BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20170001685 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: 13 June 2017 DOCKET NUMBER: AR20170001685 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: 13 June 2017 DOCKET NUMBER: AR20170001685 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, in effect, the removal of a general officer memorandum of reprimand (GOMOR), dated 3 September 2015, from his records. 2. The applicant states the injustice is that the records are shared with the National Crime Records Center (NCRC) despite not being charged or convicted of any crime. The documents are unjust because he was not charged or convicted. The document fulfilled its purpose in that it resulted in his involuntary separation. 3. The applicant provides: * Notification of Denial of Continued Active Duty Service under the Qualitative Management Program (QMP) * Statement of Options, QMP * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 26 July 2006. He held military occupational specialty 68K (Medical Laboratory Specialist). He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class/E-7. 2. At the time of his reprimand, he was assigned to the 1st Area Medical Laboratory, Aberdeen Proving Ground, MD. 3. On 30 April 2015, the U.S. Army Criminal Investigation Command (USACIDC, commonly known as CID) established probable cause to believe the applicant committed certain violations (wire fraud and larceny). The CID Report of Investigation (ROI) Number 2015-CID112-XXXXXX shows he was advised of his rights, which he waived, and he provided a sworn statement wherein he confessed to the alleged offenses. The ROI shows: a. The applicant committed the offense of engaging in temporary duty (TDY) fraud when he added two 35-pound and two 25-pound dumbbells, for a combined total of 120 pounds, while weighing his vehicle prior to conducting a permanent change of station move to Aberdeen Proving Ground. b. The applicant also admitted he used government facilities and equipment to test his mother's blood without consent of a supervisor while stationed at Fort Sam Houston, TX. He acknowledged that his mother was not his dependent and was not entitled to use the facilities at Brooke Army Medical Center. 4. On 20 September 2015, the Commanding General (CG), U.S. Army 20th Chemical, Biological, Radiological, Nuclear, Explosives (CBRNE) Command, Aberdeen Proving Ground, reprimanded the applicant in writing for defrauding the government, making a false official statement, and attempting larceny. The GOMOR states: a. A CID investigation revealed he defrauded the government on 23 December 2008 and 20 June 2009 by receiving $1,000.00 each time as a recruiting assistant in the Army Recruiting Assistance Program (ARAP) for the recruitment of Specialist (SPC) G____ G____. He was not entitled to these payments. SPC G____ G____ stated he never met the applicant and did not know him, and he was not aware of the ARAP. He also admitted to CID on 3 April 2015 that he did not know and never met SPC G____ G____. The recruiter involved stated he knew the applicant but never created an ARAP account for him. b. Furthermore, he admitted to CID on 30 April 2015 that he placed several weights totaling 120 pounds in his vehicle as part of a "Do it Yourself Move" to Aberdeen Proving Ground in August 2012 to add extra weight in an attempt to receive extra money. He also lied in the application form he submitted for payment by listing an extra 120 pounds for his vehicle weight. c. His actions called into question, not only his ability to lead, but also his ability to continue to serve. As a senior noncommissioned officer (NCO), he was expected to uphold the highest standards of integrity and professionalism. He failed. His conduct brought discredit upon himself, the command, and the Army. d. The reprimand was imposed as an administrative measure under the provisions of Army Regulation (AR) 600-37 (Unfavorable Information) and not as punishment under the provisions of Article 15, Uniform Code of Military Justice. The CG intended to direct placement of this reprimand in his Official Military Personnel File (OMPF) but withheld a final decision pending his review of matters submitted in his defense. 5. On 5 October 2015, the applicant acknowledged receipt of the GOMOR and he submitted a statement on 21 October 2015, together with multiple character-reference statements and/or statements of support. He stated: * he apologized for the error in judgment during his partial move and he foolishly followed advice from others, despite knowing it was wrong * the funds paid to him under the ARAP were not a result of fraudulent intent on his own behalf * although the CID investigation concluded he was not entitled to the payments, the offense of larceny was determined to be unfounded * there was no determination that he attempted to defraud the government with his action * he made a mistake and accepted full responsibility for his actions * he also learned from this mistake and will adhere to the Army Values 6. On 26 October 2015 after careful consideration of the applicant's case, his rebuttal, and the statements he submitted with his rebuttal, the imposing CG directed filing the GOMOR in the applicant's OMPF. The GOMOR was filed in the performance folder of his OMPF. 7. On 29 October 2015, his commander submitted a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action). The form lists the reason for referral as a false official statement and larceny of government funds, and the action taken as administrative, consisting of a GOMOR filed in the performance folder of his OMPF. 8. On 1 February 2017 following his petition to remove or transfer the GOMOR, the Department of the Army Suitability Evaluation Board (DASEB) unanimously voted to deny transfer of the contested GOMOR to the restricted folder of his OMPF. 9. On 3 January 2017, the U.S. Army Human Resources Command notified him that the QMP Selection Board conducted a comprehensive review of his records for potential denial of continued service under the QMP and recommended his denial for continued active duty service. As a result, the Director of Military Personnel Management approved the board's recommendation and he would be involuntarily discharged no later than 1 August 2017. REFERENCES: 1. AR 600-37 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. a. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is 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 AR 600-37, chapter 7. Paragraph 7-2 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, that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. b. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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. AR 600-8-104 (Army Military Human Resource Record Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of 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 (DASEB or this Board). 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 4. Department of Defense Instruction 5505.7 contains the authority and criteria for titling decisions. It states titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the Defense Clearance and Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 5. Department of the Army Directive 2014-06 (QMP) prescribes Army policy for QMP. Soldiers are considered for QMP if HRC has received such actions as GOMOR and poor ratings on an NCO Evaluation Report. This is true whether the document is filed in the performance or restricted folder of the Soldier's OMPF. 6. AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph  19-11, states: a. Soldiers denied continued service under the QMP may appeal and request retention on active duty based on improved performance and/or presence of a material error in the Soldier's record. The Soldier may submit only one appeal and requests for reconsideration of denied appeals are not authorized. The Soldier is permitted to include relevant material in support of the appeal. b. Appeals are addressed by the QMP Appeal Board, normally conducted in conjunction with Headquarters, Department of the Army, centralized promotion selection boards, and this board considers all information previously reviewed by the QMP Board, as well as any information included in the appeal. The mere fact that a Soldier's performance has improved, or that the Soldier's file contains a material error, is not necessarily sufficient to overcome the reason for QMP selection. c. The appeal board may determine the reason for QMP selection still applies, even in the light of the improved performance or correction of an error. Successful appeals result in removal of the denial of continued service determination. DISCUSSION: 1. The applicant essentially raises three issues: removal of the GOMOR, titling action by CID, and appeal of the QMP decision. 2. As for the GOMOR: a. The evidence of record shows the applicant received a GOMOR on 20 September 2015 for misconduct (defrauding the government, making a false official statement, and attempting larceny). He was provided an opportunity to submit matters in his own behalf and he did so. The imposing CG considered the facts and circumstances of his case, as well as his rebuttal, and directed filing the GOMOR in the performance folder of his OMPF. The GOMOR is filed in the performance folder of his OMPF. He petitioned the DASEB to remove the GOMOR, but his request was denied. b. His conduct and/or actions were investigated by CID and it was clear that this conduct as senior NCO and Soldier was a serious departure from that expected of NCOs or Soldiers in similar positions. The applicant admitted to the poor judgment in his rebuttal statements and requested leniency. The multiple character-reference statements he provided were also considered by the imposing officer. As the applicant admitted to the offenses in question, the GOMOR does not appear to be untrue or unjust. c. It is true that a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance, to train, and to rehabilitate Soldiers. However, it is also true that the quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline. d. Once the GOMOR was filed in his OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. The GOMOR is properly filed and the applicant has not proven the GOMOR to be either untrue or unjust or that it has served its purpose. There is no evidence to support its removal. 3. As for the titling action: a. By law and regulation, titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. The applicant did not provide evidence satisfying this standard for removal. b. All names of individual subjects of criminal investigations by Department of Defense organizations shall be listed in the DCII. Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. c. Requests to amend CID ROI's may be granted only if the individual submits new relevant and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the titling block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject. 4. As for the QMP: Soldiers are considered for QMP if HRC has received such actions as GOMORs. This is true whether the document is filed in the performance or restricted folder of the Soldier's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170001685 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170001685 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2