ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20160017512 APPLICANT REQUESTS: Letter of Reprimand (LOR), dated 22 September 2010 be removed from his Official Military Personnel File (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online Application) * Applicant request for LOR removal memorandum * Department of the Army Suitably Evaluation Board (DASEB) decision memorandum, dated 29 June 2012 * DASEB decision memorandum, dated 12 April 2013 * DD Form 2414 (Joint Service Achievement Medal Certificate) * Permanent Orders (PO) 359-007, Joint Service Achievement Medal * DD Form 2412 (Defense Meritorious Service Medal Certificate) with permanent orders 134-006 * DD Form 2413 (Joint Service Commendation Medal Certificate) with permanent orders 152-004 * Letter of excellence from Admiral, United States (US) Navy Commander * Thank you letter from Pennsylvania Army National Guard (PAARNG), Officer in Charge, Northeast Counterdrug Training Center * Unit Certificate of recognition * Five Noncommissioned Officer Evaluation Reports (NCOER) * Diploma for completing the Keystone Command Senior Enlisted Leader Course * Three letters of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, US 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. The applicant states his LOR has served its purpose and requests that it be removed from his OMPF. He states that Army Regulation (AR) 600-37 (Unfavorable Information) allows for such removal when the LOR has served its purpose, when it has been in the OMPF for at least one year since imposition of the reprimand, the Soldier is at least a staff sergeant and has received at least one NCOER/Officer Evaluation Report since the filing of the reprimand. The LOR has resulted in full rehabilitation and no longer serves the best interest of the Army. He was issued the LOR because he acted on his own to find a replacement for a Fallen Soldier escort mission without notifying his chain of command. Immediately after making the decision, he realized he was wrong and has sincerely regretted his decision since it happened. 3. The applicant provides: a. A personal statement wherein he states that the Adjutant General in the PAARNG would like to appoint him as a Command Sergeant Major (CSM), however it may not be granted due to the LOR being in his file. He has served in a CSM position and would like to continue to serve as a CSM with the PAARNG. If the LOR remains in his file, he would not be able to serve at the next level. Major General X issued the LOR and supports his request to have the LOR removed from his OMPF. He inserted a few quotes from Major General RRM’s letter as follows: (1) "[Applicant] accepted his discipline and now clearly deserves to get past it.” (2) "Based on his outstanding performance since then, I am absolutely confident that [Applicant] has learned a great deal from the situation and that the LOR has, therefore, served its intended purpose." (3) "After issuing the LOR, I observed [Applicant] closely and I was deeply impressed with his ability to rebound and to maintain his laser focus on leading and taking care of Soldiers. I have no doubt at this point that his judgment, integrity, and character are above reproach.” b. Two DASEB decision memorandums the first denied the removal and the second granted a transfer from the performance to the restricted section of his OMPF. . c. Awards: * Joint Service Achievement Medal Certificate with PO number 359-007, dated 24 December 2012 for meritorious service from 5-9 November 2012 * PO number 359-007, Joint Service Achievement Medal, dated 24 December 2012 * Defense Meritorious Service Medal Certificate with PO 134-006, dated 14 May 2013 for exceptionally meritorious service from 16 June 2012 to 25 June 2013 * Joint Service Commendation Medal Certificate with PO 152-004, dated 7 June 2013 for meritorious service from 1 October 2012 to 15 April 2013 * Letter of excellence from Admiral BWC, US Navy Commander, dated 4 June 2013 for outstanding leadership and exemplary professional attitude * Thank you letter from CW3 MR, PAARNG, Officer in Charge, Northeast Counterdrug Training Center, dated 26 September 2013 for unwavering support * Unit Certificate of recognition from MAJ X and Sergeant Major (SGM) X, PAARNG Counterdrug Joint Task Force, dated 30 September 2013 for outstanding support d. NCOERs with comments from each period: * June 2012 – June 2013, an absolute must for CSM selection; I will fight to have him by my side – anytime, anyplace, and under the most challenging circumstances * July 2013 – June 2014, selected as a subject matter expert to lead the Northeast Counter Training Center curriculum development team to improve their courseware, received a Certificate of Achievement * June 2014 – January 2015, his vast experience and expertise led to his command selection over 20 other CSM/SGM as the first Senior Enlisted Guard Advisor J5/J8 European Command (EUCOM) Stuttgart * January 2015 – August 2015, the finest Joint Force Senior Enlisted Leader I have served with in a 30 year military career * August 2015 - August 2016, an absolute must for selection to CSM at the nominative level e. A copy of his National Defense University Keystone Command Senior Enlisted Leader course diploma, dated 17 June 2016. f. A statement from Major General (MG) X stating the following: “I am convinced that this LOR should be removed. As the parent of a company level grade Army officer, I can tell you that I would want [Applicant] to serve as CSM of any unit to which my son is assigned. [Applicant] has earned the ability to compete for CSM positions and our Soldiers deserve the opportunity to learn from his leadership. In order to make that possible, I respectfully request that you remove the LOR from his OMPF.” g. A statement from MG DWA stating he offers his strongest endorsement of [Applicant’s] request to remove the LOR from his OMPF. He currently serve as the US European Command Director ECJ5/8, Plans, Policy, Strategy, Partnering and Capabilities. [Applicant] has served as his Senior Enlisted Leader (SEL) in the ECJ5/8 since 6 January 2015 and has performed superbly. He was aware of the circumstances leading to the issuance of the LOR and believe the LOR has served its intended purpose. Consequently, he believed it would serve in the best interests of the U.S. Army to remove his LOR in order to permit him to compete for appointment as CSM. h. A statement from MG X who states very soon after [Applicant’s] indiscretion, he observed him closely as he served in a high-visibility leadership position with their Division Tactical Command Post during a three-week exercise in Korea. He was, by far, the most outstanding Soldier to deploy with them for Ulchi Freedom Guardian (UFG) 2011. His ability to excel in his assigned duties while leading and caring for their PAARNG enlisted Soldiers was truly remarkable. In fact, he was the only NCO to receive a personal award from our host, the Commander of First ROK Army, a four-star general. 4. A review of the applicant’s service record shows: a. Having had prior service in the ARNG and the Regular Army, he enlisted in the ARNG on 15 February 2011. He served in a variety of assignments and he was promoted to SGM on 1 April 2010. b. On 22 September 2010, the applicant was reprimanded by the PAARNG Commanding General (CG) for misconduct. The LOR reads: (1) On 13 June 2010, he volunteered to perform as the Army Selected Escort of SFC X__'s remains. On 16 June 2010, he received a telephone call from the Casualty Assistance Center who informed him that based on past experience; the detail was likely to occur over the weekend of 19 - 20 June 2010. He also knew that he had a large family gathering scheduled to occur on 19 June 2010. During that same telephone conversation. (2) The CAC afforded him at least four (4) separate opportunities to decline the escort mission. He did not take advantage of any of these chances to decline the mission. Instead, he led the CAC and his family to believe that he would be able to attend to both events. When it was confirmed that the escort mission would conflict with his family gathering, he contacted the CAC and substituted another NCO in his place. This substitution was not coordinated through the chain of command. This late substitution, less than 24 hours prior to the mission, caused hardship for the CAC staff as they now only had hours, as opposed to days, to accurately make escort arrangements. His conduct calls into question his judgment and his dedication to the service to those Soldiers he was charged to lead. c. On 6 October 2010, he acknowledged receipt of the LOR and on 25 October 2010, his counsel submitted a response to the LOR. The response reads: (1) The LOR recites portions of the Investigating Officer's Report that are not supported by the Commander's Inquiry. As a result, I cannot advise my client how to respond to a LOR with statements that are not supported by evidence. Specifically, the: following assertions are not supported by a witness statement: * During that same telephone conversation, the CAC afforded you at least four separate opportunities to decline the escort mission. * This late substitution, less than 24 hours prior to the mission, caused hardship for the CAC staff as they now only have hours, as opposed to days to accurately make escort arrangements. (2) These statements presumably would have come from the Mr. X__, who works at the CAC. However, his written statement does not assert that he afforded [Applicant] four opportunities to decline the escort or that the late substitution caused a hardship for the CAC staff. When investigations are conducted, sworn statements are used for a reason. If it was relevant enough to cite these statements in the Investigating Officer’s report, then it should have been important enough to have been included in Mr. X__' statement as well. (3) In response to the LOR, he did not believe that the letter should be filed in [Applicant's] official file. Paragraph 3-4 b (4), AR 600-37 states: "Be forwarded for inclusion in the performance portion of the OMPF only after considering the circumstances and alternative non punitive measures. Minor behavior infractions or honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier's OMPF." e. On 21 December 2010, PAARNG CG reviewed the counsel’s response to the LOR, and after careful consideration he directed the LOR be filed in the applicant’s OMPF in accordance with AR 600-37. In addition, recommended disenrollment from the United States Sergeants Major Academy. f. On 21 December 2010, he acknowledged receipt of the LOR filing decision. g. On 22 December 2011, he appealed to the DASEB to remove the LOR from his OMPF. He stated the LOR contains untrue statements and that it was not filed pursuant to an objective decision by a biased individual. He also stated that the substance of his LOR was untrue, specifically, the statements pertaining to having been afforded at least four separate opportunities to decline the "Fallen Escort mission," and the "late substitution, less than 24 hours prior to the mission, caused hardship for the CAC staff as they now only have hours, as opposed to days to accurately make escort arrangements." h. On 29 June 2012, the DASEB determined that the evidence presented did not clearly and convincingly establish that the LOR was untrue or unjust, and as a result, the DASEB voted to deny removal of the LOR dated 22 September 2010. i. On 16 December 2012, he requested the DASEB to transfer the LOR to the restricted portion of his OMPF. j. On 12 April 2013, the DASEB deliberated on the request to transfer a his LOR and all allied documents from the performance portion to the restricted portion of the Army Military Human Resource Record. The DASEB voted to transfer of the LOR, dated 22 September 2010, and all allied documents; in that the intended purpose has been served and it would be in the best interest of the Army. 5. By regulation, an officer who directed the filing in the OMPF of an administrative letter of reprimand, admonition, or censure may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in part. The basis for such determination must be provided the DASEB in sufficient detail so as to justify the request. An officer who directed the filing of such a letter in the OMPF may not initiate an appeal on the basis that the letter has served its intended purpose. However, a letter of support may be submitted with the recipient's appeal. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The LOR was moved to the restricted file by a DASEB. Based upon the DASEB’s actions, the Board found insufficient evidence to show that an error or injustice still remains. Therefore, the Board recommended denying the applicant’s request for relief. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-104 (Army Military Human Resources Records Management (AMHRR)), in effect at the time, provides policies, operating tasks, and steps governing the AMHRR. This regulation states that only those documents listed in Appendix B are authorized for filing in the AMHRR and/or in the Interactive Personnel Electronic Records Management System. a. Depending on the purpose, documents will be filed in one of three sections: performance, service, or restricted. b. Table 3-1 (OMPF folders in the AMHRR) states the performance folder contains performance related information to include evaluations, commendatory documents, specific disciplinary information, and training/education documents. The restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers. 3. Army Regulation 600-37 (Unfavorable Information) sets 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. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. b. Paragraph 7-2 (Policies and Standards), subparagraph a (Appeals for removal of OMPF entries), contains guidance on removals of OMPF entries. It states 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. Normally, consideration of appeals is restricted to grades E6 and above, to officers, and to warrant officers. Although any Soldier may appeal the inclusion of a document placed in his or her file under this regulation, the appeals of Soldiers in grades below E-6 will only be considered as an exception to policy. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. ABCMR Record of Proceedings (cont) AR20170014242 7 1