotion Review Board, notified the applicant: a. The Fiscal Year 2013 Colonel; Maneuver, Fires, and Effects; Army Selection Board recommended him for promotion. Army Regulation 600-8-29, chapter 8, states the appointment of an officer may be delayed in any case in which there is cause to believe the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she was selected for promotion. b. The GOMOR, dated 29 May 2014, was not in his AMHRR until after the convening date of the Promotion Selection Board. His records will be referred to a Promotion Review Board which will recommend to the Secretary of the Army that he be retained on the promotion list, his name be removed from the promotion list, and/or that he show cause for retention on active duty. 14. The applicant's memorandum, dated 28 August 2014, subject: Matters for Consideration for GOMOR, submits additional information to the Promotion Review Board for consideration. He states: a. He requests that the Promotion Review Board consider the senior officer endorsements and the facts that were left out of the Army Regulation 15-6 investigation report. b. Ten witness statements provide additional information that clarify exculpatory matters and matters first presented to the Army Regulation 15-6 investigating officer. Most of these witnesses were interviewed by the investigating officer, but the investigating officer failed to include their statements in his final report. c. The investigation upon which the GOMOR is predicated is incomplete and was not conducted in accordance with Army Regulation 15-6. The investigation lacked completeness, lacked attention to detail, and evidenced a conclusory approach that presumed misconduct. The investigating officer cherry-picked incriminating aspects from witness statements, then ignored the exculpatory statements from the same witnesses. 15. The results of the Promotion Review Board are available for review. 16. On 19 March 2015, the DASEB denied the applicant's request for the removal of the GOMOR and all associated documents from his AMHRR. The DASEB determined that after a thorough review of the appellant's official record, the evidence submitted in support of his petition, and the facts and circumstances surrounding the GOMOR incident, the applicant failed to provide clear and convincing evidence that the GOMOR is untrue and/or unjust. The DASEB determined: a. An administrative reprimand is a management tool within the sole discretion of the imposing authority. The imposing authority was not bound by the findings of the Army Regulation 15-6 investigation. The imposing authority may rely on any evidence he or she believes is relevant in a case, to include hearsay. In this case, the imposing authority determined he had sufficient evidence upon which to base a decision and the applicant's action merited issuance of a GOMOR. While the applicant may disagree with the imposing authority's decision to issue him a GOMOR, it was within his authority to do so. b. The filing of the GOMOR was not unjust. The governing regulation permits the issuance of a written reprimand when there is reasonable belief that someone has deviated from the Army Values, personal conduct, or the expectations of a Soldier. The imposing authority believed the applicant was guilty of the allegations. The applicant has not provided any evidence to show the GOMOR was improperly filed or that it was an injustice or that he should not be held liable for the alleged misconduct. c. The applicant's contention regarding an incomplete and inaccurate investigation by the investigating officer is noted; however, the appointing authority and an administrative law attorney reviewed the allegations/findings. The appointing authority rejected some of the findings and the law attorney agreed with the final investigation. The Army Regulation 15-6 findings and proceedings met the legal requirements. Therefore, there is a presumption of regularity in the preparation of the GOMOR that shall be applied unless there is clear and convincing evidence to rebut the presumption. d. Careful consideration was given to the 10 letters of support. The statements supported the applicant's allegations of witness statements not being included in the Army Regulation 15-6 final report and spoke highly of the applicant's overall character, and contradicted the allegations in the GOMOR. e. The applicant has not provided a statement from the imposing authority requesting removal of the GOMOR on the basis it is untrue and/or unjust. 17. The memorandum from the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, dated 22 April 2015, subject: Officer Grade Determination Case (Applicant), states the Army Grade Determination Review Board reviewed the voluntary retirement submitted by the applicant and directed his placement on the Retired List in the rank/grade of major/O-4. The Deputy Assistant Secretary of the Army (Review Boards) determined his service in the rank/grade of lieutenant colonel/O-5 was not satisfactory. 18. The memorandum from the U.S. Army Human Resources Command, dated 5 May 2015, subject: Promotion Review Board Results, informed the applicant that his records were referred to a Department of the Army Promotion Review Board for reconsideration of his promotion status. The Secretary of the Army decided to remove his name from the promotion list. 19. There were no officer evaluation reports in evidence after the applicant received his GOMOR. The last reference to an officer evaluation report covers the period 25 May 2012 through 24 May 2013. 20. He retired on 31 May 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate, or Rank) – Lieutenant Colonel * item 4b (Pay Grade) – O-5 * item 12c (Net Active Service This Period) – 22 years, 1 month, and 7 days * item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – * Bronze Star Medal (2nd Award) * Defense Meritorious Service Medal (9th Award) * Meritorious Service Medal (5th Award) * Joint Service Commendation Medal (3rd Award) * Army Commendation Medal (7th Award) * Army Achievement Medal (7th Award) * National Defense Service Medal (3rd Award) * Armed Forces Expeditionary Medal * Afghanistan Campaign Medal with Campaign Star * Iraq Campaign Medal with Campaign Star * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Ribbon * Armed Forces Service Medal * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * North Atlantic Treaty Organization Medal * Multinational Force and Observers Medal * Joint Meritorious Unit Award (2nd Award) * Meritorious Unit Commendation * Valorous Unit Award * Army Superior Unit Award * Ranger Tab * Master Parachutist Badge * item 18 (Remarks) – * Retired List Grade Major * Served in a Designated Imminent Danger Pay Area * Service in Bosnia 1 July 2001-1 January 2002 * Service in Iraq 1 July 2005-1 December 2005 * Service in Afghanistan 17 July 2013-31 August 2014 * item 28 (Narrative Reason for Separation) – Sufficient Service for Retirement BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was not warranted. Based upon the available documentation and evidence within the record that indicates the applicant accepted responsibility for his wrongdoing at the time of the administrative actions, as well as evidence showing the applicant was offered and received all due process rights along the processing of the administrative actions, the Board concluded there was insufficient evidence of an error or injustice which would warrant a removal of the GOMOR and/or a change in the applicant’s rank. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. 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. //NOTHING FOLLOWS//