ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:       19 April 2019

	DOCKET NUMBER:  AR20160017834


APPLICANT REQUESTS: 

* removal of a General Officer Memorandum of Reprimand (GOMOR) and allied documents from his official military personnel file (OMPF)
* active duty service credit in order to qualify for a 20-year regular retirement 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Counsel’s Memorandum in Support
* nine character reference letters
* rebuttal of relief for cause memorandum 
* several Officer Evaluation Reports
* Medical Evaluation Board (MEB) Summary 
* third-party letter for leniency 
* Informal Physical Evaluation Board (PEB) Proceedings, dated 21 May 2015
* Informal Physical Evaluation Board (PEB) Proceedings, dated 2 November 2017
* MEB Proceedings
* Physical Profile 
* Department of Veterans Affairs Proposed Rating 

FACTS:

1.  The applicant defers to counsel.

2.  Counsel states:

	a.  The applicant was placed on the Temporary Disability Retired List (TDRL) following an incident in which he unconsciously plagiarized three separate works.  However, at the time of his separation hearing, the board was uninformed of his mental illnesses and, because of this lack of information, voted two to one to separate him.  He was then given a dual process whereby he was separated from the Army by way of being placed on the TDRL.  This incident occurred after he served a 17-year career as a Chaplain with the United States Army.  Prior to this incident, he served his country and fellow service members with loyalty, enthusiasm, and unrelenting unselfishness.

	b.  This appeal will show that cognitive disorders, family issues, and professional pressures put the applicant in a position where he was unaware of the consequences of his actions.  Because of his mental illnesses, he should not have been held responsible for his actions.  Aside from this one-time instance, he has honorably served the United States and is the only means of financial support for his recently reunited family.  It is for these reasons that they respectfully ask that this Board remove all negative marks from his record and grant him credit of service for three years so that he is eligible to receive regular Department of Defense retirement benefits.

3.  The applicant, while serving on active duty in the rank of major with duties as the brigade chaplain of a recruiting brigade, received a GOMOR on 1 April 2014 for violating Article 133 of the Uniform Code of Military Justice by plagiarizing two articles he submitted to his military post's newspaper and to the fiscal year 2014 Recruiter Journal.  

4.  The applicant acknowledged receipt of the GOMOR and on 15 April 2014, he submitted a memorandum appealing the GOMOR.  He appealed the GOMOR based on extenuating and mitigating circumstances.  

5.  On 28 April 2014, the GOMOR issuing authority, after careful consideration of the circumstances of the misconduct and all matters submitted by the applicant in his defense, extenuation or mitigation, if any, along with recommendations of subordinate commanders, directed the GOMOR be placed permanently in the applicant's OMPF.

6.  A review of the applicant OMPF confirms the GOMOR with allied documents were filed in the performance folder of his OMPF.  

7.  On 2 April 2015, a MEB determined the applicant's medical conditions did not meet retention standards and referred him to a PEB.  Item 15 of the DA Form 3947 (MEB Proceedings) provides the Soldier the opportunity to express his/her desire to continue on active duty (COAD) under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation); however, in the applicant's case, it cannot be determined whether he expressed his desire to continue on active duty due to the poor print quality of the available copy of his DA Form 3947.

8.  On 4 August 2015, an Informal PEB found the applicant unfit for further military service due to a diagnosis of neurocognitive disorder with adjustment disorder with mixed anxiety and depressive symptoms (PEB referred as dementia/Alzheimer's disease with mild neurocognitive disorder) claimed as cognitive disorder due to dementia and post-traumatic stress disorder.  The PEB recommended a disability rating of 50 percent and his placement on the TDRL with reexamination during May 2016.  

9.  Orders issued on 8 March 2016 directed the applicant's release from assignment and duty because of physical disability and his placement on the TDRL effective 22 May 2016.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was placed on the TDRL on 22 May 2016.  The DD Form 214 also shows he was credited with 18 years, 11 months, and 24 days of active duty service.  

10.  On 14 April 2017, the Army Review Boards Agency (ARBA) psychologist/ medical advisor provided an advisory opinion.  The advisory found the available documentation 
did not demonstrate adequate behavioral health reasons for granting the applicant's request.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

11.  On 2 November 2017, a PEB reevaluated the applicant's condition and found him unfit for further military service and recommended a 70 percent disability rating and his placement on the Permanent Disability Retired List.  

12.  Orders issued by the U.S. Army Physical Disability Agency on 11 December 2017, directed the applicant's removal from the TDRL and his permanent retirement due to physical disability effective 11 December 2017.

13.  The applicant was provided a copy of the advisory opinion on 17 April 2017 and given an opportunity to submit comments.  Counsel did not provide a direct response to the advisory, however, he provided a DA Form 199 showing the PEB recommended the applicant's placement on the Permanent Disability Retired List on 2 November 2017.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the documentary evidence provided by the applicant and found within the military service record of the applicant, the Board concluded there was insufficient evidence to show that the applicant experienced an error or injustice which would warrant any Board action.  In making this finding the Board relied on the enclosed ARBA medical advisory which stated there was no behavioral health condition of the applicant which would mitigate the misconduct and warrant the Board granting any 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.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual OMPF's; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual OMPF's; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from the OMPF.  It states unfavorable information that should be filed in the OMPF includes indications of substandard leadership ability, promotion potential, morals, and integrity.
	a.  The regulation 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.
	b.  A GOMOR 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 Army Regulation 600-37, chapter 7 (Appeals and Petitions).  
	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.
	d.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  Such 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.

2.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  The OMPF is an administrative record as well as the official permanent record of military service belonging to a Soldier.  Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by the Department of the Army Suitability Evaluation Board.

3.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES).  

	a.  Chapter 3 (Policies), paragraph 3-6, states that providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army's mission.  The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is determined that they have attained optimum medical improvement.

	b.  Chapter 6 prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD as an exception to policy.  The Soldier must be basically stable or have a disability that is of slow progression according to accepted by medical principles.  It must not be harmful to the Soldier's health or prejudicial to the best interest of the Soldier or the Army.  For example, the disability must not require undue loss of time from duty for medical treatment.  It must not pose a risk to the health or safety of other Soldiers and the Soldier must be physically capable of performing useful duty in a military occupational specialty for which currently qualified or be potentially trainable (to include reclassification).  It states in:

	(1)  Paragraph 6-2, the primary objective of this program is to conserve manpower by effective use of needed skills or experience.  A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation.

	(2)  Paragraph 6-3, COAD applies to officers on the active duty list, Regular Army enlisted Soldiers, and Soldiers in the Active Guard Reserve requesting continuation as AGR.

	(3)  Paragraph 6-6, final PDES evaluation may be waived for retirement for length of service.  The Soldier must sign a waiver statement acknowledging that by foregoing final disability processing he or she is foregoing a potential disability retirement and the potential benefits related thereto (such as greater retired pay, or tax advantages, or certain other benefits pertaining to employment under Federal Civil Service, depending upon the individual case circumstances). 

	(4)  Paragraph 6-7, to be considered for COAD a Soldier must be basically stable or have a disability that is of slow progression according to accepted medical principles.  It must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Solder or the Army.  For example, the Soldier must be physically capable of performing useful duty in a military environment without the environment adversely affecting his/her health and the disability must not require undue loss of time from duty for medical treatment.

		(5)  Paragraph 6-8, Soldiers with 18 years of active service should be counseled on the COAD option by the PEB Liaison Officer (PEBLO).  When the PEBLO has a case of an active Army Soldier with 18 years but less than 20 years of active service, a declination to request a COAD, as applicable, should be in writing and attached to the MEB proceeding.  

4.  Title 10, U.S. Code, section 3911, states the Secretary of the Army may, upon the officer’s request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.

ABCMR Record of Proceedings (cont)	 AR20160017834


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