ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 March 2019 DOCKET NUMBER: AR20170003109 APPLICANT REQUESTS: * removal of a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF) * as an alternative, transfer of the GOMOR to the restricted folder of his OMPF * personal appearance before the Board 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) * Legal brief, dated 12 December 2016 * Exhibit A – GOMOR, dated 12 February 2007 * Exhibit B – Department of the Army Suitability Evaluation Board (DASEB) Application, dated 8 October 2008 * Exhibit C – DASEB Decision, dated 5 February 2009 * Exhibit D – Revocation of Security Clearance, dated 18 August 2009 * Exhibit E – Reinstatement of Security Clearance, dated 23 February 2010 * Exhibit F – DA Form 2-1 (Personnel Qualification Record – Part II) * Exhibit G – Orders 193-001, dated 12 July 2002 * Exhibit H – Warranty Deed, dated 16 December 2003 * Exhibit I – Alaska Beneficiary Designation, 6 November 2004 * Exhibit J – Waiver of Homestead Rights, 11 August 2005 * Exhibit K – DA Form 4187 (Personnel Action), 21 September 2005 * Exhibit L – Divorce Decree, dated 4 April 2006 * Exhibit M – DA Form 2058 (State of Legal Residence Certificate), dated 7 June 2006 * Exhibit N – Direct Deposit Form, dated 5 June 2006 * Exhibit O – Internal Revenue Service (IRS) Form W-4, dated 5 June 2006 * Exhibit P – DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA), dated 7 June 2006 * Exhibit Q – DD Form 93 (Record of Emergency Data), dated 13 July and 15 September 2006 * Exhibit R – SGLV-8286 (Servicemembers’ Group Life Insurance Election and Certificate), dated 13 July and 15 September 2006 * Exhibit S – Orders 06-173-00012, dated 22 June 2006 * Exhibit T – Notification of Promotion Status, dated 27 July 2006 * Exhibit U – Permanent Orders 271-9933, dated 28 September 2006 * Exhibit V – Alaska Statutory Quitclaim Deed, dated 16 October 2006 * Exhibit W – DA Form 2823 (Sworn Statement), dated 4 December 2006 * Exhibit X – DA Form 4187, dated 8 October 2006 * Exhibit Y – DA Form 2823, dated 21 December 2006 * Exhibit Z – DA Form 2823, dated 21 December 2006 * Exhibit AA – Memorandum for Record, dated 20 December 2006 * Exhibit BB – Rights Warning Procedure/Waiver Certificate, dated 18 December 2006 * Exhibit CC – DA Form 2823, dated 18 December 2006 * Exhibit DD – U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated 30 January 2007 * Exhibit EE – Memorandum from Inspector General (IG), dated 4 February 2007 * Exhibit FF – GOMOR Rebuttal, dated 2 March 2007 * Exhibit GG – GOMOR Filing Determination, dated 12 March 2007 * Exhibit HH – Rebuttal Response to Intent to Revoke Security Clearance, dated 13 November 2009 * Exhibit II – Payment of Cost of Living Allowance (COLA), dated 2 February 2010, with Military Master Pay Accounting * Exhibit JJ – DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 1 April 2010 * Exhibit KK – Notification of Promotion Review Board Results and Orders B-04- 001748, dated 8 April 2010 * Exhibit LL – excerpt from Joint Federal Travel Regulation (JFTR), chapter 9 * Exhibit MM – excerpt from DA Personnel Policy Guidance * Exhibit NN – Soldier’s Manual and Trainer’s Guide for Human Resources Specialist, military occupational specialist (MOS) 42A * Exhibit OO – excerpt from JFTR, Volume 1, chapter 9 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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. Through counsel, the applicant states: a. The GOMOR is untrue and unjust. The applicant did not attempt to defraud the government by requesting COLA with dependents in Alaska when he was entitled to COLA at the single rate. When he was mobilized in June 2006, he provided finance personnel with all the proper information and forms regarding his marital status and the location of his children residing in Georgia. He provided the appropriate information to verify his home of record as Alaska. In October 2006, the applicant requested an entitlement pursuant to his mobilization orders. b. Human Resources and Finance personnel at Bagram were not familiar with the regulations regarding COLA, with and without dependents, and it took almost a month to get them to process his request for COLA. The applicant’s unit commander didn’t believe that he was entitled to COLA and would not approve any type of COLA pending an IG Inquiry. Shortly thereafter, the applicant received the GOMOR. c. The applicant endured the suspension of his security clearance for several years before it was finally reinstated. His promotion was delayed for several years until the U.S. Army Human Resources Command (HRC) finally determined he should be promoted. He was entitled to COLA but was not paid for almost nine months. He endured the financial hardship of being denied over $10,000.00 in COLA for which he was entitled pursuant to the applicable regulations. 3. Having had prior enlisted service, the applicant was appointed as a Reserve warrant officer of the Army on 27 February 1992, in the rank of warrant officer one (WO1). 4. The applicant was appointed as a National Guard officer in the State of Alaska, on 12 July 2002, in the rank of chief warrant officer three (CW3). 5. A CID investigation, dated 30 January 2007, determined sufficient evidence was available to prosecute the applicant for the offense of attempted larceny of government funds (fraud) and making a false statement. The investigation was terminated, as an additional investigation would produce only cumulative and unneeded evidence. It noted that the commander’s report of disciplinary or administrative action was pending. 6. The applicant received a GOMOR on 12 February 2007, which stated: a. The applicant was reprimanded for repeatedly attempting to defraud the U.S. Government by requesting COLA with dependents in Alaska between 7 October and 28 November 2006, when he was entitled to COLA at the single rate. b. As a warrant officer with over 20 years of experience in the Army, it was his duty to convey accurate information to the Soldiers processing his COLA request. By not doing so, his actions demonstrated his intent to defraud the government. Clearly, his actions fell below the minimum standards expected of a senior warrant officer in the Army. c. The GOMOR was administratively imposed and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). The imposing official stated he intended to direct that the reprimand be filed in the applicant’s OMPF; however, prior to making his filing decision, he would consider any matters presented within 7 days of the date of the GOMOR. 7. Through counsel, the applicant submitted a rebuttal, dated 2 March 2007, wherein he stated, in pertinent part: a. It is imperative the command is objective, impartial, and not tainted by previous actions. In this case, the motives of major (MAJ) XXXX are questioned in pursuing this matter. The applicant believes that when MAJ XXXX failed to have the applicant relieved for cause, the wheels were set in motion for this adverse action. As evidence, the applicant attached his most recent officer evaluation report (OER) prior to his service with MAJ XXXX This OER clearly portrays an outstanding Soldier and is directly contrary to the picture of the applicant. It is incomprehensible to believe the applicant is being held to a standard of knowing and understanding the finance regulations and forms exceeding that of MAJ XXXX when it is apparent MAJ XXXX misrepresented his marital status, did not give false information to any question asked, and was not informed as to the meaning and effect of the DA Form 4187 to include the requirements for an acceptable COLA claim. b. The CID investigator presumably objective in his inquiry centered his aim on the material relevant questions of sergeant (SGT) XXXX, who corroborated the applicant’s explanation of his conduct. SGT XXXX confirmed that the applicant did not fill out the DA Form 4187, she acknowledged that he never represented he was married, she further confirmed she never even asked whether he was married, and the applicant never represented that “his wife” (former wife?) and children lived in Alaska. All of the answers to the questions asked by SGT XXXX, typed by SGT XXXX, and signed by the applicant are true and correct. It is incredulous to assume to the detriment of the applicant that when he stated he had three dependents that he was representing he had a wife and two children in light of all of the information and documentation in the possession of the government to the contrary. That is the reason the CID investigator went back to SGT XXXX to confirm her statements and the corroboration of the applicant’s statements. c. It is evident the applicant brought scrutiny to his actions because of the attitude he displayed. For that he is already paying a heavy price and is regretful having forgotten that how you treat the finance clerks determines how they treat you. However, a demanding demeanor and offensive personality, if present, does not warrant this reprimand and the ensuing consequences. Notwithstanding his demeanor, the applicant was nonetheless truthful with SGT XXXX and she confirmed that to CID. The reprimand is unwarranted and not supported by the evidence presented. 8. Following recommendation by the applicant's chain of command, on 12 March 2007, the imposing officer directed the GOMOR be filed in the applicants OMPF. 9. Through counsel, the applicant requested the DASEB remove/transfer the GOMOR from his OMPF. The DASEB denied the applicant's request on 15 January 2009. 10. The applicant provides: a. A State of Georgia, Final Judgement and Decree, dated 6 April 2004, wherein the applicant was awarded joint custody of his three minor children, with the children’s mother being the primary physical custodian. b. A DA Form 5960, dated 7 June 2006, which shows the applicant’s marital status as divorced and his three dependent children resided in Georgia. c. Sworn statements, obtained during his CID investigation. d. Orders B-04-001748, issued by HRC on 8 April 2010, which promoted him in the U.S. Army Reserve (USAR) to the rank of chief warrant officer 4 (CW4), effective 15 January 2009. e. An excerpt from the JFTR, chapter 9, which notes: For COLA/temporary living allowance (TLA) purpose a member paying child support is a member without dependents unless the member has command-sponsored dependents at the permanent duty station other than the dependents on whose behalf the member is paying child- support. 11. The applicant was transferred to USAR Control Group (Retired Reserve) on 5 February 2014. 12. A review of the performance folder of the applicant's OMPF revealed the GOMOR with associated documents. 13. Army Regulation 600-37 (Unfavorable Information), dated 19 December 1986, is the governing regulation for this issue. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board concluded the applicant presented no evidence to demonstrate the existence of a probable error or injustice. Therefore, the Board found by the totality of the circumstances that there were insufficient bases for correction of the records of the individual concerned. 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. SIGNATURE: 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 DASEB. 3. 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. ABCMR Record of Proceedings (cont) AR20170003109 7 1