BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160000707 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF __x______ __x______ _x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160000707 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the general officer memorandum of reprimand, dated 29 November 2012, and allied documents to the restricted folder of his Official Military Personnel File. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removal of the general officer memorandum of reprimand from his Official Military Personnel File. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160000707 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) from his Official Military Personnel File (OMPF). 2. The applicant states: a.  Army Regulation 600-37 (Unfavorable Information) allows such removal when the GOMOR has served its intended purpose, the GOMOR has been in the OMPF for at least a year, and the Soldier is a staff sergeant or above and has received at least one evaluation report since filing of the GOMOR. b.  He received a GOMOR from Major General Y____ on 29 November 2012 for fostering a hostile command climate and using abusive language. c.  The GOMOR was filed in his performance folder against the recommendation of his battalion and brigade commanders. d.  He has worked diligently to reform himself since the GOMOR was filed. He was assigned as an Assistant Professor of Military Science at California State University, Sacramento, CA, from July 2013 until his retirement on 1 October 2015. The GOMOR was a one-time incident and not a pattern of misconduct. e.  The GOMOR has served its intended purpose. Since the time the GOMOR was filed in his performance folder, he was eligible for promotion to major during the Fiscal Years 2014 and 2015 Major Army Competitive Category Promotion Boards and he was not selected due to the GOMOR. He retired on 1 October 2015 in the grade of O-2E as determined by the Army Grade Determination Board. f.  The U.S. Army defines resiliency as the mental, physical, emotional, and behavioral ability to face and cope with adversity, adapt to change, recover, learn, and grow from setbacks. He has accomplished this over the past 3 years since the GOMOR was filed in his performance folder. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. Having prior honorable enlisted service in the Regular Army, the applicant accepted a Reserve commission in the rank of second lieutenant (2LT) on 18 August 2005 with concurrent order to active duty. 2. He was promoted to first lieutenant (1LT)/O-2 on 18 February 2007 and captain on 1 October 2008. 3. On or about 27 June 2012, 1LT B____ approached Major (MAJ) W____ with concerns regarding the applicant's negative leadership style, the company's poor command climate, and the disrespectful treatment of Soldiers within the 512th Military Police Company. MAJ W____ told 1LT B____ he would bring the matter forward and directed him to return to his company and await further instructions. From 27 June to 9 July 2012, 1LT B____ continued to receive information from Soldiers of the 512th Military Police Company regarding previous negative actions from the command team. 4. On 11 July 2012, an investigating officer was assigned for an informal commander's inquiry regarding the conduct of the leadership of the 512th Military Police Company. 5. The investigating officer listed his findings and recommendations of the informal commander's inquiry in a memorandum for record, dated 10 September 2012, as follows: a.  Findings:  It was his belief that based on statements: * a hostile command climate existed within the 512th Military Police Company * the applicant had used inappropriate language and nicknames, some of which could be construed as racist, when addressing Soldiers within the unit * procedures needed to be reviewed for confiscation of property during health and welfare inspections, and there was a perception of preferential treatment between First Sergeant (1SG) M____ and Specialist (SPC) W____ b.  Recommendations: (1)  immediately conduct a command climate survey by either battalion or brigade Equal Opportunity representatives for all assigned unit personnel; (2)  conduct a senior leaders' forum to discuss findings and resolutions monitored by battalion or brigade Equal Opportunity representatives. The company, at the time, was participating in an on-line command climate survey in support of an assumption of command for the new brigade command team; (3)  formally counsel the applicant for his use of inappropriate language toward Soldiers of his command and initiate developmental counseling regarding his leadership style and guidance for the manner in which he directs corrective actions and addresses subordinates within his command; (4)  review the company health and welfare procedures and develop a policy that addresses steps taken once it has been deemed necessary to remove questionable items of personal property from Soldiers' living quarters; (5)  counsel 1LT B____ reference his initial inquiry within the company and make him aware of established systems and military channels for addressing organizational and leadership issues; and (6)  make 1SG M____ aware of the perception of his preferential treatment toward SPC W____. 6. On 10 September 2012, a legal review of the commander's inquiry into possible misconduct of the 512th Military Police Company command team found the investigation legally sufficient. 7. On 29 November 2012, he received a GOMOR from the Commander, U.S. Army Maneuver Support Center of Excellence, wherein the commander states, in part: You are hereby reprimanded for fostering a hostile command climate and using inappropriate, discriminatory and abusive language to your subordinates. While commander of the 512th Military Police Company, you made numerous inappropriate comments that have adversely affected the morale of your company. In August 2011, after you learned that a Soldier had expressed suicidal ideations, you said in front of several Soldiers, "I wish he would just go ahead and do it." On another occasion, while discussing an NCO [noncommissioned officer] who was pregnant, you stated that she was "taking up space" and that she was "not earning her pay" because she was pregnant. Further, during training and in front of your company, you remarked towards an African-American NCO who was standing behind a vehicle, "There's no fried chicken back there." You have also called African American Soldiers "White Shadow" and other nicknames referencing race. You called Asian-American Soldiers in your unit "Jackie Chan," "Commie," and "Korean Spy." At company meetings and other open forums you have used several derogatory names for a Soldier, SPC [McG____], including "McGold-balls," "McGold-dick," "McDick-face," and "McAss." 8. On 4 December 2012, he acknowledged receipt of the GOMOR and indicated he would submit written matters within 7 calendar days. He understood that if he failed to submit written matters within 7 calendar days, he waived his right to respond. 9. On 10 December 2012, the applicant submitted a rebuttal to his GOMOR. 10. On 11 December 2012, his chain of command recommended placing the GOMOR temporarily in his local unit file for a period of 3 years or until he was reassigned outside the convening authority's jurisdiction. 11. On 19 December 2012 after carefully considering all matters available and the recommendations by the applicant's chain of command, the commanding general directed permanent filing of the GOMOR in the applicant's OMPF. 12. On 25 January 2013, he received a referred DA Form 67-9 (Officer Evaluation Report (OER)) for the period 2 April 2012 through 20 November 2012. 13. On 1 February 2013, he submitted comments to his referred OER. 14. On 24 April 2013, he appealed his referred OER. 15. On 10 October 2013, the Officer Special Review Board denied his request for removal of the DA Form 67-9 (Officer Evaluation Report) for the period 2 April 2012 through 20 November 2012 from his OMPF. 16. On 29 November 2013, he appealed to the Department of the Army Suitability Evaluation Board for the transfer of his GOMOR to his restricted folder. 17. On 27 March 2014, the Department of the Army Suitability Evaluation Board denied his request. He was notified of the decision on 8 April 2014. 18. On 27 February 2015 in conjunction with his request for retirement, the Chief, Officer Retention and Transition, U.S. Army Human Resources Command, sent his request to the Army Grade Determination Review Board (AGDRB) to determine the highest grade in which he had served satisfactorily based on the derogatory information in his OMPF. 19. On 30 March 2015, he was notified he could submit any written materials he wished the AGDRB to consider and he was given 30 days to submit such evidence. He was also advised personal appearances before this board were not permitted. 20. On 13 April 2015, he submitted written matters to the President, AGDRB. 21. On 22 April 2015, the AGDRB recommended his retirement in the rank/grade of captain/O-3E. 22. On 23 June 2015, the Deputy Assistant Secretary of the Army (Review Boards) directed his retired grade as O-2E if his request for retirement were approved. 23. U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison Command-Fort Knox, Orders 175-0162, dated 24 June 2015, show his effective date of retirement as 30 September 2015, his retired grade as 1LT, and the date he was placed on the Retired List as 1 October 2015. 24. Records show he received three favorable officer evaluations after issuance of his GOMOR. His DA Form 67-10-1 (Company Grade Plate Officer Evaluation Report) for the period 2 June 2014 through 30 June 2015 shows he received an "Excels" rating for overall performance by his rater. He was rated "Highly Qualified" by his senior rater for potential compared with officers senior rated in the same grade. 25. He retired effective 30 September 2015 and was placed on the Retired List effective 1 October 2015. 26. His retirement DD Form 214 shows in: * item 4a (Grade, Rate or Rank) – CPT * item 4b(Pay Grade) – O-3 * item 12b (Separation Date this Period) – 30 September 2015 27. On 19 November 2015, the Army Board for Correction of Military Records denied his request for reversal of the AGDRB decision to place him on the Retired List in the rank/grade of 1LT/O-2E. REFERENCES: 1. Army Regulation 600-37 provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. a.  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 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. c.  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. d.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder. Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. The above 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. Appeals approved under this provision will result in transfer of the document from the performance folder to the restricted folder of the OMPF. e. Appeals submitted under this provision will normally be returned without action unless at least 1 year has elapsed since imposition of the memorandum and at least one evaluation report, other than academic, has been received in the interim. 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 Army Military Human Resource Record, including 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 (DASEB). DISCUSSION: 1. The OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. 2. The applicant was issued a GOMOR for fostering a hostile command climate and using abusive language. 3. The applicant applied to the DASEB for removal of the GOMOR and his request was denied. 4. The governing regulation authorizes transfer of a GOMOR to the restricted folder of the OMPF when it can be determined that it has served its intended purpose. The evidence of record in this case shows the applicant positively responded to the reprimand as evidenced by his subsequent evaluations and continued service. Removal of a GOMOR is generally not warranted unless it is factually incorrect. It appears the GOMOR has served its intended purpose, which would be a basis for transferring it and all allied documents to the restricted folder of his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000707 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2