IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150004241 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the following documents be purged from his official military personnel file (OMPF): * general officer memorandum of reprimand (GOMOR) and all associated documents * a 12 September 2009 relief for cause (RFC) officer evaluation report (OER) and RFC OER appeal documents * Inspector General Action Request (IGARS) * Army Regulation 15-6 Commander’s Inquiry Report He further requests an amendment of his separation orders to show his placement on the retired list in the rank and pay grade of lieutenant colonel (LTC), O-5. 2. The applicant states that on 25 September 2013, the Army Board for Correction of Military Records (ABCMR) granted him full relief to include placement on the Retired List as a LTC, purging his files of his GOMOR and associated documents, and any other documents related to his unjust reduction in rank. a. The grant required amending his retirement orders to show his retired rank at LTC/O-5, an action that has not been completed. He contacted the Army Human Resources Command (AHRC) and was told that they did not receive a directive to correct any records in his OMPF. b. The GOMOR and RFC OER were given by Colonel (COL) M____ as retaliation for producing a less than favorable command climate survey for his predecessor, COL O____, and submitting a request for a Department of the Army Inspector General (IG) investigation of improper actions on the part of COL O____. He notes that COL M____ stated that he and COL O____ were classmates and the command climate survey was rather harsh on COL O____. The applicant also noted that neither COL M____ nor Lieutenant General (LTG) W____ were assigned to the command during the period of the alleged offenses. 3. The applicant provides copies of a 6 November 2013 AHRC letter and the ABCMR Record of Proceedings Army Docket AR20130004846, dated 19 September 2013. CONSIDERATION OF EVIDENCE: 1. The ABCMR Record of Proceedings for Docket Number AR20130004846 shows the Board only considered the applicant’s request to be retired in the rank of LTC/O-5 based on the applicant’s written request as stated on his DD Form 149 (Application for Correction of Military Record under the provisions of Title 10, U.S. Code, section 1552.) The applicant did submit a narrative summary with his application wherein he requested that "documents erroneously filed in my Official Military Personnel Record (OMPF) that caused this unjust recommendation be removed from the File." The removal of subject documents from his OMPF was not considered by the ABMCR. 2. On 19 September 2013 the ABCMR restored his retired rank to LTC/O-5. 3. The AHRC was notified of the ABCMR's decision and directive. By memorandum dated 6 November 2013, AHRC informed the ABMCR that it took all actions necessary to show the applicant was retired and placed on the Retired List in the rank of LTC. The applicant’s retirement order, Orders 306-0002 dated 1 November 2012, was not amended. The ABCMR decisional document acts as a correction of the retirement orders negating the need to issue amended separation orders. These factors render the request for correction of his retirement orders moot and this aspect of his request will not be further addressed. 4. The applicant was selected for promotion to LTC and assignment as the IG (Forward) at Camp Arifjan, Kuwait. Upon his assignment he was frocked to LTC. 5. A 21 February 2009 Camp Arifjan, Kuwait gate log states the applicant was turned around at the gate and denied exit access from the camp because he did not comply with the requirement to exit the camp with his personal weapon. This requirement was part of the standard operating procedures for exiting the compound. It notes that there were two other Soldiers in the vehicle. 6. The applicant was promoted to LTC/O-5 on 1 May 2009. 7. By memorandum on 7 September 2009, the Third Army Deputy Staff Judge Advocate completed a review of a Commander’s Inquiry into the allegations against the applicant. A copy of the actual Commander's Inquiry is not available for the Board’s review. The legal review memorandum shows the applicant was cited for: * improperly attempting to violate the personal arming requirement on 21 February 2009 in violation of Article 92, Uniform Code of Military Justice (UCMJ) * improperly failing to comply and causing others not to comply with Government purchase card (GPC) appointment and purchase procedures in violation of Article 92 and 134, UCMJ 8. On 12 September 2009, the applicant received a GOMOR. The Commanding General (CG), Third Army stated the applicant was reprimanded for abusing his authority by attempting to depart Camp Arifjan without his required personal weapon, and for improperly ordering a GPC holder to violate GPC procedures and make unauthorized purchases. A Commander's Inquiry substantiated that in February 2009, the applicant attempted to leave post for a dental appointment without his weapon or proper medical documentation, that he argued with the guard who refused to let him off-post, and attempted to take advantage of his position as an IG. It further substantiated that in June and July 2009, the applicant ordered a subordinate Soldier to obtain a GPC and make purchases with the GPC in violation of GPC appointment and purchase procedures, which prohibited the use of a GPC when the holder was nearing departure from Kuwait. 9. The applicant submitted a rebuttal to the GOMOR, stating: a. He did not abuse his position as an IG but rather tried to explain to the gate sentry that as an IG he knew the policies and procedures of attending a medical appointment and that they did not require him to carry a side arm if accompanied by someone who was carrying one. When the sentry insisted that the sentry's orders required all personnel to carry a personal weapon, he returned to the armory and checked his weapon out. At no time did the sentry request the applicant to produce a medical/dental appointment notice. b. He provided the fragmentary order (FRAGO 07-018) that states personnel attending medical appointments are not required to carry a weapon if they are accompanied by someone else carrying a weapon. The investigating officer's findings state that an exception to the personal arming requirement existed but argues that he was at fault because he did not produce the documentation of his medical appointment while interacting with the guard. The applicant argues that this finding was unfounded. The guard never asked for his dental appointment documentation. The guard simply would not accept that there was an exception to the policy or instructions that contradicted the gate guard standard operating procedure (SOP). At no time during the encounter at the gate did he raise his voice or otherwise abuse his rank or position as the IG, despite the fact that the security guard was clearly not aware of the policy. c. On the issue of the improper use of the GPC, the applicant stated that the delay in obtaining a GPC by the noncommissioned officer (NCO) involved caused the NCO to not obtain the card prior to the minimal usage time period required before his departure from Kuwait. This was a violation of the GPC standard operating procedures. The requested item, a printer was never actually purchased due to nonavailability of the item. He accepted responsibility for his improper action. He also noted that due to the frequent turnover of personnel at the unit it was very difficult to have someone receive and be able to utilize a GPC within the prescribed time frames. 10. On 19 September 2009, the CG, Third Army reviewed the applicant’s rebuttal statement but did not modify the GOMOR. He directed the GOMOR, the rebuttal statement and filing determination be filed in the applicant’s OMPF. A review of the applicant’s OMPF shows these documents are filed as directed. 11. On 14 November 2009, he received a RFC OER for the period 2 April 2009 through 12 September 2009 (4 months). His senior rater was the CG, Third Army, who stated he removed the applicant from the IG position due to poor judgment. An informal inquiry indicated that it was in the best interest of the Army and the CG’s command that the applicant not continue to serve as an IG due to exercising poor judgement on two occasions by attempting to violate rules for off-post travel and directing a subordinate to violate regulations governing the use of a GPC. The applicant submitted a rebuttal statement. He admitted to wrongly directing a subordinate to use a GCP within 45 days of the subordinate’s departure from Kuwait, a violation of the GPC SOP. He disputed the allegation of wrongfully trying to exit the camp without being properly armed. The RFC OER and rebuttal statements are filed in the applicant’s OMPF. 12. On 24 November 2009, the Department of the Army (DA) IG notified the applicant that because the Defense Security Service was not an agency of the U.S. Army, it did not have the authority to address the issue of his security clearance. It also reported that an IG investigation had been initiated based on the allegation against the IG at the U.S. Central Command. A follow-up notification indicated that although specific complaints against COL O____ could not be verified, the investigation did find that Colonel O____ had created a hostile work environment. 13. On 10 October 2012, in concert with his request for voluntary retirement, the Army Grade Determination Review Board (AGDRB) determined that based on the GOMOR and the RFC OER, the highest grade he satisfactorily held was major/O-4. 14. The applicant retired on 30 June 2013 in the rank of LTC with placement on the Retired List as a major/O-4. 15. On 19 September 2013, the ABCMR granted the applicant's request to be placed on the Retired List in the rank of LTC, effective 1 July 2012. AHRC was notified of the required corrective action on 25 September 2013. On 6 November 2013 AHRC notified the applicant that the corrective action had been completed. A review of his pay records by the Defense Finance and Accounting Service (DFAS) verified that the applicant was being paid as an O-5. 16. A review of his integrated Personnel Electronic Records Management System (iPERMS) file shows the applicant is a LTC. The following documents are not filed in his iPERMS: * Inspector General Action Request (IGARS) * Army Regulation 15-6 Commander’s Inquiry Report 17. FRAGO 07-018, The Force Protection Standards for Official Off-Post travel states at – * Paragraph 3.C.2 that all service members will carry their assigned weapons with ammunition when departing the post * Paragraph 3.C.2.C that as an exception to policy to the arming policy personnel with valid medical/dental appointments are not required to carry personal arms so long as one member in the vehicle is armed * Paragraph 3.C.3.C that members are not required to carry their personal arms while traveling for valid medical/dental appointments are to present their appointment orders 18. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual OMPF's; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual OMPF's; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from OMPF's. Unfavorable information that should be filed in the OMPF includes indications of substandard leadership ability, promotion potential, morals, and integrity. 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. b. 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. c. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance 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 Army Regulation 600-37, chapter 7. 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. e. Letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the restricted section. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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. f. Appeals for removal of OMPF entries of unfavorable information are to be directed to the Department of the Army Suitability Evaluation Board (DASEB). Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. Appeals to the DASEB may be made by active duty personnel or Reserve personnel serving in an active drilling status. 20. Army Regulation 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 (the DASEB or this Board). 21. Army Regulation 623-3 (Personnel Evaluation – Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. An OER is required when an officer is relieved for cause regardless of the rating period involved. RFC is defined as the removal of an officer from a rateable assignment based on a decision by a member of the officer's chain of command or supervisory chain. RFC occurs when the officer's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army. b. The rated Soldier may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation. An appeal must be supported by substantiated evidence. An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by the Army Human Resources Command. The AHRC will process requests for correction of an OER only for active duty personnel or Reserve personnel serving in an active drilling status. DISCUSSION AND CONCLUSIONS: 1. By the applicant's own statements he was guilty of having his subordinate attempt to use a GPC during a period that was contrary to regulations. The applicant accepted responsibility for this portion of the GOMOR. 2. However, the Commander's Inquiry legal review memorandum, GOMOR, and RFC OER appear to be significantly flawed in reference to the other two components for the reason for their issue. 3. The reason for the 21 February 2009 security turn-around was because the applicant did not meet the arming requirement for exiting Camp Arifjan per the gate guard’s SOP. The gate turn–around report makes no mention of a request for documentation of a medical/dental appointment or the lack of that documentation as required by FRAGO 07-018. 4. The personal arming general order states that personnel attending medical/dental appointments are not required to carry a personal weapon if accompanied by at least one individual who is armed. 5. The turn-around log entry shows that the applicant was in the presence of two other Soldiers. Had they not been armed, they would also have been cited in the report by name as being denied the ability to exit the camp. 6. There is no evidence of record that the applicant was asked for but did not present documentation that he was going to a dental appointment as noted in the GOMOR. 7. Since the applicant was not in violation of the personal arming general order, he should not have been cited for attempting to utilize his position as an IG to exit the camp. Without a valid violation of the personal arming general order, the applicant's guidance to the sentry of the exception to policy would have been appropriate and not an abuse of his position. The fact that he was an IG LTC should have lent credence to his knowledge of the FRAGO. 8. The evidence indicates that either the officer conducting the Commander's Inquiry and COL M____ did not fully review the FRAGO or deliberately ignored the exception for medical/dental appointments. 9. Without the cited reasons related to the 21 February 2009 gate incident, it is unlikely that the CG, Third Army would have issued the GOMOR for only the attempted improper use of the GPC. 10. Without a valid finding that the applicant violated the post arming general order and abused his authority as an IG officer, the RFC OER is factually flawed. 11. Based on the factual flaws in the Commander’s Inquiry legal sufficiency review memorandum, the GOMOR and its associated documents and the RFC OER ending on 12 September 2009 and its associated documents should be removed from the applicant’s record. 12. As the following documents are not filed in the applicant’s iPERMS, the board cannot consider or grant his request based on lack of evidence. * Inspector General Action Request (IGARS) * Army Regulation 15-6 Commander’s Inquiry Report BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x____ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 removing all documents related to the 12 September 2009 GOMOR and its associated documents to include the legal sufficiency memorandum for the Commander’s Inquiry, and the RFC OER for the period from 2 April 2009 through 12 September 2009 and its associated documents. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial, without prejudice, of so much of the application that pertains to removing an Inspector General Action Request (IGARS) and Army Regulation 15-6 Commander’s Inquiry Report. If these documents are later placed in his OMPF, he may submit a new application to the Board. 3. These proceedings and correspondence related to these proceedings should not be filed in the applicant's 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. ABCMR Record of Proceedings (cont) AR20150004241 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004241 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1