BOARD DATE:  8 January 2019  

		DOCKET NUMBER:  AR20160011928 


APPLICANT REQUESTS THROUGH COUNSEL: 

* Voiding and removal from his official military personnel file (OMPF) of a General Officer Memorandum of Reprimand (GOMOR) (request subsequently withdrawn because the GOMOR is not currently filed in the applicant's OMPF)
* Voiding and removal from his OMPF of a related officer evaluation report (OER), rating period 20120701 through 20130211
* Personally appear before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

* DD Form 149 (Application for Correction of Military Record)
* Army Commendation Medal Certificate for the period from 6 April 2008 to 6 June 2009
* Six DA Forms 67-9 (OER), for rating periods 20090707 through 30 June 2013
* Redacted U.S. Army Criminal Investigation Command (CID) Action Report, dated 14 June 2012, with associated documents
* Fort Hood Form 280 (Service Member Notification of Commanding Officer Referral for Behavioral Health Evaluation), dated 26 June 2012
* Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), dated 17 July 2012
* Command Referral for Mental Health Evaluation memorandum, dated 28 July 2012
* GOMOR, dated 21 September 2012
* Email requests, dated between August 2012 and February 2013
* Two statements of support
* Two Court Cases
* Applicant's official photograph
* SF 312 (Classified Information Nondisclosure Agreement), dated 30 November 2010
* DD Form 93 (Record of Emergency Data), dated 2 November 2010
* SGLV Form 8286 (Servicemembers' Group Life Insurance Election and Certificate), dated 2 November 2010
* DA Form 1059 (Service School Academic Evaluation Report) for academic rating period 2 November 2010 through 22 November 2010
* U.S. Army Garrison Baumholder Orders Number 079-253, dated 19 March 2008
* DA Form 1059 for academic rating period 7 January 2007 through 4 April 2007
* Memorandum, dated 3 June 2006, Subject:  Appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code, Sections 12201, 2104, 2106, and 2107
* DA Form 71 (Oath of Office – Military Personnel), dated 2 June 2006
* Pages 1 through 3, DA Form 597-3 (Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract), dated August 2004
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 16 August 2004
* Headquarters, U.S. Army Infantry Center Permanent Orders Number 
191-2923, dated 9 July 2004 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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.  Counsel submits the following statements and arguments:

	a.  He summarizes the applicant personal military history and lists his awards and decorations.  Prior to the events in question, the applicant had no disciplinary concerns.  By all accounts, he was an outstanding Soldier and an officer with unlimited potential.

	b.  While stationed in Germany between 2009 and 2010, the applicant developed a deeper interest in American history generally and, more specifically, in constitutional law.  

	c.  In 2010, he transferred to Fort Hood, TX per permanent change of station orders; he was assigned to the 20th Engineer Battalion.  After his arrival, his battalion executive officer (XO), Major (MAJ) __ __, along with other officers, informed him he was required to register any personally owned firearms with the battalion and Fort Hood.  The applicant politely, but firmly informed them federal law prevented the Army from ordering him to do so.  

	d.  In early 2012, the applicant requested, and was granted a transfer to the 62nd Engineer Battalion so he could deploy to Afghanistan.  Shortly after his transfer, the battalion held a safety stand-down.  One of the speakers, a Texas law enforcement officer, told the assembled group that Texas law permitted the arrest of a person for swearing in public.  

		(1)  During the question and answer portion, the applicant addressed the officer's earlier statement and referenced a Supreme Court decision holding the U.S. Constitution generally protected profanity.  The applicant asked whether the referenced Texas law preceded or followed the Supreme Court decision.  The officer responded, "You can swear in public, but don't mess with Texas," a wholly unreasonable response to a legitimate question.

		(2)  The applicant approached the law enforcement officer after the stand-down to continue the discussion about public profanity in Texas.  He concluded the conversation by noting the citizenry would not appreciate law enforcement officers citing them for using profanity in public when the Constitution protected such speech.  While he did challenge the law enforcement officer's comments, at no time was he rude or disrespectful.  

		(3)  The law enforcement officer must have complained because, less than one week later, the applicant's battalion commander, Lieutenant Colonel (LTC) XXX, called him in to discuss the event.  LTC XXX_ told the applicant the law enforcement officer threatened not to participate in future training events at Fort Hood, but that the brigade commander was able to "smooth things over."  

	e.  In March/April 2012, the applicant traveled to Afghanistan for a pre-deployment site survey.  He returned through Kuwait, where he was required to pass through a pre-boarding security screen.  He had the option of passing through the "Backscatter" x-ray machine (a full-body scanner deployed by Transportation Security Administration (TSA) and run by Navy personnel).  He asked the Sailor if he could be "wanded" rather than submit to the Backscatter machine.  The Sailor allowed it, and carefully and thoroughly "wanded" him; he did not frisk the applicant.  After this, the applicant proceeded to his flight home.

	f.  In May 2012, the applicant was traveling to Fort Hood from his family home in Salt Lake City, UT.  As he went through airport security, he observed people in front of him pass through a traditional metal detector, as well as the Backscatter x-ray machine he had seen used in Kuwait.  

		(1)  When it was his turn, he informed the TSA agent he would not submit to a search using TSA's Backscatter machine.  Instead, he requested to pass through the traditional metal detector, receive a wand screening, and undergo a traditional pat down.  When the TSA agent asked why, the applicant stated he had a Fourth Amendment right to be free of unreasonable searches; he affirmed his belief that use of the Backscatter machine constituted an unreasonable search (i.e., the Backscatter machine was effectively a strip search).  In addition, he argued the health effects of the machine were unknown.  (Counsel noted TSA has since removed the Backscatter machine due to public outcry over privacy and health concerns).

		(2)  The TSA agent pulled the applicant aside and called for assistance.  A TSA official angrily told the applicant his choices were not flying or undergoing an enhanced hand search (pat down).  The applicant respectfully informed the TSA official and an airport police officer that he was a member of the U.S. Army and needed to return to Foot Hood so he could deploy to Afghanistan; the airport police officer then gave him the same options as the TSA agent.  At this point, the TSA agent asked the applicant for his identification (ID); the applicant questioned this, but received no answer.  

		(3)  Because he did not wish to escalate the situation, the applicant informed the agent he would undergo the enhanced pat down.  While being patted down, the agent intentionally touched the applicant's testicles; the applicant immediately complained to both law enforcement and TSA.  

		(4)  The applicant later reported the assault to CID; CID noted, "Upon review of [the applicant's complaint against TSA] there were no indicators that he was anything other than a victim."  The applicant also reported the assault to his battalion Sexual Harassment/Assault Response and Prevention (SHARP) noncommissioned officer, who, in turn, informed the applicant's chain of command.  

	g.  In June 2012, the Military Intelligence Brigade at Fort Meade, MD contacted CID to report the applicant allegedly made numerous anti-American/anti-government statements on Facebook and other blog sites, between January and May 2012.  The CID indicated they reviewed the applicant's postings and confirmed some of the applicant's comments stated, "I am no longer able to support this Govt in any way, shape or form... As of this moment, I am a conscientious objector..."  There were also indications the applicant idolized the "Anonymous" anarchist movement, and appeared to advocate violence to change the government's direction.

	h.  The applicant's commander requested a formal mental health evaluation, and notified the applicant on 26 June 2012.  The commander's basis for this request was, "[The applicant] is the subject of an investigation that is reasonable for him to perceive as a potential career or life changing event.  He was halted from deploying just prior to his unit's planned troop flight.  All of his coworkers have deployed and he is currently residing in a local hotel.  He owns a privately owned weapon.  Due to the serious nature of the allegations that triggered the ongoing investigation, I have concern that this collective chain of events presents a significant risk to [applicant's] state of mind and fitness for duty."  The evaluation took place 3 weeks later, and medical authority determined he was fit for duty, but recommended his access to weapons and ammunition be restricted.  

	i.  The applicant's commander informally suspended his security clearance, in or around August 2012, because of the discovery of derogatory information posted to the applicant's Facebook account; specifically, the applicant had added disrespectful photos and comments comparing the President to Adolf Hitler and Vladimir Lenin.  He also displayed an upside down American flag with a Nazi swastika on it.  The commander referred the matter to the Army Central Clearance Facility (CCF); the CCF did not provide a final determination.

	j.  The Commanding General (CG), III Corps and Fort Hood issued the applicant a GOMOR, dated 21 September 2012, based on posting several disrespectful photographs and comments on the internet.  The applicant submitted a rebuttal requesting local filing of the GOMOR, and contending, to date, his military career of active duty service was unblemished and reflected competent, dedicated, and honorable service.  He further argued against using isolated incidents of poor judgment to stigmatize his record of military service.

	k.  The applicant's commander presented him with a DA Form 4856 (Developmental Counseling Form), in which he informed the applicant of his intent to request the CCF to provide a final adjudication showing the permanent revocation of his security clearance.  He further advised the applicant, in the event the CCF permanently revoked his security clearance, he could no longer perform duties as a Signal Officer, and the commander would have to initiate elimination action prior to the expiration of his current term of service.  The commander recommended the applicant seek a release from active duty, and stated the command would support such a request.  The applicant could read the "writing on the wall" and agreed.

	l.  Counsel cites the First Amendment of the U.S. Constitution, as well as Department of Defense Instruction (DODI) 1325.06 (Handling Dissident and Protest Activities Among Members of the Armed Forces).  Counsel further quotes a portion of Title 5, U.S. Code, section 552 (e)(5) (Privacy Act), and as well as , and argues GOMOR's are subject to the accuracy and amendment provisions contained therein.  He goes on to present arguments for the removal of the GOMOR.

	m.  In a supplement to the applicant's petition, counsel notes, in their efforts to obtain copies of the applicant's OMPF, they found the GOMOR had not been permanently filed.  Counsel affirmed the Army's decision not to file was correct, but because the OER in question mentioned the GOMOR, the applicant still requested its voiding and removal.

3.  Having had prior service in the U.S. Army Reserve as an ROTC cadet, the applicant was appointed as a Reserve commissioned officer and executed his oath of office on 2 June 2006.  He was promoted to captain, effective 1 August 2009.  At some point, he was appointed as a Regular Army commissioned officer; his oath of office is not available in his OMPF.  He was assigned to Fort Hood in or around May 2011.

4.  On 21 September 2012, the CG, III Corps and Fort Hood, reprimanded the applicant for posting several disrespectful photographs and comments on the internet.  Following a review of the applicant's rebuttal, the imposing officer elected permanent filing of the GOMOR in the applicant's OMPF.

5.  In or around February 2013, the applicant received a change of rater OER for the rating period 20120701 through 20130211; his duty position was battalion signal officer.  His rater was MAJ __ _, battalion XO; his senior rater was LTC __ __, battalion commander.  Part II (Authentication) indicated this was a referred report.

	a.  Part IVa (Performance Evaluation – Professionalism – Character – Army Values (Rater)) showed "Yes" for each Army value.

	b.  Part V (Performance and Potential Evaluation (Rater) reflected "Satisfactory Performance, Promote"; the associated comments were favorable.  Part Vc (Comment on Potential for Promotion) stated he should be promoted with peers.
	c.  Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) indicated, "Fully Qualified."  Subparagraph b (Potential Compared with Officers Senior Rated in the Same Grade) reflected a "center of mass" rating.  The comments were generally favorable in subparagraph c (Comment on Performance/Potential); the last sentence stated, "[applicant] has excellent potential, however he had a previous lapse in judgement (sic) that resulted in him receiving a GOMOR in this command."

6.  The applicant was honorably released from active duty on 30 June 2013 due to completion of required active service.

7.  Memorandum, addressed to the applicant at his home in Utah, and dated 18 September 2013, Subject:  OER for [applicant] from 20120701 THRU 20130211, stated:

* Per the regulation, the enclosed copy of the OER for rating period 20120701 THRU 20130211 was referred due to the applicant's unavailability to sign it in person
* a suspense date was provided for any comments the applicant wanted to submit 

8.  Memorandum, addressed to the applicant at his home in Utah, and dated 1 October 2013, Subject:  Unable to Sign OER for from 20120701 THRU 20130211, stated:

* The applicant was unable to sign the OER; he was notified via telephone and certified mail; he had ample time to respond, but failed to do so
* The OER was to be submitted to Headquarters, DA (HQDA)

9.  HQDA accepted the OER for rating period 20120701 through 20130211 on 5 November 2013.

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, the Board determined that relief was not warranted.  

Because the request to have the General Officer Memorandum of Reprimand removed from his Official Military Personnel File (OMPF) was subsequently withdrawn, as a result of the GOMOR not currently filed in the applicant's OMPF, the Board recommended no further action required on that portion of the applicant’s request.  
As to removing the Officer Evaluation Report (OER) from the applicant’s OMPF, the Board found insufficient grounds for granting the request.  The OER was processed correctly, in accordance with regulatory guidance, factually accurate, and no evidence to substantiate why voiding and removing the OER would be appropriate.  Therefore, the Board recommended denying that portion of the request as well.

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.

//NOTHING FOLLOWS//


REFERENCES

1.  Title 10, U.S. Code section 1552(b) (Correction of Military Records:  Claims Incident Thereto), 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.  AR 600-37, in effect at the time, set forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  

   a.  An administrative memorandum of reprimand could 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 was made.

   b.  Chapter 7 (Appeals and Petitions) – provided the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  

   c.  Paragraph 7-2 (Appeals for removal of OMPF entries) – stated that once an official document had been properly filed in the OMPF, it was presumed to be administratively correct and to had been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rest with the individual concerned to provide evidence of a clear and convincing nature that the document was untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

3.  AR 623-3 (Evaluating Reporting System), in effect at the time, contained the policies and procedures pertaining to managing the OER redress program.  The regulation stated in:

   a.  Paragraph 3-19 – Any mention of unproven derogatory information in an evaluation report would become an appealable matter if later the derogatory information was unfounded.  Any verified derogatory information could be entered on an evaluation report.  This was true whether the rated Soldier was under investigation, flagged, or awaiting trial.  

   b.  Paragraph 4-7 – An evaluation report accepted for inclusion in the official record of a rater Soldier's OMPF was presumed to be administratively correct, prepared by the proper rating officials, and represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The rated Soldier can appeal any report that they believe was incorrect, inaccurate, or in violation of the intent of the regulation.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy.  

4.  AR 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.  The following documents are required for filing in the integrated Personnel Electronic Records Management System:

* letters of reprimand, censure, admonition
* OER's
* case files for approved separations (including elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service) and all allied documents will be filed in the service folder of the OMPF
* investigation reports (authenticated extracts of completed investigation reports resulting in elimination/discipline)

5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  

	a.  Paragraph 2-9 states 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 (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct).

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that 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.

ABCMR Record of Proceedings (cont)		AR20160011928



2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS



Enclosure 2