BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160017612 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: 12 September 2017 DOCKET NUMBER: AR20160017612 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: 12 September 2017 DOCKET NUMBER: AR20160017612 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of a 29 April 2015 General Officer Memorandum of Reprimand (GOMOR) from his Army Military Human Resource Record (AMHRR) or transfer of the GOMOR to the restricted portion of his AMHRR. He also requests a personal appearance before the Army Board for Correction of Military Records (ABCMR). 2. The applicant states he believes the GOMOR was substantially invalid and is entirely unjust. He request was considered and denied by the Department of the Army Suitability Evaluation Board (DASEB). That decision was faulty and he is attaching a memorandum outlining the legal arguments and demonstrating the errors in the DASEB's decision 3. The applicant provides counsel's argument and list of enclosures. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests withdrawal and expungement of the GOMOR from the applicant's record or, in the alternative, transfer of the GOMOR to the restricted portion of his record. Counsel also requests a special promotion board be convened to evaluate the suitability of the applicant for promotion to E-8 after the GOMOR has been removed from his record. 2. Counsel states: a. More than 4 years have passed since the applicant received the GOMOR. Since then he has received continuously positive Noncommissioned Officer Evaluation Reports (NCOERs). Nevertheless, the Department of the Army (DA) has initiated elimination proceedings under the Qualitative Management Program (QMP). b. The imposing authority (IA) who directed the GOMOR filing did not have sufficient time to properly review the rebuttal submitted by the applicant. (See Enclosure 9.) It should be noted that the IA supposedly read the entire rebuttal including hundreds of pages of evidence on the day of his change of command. c. The only officer in the chain of command who took the time to read the entire file recommended the GOMOR be filed locally or destroyed because there was insufficient evidence to substantiate the claims made in the GOMOR. d. The applicant was wrongfully accused by his vindictive and malicious former spouse. This statement is substantiated by the strongly-worded character letters the applicant has received in support of his efforts to overcome the DASEB decision. e. The GOMOR has served its intended purpose. Each element of the necessary requirements to move the GOMOR to the restricted portion of his record has been satisfied. Removal is justified by the character references and his superb performance as evidenced by his NCOERs. The IA-submitted letter states the purpose has been served. The applicant's chain of command provided him with an excellent NCOER despite the GOMOR, although the DASEB offered an oblique reference to this apparently in an attempt to imply that the chain of command did not know about the GOMOR. Counsel references Enclosure 6 as showing this was not the case. f. Even if the GOMOR contains some element of truth the applicant's "stellar NCOERs" since then demonstrate that he should be afforded equitable relief. g. This Board "should be deeply concerned about the sloppy cut and paste job when [DASEB] drafted their lackluster and incoherent findings." h. The Army has a strong interest in retaining the best Soldiers and the Army's best interest would be served by removing or relocating the GOMOR. The applicant has been recommended for promotion on his last five NCOERs. He has been consistently called a "top 10 percent performer." He has continuously demonstrated strong commitment and stellar performance even while undergoing the consequences of the GOMOR. 3. Counsel provides documents labeled as follows: Exhibit 1 DD Form 149 (Application to ABCMR) Exhibit 2 DASEB Record of Proceedings Exhibit 3 IA's Letter of Support, dated 4 March 2016 Exhibit 4 GOMOR, dated April 2015 Exhibit 5 QMP Notification Letter, dated 29 February 2016 Exhibit 6 NCOER Packet, dated 2010 - Present Exhibit 7 Meritorious Service Medal, dated 22 February 2016 Exhibit 8 Rebuttal to GOMOR Exhibit 9 Character Reference, Captain R____ Exhibit 10 Character Reference, Colonel R____ Exhibit 11 Character Reference, Mr. Mc_____ Exhibit 12 Character Reference, Command Sergeant Major P____ Exhibit 13 Character Reference, Mr. S____ Exhibit 14 Character Reference, Captain L____ Exhibit 15 Character Reference, Lieutenant Colonel C____ Exhibit 16 Power of Attorney CONSIDERATION OF EVIDENCE: 1. The applicant was a Regular Army (RA) sergeant first class (SFC)/pay grade E-7 with a date of rank of 1 December 2007 and approximately 20 years of continuous active duty when he received a 29 April 2015 GOMOR for a November 2011 assault on his wife, who was also an RA NCO. At the time of the GOMOR they were both stationed at Fort Lee, VA. 2. On 31 October 2014 the applicant's company commander initiated a Suspension of Favorable Actions (Flag) based on an unidentified law enforcement investigation. 3. Statements taken between 15 September 2014 and 9 January 2015 by the Army Criminal Investigation Command (CID) indicate that the applicant, the applicant's spouse, and an SSG H____ and his spouse and stepson had all known each other while stationed in Alaska. Another statement, made by a CW3 R____ who had deployed with them from Alaska to Afghanistan but had not returned to Alaska, relayed information, much of which CW3 R____ admitted was hearsay. 4. A 23 April 2015 memorandum from the company commander indicated he had reviewed and considered the circumstances of the applicant's alleged misconduct and found the information credible and that it fell within the scope of Army Regulation 380-67 (Personnel Security Program), paragraph 2-4. He had notified the security manager but had not suspended the applicant's security clearance. 5. The 29 April 2015 GOMOR stated that a CID inquiry had revealed that in November 2011 an argument in quarters had turned physical when the applicant knocked a cup of coffee from his wife's hand. He then threw a crystal vase, smashed a stone bowl, and threw his wedding ring at her. When she started to throw the ring out the patio door, he grabbed her around the neck in a choke hold. The IA indicated that before deciding where to file the reprimand he would consider any matters in extenuation, mitigation or rebuttal that were forwarded to him through the chain of command. 6. The only available copy of the applicant's rebuttal to the GOMOR was submitted by counsel as Exhibit 8. (It is not attached to the copy filed in his AMHRR.) a. In his 28 May 2015 memorandum to the IA the applicant denied that he had assaulted his wife. He contended that she threw a cup of hot coffee at him while he was sitting on the sofa. The vase was on the coffee table in front of him and he accidently knocked it off and it broke. b. He referred to a SSG H____ as an "alleged witness" who changed his statement at least three times. c. The applicant continued in an eight-page narrative of all of his estranged wife's transgressions, manipulations and motivations as he saw them. He listed 15 enclosures, none of which are attached to his memorandum as submitted by the counsel for this ABCMR appeal. 7. In an undated memorandum to the IA, the company commander recommended the GOMOR be permanently filed in the applicant's AMHRR. He noted, "Based on CID's investigation of the charges brought against (the applicant), there appears to be sufficient evidence to indicate that he committed the actions for which he has been charged, I believe that it is the best interest of the Army to file the GOMOR in (the applicant's) permanent AMHRR." 8. In a 28 May 2015 memorandum to the IA, the battalion commander recommended the GOMOR be permanently filed in the applicant's AMHRR. He remarked that his reasons for the recommendation were that, "[The applicant] has not lived up to Army Values nor presented any evidence that change[s] my belief, based on CID's investigation, that this event happened. 9. In a 28 May 2015 memorandum the IA's the assistant commandant, recommended local filing until the applicant was reassigned. He wrote, "recommend local filing and that [the applicant] be directed to anger management and to consult with a counselor about relationship stress. In making this recommendation I reviewed the applicant's entire CID interview and all statements. He consistently relays the same statement, that he did not grab hold of or choke his wife….I question CW3 R____'s statement on 2d or 3rd hand information and feel it alone supports filing in the AMHRR." 10. On 4 June 2015 the IA indicated that he had considered the case and all of the matters submitted in defense, extenuation or mitigation and the recommendations of the chain of command. He directed the reprimand be permanently filed in the applicant's AMHRR. 11. The applicant was notified in a 29 February 2016 memorandum that he was being considered for separation under the QMP. In June 2016 the DASEB considered the applicant's appeal to remove or relocate the GOMOR. In support of his request the applicant submitted the following: a. In a 4 March 2016 memorandum for the DASEB, the IA who had imposed the GOMOR recommended that it be relocated to the restricted portion of the applicant's AMHRR. He indicated that he had imposed the reprimand so that the applicant's record would reflect misconduct. He considered that the intended purpose had been served because the applicant had not been promoted to master sergeant. He otherwise lauded the applicant as an outstanding Soldier and NCO, a model for Army Values, and a true hero who had been awarded the Soldier's Medal for saving the lives of two people (Counsel's Exhibit 3). b. The Senior Defense Counsel, Fort Lee, VA, wrote that he supported the applicant's retention on active duty. He thought the applicant had suffered from the "unnecessarily long and unjustified…filing of his GOMOR." He noted that “the only officer in the chain of command who took the time to review the complete file recommended that the GOMOR be filed locally or destroyed because there was not enough evidence to substantiate the claims made in the GOMOR." He also reported, "It should also be noted that [the IA] supposedly reviewed the entire rebuttal, including hundreds of pages of evidence on the day of his change of command" (Counsel's Exhibit 9). c. The Assistant Commandant, U.S. Army Transportation School, apparently not the same colonel who had originally favored local filing of the GOMOR, supported the applicant's retention on active duty. He considered the applicant a model NCO on and off duty. The applicant had set the standard at the school. He was the number 1 instructor and the first to volunteer for the Mobile Training Team which required him to often give up his weekends and holidays. He was the most technically and tactically proficient NCO (Counsel's Exhibit 10). d. The Director of Training, U.S. Army Transportation School, also the applicant's senior rater, considered him one of the finest NCOs he had served with in a combined 34 years of military and civilian service, stating he was "one of the top 1 percent of all the NCOs in our Army." He thought the applicant had suffered enough and that denial of continued service would be a travesty (Counsel's Exhibit 11). e. The Command Sergeant Major supported expunging the GOMOR. He thought this appropriate "based on the absence of due diligence in the case leading up to the filing…" The applicant had demonstrated his professionalism and selfless service, served as the Transportation Corps' lead Master Driver Trainer and volunteered countless hours serving his church and feeding the homeless (Counsel's Exhibit 12). e The Chief, Army Driver Standardization Office, wrote what he titled a character letter but he also expanded on the theme of the applicant's character to praise his hard work and dedication. He noted the applicant had been the prime mover behind the development of the Master Driver Trainer Qualification as an additional skill identifier. He supported the applicant's retention on active duty (Counsel's Exhibit 13). f. His company commander at Fort Carson, CO, stated the applicant was one of the top two SFCs he had worked with in his 9-year career. The applicant had appeared ready to go to work even before his in-processing was completed. His presence was felt within the company within a week. The Soldiers were more disciplined, the training better organized and responsiveness increased. There had been no off-duty issues. The applicant's conduct was exemplary. He voluntarily gave up his weekends to accomplish missions (Counsel's Exhibit 14). g. The Assistant Chief of Staff, 1st Mission Support Command, Fort Buchanan, PR, wrote that he had known the applicant at Fort Lee, VA, and had no reservations about recommending him for positions of increased responsibility. He found him competent, versatile, and always willing to lend a hand to subordinates, peers, or supervisors. He wholeheartedly supported his continued service (Counsel's Exhibit 15). 12. On 21 June 2016 the DASEB denied the applicant's request to remove or transfer the GOMOR. 13. On 28 February 2017, the applicant retired as an SFC after completing 22 years, 3 months, and 28 days of active duty service. 13. In addition to items described above, counsel submitted: a. Six NCOERs for rating periods from April 2010 through December 2015. All show him marked exclusively "Yes" in Part IV (Army Values); and he is consistently marked him as exceeding standards with no "Needs Improvement" ratings. His raters exclusively marked him as "Among the Best' and his senior raters consistently gave him high marks for performance and potential. b. A DA Form 638 (Recommendation for Award) and accompanying citation show the applicant was awarded his third award of the Meritorious Service Medal. He was cited for exceptionally meritorious service while assigned to the Army Transportation School during the period 10 January 2012 to 20 December 2015. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. Filing requirements state: a. A reprimand may be filed in a Soldier's Official Military Personnel File (OMPF) only upon the order of a general officer-level authority and is to be filed in the performance section. 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 Army Regulation 600-37, chapter 7. b. Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Documents may also 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. 3. Army Regulation 600-8-104 (AMHRR Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. Paragraph 2-9 provides that 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. b. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. 5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the Army's enlisted promotions and reductions policy. Chapter 4 provides guidance on centralized promotions to SFC, master sergeant, and sergeant major (SGM), and provides rules on referral of cases to a standby advisory board (STAB). It states cases may be referred to a STAB upon determining that a material error existed in a Soldier’s OMPF when the file was reviewed by a promotion board. STABs are convened to consider records of those: * Soldiers whose records were not reviewed by a regular board. * Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board. * Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list. Error is considered material when there is a reasonable chance that had the error not existed the Soldier may have been selected. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is considered sufficient to render a fair and equitable decision at this time. 2. The IA recommended the GOMOR be removed based upon intent served. He did not base this recommendation on the fact that he had not properly considered or given appropriate weight matters offered in mitigation and extenuation and presented to him before he made the filing decision. The governing regulation states "the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part" thereby warranting its alteration or removal from the OMPF. 3. The IA indicated in his 4 March 2016 memorandum that he had imposed the reprimand and directed the filing so that the applicant's record would reflect misconduct. The applicant's subsequent situation, nonselection for promotion and consideration by the QMP, are the predictable consequences of that record of misconduct. 4. Paragraph 7-2 of Army Regulation 600-37 provides that documents may be relocated based upon the intent having been served and that transfer is in the best interest of the Army. 5. Counsel argues that the IA's deputy was the only one in the chain of command who read the entire file. It would be more accurate to say he was the only one who made a point of saying that he did so. There is no evidence that the company and battalion commanders did not do so. It is noteworthy that the deputy's stated reasons for supporting local filing is the applicant's consistent denial of the accusation and that only CW3 R____'s statement supported the accusation and that it was based on hearsay. CW3 R____ freely admitted that his sworn statement was basically hearsay. However, it was not the only evidence that supported the imposition of the GOMOR. 6. Counsel seems to imply that the deputy commander did not believe that the misconduct had actually occurred. However, this does not account for his suggestion that the applicant be referred for anger management counseling. This strongly suggests that there was no question at the time as to whether or not the assault had occurred, and that the actual question was what would be the appropriate command response. 7. Counsel also repeats the claim that "[the IA] supposedly reviewed the entire rebuttal, including hundreds of pages of evidence on the day of his change of command." Quite aside from the fact that there is no evidence to substantiate this contention, there is also no indication of what happened to the "hundreds of pages of evidence." They are not currently available. This all-in-one-day claim also does not seem to take into account that the applicant's rebuttal and the deputy's endorsement are dated 28 May and the IA's filing directive was dated 4 June. 8. The letters of support prepared for the DASEB and the applicant's NCOERs are noted, but the applicant's duty performance is not the issue here. The issue is whether there is clear and convincing evidence the GOMOR is untrue or unjust, in whole or in part. There is no clear evidence leading to that conclusion. There is only opinion, and much of that opinion appears to have been swayed by the fact the applicant was a top performer and a good leader. 9. He was not reprimanded for the quality of his work or leadership. He was reprimanded for assaulting his wife. She may very well have been manipulative and vindictive, but there are only the applicant's assertions to show those facts, which would not excuse assault even if true. 10. Removing the GOMOR from the applicant's record or moving it to the restricted portion of his OMPF would be a basis for referring the applicant's records to a STAB for review under promotion criteria for any promotion boards that convened after the GOMOR had been filed in his record. If this Board finds no basis for removing or moving the GOMOR, there will not be a basis for referring his records for review by a STAB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017612 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017612 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2