BOARD DATE: 2May 2017 DOCKET NUMBER: AR20160016289 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 BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20160016289 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. BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20160016289 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests special handling of the applicant's case and correction of his records to show: a.  reversal of the grade determination action taken by former Secretary of Defense L____ P____, b.  restoration of the applicant's rank/grade as general (GEN)/O-10 effective 31 December 2012 and recoupment of lost pay since that time, and c.  removal of the general officer memorandum of reprimand (GOMOR), dated 12 September 2012, from the applicant's official military personnel file (OMPF). 2. Counsel states: a.  He is making this request because, despite the expansive powers that Congress has given to the Army Board for Correction of Military Records (ABCMR) pursuant to Title 10, U.S. Code, section 1552, only the Secretary of Defense has the power to retire the applicant in the grade of GEN/O-10. b.  Department of Defense (DOD) Instruction 1320.04 (Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation), enclosure 5, paragraph 3b, states "the Secretary of Defense retains the authority to determine satisfactory or non-satisfactory service for all officers in the grade of O-9 or O-10 who have adverse or reportable information that has been identified since the officer's first Senate confirmation to the grade in which retirement is requested." c.  On 12 November 2012, former Secretary of Defense L____ P____, decided to retire the applicant in the grade of O-9 after he had served in the grade of O-10 for more than 5 years. d.  Just as only the Secretary of Defense can determine satisfactory or non-satisfactory service for officers in the grades of O-9 or O-10, it seems clear that only the Secretary of Defense can grant the relief of restoration to the grade of O-10 which the applicant seeks. e.  Despite the fact that the ABCMR lacks the authority to grant the relief the applicant seeks, he is submitting his request to the Board because he is unaware of a mechanism for processing a request such as this in the Office of the Secretary of Defense. Additionally, his application is submitted to the ABCMR because it appears the Secretary of the Army has the power to submit a recommendation to the Secretary of Defense and the Board is in a position to facilitate processing this action. 3. Counsel provides: a.  three cover letters to the Under Secretary of the Army, dated 28 September 2016; Deputy Assistant Secretary of the Army (Review Boards), dated 28 September 2016; and Secretary of Defense, dated 15 July 2016; b.  Secretary of Defense Officer Grade Determination letter, dated 12 November 2012; c.  GOMOR, dated 9 October 2012; and d.  DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) with a table of contents listing 39 exhibits. 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 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 was appointed as a Reserve commissioned officer in the rank of second lieutenant on 6 June 1971. 3. On 1 February 1999, he was promoted to the rank/grade of major general (MG)/O-8 and he was further temporarily appointed as follows: * 8 October 2002 – lieutenant general (LTG)/O-9 * 3 May 2006 – GEN/O-10 4. In October 2007, he was assigned as the Commander, U.S. Africa Command (AFRICOM). 5. On 9 March 2011, he transferred command to GEN H____. 6. Records show that upon his departure as Commander, AFRICOM, multiple sources complained of certain aspects of his conduct in command to the Inspector General (IG), AFRICOM. The AFRICOM IG consolidated the information and sent it to the Department of Defense Inspector General (DODIG) in April 2011. The DODIG stated allegations were formed from the consolidated evidence and evidence gathered during the course of its investigation. 7. On 7 April 2011, the DODIG notified both the applicant and the Secretary of Defense of its investigation. 8. On 16 March 2012, he was provided an opportunity to comment on the initial results of the DODIG investigation. 9. U.S. Army Human Resources Command Order Number 119-002, dated 29 April 2011, shows the applicant's temporary grade of GEN reverted to his last permanent grade of MG effective 8 May 2011 by order of the Secretary of the Army. 10. On 23 April 2012, the applicant disagreed with the conclusions from the DODIG investigation and he requested additional investigative work. Based upon his request and obtaining additional evidence, the DODIG amended one finding relating to his official travel; however, this did not alter the original conclusion. 11. On 26 June 2012 after a thorough investigation of allegations of multiple forms of misconduct related to official and unofficial travel, misuse of a government vehicle, misuse of Official Representation Funds (ORF), wasted government funds, and misuse of his position, the DODIG substantiated the allegations and concluded the applicant: a.  engaged in misconduct related to official and unofficial travel by using military aircraft (MILAIR) and receiving reimbursement for expenses when the predominant purpose of the travel was personal, allowing his spouse to travel on MILAIR without sufficient justification and without reimbursing the government, receiving actual expense reimbursement without proper authorization, and failing to use a Government Travel Charge Card (GTCC); b.  misused a government vehicle by allowing his spouse to use a hardened (armored) vehicle in Germany without required threat assessments or authorizations; c.  misused ORF by improperly distributing items to persons not authorized to receive them; d.  wasted government resources on excessive travel, the use of $18,500.00 of command publications as mementos at his change of command ceremony, and a former AFRICOM employee's temporary duty travel from Washington, DC, to Stuttgart, Germany, to plan and execute an official holiday party; and e  misused his position by permitting staff members to perform personal services for him and his spouse and directing three AFRICOM staff members to accompany him for an extended period in Washington, DC, following his change of command; and f.  accepted free meals and tickets to a Broadway show from a prohibited source. 12. On 12 September 2012, he received a GOMOR from the Army Vice Chief of Staff for engaging in misconduct related to travel and use of MILAIR, authorizing his spouse to use a hardened government vehicle in Germany, misusing ORF, misusing his position while serving as the AFRICOM Commander, and accepting gifts based on his position and not a valid personal friendship. a.  The GOMOR states the Acting DODIG referred DODIG Report XXXX pertaining to the applicant to the Secretary of the Army on 26 June 2012 for action. The report shows 16 substantiated allegations pertaining to the following misconduct: (1)  He expended appropriated funds on travel to New York City, NY, in July 2010 and on round-trip travel from Washington, DC, to Atlanta, GA, in January 2011, when the primary purpose appeared to have been unofficial, without the permission of the Secretary of Defense. (2)  He extended the length of temporary duty (TDY) trips seven times for what appeared to have been for personal reasons, yet received per diem reimbursement for the extra days. He failed to use a GTCC to pay costs related to his official travel. (3)   He permitted his spouse to accompany him on 15 MILAIR flights for purposes that were not unquestionably official or for which evidence did not reflect a diplomatic or public relations benefit to the United States without paying for the unofficial legs of his spouse's travel. In addition, he permitted his spouse, the spouse of another general officer, and members of the media to fly on MILAIR without evidence of invitational travel orders (ITO) or individual travel authorizations (ITA). Further, he did not prevent his staff's use of official time and motor vehicles rented at government expense to run personal errands and to drive his spouse for unofficial purposes in violation of the Joint Federal Travel Regulations (JFTR), in effect at the time, and the Joint Ethics Regulation (JER). In addition, he did not effectively oversee personal security team (PST) travel and operations to ensure they were performed in a fiscally prudent manner in violation of the JER and JFTR. (On 1 October 2012, the JFTR, volume 1, and the Joint Travel Regulations (JTR), volume 2, officially merged into a single set of regulations called the JTR.) (4)  He accepted complimentary meals and Broadway show tickets in excess of $20.00 in value for himself and his spouse, erroneously concluding he could accept these gifts as having been offered based on a valid personal relationship in violation of the JER. (5)  He misused a hardened government vehicle in Germany in violation of Title 10, U.S. Code, section 2637; the JER; and DOD Manual 4500.36 (Acquisition, Management, and Use of DOD Non-Tactical Vehicles). (6)  He authorized the presentation of gifts in the form of engraved letter openers purchased with ORF to ineligible DOD officials and U.S. personnel in violation of DOD Instruction 7250.13 (Use of Appropriated Funds for Official Representation Purposes). b.  He was advised of his rights and given 14 days to submit additional matters in his own behalf prior to permanent filing of the GOMOR in his OMPF. 13. On 3 October 2012, he submitted a response to the GOMOR and requested local filing of the GOMOR. He provided a copy of his response to the DODIG investigation and stated, in part: a.  The DODIG report of investigation (ROI) did not consider the context or analysis of all pertinent facts in many of its findings. The ROI combined what he acknowledged to be his oversight and mistakes with picayune issues that exaggerate his mistakes out of proportion. b.  He built room in his itineraries to account for frequent requests for "opportunity" meetings and several planned engagements were not appropriate for recording on itineraries; i.e., promotion boards and high-level classified meetings at Federal agencies with African interests. Regardless of his location, he constantly worked long days and he never extended his TDY for personal reasons. He acknowledged his responsibility for the poor record keeping and indicated he was prepared to reimburse government funds deemed appropriate. c.  He accepted full responsibility for his non-use of a GTCC. d.  He recognized in hindsight and accepted responsibility that in many instances ORF were misused. He indicated his intent to reimburse the government for the misuse. e.  He disagreed with the representation by the DODIG that 15 MILAIR flights that included his wife were not clearly for official purposes or did not provide an unquestionable positive public relations or diplomatic benefit to the United States. He acknowledged he failed to properly supervise his staff and verify that proper documentation for these flights were executed and maintained. The perception created by his failures as the commander was unacceptable and he indicated he would reimburse the costs of these flights. f.  He acknowledged he was responsible for failing to supervise his subordinates properly and he was reimbursed in excess of per diem without documented justification and authorization. He believed reimbursement in each case would have been appropriate had procedures been followed to document their decision-making. He indicated he would reimburse the government. g.  The investigation discounted his July 2010 trip to New York as official; however, missing was the fact of Ms. F____ H____'s organizational involvement with senior government officials, both civil and military, had been both pervasive and mutually beneficial for decades. His visit to her institution followed her visit to Stuttgart to discuss leadership issues with his command. Her visit was followed in November by the Eighth Annual Investment in America Forum, attended by U.S. Cabinet and Department-level Secretaries, 10 Army generals, and 10 social sector chief executive officers. The Leader to Leader Institute lauded his wife's and his contributions at this formal roundtable dialogue on leadership. Ms. H____'s multi-decade relationship with top leaders in the Federal government and her organization's contributions to effective leadership was missed by the investigation or ignored in their findings. He indicated his willingness to reimburse the cost of trip if his characterization of this trip as official was mistaken. h.  His discussions with M____ J____ and K____ F____ while in New York added official value to an official trip that was important to and of benefit to DOD. i.  His trip to Atlanta, GA, was questioned and the ROI denigrates his standing and well-known interests for months to visit with U.S. Army Forces Command due to a lack of forces for Africa. j.  He believed attending the Trumpet Awards was official business and his attendance provided an opportunity to promote AFRICOM. k.  He accepted the criticism for not effectively overseeing his PST travel and operations to ensure they were fiscally prudent in all actions, but noted he had one of the leaner PSTs for similarly situated officials and the ROI incorrectly described his PST's travel and operations. He provided doctrinal information to the investigators regarding the proper conduct of the PST operations, yet the ROI largely ignored this and also ignored the documented threats to him and his family. l.  He should have been more vigilant in stopping loyal, willing subordinates from extending personal favors, and could have redoubled his efforts to instill a more fiscally disciplined command climate. He further understood that, as the commander, he was ultimately responsible for everyone and everything in his command. He offered his sincerest apologies to the Nation, DOD, Department of the Army, and especially those service members who served with him. m.  He accepted full responsibility as the commander, but respectfully noted the investigation nowhere accounted for the sobering growing pains that accompany any completely new combatant command. The decided outcome reflected in the interim report simply was not tempered with a thorough investigation of facts and circumstances he subsequently shared, facts and circumstances that were missing from the interim draft. As one of the many examples, the ROI failed to address the fact that he and his family were threatened publicly by a terrorist organization, as provided by his military counsel after his 23 April 2012 response. n.  The ROI did not account for the fact that he was directed to be responsible for the first newly established overseas combatant command in decades, both understaffed and under resourced, and responsible for a huge continent with unprecedented and complex political, security, and practical challenges. o.  Investigators chose to characterize the bulk of his command time as "leisure" and "personal" when, in truth, he spent nearly every waking hour either working on AFRICOM business or promoting DOD and Army stated goals. Numerous personnel with highly relevant information were never interviewed. p.  A DOD General Counsel legal opinion relied upon was ignored in the ROI. The then and still existing confusion within DOD over programs such as the use of hard cars was ignored, as was established doctrine. He relied on and trusted his staff to provide sound professional advice and to perform their duties as consummate professionals while he focused on command, global, strategic, and operational issues. He acted under the assumption that validated processes were in place to do things correctly and legally. He did his utmost to perform his duties as commander with honor and integrity. He made mistakes, but never for self-aggrandizement. q.  There had never been any blemish or incident of public embarrassment or discredit during his 40 years of service until the investigation, as leaked to the press without any of the context in his 23 April 2012 response. 14. On 9 October 2012 after considering all matters, the Army Vice Chief of Staff decided to redact certain language in the GOMOR in order to more accurately reflect the applicant's misconduct. He also directed filing the GOMOR in his OMPF. 15. On 8 November 2012, the Secretary of the Army determined that as a result of his misconduct, U.S. Government funds were erroneously expended in providing goods and services not legally due to him, his spouse, members of his staff, or persons in his service and to others; or were erroneously claimed by and reimbursed to him and members of his staff or persons in his service for travel costs and related allowances that, but not for his misconduct, would not have been incurred as a lawful obligation of the U.S. Government. Accordingly, the Secretary of the Army determined he was indebted to the U.S. Government in the amount of $82,341.22. a.  The applicant was notified on the same date and repayment of the debt was due in full within 30 days or arrangements to repay the debt by installment. He was further advised failure to comply would result in the Defense Finance and Accounting Service pursing collection of the debt through involuntary offset, which could add interest, penalties, and administrative charges to the amount of the original debt. He was also provided a detailed copy of the findings and a cost analysis showing a debt in the amount of $82,341.33 (noted variation of $.11). b.  The Secretary of the Army strongly recommended that he repay a prohibited source the fair market value for: (1)  a complimentary dinner party in excess of $20.00 in value for himself and his wife and daughter at Flemings Prime Steakhouse and Wine Bar in Tysons Corner, VA, in November 2009; (2)  a complimentary dinner at the same location in excess of $20.00 in value for himself and five other family members and friends in January 2010; and (3)  complimentary meals and Broadway show tickets in excess of $20.00 in value, for himself and his wife while on a trip in New York City, NY, in July 2010. c.  The Secretary of the Army strongly recommended that he repay a member of his AFRICOM protocol staff the amount of $176.00 for a bottle of wine and clock from the ORF locker for presentation as a departure gift to another general officer. The protocol staff member discovered ORF was not authorized for this purpose and reimbursed the government $176.00 from his personal funds since he did not want to request the recipient to return the gifts or ask the applicant to pay for them. d.  The Secretary of the Army also directed the U.S. Army General Officer Management Office to charge 24 days against his current leave balance to reflect the aggregate number of known days on which he conducted no official business or official travel and for which he either failed to take or was not charged for leave. 16. On an unknown date, the Commanding General, U.S. Army Criminal Investigation Command, responded to a request from the Secretary of the Army, dated 8 November 2012, pertaining to issues involving the applicant's PST identified in the DODIG ROI. He stated the following findings after an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was conducted: a.  As the AFRICOM Commander, he was required to have continuous protection, regardless of whether he was performing official duties or acting in a personal capacity. The PST was legitimately required to provide continuous protection of the applicant at all locations, whether the trip was official or unofficial. b.  The AFRICOM PST lacked proper oversight and reach-back capability, independent of the applicant and AFRICOM chain of command. Had the PST been properly aligned under an independent Protection Providing Organization, the oversight and reach-back capability provided by that organization would have provided an independent review of PST utilization and potentially mitigated the perception of excessive PST travel or misuse. c.  He found the PST was in compliance with Army Field Manual 3-19.2 (Protective Services) and did not act improperly concerning its travel. d.  The PST personnel did not wrongfully influence the applicant's decision to continue providing armored vehicle transportation to his wife or to utilize PST personnel as drivers. He and his staff were informed of the policy changes that impacted the continued use of armored vehicle support to his wife. The AFRICOM staff worked these issues with the DOD staff. It appears he received conflicting information concerning his authorization of an armored vehicle for his wife. e.  In October 2011, the AFRICOM PST was realigned under the 202d Military Police Group, which is a subordinate group assigned to the U.S. Army Criminal Investigation Command, a Protection Providing Organization. The 202d Military Police Group has implemented training requirements, developed internal standard operating procedures, and conducts quarterly staff assistance visits with the AFRICOM PST and other PSTs under its command and control. 17. On 12 November 2012, the Secretary of Defense advised the applicant of his determination to retire him in the rank of LTG and he could not certify that he had served satisfactorily in the grade of GEN. He further stated the Secretary of the Army concurred with the determination. 18. On 5 December 2012, the Chief, General Officer Management Office, Office of the Chief of Staff, submitted a request for reconsideration of the applicant's leave recoupment to the Secretary of the Army. He stated: a.  The applicant lost a combined total of 67 days from Fiscal Year (FY) 2008 to FY 2011 (15 days in FY 2008, 12 days in FY 2009, 27 days in FY 2010, and 13 days in FY 2011). b.  Based upon the DODIG ROI and Secretary of the Army letter, the dates of leave for which he should have been charged would have occurred during the period of lost leave: 8 days in FY 2008, 4 days in FY 2009, 5 days in FY 2010, and 7 days in FY 2011, for a total of 24 days to be recouped. Had the 24 days of leave been charged accordingly, he would have lost 43 days of accrued leave. 19. On 6 December 2012, the Secretary of the Army determined the applicant's leave lost from FY 2008 to FY 2011 as recoupment for the days he was not charged. 20. On 1 January 2013, the applicant retired in the rank/grade of LTG/O-9. 21. Counsel provided two cover letters to the Under Secretary of the Army and Deputy Assistant Secretary of the Army (Review Boards), both dated 28 September 2016, in which he stated the Secretary of Defense, at the time, decided to retire the applicant in the grade of O-9 after he had served in the grade of O-10 for more than 5 years and: a.  Despite the expansive powers Congress had given to the ABCMR, only the Secretary of Defense had the power to retire the applicant in the grade of O-10. b.  Despite the fact that the ABCMR lacks the authority to grant the relief the applicant seeks, his application to the Board was submitted because he was unaware of any mechanism for processing such a request to the Office of the Secretary of Defense. Additionally, it appears the Secretary of the Army has the power to submit a recommendation to the Secretary of Defense and the Board is in a position to facilitate processing this action. 22. Counsel also provided a self-authored letter from the applicant to the Secretary of Defense, dated 26 September 2016, subject: Updated Response to Allegations in Memorandum of Reprimand. The applicant requested reversal of the grade determination action taken by the former Secretary of Defense in November 2012, recoupment of lost pay since that time, and removal of his GOMOR. In his request, the applicant described the accomplishments of his 40-year career, the DODIG ROI and findings, and rationale for overturning his grade determination. His also provided 36 letters of support addressed to the Secretary of Defense with his updated response to allegations in his GOMOR. In summary, he contends the following allegations in the DODIG ROI and GOMOR have been significantly mitigated and/or should be found unsubstantiated: a.  He traveled to New York City in July 2010 for the specific purpose of meeting with Ms. H____ to conduct a strategic engagement for AFRICOM. b.  He traveled to Atlanta, GA, in January 2011 for the official purpose of meeting with the FORSCOM Commander. c.  He purposely built unscheduled time into his Washington, DC, trips to allow for flexibility in scheduling meetings with vital stakeholders. He later learned that records of his actual activities were not always updated. d.  His wife traveled on MILAIR only when official business indicated that she should do so and there was a clear governmental, diplomatic support to family readiness or public relations benefit in her doing so. Her activities on behalf of children and families advanced the mission and well-being of the command. e.  He did allow another general and his spouse on a flight under conditions, space available seating, allowing him to do so. He was unaware of the administrative shortcoming for there being occasions in which there was no ITO on file for his wife's travel. His wife always traveled with her own official itinerary, typically made as "For Official Use Only" in the classified system as was his. f.  The U.S. Criminal Investigation Command inquiry rebuts the allegation of him failing to effectively oversee PST travel and operations. The PST was found to have operated in accordance with regulations, policy, doctrine, and operated in a fiscally prudent manner. The inquiry also established the allegation of his misusing a hardened government vehicle in Germany should not have been substantiated. g.  His relationship with M____ J____ should have been recognized and covered by the "close personal relationship" exception. 23. The applicant concluded in his updated response to the GOMOR that it was his strong opinion that predominantly administrative shortcomings characterized by missing or incomplete records, circumstantial and biased misrepresentations, and procedural misunderstandings served as the basis for substantiating the allegations in the GOMOR and ultimately the officer grade determination. Both of the actions relied on an IG report that had false and misguided conclusions. a.  The DODIG did not interview key witnesses who had insights into matters they were investigating, despite taking nearly a year and a half to complete. b.  The U.S. Army Criminal Investigation Command inquiry completed after his retirement negated the DODIG's findings with respect to the operations of the PST and alleged misuse of a hardened government vehicle in Germany. Consideration of all of this information under objective standards should result in several allegations being found to be unsubstantiated, with others mitigated to such a degree that maintaining the actions taken against him, particularly the officer grade determination, could easily be seen as unwarranted and discriminatory. 24. His Master Military Pay Account does not show a debt to the U.S. Government was established in the amount of $82,341.22. REFERENCES: 1. Army Regulation 15-180 (Army Grade Determination Review Board (AGDRB) and Grade Determination) establishes policies, procedures, and responsibilities for the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. a.  The Secretary of the Army retains the prerogative to accomplish discretionary grade determinations without referral to the AGDRB. The Secretary of the Army retains sole authority to make discretionary grade determinations in cases involving general officers. Under the provisions of Title 10, U.S. Code, section 1370, in the case of an officer who is requesting retirement in the grade of GEN or LTG, the Secretary of the Army may retire such officers in one of those grades only after the Secretary of Defense certifies in writing to the President and Congress that the officer has served satisfactorily on active duty in the grade of GEN or LTG. The Secretary of the Army retains authority to take final action in any case in which a subordinate authority, including the AGDRB, would otherwise be authorized to take final action. b.  The Assistant Secretary of the Army (Manpower and Reserve Affairs), after consultation with the Army Chief of Staff, will appoint general officers for the AGDRB, which the Secretary of the Army will direct to consider cases involving general officers. The Assistant Secretary of the Army (Manpower and Reserve Affairs) retains the authority to take final action in any case in which a subordinate authority, including the AGDRB, would otherwise be authorized to take final action. 2. Army Regulation 600-8-10 (Leaves and Passes) requires Soldiers to complete a DA Form 31 (Request and Authority for Leave) when taking leave in conjunction with TDY. The TDY must be clearly essential and be annotated in the travel orders. If a Soldier reported for TDY earlier than the date specified on the orders, additional per diem is not authorized. 3. 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. 4. 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. 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. 5. Office of Management and Budget Circular A-126 (Improving the Management and Use of Government Aircraft) (Revised), dated 22 May 1992, was issued to minimize cost and improve the management and use of government aviation resources. The circular prescribes policies to be followed by executive agencies in acquiring, managing, using, accounting for the costs of, and disposing of aircraft. This circular applies to all government-owned, leased, chartered, and rental aircraft and related services operated by executive agencies, except for aircraft while in use by or in support of the President or Vice President. a.  Paragraph 5b defines mission requirements as activities that constitute the discharge of an agency's official responsibilities. Such activities include, but are not limited to, the transport of troops and/or equipment, training, evacuation (including medical evacuation), intelligence and counter-narcotics activities, search and rescue, transportation of prisoners, use of defense attaché-controlled aircraft, aeronautical research and space and science applications, and other such activities. For purposes of this circular, mission requirements do not include official travel to give speeches, to attend conferences or meetings, or to make routine site visits. b.  Paragraph 5c defines "official travel" as travel to meet mission requirements, required-use travel, and other travel for the conduct of agency business. c.  Paragraph 5d defines "required use" as use of a government aircraft for travel where use is required because of bona fide communications or security needs of the agency using the aircraft or exceptional scheduling requirements. d.  Paragraph 5f defines "full coach" as a coach fare available to the general public between the day that travel was planned and the day travel occurred. e.  Paragraph 5g defines "actual cost" as all costs associated with the use and operation of an aircraft. f.  Paragraph 7 requires government agencies to use aircraft only for official purposes. Official purposes include mission requirements and "other official travel." g.  Paragraph 9 provides for reimbursement for the use of government aircraft and states for travel that is not required-use travel, any incidental private activities, personal or political, of an employee undertaken on an employee's own time while on official travel shall not result in any increase in the actual costs to the government of operating the aircraft. Additionally, the government shall be reimbursed the appropriate share of the full coach fare for any portion of the time on the trip spent on political activities. For required-use travel, the government shall be reimbursed as follows: (1)  for a wholly personal or political trip, the full coach fare for the trip; (2)  for an official trip during which the employee engages in political activities, the appropriate share of the full coach fare for the entire trip; and (3)  for an official trip during which the employee flies to one or more locations for personal reasons, the excess of the full coach fare of all flights taken by the employee on the trip over the full coach fare of the flights that would have been taken by the employee had there been no personal activities on the trip. 6. DOD Instruction 1320.04 establishes policy, assigns responsibilities, and prescribes procedures for the submission of military officer personnel actions for grades O-10 and below. a.  Enclosure 4 (Adverse and Reportable Information), paragraph 2f, states the Secretary of the Military Department will provide to the Under Secretary of Defense for Personnel and Readiness all adverse information since the officer's last confirmation. b.  Enclosure 5 (Procedures Specific to O-7 through O-10 Actions), paragraph 3b, states the Secretary of Defense retains the authority to determine satisfactory or non-satisfactory service for all officers in the grades of O-9 or O-10 who have adverse or reportable information that has been identified since the officer's first Senate confirmation to the grade in which retirement is requested and officers requiring service-in-grade waivers of 12 months or less. The Under Secretary of Defense for Personnel and Readiness or Principal Deputy Under Secretary of Defense for Personnel and Readiness approves O-9 and O-10 retirements without waivers or adverse or reportable information. c.  Enclosure 5, paragraph 3b(1), states, in part, the Secretary of the Military Department must make an affirmative statement that the officer served satisfactorily in the grade being recommended for retirement. 7. DOD Directive 4500.56 (DOD Policy on the Use of Government Aircraft and Air Travel), dated 14 April 2009, and incorporating change 1, dated 11 May 2010, establishes policies for the transportation of DOD passengers and cargo and the use of government aircraft. a.  Paragraph 2 states, in part, this directive applies to combatant commands. b.  Paragraph 4a states, in part, government aircraft transportation is a premium mode of travel involving high costs and limited resources. All DOD employees at any level, including commanders and airlift authorizing officials, shall restrict travel based on considerations such as purpose of the trip, method of transportation required, and priority of travel. Every effort shall be made to minimize travel cost. c.  Paragraph 4c states, in part, travel status, distinguished visitor code or status, grade, or rank alone is not sufficient to justify the use of government aircraft or to dictate a particular aircraft type. d.  Paragraph 4d states, in part, all requests for the use of DOD aircraft must be signed by the senior traveling official. This signature authority cannot be delegated. e.  Enclosure 3 (Official, Unofficial, and Other Travel on Government Aircraft), paragraph 1, states travelers are required to use government aircraft because of a continuous requirement for secure communications; a threat exists that could endanger lives; or there is a need to satisfy exceptional scheduling requirements dictated by frequent short-notice travel, which makes commercial transportation unacceptable. Conflicts arising due to limited airlift resources will be resolved by the DOD Executive Secretary. f.  Enclosure 3, paragraph 2 (Required Use Travel), states the Secretary of Defense will designate key DOD officials as required-use travelers based on the reasons in section 1 of this enclosure. This designation as "required use" can be for official and, in very limited cases, for unofficial travel as well. Travel of accompanying unofficial travelers must comply with section 4 of this enclosure. Unofficial travel may be performed by these officials on U.S. Government aircraft only upon advance notification and approval of the Secretary of Defense. All travelers, including family members or other invited guests, shall reimburse the government for any unofficial travel at the full coach fare. Requests for changes, additions, or other recommendations to the required-use list will be forwarded to the Secretary of Defense through the DOD Executive Secretary. g.  Enclosure 3, paragraph 3, states "other official travel" is normally accomplished using commercial transportation and is for the conduct of DOD official business. Other official travel may include travel to address matters such as giving speeches, attending conferences or meetings, making site visits to facilities, and permanent change of station. h.  Enclosure 3, paragraph 4, states travelers accompanying a DOD official on government aircraft, including family members or other invited guests, shall reimburse the government for any unofficial travel at the full coach fare. The DOD official shall attach to his or her travel voucher a personal check made payable to the Treasurer of the United States, a travel office printout that reflects the full coach fare, and a completed DD Form 1131 (Cash Collection Voucher). (1)  Unofficial travel includes travel by a family member, non-DOD civilian, or non-Federal traveler when accompanying a senior DOD or other Federal official who is traveling on government aircraft on official business. This category requires an ITA. (2)  Unofficial travel is not authorized on government aircraft unless the aircraft is already scheduled for an official purpose, the non-interference use does not require a larger or additional aircraft than needed for the official purpose, official travelers are not displaced, it results in negligible additional cost to the government, and the government is reimbursed at the full coach fare. i.  Enclosure 3, paragraph 5 (Family Member Travel), states: (1)  As a general rule, a family member may not accompany his or her DOD sponsor who is traveling on official business. A family member's travel may be approved in accordance with paragraphs 5a and 5b where there is an unquestionably official function in which the family member is to participate in an official capacity, or such travel is in the U.S. interest because of a diplomatic or public relations benefit to the United States. Such participation is normally limited to spouses and is representational in nature. As such, travel is allowed on a mission non-interference basis only and must be supported with an ITA, which normally shall authorize reimbursement of transportation costs only, not to include per diem and other expenses under the JFTR, volume 1, in effect at the time, and the JTR, volume 2. Funded family members shall travel in the company of their DOD sponsor on government aircraft. (2)  Paragraph 5a states, in part, four-star flag officers and certain three-star flag officers serving as overseas or combined commanders may approve transportation, per diem, and/or other expense allowances for their spouses on a case-by-case basis using the criteria in section 5, and shall personally sign the ITAs. This authority does not constitute blanket approval authority. (3)  Paragraph 5b states requests that seek approval for family member travel with funding for per diem and/or other expense allowances must clearly demonstrate that travel is essential to accomplishing the mission. These requests shall include strong evidence of benefit to DOD beyond fulfilling a simple, albeit important, representational role. 8. DOD 4515.13-R (Air Transportation Eligibility) implements DOD policies governing the use of DOD-owned or DOD-controlled aircraft and establishes criteria for passenger and cargo movement. a.  Chapter 2, paragraph C2.2.3.3.1, states, in part, as a general rule, a family member may not accompany his or her DOD sponsor who is traveling on official business. (1)  However, a family member's travel may be approved where there is an unquestionably official function in which the family member is actually to participate in an official capacity or such travel is deemed in the national interest because of a diplomatic or public relations benefit to the United States. Such participation is normally limited to spouses, is representational in nature, and normally limited to accompaniment of code 2 civilians, four-star general/flag officers, and certain three-star general/flag officer commanders. (2)  As such, travel is allowed on a mission non-interference basis only and must be approved and supported with an ITO, which shall normally authorize transportation cost reimbursement only under the JFTR, volume 1, paragraph U7700, and the JTR, volume 2, paragraph C6000. (3)  Four-star general/flag officers may approve such travel for their spouses and the spouses of those personnel under their command on a case-by-case basis and shall personally sign ITO's designating such approval. "Blanket" ITOs for this travel may not be issued. Criteria for authorizing family member travel must be applied, met, and authorized each time a family member is invited to travel at government expense for the purposes outlined in this paragraph. b.  Chapter 10, paragraph C10.12, covers family members traveling at personal expense to accompany senior DOD personnel on official business. It states such movement is termed "unofficial travel" and includes transportation of a non-DOD civilian, a non-Federal traveler, or a family member of senior DOD officials of the Office of Secretary of Defense, defense agencies, and activities administratively supported by the Office of Secretary of Defense, of the other executive departments or agencies, of the judicial branch, or of the legislative branch, only when accompanying a senior DOD or other Federal officials traveling on a MILAIR on official business. Senior DOD officials are defined as general or flag officers and civilian employees of the Senior Executive Service or equivalent and higher level. c.  Such unofficial travel is authorized on MILAIR only on a non-interference basis; i.e., the aircraft is already scheduled for an official purpose, the non-interference use does not require a larger aircraft than that needed for the official purpose, official travelers are not displaced, it results in negligible additional cost to the government, and the government is reimbursed at the full commercial coach class fare rate (the senior DOD official will attach to his or her travel voucher a personal check made payable to the Treasurer of the United States and include a travel office printout that reflects the full coach class fare). Unofficial travel shall be carefully controlled by requiring approval in advance and in writing by those DOD officials who have approval authority for senior official MILAIR travel requests. 9. DOD 5500.7-R (Joint Ethics Regulation), dated 1 August 1993, including changes 1 through 6, dated 23 March 2006, provides a single source of standards of ethical conduct and ethics guidance for DOD employees. Chapter 2 (Standards of Ethical Conduct) incorporates Title 5, Code of Federal Regulations, part 2635 (Standards of Ethical Conduct for Employees of the Executive Branch), in its entirety. 10.  Title 5, Code of Federal Regulations, section 2635.101 (Basic Obligation of Public Service), provides general ethical principles applicable to every employee. a.  Subpart A (General Provisions): (1)  Subsection 2635.101(b)(5) states employees shall put forth honest effort in the performance of their duties. (2)  Subsection 2635.101(b)(7) states employees shall not use public office for private gain. (3)  Subsection 2635.101(b)(9) states employees shall protect and conserve Federal property and not use it for other than authorized purposes. (4)  Subsection 2635.101(b)(14) states employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in part 2635. b.  Subpart B (Gifts from Outside Sources): (1)  Section 2635.202 (General Standards) governs gifts from outside sources and states in subsection 2635.202(a) that except as provided in this subpart, an employee shall not, directly or indirectly, solicit or accept a gift from a prohibited source or given because of the employee's official position. (2)  Subsection 2635.202(c) states that notwithstanding any exception provided in this subpart, other than subsection 2635.204(j), an employee shall not accept a gift in return for being influenced in the performance of an official act, solicit or coerce the offering of a gift, accept gifts from the same or different sources on a basis so frequent that a reasonable person would be led to believe the employee is using his public office for private gain, or accept a gift in violation of any statute. c.  Section 2635.203 (Definitions): (1)  Subsection 2635.203(b) defines a gift as any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. It includes services as well as gifts of training, transportation, local travel, lodgings and meals, whether provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred. (2)  Subsection 2635.203(d) defines a prohibited source as any person who is seeking official action by the employee's agency, does business or seeks to do business with the employee's agency, conducts activities regulated by the employee's agency, has interests that may be substantially affected by performance or non-performance of the employee's official duties, or is an organization a majority of whose members are described in paragraphs (d)(1) through (4) of this section. (3)  Subsection 2635.203(f) states a gift which is solicited or accepted indirectly includes a gift given with the employee's knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative because of that person's relationship to the employee; or given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee, except as permitted for the disposition of perishable items by subsection 2635.205(a)(2). d.  Section 2635.204 (Exceptions) states the prohibitions set forth in subsection 2635.202(a) do not apply to a gift accepted under the circumstances described in paragraphs (a) through (l) of this section, and an employee's acceptance of a gift in accordance with one of those paragraphs will be deemed not to violate the principles set forth in subsection 2635.101(b), including appearance. Even though appearance of a gift may be permitted by one of the exceptions contained in paragraphs (a) through (l) of this section, it is never inappropriate and frequently prudent for an employee to decline a gift offered by a prohibited source or because of his official position. (1)  Subsection 2635.204(a) states an employee may accept unsolicited gifts having an aggregate market value of $20.00 or less per source per occasion, provided that the aggregate market value of individual gifts received from any one person under the authority of this paragraph shall not exceed $50.00 in a calendar year. This exception does not apply to gifts of cash or of investment interests such as stock, bonds, or certificates of deposit. Where the market value of a gift or the aggregate market value of gifts offered on any single occasion exceeds $20.00, the employee may not pay the excess value over $20.00 in order to accept that portion of the gift or those gifts worth $20.00 or less. (2)  Subsection 2635.204(b) states an employee may accept a gift given under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history of the relationship and whether the family member or friend personally pays for the gift. e.  Subpart G (Misuse of Position): (1)  Section 2635.702 (Use of Public Office for Private Gain) states an employee shall not use or permit the use of his government position or title or any authority associated with his public office in a manner that is intended to coerce or induce others, including subordinates, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a non-governmental capacity. (2)  Section 2635.704 (Use of Government Property), subsection  2635.704(a), states an employee has a duty to protect and conserve government property and shall not use such property, or allow its use, for other than authorized purposes. (3)  Section 2635.705 (Use of Official Time), subsection 2635.705(a), states that unless authorized in accordance with law or regulations, to use such time for other purposes, an employee shall use the official time in an honest effort to perform official duties. Subsection 2635.705(b) states an employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law and regulation. (4)  Further, the applicable example under subsection 2635.705(b) suggests that directing or coercing a subordinate to perform personal services during non-duty hours constitutes an improper use of public office for private gain in violation of section 2635.702 of the Joint Ethics Regulation. The example provides that during non-duty hours, where an arrangement is entirely voluntary and appropriate compensation is paid, a subordinate may provide a service to a superior. However, if compensation is not adequate, the services constitute a "gift to a superior" in violation of the Joint Ethics Regulation prohibition regarding gifts between employees. f.  Chapter 2, section 3 (DOD Guidance), paragraph 2-301b, states Federal government resources, including personnel, equipment, and property, shall be used by DOD employees for official purposes only. 11. DOD 7000.14-R (DOD Financial Management Regulation) consists of 15 volumes and directs statutory and regulatory financial management requirements, systems, and functions for all appropriated and non-appropriated, working capital, revolving, and trust fund activities. a.  Volume 9, chapter 3 (DOD GTCC), paragraph 030101, states DOD policy provides that the GTCC will be used by all DOD personnel to pay for all costs related to official government travel. Official government travel is defined as travel under competent orders while performing duties pertaining to official government assignments, such as TDY and permanent change of station, where applicable. b.  Volume 9, chapter 3, paragraph 030102, states the GTCC policies are applicable to all DOD employees and uniformed members. c.  Volume 9, chapter 3, paragraph 030103, states it is the responsibility of commanders and supervisors at all levels to ensure compliance with the regulation. d.  Volume 9, chapter 3, paragraph 030501, states that unless otherwise exempt, all DOD personnel are required to use the GTCC for all authorized expenses relating to official government travel. e.  Volume 9, chapter 8 (Processing Travel Claims – Other Than Defense Travel System), paragraph 080301, states the traveler is responsible for preparing his or her DD Form 1351-2 (Travel Voucher) to claim reimbursement for official travel. Even when someone else prepares the voucher, the traveler is responsible for the truth and accuracy of the information. When the traveler or a legally appointed designee signs the form, he or she attests that the statements are true and complete and that he or she is aware of the liability for filing a false claim. 12. DOD Instruction 7250.13 (Use of Appropriated Funds for Official Representational Purposes) establishes policy, assigns responsibilities, and prescribes procedures governing the use of appropriated funds for official representation purposes throughout DOD. a.  Paragraph 3 states, in part, the Director of Administration and Management shall forward requests by the Office of Secretary of Defense components, directors of defense agencies, and directors of DOD field activities for ORF expenditures in excess of $50,000.00 per event to the Deputy Secretary of Defense for approval. Any such expenses for the Deputy Secretary of Defense shall be forwarded to the Secretary of Defense for approval. b.  Enclosure 3 (Guidance an Authorization), paragraph 4a(2)(e), states ORF shall not be used to pay for receptions and similar expenses in connection with retirement ceremonies for DOD personnel and change-of-command ceremonies, except for those specifically approved in advance by the Secretary of Defense, the Deputy Secretary of Defense, the Director of Administration and Management, the Secretary of the Military Department concerned, the Inspector General of the Department of Defense, or the Chairman or the Vice Chairman of the Joint Chiefs of Staff. c.  Paragraph 4f states all DOD personnel authorized to expend ORF shall personally monitor the use of such funds to ensure the highest order of propriety and integrity of all expenses. 13. DOD Instruction 7750.6 (Information Requirements for Semiannual Report to Congress), dated 27 April 1990, provides that the DODIG will prepare a semiannual report to Congress summarizing audit, investigation, and inspection activities during the 6-month periods ending 31 March and 30 September. Enclosure 1 (Definitions) contains a chart of responsibilities for reporting statistical information and defined in paragraph E.1.15 (E.1.17) (Waste) as the extravagant, careless, or needless expenditure of government funds or the consumption of government property that results from deficient practices, systems, controls, or decisions. The term also includes improper practices not involving prosecutable fraud. 14. JFTR, volume 1 (Uniformed Service Personnel), in effect at the time, provided guidance and policy on per diem, travel and transportation allowances, relocation allowances, and certain other allowances of Uniformed Service active duty and Reserve Component members. Chapter 3, Part B (Travel by Common Carrier/Section 1 (General)), stated in: a.  paragraph U3100, subparagraph A2 (Prudence), each member must, and each dependent should, exercise the same care in incurring expenses paid by government funds as a prudent person would when traveling on personal business at personal expense; b.  paragraph U3100 (General), subparagraph A4 (Official Travel), transportation procured and/or paid for by the government may be used only for that portion of a trip properly chargeable to the government. Any additional expense is the traveler's financial responsibility, c.  paragraph U3200, the use of a government conveyance is limited to official purposes, including transportation to and from duty sites, lodging, dining facilities, drug stores, barber shops, places of worship, cleaning establishments, and similar places required for the traveler's subsistence, health, or comfort; d.  paragraph U3415 (Special Conveyance Use), subparagraph A(1), it is mandatory policy that all travelers use an available commercial travel office to obtain a rental vehicle (except for an aircraft or a bus); e.  paragraph U3415, subparagraph G (Limited to Official Purposes), special conveyance use is limited to official purposes, including transportation to and from duty sites, lodging, dining facilities, drugstores, barber shops, places of worship, cleaning establishments, and similar places required for the traveler's subsistence, health, or comfort; f.  paragraph U4205 (Justification), in part, an actual expense allowance may be authorized/approved for travel when the per diem rate is insufficient for part or all of a travel assignment because actual and necessary expenses (especially lodgings) exceed the maximum per diem or special duties or costs for certain items have escalated temporarily due to special/unforeseen events; g.  paragraph U4210 (Authority/Approval), in part, the authorizing official may authorize actual expense allowance up to 300 percent of the locality per diem rate (rounded to the next dollar). Actual expense allowance may be authorized before travel begins or approval after travel is performed, with certain exceptions that require authorization in advance of travel; and h.  paragraph U4215 (Limitations), in part, an actual expense allowance is prescribed only on an individual trip basis and only after consideration of the facts existing in each case. An actual expense allowance must not be authorized as part of a "blanket" travel authorization/order. A traveler is financially responsible for excess costs and any additional expenses incurred for personal preference/convenience. i.  Appendix O (TDY Travel Allowance), paragraph T4060 (Authorizing Official Responsibilities), subparagraph B4 (Travel Involving Leave or Personal Convenience Travel), provides for combining official travel with leave or personal travel. Authorizing officials should not permit a TDY trip that is an excuse for personal travel. 15. Title 10, U.S. Code, section 3013 (Secretary of the Army), states, in part, the Secretary of the Army is subject to the authority, direction, and control of the Secretary of Defense and has the authority necessary to conduct all affairs of the Department of the Army. a.  The Secretary of the Army is also responsible for such other activities as may be prescribed by law or by the President or Secretary of Defense. b.  After first informing the Secretary of Defense, the Secretary of the Army may make such recommendations to Congress relating to the Department of Defense as he considers appropriate. 16. Title 10, U.S. Code, section 2637 (Transportation in Certain Areas outside of the United States), states the Secretary of Defense may authorize the commander of a unified combatant command to use government owned or leased vehicles to provide transportation in an area outside the United States for members of the Uniformed Services and Federal civilian employees under the jurisdiction of that commander, and for the dependents of such members and employees, if the commander determines that public or private transportation in such area is unsafe or not available. Such transportation shall be provided in accordance with regulations prescribed by the Secretary of Defense. DISCUSSION: 1. Counsel requests reversal of the applicant's grade determination from the Secretary of Defense, restoration of his rank/grade to GEN/O-10 effective 31 December 2012, recoupment of lost pay since that time, and removal of the GOMOR from his OMPF. 2. Counsel acknowledges the ABCMR does not have the authority to retire the applicant in the rank/grade of GEN/O-10. 3. The applicant was permanently promoted to the rank/grade of MG/O-8 on 1 February 1999 and he was temporarily promoted to the rank/grade of GEN/O-10 on 3 May 2006. 4. On 8 May 2011, the applicant's temporary rank/grade of GEN/O-10 reverted to his last permanent rank/grade of MG or GEN/O-8 by order of the Secretary of the Army. 5. The evidence of record shows the DODIG substantiated allegations of the applicant's misconduct relating to official and unofficial travel, travel by his wife on MILAIR, misuse of government resources and personnel, and acceptance of gifts from a prohibited source. He was interviewed and given the opportunity to present matters in his own behalf. The DODIG amended one of its findings based on this evidence. 6. As a result of the substantiated allegations, the applicant was given a GOMOR by the Army Vice Chief of Staff. He was afforded the opportunity to review the reprimand and to submit matters in his own behalf prior to a final filing decision and he did so. After careful consideration of his offenses and his rebuttal, the Army Vice Chief of Staff modified the GOMOR and directed filing the GOMOR in his OMPF. 7. The applicant admitted to his mistakes, and on 9 November 2012, the Secretary of the Army directed him to reimburse the government and the prohibited source for meals and Broadway tickets. 8. On 12 November 2012, the Secretary of Defense, with concurrence from the Secretary of the Army, determined the applicant would be retired in the rank/grade of LTG/O-9 based on numerous substantiated acts of misconduct during his tenure as Commander, AFRICOM. The applicant retired on 1 January 2013 in the rank/grade LTG/O-9. 9. 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. 10. The applicant contends predominantly administrative shortcomings characterized by missing or incomplete records, circumstantial and biased misrepresentations, and procedural misunderstandings served as the basis for substantiating the allegations in the GOMOR and ultimately the officer grade determination. Further, both of the actions relied on an IG report that had false and misguided conclusions. 11. Counsel and the applicant have submitted additional matters pertaining to allegations in the DODIG ROI. Although counsel and the applicant presented evidence showing his trip to New York City included official business, this does not outweigh his other substantiated allegations. 12. Although the applicant contends the DODIG ROI had false and misguided conclusions, he and counsel fail to show the investigation was not conducted in accordance with applicable regulatory guidance. 13. The Board must determine that the applicant and his counsel have demonstrated by a preponderance of evidence that any procedural error occurred that was prejudicial to the applicant, or that the applicant and his counsel demonstrated by a preponderance of evidence that the contents of the GOMOR are substantially incorrect to support removal. 14. Separate from the determination regarding the GOMOR, the Board must determine that the applicant and his counsel have shown by a preponderance of evidence that the Secretary of Defense abused his discretion when he decided the applicant should retire in the rank/grade of LTG/O-9. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016289 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016289 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2