IN THE CASE OF: BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160000480 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160000480 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. IN THE CASE OF: BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160000480 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 removal of a general officer memorandum of reprimand (GOMOR), dated 28 May 2011, from his Official Military Personnel File (OMPF). 2. The applicant states: a. He received a GOMOR during his tour in Afghanistan and requests its removal from his records. He truthfully reported what occurred at Torkham Gate with regard to the Army National Guard unit's actions, to include speeding, throwing bottles full of urine at Afghani border police, and foul language directed at Afghani citizens. b. The Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation took no witness statement from the former U.S. Customs officer located at the border. The report was conducted by a biased Army National Guard colonel at Torkham Gate. c. He was not afforded proper legal counsel nor was his supporting statement taken into consideration by the commander; therefore, he wants the GOMOR removed. After this tour in Afghanistan, he went back to Iraq for the drawdown and was given an excellent officer evaluation report (OER) and was awarded the Bronze Star Medal. He met and worked with general officers from General A____'s staff during his entire tour in Iraq. d. He is now retired and nothing negative occurred after this incident. He has 29 years of total service with not one other unfavorable issue. 3. The applicant provides: * GOMOR, dated 28 May 2011 * character statement, dated 1 June 2011 * email questions and answers, dated 3 June 2011 * document titled "Statement of Facts," dated 5 June 2011 * GOMOR rebuttal memorandum, dated 10 June 2011 * GOMOR filing determination, dated 3 July 2011 * Bronze Star Medal Certificate, dated 17 October 2011 * DA Form 67-9 (Officer Evaluation Report) covering the period 8 August 2011 through 31 December 2012 * DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report) covering the period 27 March 2014 through 30 September 2014 * Headquarters, U.S. Army Reserve Command, Orders 15-247-00006, dated 4 September 2015 CONSIDERATION OF EVIDENCE: 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the U.S. Army Reserve on 31 October 1980. He was subsequently commissioned as a second lieutenant in the U.S. Army Reserve on 12 May 1987. 3. On 28 May 2011, the Deputy Commander for Support, U.S. Forces-Afghanistan (USFOR-A), issued a GOMOR to the applicant for conduct unbecoming an officer and gentleman. a. The GOMOR-imposing authority stated the applicant repeatedly showed an inability to manage personal relationships, displayed toxic leadership by belittling subordinates, and failed to take responsibility for his actions while deployed in support of Operation Enduring Freedom between June 2010 and June 2011. b. While assigned as the officer in charge of Torkham Gate, he alienated subordinates and Afghanis alike. His verbal assaults on his subordinates and his argumentative nature with superiors led to a loss of confidence in his abilities to lead at Torkham Gate. Rather than being introspective to learn from his mistakes, he blamed everyone else for his failures. The investigating officer recommended the applicant's redeployment because of his "abrasive leadership style…[ultimately concluding that] [a]ny reassignment within the AO [area of operations] will created a burden upon his immediate supervisor." Despite these conclusions, the applicant was reassigned to the USFOR-A Provost Marshall Office (PMO) on 2 October 2010. c. While assigned to the USFOR-A PMO, his inability to manage relationships continued. He undermined his supervisor's authority, demeaned subordinates, and referred to a master chief as a "f___ing idiot." When his supervisor discussed the applicant's interpersonal skills, he once again missed an opportunity to reflect and instead responded that his accusers were "f___ed up." As a result, he was removed from the USFOR-A PMO on 10 December 2010. d. On 31 December 2010, the GOMOR-imposing authority appointed the applicant to conduct an investigation under the provisions of Army Regulation  15-6. While he turned in an investigation, a review of the investigation determined it was not legally sufficient. The USFOR-A Office of the Staff Judge Advocate attempted to work with the applicant to complete the investigation. Once again, the applicant showed a predilection to resorting to tactics of intimidation and blaming others for his inabilities rather than focusing on the task. He leveled untrue accusations in an effort to deflect blame and behaved unprofessionally. e. All of the actions described above constitute conduct unbecoming an officer and gentleman. His actions fell far below the standard the GOMOR-imposing authority expected from officers. On several occasions, the applicant showed an inability to lead, follow, or work with others because of his inability to comport himself in a professional manner. Even more troubling was his inability to accept responsibility for his actions, wanting to blame others rather than learn from his mistakes and focus on completing the mission. His actions demonstrated a lack of maturity and judgment that caused the GOMOR-imposing authority to question the applicant's fitness to continue to serve in the Army. f. The GOMOR was imposed as an administrative measure and not as nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice. He was advised that the GOMOR-imposing authority currently intended to direct filing the GOMOR in his OMPF. g. He was further advised he had the right to submit matters in his behalf and that his response or rebuttal to the GOMOR must arrive within 7 days of receipt of the memorandum. 4. He acknowledged receipt of the GOMOR on 28 May 2011 and elected to submit matters in his behalf. His 10 June 2011 rebuttal memorandum states: a. He truly and earnestly apologized for putting himself and his previously unblemished reputation and excellent career in a position where this reprimand even had to be administered. He was fully aware he did lasting damage to his reputation and to his Army career. Despite that, it was his heartfelt desire to remain in the Army and he requested local filing of the GOMOR in lieu of filing in his OMPF. b. While the allegations against him did seem to equate to an abandonment of Army values, he looked long and deep into his heart and felt he could recover from this episode and continue to serve the Army honorably and ethically. He had a solid history of over 15 years of stellar performance and ethical behavior. He was a professional and truly believed in and wanted to fulfill his obligations as an officer. It deeply pained him that his dedication to our Army, our mission, or to his obligations as an officer came into question. c. He was reprimanded for an abrasive style that resulted in interpersonal conflict while assigned to Torkham Gate and the USFOR-A PMO. This was never his intention. He had serious concerns regarding the standards of conduct that he found when he became responsible for the operation of Torkham Gate. Similarly, when he joined the USFOR-A PMO, he was not included in all of the day-to-day operations of the office. In retrospect, he believes this led to frustration on his part and as this frustration built, he reacted negatively. It was his intention to motivate change, not to berate. He deeply regrets that his motives were called into question and that his actions were perceived negatively by some. d. With respect to the investigation that the GOMOR-imposing authority charged him with completing, he did not intentionally leave the matter incomplete. At the time he was given responsibility over the investigation, he let it be known to the Office of the Staff Judge Advocate that he had previously been scheduled for a job-related temporary duty that was pending. He completed the investigation and turned it in, at which point he believed the matter was settled; this is what was related to him at the time. It was not until 3 months later that he was notified that there was a problem with the investigation. Likewise, no one in his command who he was able to find was notified of any shortcomings either. When he was finally notified of the shortcoming, he did attempt to answer the questions posed to him, but it was not his intent to shift blame to anyone. e. He did not believe the investigation into his conduct was complete. While he did not question the motives of the investigating officer or those who gave statements in the investigation, he believes there were others who saw things in a slightly different light. While he admitted he did not carefully think through some of his actions, he also believes some of his actions were misconstrued or viewed negatively when there was no such intent on his part. Had he been more careful, this likely could have been avoided and he apologized for this shortcoming. f. In his 15-plus years of service, he had the opportunity to serve with wonderful people and was able to do some spectacular things. He voluntarily deployed to both Iraq and Afghanistan and did so because he wanted to serve his country and be an example for other Soldiers to follow. The incidents he was accused of were not emblematic of who he really was or who he wanted to be. g. If filed in his OMPF, the GOMOR will have severe repercussions on his military career, limiting his chances for advancement and remaining in the Army. Prior to this episode, he was never in any kind of trouble and had not even a negative counseling statement. He was professionally and personally embarrassed to have put himself in the predicament he found himself in. He recognized he should have acted differently as an officer and for that he was sorry. 5. In conjunction with his rebuttal, he submitted a character statement, email correspondence, and a document titled "Statement of Facts" to the GOMOR-imposing authority a. The character statement, dated 1 June 2011, was authored by a U.S. Marine Corps master sergeant. It states he personally observed the applicant during the period 1 December 2011 through 15 February 2011 in the performance of his daily duties and witnessed his personal interactions with a variety of military members while he was assigned the duties associated with an Army Regulation 15-6 command investigation. He overall found the applicant to be extremely fair, honest, and level-headed in his personal interactions with all ranks. At no time did he observe any abuse or misuse of his rank. He displayed a keen drive and desire to perform all assigned tasks to the utmost of his abilities. b. The email correspondence appears to be a series of 18 questions the applicant posed in writing to Staff Sergeant H____ and Technical Sergeant H____, and which were responded to by either one or potentially both. The questions pertain to a customs course that was conducted in November 2010 in the USFOR-A PMO, the coordination of the course, the transportation for the course, and the logistical support for the course. c. The "Statement of Facts," dated 5 June 2011, is a series of 15 questions which were posed by an unknown source, presumably the applicant, and all were responded to by Mr. J____ S____. The complete questions and answers are available for review in the source document. Some of the included questions are as follows: * Did the customs mission become easier as a result of me requesting the unit to conduct additional movements for customs? * What was the attitude of the unit to anyone outside of the unit if observed? * Were security meetings started at Torkham and what did the Afghani officials think? * Do you feel you were given the needed support before or after I arrived? * Did you ever witness excess and unsafe speeds by the unit to the gate? * Based on our conversation at Torkham, do you think I attempted to work with the unit? 6. On 3 July 2011 after carefully considering the facts and circumstances surrounding the events and all information submitted by the applicant, to include his statement in rebuttal, the GOMOR-imposing authority directed permanently filing the GOMOR in the applicant's OMPF. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) covering the period 9 June 2009 through 16 July 2011 shows he deployed to Afghanistan in support of Operation Enduring Freedom from 16 June 2010 through 13 June 2011. 8. The GOMOR is currently filed in the performance folder of his OMPF. 9. The applicant provided a Bronze Star Medal Certificate, showing he was awarded the Bronze Star Medal for exceptionally meritorious service during Operation New Dawn from 6 August 2011 to 1 December 2011. 10. He also provided two OERs. His OER covering the period 8 August 2011 through 31 January 2012 shows his senior rater evaluated his potential compared with officers senior rated in the same grade as "Center of Mass." His OER covering the period 27 April 2014 through 30 September 2014 shows his senior rater evaluated his potential compared with officers senior rated in the same grade as "Highly Qualified." 11. Headquarters, U.S. Army Reserve Command, Orders 15-247-00006, dated 4 September 2015, released him from his current assignment in the U.S. Army Reserve and assigned him to the Retired Reserve effective 1 December 2015 due to maximum authorized years of service. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. a. 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 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 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 chapter 7. b. Paragraph 7-2 provides that 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. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Records 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 folder of the OMPF unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board or the ABCMR). DISCUSSION: 1. The applicant was issued a GOMOR by the Deputy Commander, USFOR-A, for conduct unbecoming an officer and gentleman. The Deputy Commander stated the applicant repeatedly showed an inability to manage personal relationships, displayed toxic leadership by belittling subordinates, and failed to take responsibility for his actions while deployed in support of Operation Enduring Freedom between June 2010 and June 2011. These failures continued to manifest themselves despite his reassignment from the position at Torkham Gate to the USFOR-A PMO. 2. He provided a rebuttal in which he stated he was never in any kind of trouble prior to this episode, he had not even received a negative counseling statement. He was professionally and personally embarrassed to have put himself in the predicament he found himself in. He recognized that as an officer he should have acted differently and for that he was sorry. After a review of the case, the statement he made in his behalf, and his supporting documentation, the GOMOR-issuing authority used the discretion afforded his position and authority to direct its permanent placement in the performance folder of the applicant's OMPF. 3. The governing regulation provides that 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. 4. The applicant was transferred to the Retired Reserve effective 1 December 2015 due to maximum authorized years of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000480 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000480 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2