ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170002195 APPLICANT REQUESTS: through counsel, removal of the following documents from the deceased former service member's (FSM's) Official Military Personnel File (OMPF): * DA Form 67-10-2 (Field Grade Plate (O4 – O5; CW3 – CW5) Officer Evaluation Report (OER)) covering the period 2 June 2014 through 1 June 2015 * general officer memorandum of reprimand (GOMOR), dated 4 August 2015 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Brief in Support of Application for Records Correction, Counsel, undated, with Exhibits – * 10 OERs covering the periods 20 September 2003 through 1 June 2014 * DA Form 2823 (Sworn Statement), Captain (CPT) dated 6 April 2015 * Civilian and Military Education Diplomas, Certificates, Reports, and Transcripts * Military Awards and Recommendations for Awards * DD Form 2873 (Military Protective Order), dated 7 April 2015 * DA Form 4856 (Developmental Counseling Form), dated 8 April 2015 * Officer Record Brief, dated 16 March 2016 * Memorandum for Record, U.S. Army Medical Department Activity, Fort Carson, CO, dated 9 April 2015, subject: Military Protective Order Dated 7 April 2015 is Rescinded * OER covering the period 2 June 2014 through 1 June 2015 * Email, Lieutenant Colonel dated 8 June 2015, subject: Congratulations Your Organization Will Be Recognized * Text Messages, FSM to CPT * Character Reference Letter, Ms., dated 21 June 2015 * Memorandum, Headquarters, 4th Infantry Division and Fort Carson, Fort Carson, CO, dated 8 October 2015, subject: Initiation of Elimination, (FSM) * Memorandum, FSM, dated 24 November 2015, subject: Rebuttal for Show Cause Proceedings for (FSM) * Certificate of Death, State of Certification of Vital Record, dated 14 September 2016 * 11 Character Reference Letters FACTS: 1. The applicants, the parents of the deceased former service member (FSM), defer to counsel. 2. Counsel states: * the parents of the deceased FSM request removal of the referred OER and GOMOR from their son's records to reverse a grave injustice and restore the good name and honor of a Soldier who passed away after a losing battle with despair and depression * the FSM was recognized as the Distinguished Military Graduate of his Reserve Officers' Training Corps Program * the FSM served in Iraq with the 101st Airborne Division * the FSM was twice promoted below the zone and was promoted to major (MAJ) on 1 September 2012 * the FSM received numerous awards and recognitions * the FSM completed a master's degree in Business Administration while serving in Iraq and a master's degree in Information Systems Technology * the FSM entered into a relationship with a female Army CPT in March 2014 and enjoyed a normal, healthy adult relationship until they broke up in November 2014 * the couple stayed in contact after the relationship ended, corresponded regularly, and exchanged gifts * the FSM visited his ex-girlfriend in Georgia in April 2015 and proposed marriage to her * the FSM's marriage proposal was declined and he was counseled for leaving the local area without approved leave or an appropriate pass * a military protective order was issued to him on 7 April 2015, directing him to have no contact with his ex-girlfriend for 30 days * the military protective order was rescinded in writing following a counseling session 2 days later * the developmental counseling form did not contain an ending date nor was there a new military protective order issued with a specific ending date * over 2 months later the FSM called and texted his ex-girlfriend to share news of his selection for a fellowship program * the FSM made this contact with the belief that the no-contact order had expired * the FSM's command chose to treat this innocent mistake and harmless text as a violation of an order, which resulted in issuance and permanent filing of a GOMOR and a referred OER * the FSM submitted a rebuttal to show-cause proceedings on 24 November 2015, documenting facts of the alleged no-contact order violation and providing clear and substantiated evidence of his absence of any intent to violate an order * the FSM's request for withdrawal of officer elimination proceedings was denied on 14 January 2016 * the FSM slowly slipped into a downward spiral of depression and despair as a result of the command's insistence on moving forward with the elimination proceedings * the FSM was found dead of a self-inflicted gunshot wound on 31 August 2016 * legal errors in handling of this case resulted in a GOMOR being permanently filed in the FSM's OMPF and an OER with negative comments * the injustice was the failure of the Army to take into consideration his sacrifices and incredible selfless service * the volume and quality of letters of support he received while pending elimination from the Army is clearly indicative of his character * the primary factual basis for the GOMOR being issued and permanently filed was a mistaken conclusion that he had intentionally and willfully violated a lawful order * facts demonstrate the order was not a lawful order and there was no intent to violate any order * the command's decision to initiate and permanently file a GOMOR as well as issue a referred OER was based on the clearly flawed legal assumption that the line in the counseling statement constituted a valid lawful order * the only contact the FSM had with his ex-girlfriend was one telephone call and one text message on the same day * the contact was clearly made based on the mistaken belief that the no-contact order expired after 30 days * this belief was reasonable because the order replaced the military protective order that had a duration of 30 days * also critical is the fact that the FSM had never been informed by his ex-girlfriend that she did not desire further contact or had never been provided a copy of her statement, which would have informed him that she was not comfortable with further contact * if not for a clear legal error by the command that resulted in the unjust targeting of a stellar Soldier, the FSM might still be alive 3. The deceased FSM was serving in the Regular Army in the rank/grade of MAJ/O-4 at the time he received a GOMOR and a referred OER. 4. Counsel submitted copies of the FSM's OERs covering the periods 20 September 2003 through 1 June 2014, showing the FSM was consistently rated "Best Qualified" by his rater. 5. On 7 April 2015, the FSM was issued a DD Form 2873 (Military Protective Order) by CPT Commander, Medical Company, U.S. Army Medical Department Activity, Fort Carson, prohibiting him from contact or communication with CPT The FSM was restrained from initiating any contact or communication with the protected person directly or through a third party. The FSM was ordered to remain at least 200 feet away from CPT, her residence, and her workplace at all times and places. The terms of the order were effective until 7 May 2015 unless sooner rescinded, modified, or extended in writing by the commander. 6. On 8 April 2015, the FSM received developmental counseling from his senior rater, Colonel (COL), Commander, U.S. Army Medical Department Activity, Fort Carson, wherein COL stated: a. He was notified by the Fort Gordon Military Police Investigator of an alleged harassment event between the FSM and another officer, , with whom the FSM had a previous relationship. b. On or about 4-5 April 2015, the FSM traveled to Fort Gordon, GA, with the intent to propose to his ex-girlfriend, CPT After being told no, he pursued CPT to her residence and did not leave when asked. The FSM attempted to re-engage with CPT at her residence multiple times before finally leaving. c. On or about 4-5 April 2015, the FSM exceeded the mileage allowance without being in an approved duty status. The FSM must be in an approved status at all times. d. The FSM was directed to cease and desist all attempts at contacting by any communication means, to decline contact if attempts to contact him, and to report the incident to him or the company commander, CPT e. The FSM agreed with the key points and did not provide remarks. 7. On 9 April 2015, CPT rescinded the military protective order with no further action required. 8. The memorandum for record from CPT Commander, Medical Company, U.S. Army Medical Department Activity, Fort Carson, dated 17 June 2015, subject: Statement of Events, outlines the telephone conversation and meeting between herself and the FSM. a. On 16 June 2015 at approximately 1835, she told the FSM that she needed to meet with him on 17 June 2015 at 0630 at the Medical Company to issue a military protective order. She told the FSM that she was notified by CPT company commander that the FSM attempted to contact CPT. She advised the FSM that she would have to issue a military protective order until the situation could be further addressed and then gave the FSM a direct order not to contact CPT The FSM responded that he didn't realize a no-contact was still in place since it had been several months since the initial counseling. b. On 17 June 2015 at approximately 0630, the FSM entered the Medical Company and proceeded to her office followed by First Sergeant. The FSM indicated his confusion about the current situation, stating he thought the military protective order was only for 30 days. c. She was notified of the FSM's contact by CPT company commander. d. She deferred to the hospital commander for any questions. 9. On 17 June 2015, the FSM received developmental counseling from his senior rater, COL Commander, U.S. Army Medical Department Activity, Fort Carson, wherein COL stated: a. The FSM had been flagged in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) for disobeying a lawful order. b. Continued misconduct might result in nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). Potential adverse actions may include written or oral reprimands, suspension or revocation of the FSM's security clearance, and involuntary elimination from the Army. c. The FSM agreed with the key points and did not provide remarks. 10. On 18 June 2015, the FSM received developmental counseling from his senior rater, COL, Commander, U.S. Army Medical Department Activity, Fort Carson, wherein COL stated: a. On or about 14 June 2015, the FSM violated a direct order issued by him on 8 April 2015 by contacting CPT via text message and also attempting to contact CPT by voice. He specifically directed the FSM to cease and desist any continued contact and to report any contact initiated by CPT to CPT or himself. The direct order was witnessed by Command Sergeant Major b. The FSM's conduct was not commensurate with the Army's expectations of an officer. His conduct is concerning and breaks the bonds of trust. He can no longer be certain the FSM will execute his guidance as specified, but rather interpret his guidance to suit the FSM's personal interests. Further, it is unclear if the FSM is a threat to CPT. He must assume the FSM is a threat to CPT CPT clearly expressed that she is not interested in a relationship or any contact with the FSM. He reiterated that the FSM is not have no contact with CPT by any means, nor present himself to her. The FSM will follow the military protection order issued by CPT on 17 June 2015. c. With regard to the FSM disobeying his order issued on 8 April 2015, he was considering appropriate disciplinary actions and documentation in the FSM's OER. d. The FSM agreed with the key points and did not provide remarks. 11. On 4 August 2015, Major General, Commanding General, Headquarters, 4th Infantry Division and Fort Carson, reprimanded the FSM in writing for failing to obey a lawful general order issued by COL and for violating U.S. Army Medical Department Activity Command Policy Letter Number 7 (Leave and Pass Policy), paragraph 10, both of which are in violation of Article 92, UCMJ. a. On 4 April 2015, the FSM exceeded the mileage allowance by traveling to Fort Gordon, GA, in an attempt to contact CPT. On 8 April 2015, the FSM was given a direct order from COL to cease and desist all attempts at contacting CPT On 14 June 2015, the FSM texted CPT b. These actions seriously compromise the FSM's standing as an officer and are prejudicial to good order and discipline in the U.S. Army. There is no excuse for the FSM's irresponsible behavior. c. This reprimand is imposed under the provisions of Army Regulation 600-37 (Unfavorable Actions) and is not punishment under Article 15, UCMJ. He currently intends to have this reprimand filed in the FSM's Army Military Human Resource Record (AMHRR) unless the FSM submits matters that convince him that such filing is unwarranted. The FSM could submit matters in rebuttal or extenuation or mitigation. The FSM could also seek legal assistance. d. The FSM was directed to acknowledge the reprimand with his signature and indicate whether he wished to submit written matters. Any matters for consideration must be submitted through the FSM's chain of command to the Staff Judge Advocate within 10 calendar days of receipt of the GOMOR. 12. The FSM acknowledged receipt of the GOMOR on 5 August 2015 and indicated he elected to submit written matters within 10 calendar days. He indicated he understood he waived is right to respond if he did not submit written matters within 10 calendar days 13. On 14 August 2015, the FSM submitted a rebuttal statement in response to the GOMOR wherein he stated: a. He took full responsibility and acknowledged that he failed to follow pass/leave procedures by not obtaining approval prior to traveling to Georgia. He never intended to disobey COL. He mistakenly believed COL counseling was merged with the military protective order issued by CPT and its rescission was also by COL authority. There was to be a 30-day cooling off period and he ensured he complied with the condition on liberty (leave or pass) during that time period. He believed the military protective order and the developmental counseling were written as the same condition on liberty to achieve a cooling off period for 30 days. He was given a copy of the military protective order, but he was not offered a copy of COL counseling statement. b. His romantic relationship with CPT lasted 11 months from February until December 2014. He and CPT had telephone conversations in December, January, and February, but she said she did not want to see him. He felt her depression was the result of struggling with a long-distance relationship and desiring a commitment, and the bonds of marriage could influence a change of heart. He made the decision to see her and propose to her in April 2015 on the advice of a friend. She declined, stating his proposal was not genuine and asked him to leave. He reengaged once and then promptly left. c. Prior to attempting contact with CPT in June, he called the Columbia County Clerk of Courts and confirmed there was no civil protection order in effect. His call to CPT was after more than 77 days of no contact. d. He has struggled with not seeing his child regularly since his ex-spouse took their daughter to Germany in 2013. He is working toward having his child returned to his custody and is pursuing a marriage annulment through the church. e. He has been rated in the top block in 8 of 10 total OERs. He was promoted to MAJ below the zone. f. He wants to stay in the Army and serve his country. The facts and circumstances surrounding whether the counseling statement was different from the rescinded military protective order were vague and lacked clarity. He has learned from this experience and he believes he can more effectively coach Soldiers through similar rough patches in careers and personal relationships. He requested rescission of the GOMOR or local filing so he can move forward and do great things for the Army. 14. On 8 October 2015 after considering all available matters, Major General Commanding General, Headquarters, 4th Infantry Division and Fort Carson, directed filing the GOMOR in the FSM's AMHRR. 15. On 8 October 2015, Major General Commanding General, Headquarters, 4th Infantry Division and Fort Carson, notified the FSM in writing of initiation of elimination action, requiring him to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b (Misconduct, Moral or Professional Dereliction, or in the Interests of National Security), and paragraph 4-2c (Derogatory Information). 16. On 14 January 2016, the FSM received a referred OER covering the period 2 June 2014 through 1 June 2015. a. Part IId (This is a referred report, do you wish to make comments?) is marked "Referred" and the FSM marked "Yes, comments are attached." b. In Part IIId1 (Character), his rater entered the comment: "Unfortunately, personal actions have called into question his character with violation of a Command directive." c. In Part VIa (Potential Compared with Officers Senior Rated in Same Grade), his senior rater rated him "Qualified." d. In Part VIc (Comments On Potential), his senior rater entered the following comments: "Although adroit and highly productive, [FSM] deliberately violated a direct order from myself. I rank [FSM] #13 of the 13 Majors I senior rate." 17. On 14 January 2016, the FSM responded to the referred OER covering the period 2 June 2014 through 1 June 2015, requesting reconsideration of his evaluation wherein he stated: a. He took full responsibility for his actions and conduct, yet he could not accept responsibility for something he did not do. He never intentionally disobeyed a direct order and he deeply regretted that his actions led his commander to believe he would have blatantly ignored his command as he had the utmost respect for his leadership and position. b. He was initially given the related military protective order for 30 days in April 2015. He requested rescission of the military protective order out of concern for his security clearance. He received a counseling statement instead and the military protective order was rescinded. The counseling statement did not specify the duration of no contact, a requirement by regulation. The following day he received an email message from his commander stating, "the counseling document remains in place as it achieves the same effect." He interpreted "the same effect" as meaning the counseling statement had the same effect as the 30-day military protective order. Accordingly, he complied with all directives from the military protective order, including the 30 days of no contact. c. It was never his intent to disobey his commander's order. After the alleged violation, which occurred 70-plus days after the order, his commander made his intent clear and he has complied without question. 18. A review of the FSM's AMHRR shows the GOMOR and referred OER are filed in the FSM's performance folder. 19. The FSM was found dead on 31 August 2016 from a self-inflicted gunshot to the head. 20. Counsel provided copies of the FSM's civilian and military education achievements, awards and recommendations for awards, and 11 character reference letters used during the FSM's show-cause proceedings to demonstrate the FSM's exemplary service, sacrifices, incredible selfless service, and prestigious accomplishments. BOARD DISCUSSION: 1. The Board carefully considered the request of the FSM’s parents and counsel, their supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. The Board expresses its condolences and heart-felt sadness at the passing of the parents’ son. 2. The Board carefully reviewed GOMOR and Referred OER with all associated documentation. The Board noted in the case of the GOMOR that the FSM acknowledged that he took full responsibility and acknowledged that he failed to follow pass/leave procedures by not obtaining approval prior to traveling to Georgia. The Board found that the order in the counseling statement is clear on its face and contains no end date. Counsel then argues that FSM did not know that CPT was uncomfortable with further contact once the 30 days had expired. However, she contacted the authorities when he showed up in April 2015 thus leading to the initial MPO. She made it clear to any reasonable person that she did not desire further contact with FSM. In the case of the referred OER, the FSM took full responsibility for his actions and conduct. In both cases, the FSM presented evidence, statements, and character references on his behalf for the decision authorities to consider. The Board noted that the chain of command and the decision authorities considered these in making their decisions. The Board found that both the GOMOR and referred OER were administered in accordance with regulatory requirements. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the FSM’s GOMOR and referred OER and therefore there is no justification for their removal from the FSM’s military records. 3. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 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. 10/19/2020 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. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. 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 memorandum of reprimand may be filed in a Soldier's AMHRR 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 AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy and tasks for the Army's Evaluation Reporting System, including officer, noncommissioned officer, and academic evaluation reports focused on the assessment of performance and potential. a. Paragraph 3-26 (Evaluation of Adverse Actions) states adverse actions encompass a variety of situations that are not in accordance with Army Values, Leadership Requirements Model, and/or good order and discipline, which need to be addressed appropriately in evaluation reports. b. Paragraph 3-27 (Referred DA Form 67-10 Series) states OERs with any negative or derogatory comments contained in Parts IV, V, or VI are referred or adverse reports. Such OERs will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army (HQDA). c. Chapter 4 (Evaluation Report Redress Program) states the Evaluation Report Redress Program consists of several elements at various levels of command. The program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred. 3. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel. a. Paragraph 4-2b (Misconduct, Moral or Professional Dereliction, or in the Interests of National Security) states elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interests of national security, including mismanagement of personal affairs to the discredit of the Army and conduct unbecoming an officer. b. Paragraph 4-2c (Derogatory Information) states elimination action may be or will be initiated for derogatory information. The following reasons (or ones similar) require an officer's record to be reviewed for consideration of terminating appointment. Standing alone, one of these conditions may not support elimination; however, this derogatory information combined with other known deficiencies form a pattern that, when reviewed in conjunction with the officer’s overall record, requires elimination, including adverse information filed in the AMHRR in accordance with Army Regulation 600-37. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. //NOTHING FOLLOWS//