BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20170003374 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: 16 May 2017 DOCKET NUMBER: AR20170003374 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: 16 May 2017 DOCKET NUMBER: AR20170003374 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 reversal of his involuntary separation in accordance with Army Directive 2016-33 (Special Board Review of Approved Qualitative Management Program (QMP) Board Recommendations). 2. The applicant states, in effect: a. He is requesting reconsideration of the QMP decision, dated 29 February 2016, involuntarily separating him in March 2017. b. He was denied continued service by the U.S. Army Human Resources Command (HRC) and he has exhausted all appeals. As the Board can see from the enclosed documents, he received a General Officer Memorandum of Reprimand (GOMOR) for falsifying a jump log, and the GOMOR was filed in the permanent folder of his official military personnel file (OMPF). c. He requests reconsideration, as he was not counseled in writing pursuant to Military Personnel Message 15-394 (Procedures for the Fiscal Year 2016 QMP). If he had been counseled, he would have known that he had access to legal assistance to help him rebut the GOMOR. He believes counsel would have helped him get the GOMOR withdrawn or locally filed. The only evidence against him was a statement he made which was taken out of context and the false accusation of another Soldier, even though that Soldier and others had false jump log entries that he corrected. 3. The applicant provides: * Memorandum, dated 29 February 2016, subject: Department of the Army Notification of Potential Denial of Continued Active Duty Service under the QMP * Memorandum, dated 5 September 2018, subject: Appeal of Decision to Deny Continued Service Under the QMP * Memorandum, dated 17 November 2016, subject: Appeal of Involuntary Separation under the QMP. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 23 August 2004. He served through multiple reenlistments in a variety of stateside or overseas assignments, in military occupational specialty 12B (Combat Engineer) and he holds the rank/grade of sergeant first class (SFC)/E-7. 2. He was assigned to Headquarters and Headquarters Company, 37th Brigade Engineer Battalion, 2nd Brigade Combat Team, 82nd Airborne Division, Fort Bragg, as the Assistant Operations Sergeant and Battalion Air Noncommissioned Officer (NCO). 3. On 16 July 2005, an investigating officer (IO) conducted an investigation into allegations of the applicant making fraudulent jump log entries. a. The IO found the applicant entered a jump on another Soldier's (Specialist M) jump log to prevent him from having to repay his last 3 months of jump pay. The other Soldier (Specialist M) only mentioned the false log entry after his unit first sergeant noticed the discrepancy and questioned him about it. Additionally, the IO found that another SFC (other than the applicant) knowingly entered a false jump onto his own jump log, and the applicant initialed the jump log during a routine audit despite the fact that there was no jump on that date. The IO concluded that the applicant attempted to defraud the government and ignore the need for jumper proficiency. b. The IO recommended the applicant be de-certified as a jumpmaster immediately, that he be flagged, and that he receive a GOMOR. The IO also made other recommendations. 4. On 6 October 2015, the Commanding General (CG), 82nd Airborne Division (Rear), Fort Bragg, reprimanded the applicant for misconduct. The GOMOR shows the CG stated: a. The applicant was being reprimanded for making a false entry on other Soldiers' jump logs. The facts showed the applicant made a false jump entry on another Soldier's jump log for a jump he did not complete so that Soldier would not have to repay three months of jump pay. During the investigation it was determined that the applicant initialed, as the personnel officer, for a jump on the day prior to the reported day of the jump that subsequently did not occur. The applicant’s actions were unacceptable and would not be tolerated. b. As an NCO, the applicant was entrusted with important responsibilities. He was expected to carry out his responsibilities with sound judgment, strong values, and unwavering professionalism. He failed to live up to these expectations, and he (the CG) was truly disappointed in the applicant's decision. All NCOs must live the Army values. The applicant’s decision to falsely notate a jump on a Soldier's jump log so that Soldier would not have to repay three months of jump pay and initial another Soldier's jump without proper documentation showing the jump occurred were clearly inconsistent with Army values and his role as a leader. c. This was an administrative action and not punishment under the Uniform Code of Military Justice. The CG stated he was considering filing this reprimand in the applicant's OMPF. However, he would consider any written matters submitted in response to this reprimand, together with the recommendations of the applicant’s chain of command, before making a decision. This reprimand was referred to the applicant in accordance with Army Regulation (AR) 600-37 (Unfavorable Information), paragraph 3-6, for information and the opportunity for response. The applicant was to acknowledge receipt of the memorandum by signing and dating an enclosed acknowledgment form and returning all written responses, if any, to his respective brigade legal office within seven calendar days from the date he received the reprimand. 5. On 26 October 2015, the applicant acknowledged receipt of the GOMOR and submitted a statement with multiple character reference statements and/or statements of support. The applicant stated: * he demonstrated poor judgment and made a bad decision that reflected poorly on his unit and himself * he added a jump to the specialist's log thinking the Soldier had exited the aircraft during the time * he acknowledged making a mistake and offered no excuse for the oversight; however, he "did not willingly annotate jumps on the jump logs" * this was an isolated incident and not a pattern of misconduct or poor performance * he did not believe the actions accurately reflected his professionalism, commitment to the Army, or potential for future contributions * he regretted having failed to live up to the standards expected of an NCO and he learned a valuable lesson 6. His company, battalion, and brigade commander all recommended the GOMOR be filed permanently in the applicant's official records. His battalion commander opined that: a. The applicant's "severe lapse of judgment in knowingly forging and mishandling log records on two separate occasions (that we know of) is both unacceptable and demonstrates unscrupulous behavior contradictory to the Army Values and our Code of Ethics." b. The applicant's actions tarnished the one shop within the battalion headquarters that needed to be fully transparent and infallible in the context of the two recent airborne related casualties they had sustained. Since his departure from the shop and new leadership within, the S-3 air shop had improved in orders of magnitude in both handling administrative matters and producing/maintaining current/qualified jumpmasters within their formation. Additionally, the applicant's undisciplined and unethical behavior had manifested itself in other ways through his alcohol abuse. 7. On 5 November 2015, after careful consideration of the applicant's case, his rebuttal, the chain of command's recommendations, and the statements he submitted with his rebuttal, the CG ordered the filing of the GOMOR in the performance folder of his OMPF. 8. Meanwhile, on 1 November 2015, the applicant received a change of rater NCO Evaluation Report (NCOER) covering 8 months of rated time from 1 March through 1 November 2015 for his duties as the Assistant Operations Sergeant. His rater was First Lieutenant JHD, the S-3 Air Operations. His senior rater was Captain MBC, the Battalion S-3, and his reviewer was Lieutenant Colonel SAP, the Battalion Commander. This NCOER shows in: a. Part IVa (Army Values), the rater placed an "X" in the "No" block for "Integrity" and entered supporting bullet comments that state: * unparalleled dedication to mission accomplishment * failed to set the example of doing what is right for his peers and subordinates * did not exhibit the standards of integrity and personal behavior b. Part IVb (Competence), Part IVc (Physical Fitness and Military Bearing), Part IVe (Training), and Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" or "Excellence" blocks and entered corresponding bullet comments. c. Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered supporting bullet comments that stated: * displayed questionable leadership ability; failed to set the example for peers and subordinates through conduct inconsistent with Army values * sacrificed countless hours of personal time to progress the Battalion's Jumpmasters; performed duties on short notice to ensure execution of multiple airborne operations * expressed the utmost respect for [Sexual Harassment/Assault Response and Prevention Program] through the constant counseling and mentorship of his Soldiers; resulted in zero [serious incident reports] or [critical commander's incident reports] d. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Fully Capable" block. e. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Successful/3" block and in Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Superior/2" block. f. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * select for [master sergeant] with peers * send to battle staff * performance is sometimes above average but erratic and undependable * potential to serve in positions of greater responsibility 9. The rater and senior rater signed the NCOER and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place. The applicant also signed it. 10. On 29 February 2016, by letter, the applicant was notified the QMP Board would convene on 1 June 2016 and his records would be considered. 11. On 5 September 2016, the applicant submitted an appeal. He recounted his military service, listed his awards and decorations, explained his domestic situation (son's illness), and requested to be retained. 12. On 17 November 2016, HRC denied his request because it did not meet the criteria set forth in AR 635-200 (Active Duty Enlisted Administrative Separations). 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 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 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, 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 portion of her 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 section of the OMPF unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board 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; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 4. Army Directives prescribe Army policy for QMP. Soldiers are considered for QMP if HRC has received such actions as a GOMOR and/or poor ratings on an NCOER. This is true whether the document is filed in the performance or restricted folder of the Soldier's OMPF. 5. AR 635-200, 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 appeals 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 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 appeals 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, a senior NCO, was assigned as the Battalion Air NCO when he was investigated for entering fraudulent jump log entries. The IO found sufficient evidence to confirm the allegations. His actions were found to be in direct violation of Army values. As a result, the applicant was reprimanded and he received an NCOER that included a "no" box check for integrity and a "Needs Improvement (Some)" box check for leadership. 2. He was provided an opportunity to submit matters on his own behalf and he did so. In his rebuttal statements, he indicated he had made mistakes. The imposing CG considered the facts and circumstances of his case, as well as his rebuttal, and ordered the GOMOR filed in the performance folder of his OMPF, where it is currently filed. 3. Once the GOMOR was filed in his OMPF, it became a permanent part of his record that will not be removed unless directed by certain agencies, to include this Board. The basis for removal would be evidence of a clear and convincing nature showing the GOMOR is untrue or unjust, in whole or in part. 4. As a result of the negative information in his OMPF, the applicant was referred for consideration by the QMP board, which determined he should not be retained. His referral was not in error, nor does the evidence, as constituted, show error or injustice in the QMP board's decision. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170003374 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170003374 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2