ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 September 2019 DOCKET NUMBER: AR20170005904 APPLICANT REQUESTS: removal of a General Officer Memorandum of Reprimand (GOMOR) from his official military personnel file (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 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. The applicant defers requests and statements to counsel and provides no additional evidence. 3. Counsel states: a. This rebuttal will provide an overwhelming amount of evidence that clearly and convincingly rebuts the allegations against the applicant contained in the Commanding General’s (CG) 23 July 2013 GOMOR. This rebuttal will expose the absence of evidence against the applicant that was revealed by the investigations that lead to the allegations in this GOMOR. It will also reveal how the investigative teams struggled to corroborate the allegations against the applicant and realized as the investigation progressed that those allegations were tainted by inconsistency and unreliability. b. The admittedly unsubstantiated and inaccurate claims of Sergeant (SGT) X_. have haunted the innocence of the applicant for nearly 4 years. It will be shown that both investigative teams – the applicant’s 2009 investigation and the 2013 investigation – conceded there is no direct evidence showing a physical relationship existed between the applicant, currently holding the rank of First Sergeant and SGT X_. Further, SGT X_”s allegations against the applicant were described by the investigative team as inconsistent, lacking corroborating evidence, and even distorted and magnified. c. In addition, it will be shown that, at the time SGT X_. alleged she was in a sexual relationship with the applicant, she was actually in a relationship with Sergeant First Class (SFC) X_. However, SGT X_. failed to disclose her relationship with SFC X_. during the 2009 investigation which calls into question the veracity of her claim against the applicant. In addition, it will be shown that the applicant did not show favoritism to SGT X_., given the perception of impropriety, or engage in a relationship that otherwise had an adverse impact on the disciplined, authority, moral, and ability of the command to accomplish its mission. Instead, this rebuttal will show that SGT X_. relationship with SFC XX____. did in fact have an adverse impact on the MDARNG Recruiting and Retention Battalion (RRB). This will be shown by witness statements attesting to the disruption that SGT X____'s personal life caused while on duty. d. Finally, it will be shown that the applicant did not misuse his government vehicle or his government cell phone. At the time it is alleged the applicant misused his government phone, the MDARNG RRB was increasing their size by eighty new recruiters. The applicant was promoted and spent a great deal of his time on his government phone answering questions from new recruiters. These calls were often taken early in_ the morning and at late hours of the evening. e. On 28 February 2013, Major General X_. X_. X_., MDARNG, requested a Complex Investigation Program Investigator to investigate claims of an unrestricted sexual assault in the MDARNG RRB which allegedly took place in 2009. The request stemmed from claims originally made by a SGT recruiter in the MDARNG assigned to the RRB in 2009. More specifically, the claims were made by SGT X____. against her superior, the applicant and surrounded behavior alleged to have occurred between August 2008 and October 2009. The RRB Executive Officer at the time, Major (MAJ) X_., was appointed to the role of Investigative Officer (IO) by Lieutenant Colonel (LTC) X_., who was Battalion Commander of the RRB at the time. f. LTC X_. recalled during time he requested the investigation into SGT X_’s claims, the RRB of the MDARNG was in the process of a large scale change. At the time, the MDARNG RRB was ranked 52nd in the nation among recruiting and retention. As a result, the MDARNG added "80 street recruiters consisting of a mix of AGR, ADOS, and temporary technicians" in order to increase national rank. SGT X_. was one of the additions during this push and was assigned to the MDARNG RRB shortly after completing recruiting school at Fort Robinson in August of 2008. During this time of the MDARNG's RRB rapid expansion, LTC X_. stated that the applicant was "one of the most successful recruiters" in the MDARNG and referred to him as a "superstar." g. As a result, LTC X_. recalled making the applicant either actual or acting First Sergeant "to help grow his supervisory skills" in addition to the leadership skills he already possessed. As NCO In Charge (NCOIC), the applicant oversaw a team of recruiters in which SGT X_. was primarily assigned. He was performing dual roles during this time period, acting as a trainer for his team and also filling the much-needed role of recruiter. LTC X_. credited the applicant’s team as "the top producer during the time this push occurred to increase ... [the MDARNG national ranking'' from 52nd to 2nd in recruiting and retention. h. As a result of his dedication and tireless effort, the applicant was awarded the Master 7 honor at the RRB awards ceremony in late 2009, which is an award given to the top NCOIC in the state. Due to the outstanding results of his team, SGT X_. was also recognized during the awards ceremony with the Chief's 54 award; an honor bestowed on the top recruiter in the state. According to SGT X_. it was after the RRB awards banquet that she "could not take it anymore" and decided to come forth with her allegations against the applicant. i. LTC X_. recalled that SGT X_. brought allegations involving "some sort of relationship" she was having with the applicant which she indicated was "not consensual." After being appointed as the IO by LTC X_. on 9 November 2009, MAJ X_, began his investigation into SGT X_'s claims and also any "sexual misconduct" or "general misconduct'' committed by the applicant. The command further tasked MAJ X_. with examining any "inappropriate relationships" within the MDARNG, focusing on the RRB. j. MAJ X_’s 2009 investigation began on 9 November and consisted of both in­ person interviewing and a review of telephone records between SGT X_. and the applicant. Review of the phone records showed a large volume of calls between SGT X_. and the applicant with numerous calls between the hours of 0100 - 0600 that ranged from a few minutes to one half hour. In the face-to-face interview with MAJ X_., SGT X_. alleged the applicant’s misconduct first began at "recruiting school" in August to September of 2008. She reported that during recruiting school he began to verbally "make advances." and while intoxicated one evening he banged on her room door asking to "cuddle." She alleged she informed Staff Sergeant (SSG) X_. X_. of this behavior and asked SSG X____. to act as her ''battle buddy" during recruiting school because she was scared of the applicant. k. However, MAJ X_. recounted that during his 2009 investigation, he was unable to find a single corroborating witness to confirm SGT DX's above allegations occurring during recruiting school. After recruiting school, SGT _. alleged more incidents occurred once she was assigned to the applicant’s team in the MDARNG RRB. First, she claimed that on 31 May 2009, the applicant kissed, or attempted to kiss her while on a recruiting trip to visit a foster home. She claimed that while working together in the RRB, he drove for "hours" from where he lived to visit her at her home on several occasions. She claimed that her daughter witnessed these visits. However, when MAJ X_. attempted to obtain a witness statement from her daughter, SGT X_. would not allow it. Further, she claimed that on 1 June 2009, the applicant drove to her home in Fort Meade between the hours of 2200-2300 and the two had sexual intercourse. She did not allege threat of force, violence, or physical coercion on the part of the applicant during this encounter, but she stated she "went along with it because she thought by not doing so, she may jeopardize her job. l. In July of 2009, SGT X_. learned that she was pregnant. She claimed that after learning of her pregnancy, the applicant encouraged her to have an abortion. She alleged that she complied with him because he insisted an abortion would be best for her career at the time; and he also reimbursed her for the cost because the child was allegedly conceived during their 1 June 2009 sexual encounter. Notably, SFC X_., also a recruiter in the MDARNG and assigned to RRB, was in romantic a relationship with SGT X_. for a few months during the summer and fall of 2009. She failed to tell MAJ X_. of her relationship with SFC X_. during his 2009 investigation and continued to allege her pregnancy was caused by the applicant. m. After weighing all the evidence gathered during his investigation, MAJ X_. concluded that SGT X_'s claims of sexual assault were unsubstantiated. In finding that her claims related to 1 June 2009 unsubstantiated, MAJ X_. relied on the fact that "at no point during [the] investigation did he note that he asked her for any correspondence or text messages that would support her claims regarding the sexual encounter and subsequent abortion; but SGT X_. did not provide any evidence "supporting any of the incidents or contacts between her and the applicant for his investigation." It is noteworthy that in the 2013 investigation, SGT X____. reported entirely new allegations allegedly occurring at the RRB awards banquet on 26 and 27 September 2009. She failed to mention any incidents occurring that night during MAJ X____'s 2009 investigation. n. Although MAJ X____. found the applicant and SGT X____. did not have a physical or sexual relationship, he concluded that an inappropriate ''business" relationship existed. As a result of his findings, MAJ X____. recommended in his investigative report that the applicant and SGT X____. be separated from one another. Nearly 4 years later, the investigation requested by Major General A_. on 28 February 2013 again surrounded the same claims made in 2009 as investigated by MAJ X____. However, MAJ X____. 2009 investigative record, which exonerated the applicant of the allegations made by SGT X____. had been destroyed. Therefore, the 2013 investigative team did not have access to the evidence relied upon by MAJ X____. in arriving at the conclusion that SGT X____'s allegations were unsubstantiated. o. Despite numerous inconsistencies in SGT X____'s claims, recognized by both the 2009 investigation and again in the 2013 investigation, both investigative teams diligently and professionally pursued the claims made by her. In the end, both investigations, although nearly 4 years apart, came to identical conclusions regarding SGT X____'s sexual assault claims and that they were unsubstantiated. The "Findings" of the February 2013 investigation further stated: Though the specific allegations of sexual assault occurred when the victim and accused were alone, the victim's reports of the allegations warranting this investigation have been inconsistent with each other and with the physical and testimonial evidence upon which the investigation team relied. Every attempt was made by this team to attempt to corroborate the allegations made by the victim, yet no evidence could be found, was produced or was known to exist which could be seen as collaboration of the victim's allegations of sexual assault. Attempts by the prior investigative officer and this investigating team to obtain text messages, phone records, or other information which might have been in the possession of [SGT X____.] proved unsuccessful. p. SGT X____'s claim related to oral sex in an elevator at the RRB awards banquet was not alleged in MAJ X____'s 2009 investigation. Rather, that claim is an entirely new allegation. SGT X____. s did not state why this claim was not brought in 2009 when she had the opportunity to report that conduct to MAJ X____. during his prior investigation. The 2013 investigative team went on to find, "[i]t became clear as the investigation continued that the victim's recitation of the events conflicted with that of other witnesses and of the documentary evidence, which produced a different picture of events in question." The IO’s stated that those contradictions and inconsistencies did not mean "that the team concluded the victim was not telling the truth, but the victim's version of the events appear distorted or even magnified based on her memory of the events as influenced by her current circumstances, situations and interactions. q. Although SGT X____'s claims of sexual assault were unsubstantiated, the team found the applicant and her "were involved in an inappropriate professional relationship more consistent with military fraternization and adultery than sexual assault." Ultimately, the 2013 IO’s concluded that the evidence established by a preponderance of the evidence that the applicant engaged in adultery, fraternization, inappropriate relationship with a subordinate, misuse of a government vehicle, and misuse of government equipment. In arriving at that conclusion, the investigative team relied heavily on circumstantial evidence including: (1) the volume of phone calls between the applicant and SGT X____. The team believed that the applicant had an inappropriate relationship with her; therefore, he treated her more favorably than other members of his recruiting team. Specifically, the team relied on her success as a first year recruiter to find the applicant "fed" her recruiting leads; thereby showing favoritism which "compromised the chain of command and produced the appearance impropriety and partiality." Based on the above findings, the 2013 IO’s recommendation was that, "leadership review the applicant’s behavior for potential administrative action." r. Based on the investigative findings, the CG issued a GOMOR. SGT X____’s . allegations regarding her relationship with the applicant should not be weighed as competent evidence because those claims were recognized by both investigative teams as being contradictory and inconsistent with the investigative record and with other witness statements. In addition to the absence of outside evidence supporting SGT X____'s claims, the team also found inconsistencies throughout SGT X____'s own statements. She reported in the 2013 investigation that the applicant pursued her during recruiting school to the extent that she "felt scared" and approached SSG X____. to be her "battle buddy." However, SSG X____. revealed those accusations are entirely untrue. SSG X____. stated in his witness interview that SGT X____. never approached him about being scared of the applicant and never asked him to escort her places during recruiting school or to be her ''battle buddy." s. SSG X____. witness statement also proves the applicant never pounded on SGT X____'s door while intoxicated during recruiting school as claimed. did "stop by her room on one occasion;" however, SSG X____'s witness statement shows this occasion was not as SGT X____. led the IOs in each investigation to believe. Therefore, SGT X____. erroneously claimed the applicant pursued her for romantic reasons during recruiting school and then fabricated a story about seeking the assistance of SSG X____. It is apparent by the facts and findings above that SGT X____'s claims of sexual assault have been internally contradictory since they were first brought in 2009. It is also apparent that the investigative teams were tasked with the difficulty of trying to corroborate such claims made by her – but simply could not do so. Without corroborating evidence, the IO’s were forced to rely nearly exclusively on the testimony of SGT X____. – which admittedly contained "significant'' differences, contradictions, and inconsistencies. t. The investigative team conceded that her testimony contained internal contradictions and inconsistency and described her allegations as follows: "[T]he victim's reports of the allegations warranting this investigation have been inconsistent with each other and with the physical and testimonial evidence upon which the investigation team relied. Every attempt was made by this team to attempt to corroborate the allegations made by the victim, yet no evidence could be found, was produced or was known to exist which could be seen as collaboration of the victim's allegations. Based on the totality of interviews, and evidence gathered, at the conclusion of the 2013 investigation, the IO stated the following: "[SGT X___] earned a reputation for being a woman with a lot of 'drama' in her life which coworkers reported spilled over into her work environment. The drama involved her children, her love life, and a potential new business venture. This is consistent with the investigator's observations during the victim's interview as, at times, her emotions appeared to be disproportionate for the issues being discussed. As stated, the victim's recitation of the events conflicted with that of other witnesses and of the documentary evidence, which produced a different picture of the events in question. This does not mean that the team concluded the victim was not telling the truth, but the victim's version of the events appear distorted or even magnified based on her memory of the events as influenced by her current circumstances, situations, and interactions." u. Despite acknowledging the inconsistency within SGT X____'s claims, the 2013 investigative team used those claims to find that the applicant committed adultery, fraternization, and had an inappropriate relationship with a subordinate. However, with no evidence corroborating the allegations, the team's findings are premised solely on the unreliable statements of SGT X____. The harm caused by relying on her inaccurate claims is not cured simply by using her statements to support offenses less serious than sexual assault. Relying on her testimony to find misconduct by the applicant is harmful due to the outright inaccuracy of her statements. Therefore, her testimony should not be considered competent evidence for any investigative finding. v. In conclusion, because the IO’s premised their finding of adultery, fraternization, inappropriate relationship with a subordinate largely on SGT X____'s unreliable testimony, the accuracy and validity of those findings is severely compromised. As such, counsel asks that that the reprimand resulting from such findings not be filed in the applicant’s OMPF. Both the 2009 and 2013 investigations found no evidence to support her claim of a physical relationship with the applicant; therefore, any finding that adultery or an inappropriate professional relationship occurred is unfounded and inaccurate. w. The 2013 investigative team ultimately found that "a sexual relationship constituting adultery did occur'' between the applicant and SGT X____. However, this conclusion is not supported by the evidence of record – a fact which the IO’s conducting the 2013 investigation readily admitted in their "Findings." Specifically, the 2013 IO’s noted, "there is no direct evidence that that applicant, a married service member during all times relevant to this investigation, had a physical and/or sexual relationship with SG X____. Despite a lack of evidence, the finding of adultery was based on the conclusion that, "there is enough circumstantial evidence to conclude that such a sexual relationship constituting adultery did occur." The "circumstantial evidence" referred to was her pregnancy and abortion. The team cited her pregnancy as substantiating the allegations against the applicant of adultery, fraternization, and inappropriate relationship with a subordinate. However, the fact that she became pregnant in 2009 has no relationship to the applicant’s behavior. x. During the 2013 investigation, the only corroborated evidence of a sexual relationship with SGT X____. came from SFC X____. Her relationship with SFC X____. was confirmed in witness statements by both SGT X____. and also by SFC X____. during the 2013 investigation; and was noted by the 2013 IO’s. SFC X____. testified that not only did he have sex with SGT X____., but the two were in a romantic relationship for a period of time during the summer/fall of 2009, which he described as "hot and heavy." Notably, the time during which they were romantically involved was the same time period that she was making allegations against the applicant. Casting even more doubt on the existence of a physical relationship with the applicant is the dishonesty of SGT X____. throughout both investigations. She chose not to tell MAJ X____. during his 2009 investigation that that she had a romantic relationship SFC X____. y. The 2013 IO’s conclusion that her abortion supports a finding of adultery, fraternization, and inappropriate relationship with a subordinate is not supported by the evidence. The team found that the applicant was worried about her pregnancy being discovered; and therefore, he encouraged her to abort the child and ultimately reimburse her for the cost. The 2013 investigative team stated "it appears the applicant attempted to keep ... [her] from telling anyone about this inappropriate relationship. The allegations claimed that the applicant reimbursed her by passing an envelope filled with money to a fellow recruiter who then relayed the envelope to her. This allegation is exposed by the lack of corroborating evidence and the fellow recruiter's testimony. SGT R_. stated that the applicant never gave him an envelope with instructions to pass to SGT X____. Further, the investigative record is absent of any bank record, account statement, or deposit that supports her accusations. z. In addition, the fact that she had an abortion does not lend itself to showing that the applicant impregnated her or had any type of physical relationship with her. Instead, it shows only that she was sexually active. As noted above, the evidence does in fact corroborate a finding that she was sexually active during the relevant time period in 2009. However, her sexual activity was with SFC X____., who admitted that he had sex and a romantic relationship with her. Because the investigative record is void of evidence showing the applicant had a physical relationship with SGT X____. – and considering corroborated evidence shows SFC X____. had a sexual relationship with her during the relevant time in 2009 the findings of adultery, fraternization, and inappropriate behavior with a subordinate against the applicant are not supported by evidence. As such, counsel asks that the reprimand resulting from those findings not be filed in the applicant’s OMPF. aa. The applicant did not misuse his government vehicle or cell phone and such allegations are based solely upon unwarranted inferences made by the investigative team. He also did not misuse his government phone. During the time that he is accused of misusing his government phone, the MDARNG was in the process of adding "80 street recruiters in order increase national rank in recruiting and retention. The increase in manpower within the RRB in 2009, and new supervisory responsibilities, dictated that the applicant had to spend more time mentoring new recruiters. To use frequent phone conversations with those recruiters to support an allegation of an improper relationship ignores that it was his job to be a mentor to his team. It also disregards the type of Soldier and recruiter he was, and is today. Considering the opinions of LTC X____ and Command Sergeant Major X_., it is more reasonable to infer that frequent phone calls to the applicant, from his own recruiting team nonetheless, were related to the large scale 2009 recruitment push and not for some other illegitimate purpose. bb. The sole evidence supporting the investigative finding that the applicant misused his government vehicle is the unsupported claims of SGT X____. Specifically, she alleged that the applicant drove to her home in Fort Meade on several occasions using his government vehicle. As noted, her regarding the events at issue in 2009 were already deemed inconsistent by both the 2009 and 2013 investigative teams; and were not reliable enough to substantiate her original allegations. Therefore, without any corroborating evidence, those same unsupported statements should not be allowed to substantiate a finding of misuse of government vehicle. In conclusion, because the investigative record does not support findings of misuse of government property – including both the applicant vehicle and cell phone, they would respectfully ask that no further administrative action be taken against the applicant and that the reprimand resulting from those findings not be filed in his OMPF. cc. Finally, the investigative findings that the applicant misused government property is based on unreasonable inferences made by the investigative team and erroneously buttressed by the unreliable testimony of SGT X____. As mentioned throughout this rebuttal, such evidence should not be used to support the allegations against him because it undermines the truth-determining process that is the essence of investigating. Relying on such evidence also strips the applicant of the opportunity to be adjudged by competent and reliable direct evidence. At numerous points in the investigative record he was referred to by his subordinates, peers, and superiors as both professional and motivated. Such leadership qualities are an asset the MDARNG and are a testament to his character. He is a dedicated and valuable asset to the MDARNG. He has continued his commendable service despite the allegations against him. Therefore, based on all of the above matters and considerations, counsel requests any letter of reprimand relating to the above matters not be filed in his OMPF. 4. Counsel provides the following: * MAJ X____’s Written Interview Summation * GOMOR * GOMOR filing determination 5. Review of the applicant’s service record shows: a. Having prior ARNG enlisted service, he reenlisted in the Kentucky ANRG on 10 October 1994. He interstate transferred to the MDARNG on 25 July 2000. He was awarded military occupational specialty 79T (Recruiting and Retention Noncommissioned Officer (NCO) on 15 September 2004. He was promoted to the rank/pay grade of Master Sergeant/E-8 on 7 November 2008. b. He entered active duty in an Active Guard Reserve (AGR) status on 15 August 2012. c. A Findings of Investigation memorandum, dated 27 June 2013, stated on 28 February 2013, an investigation was requested pursuant to CNGBM 0400.01 regarding an unrestricted report of sexual assault by a member of the Maryland ARNG (MDARNG) that reportedly took place in 2009. The victim, a female MDARNG recruiter on AGR status reported assault, indicated she had been kissed and had "sex" with her supervisor, the applicant, who was also in an AGR status. The victim initially made a report with the Maryland Sexual Assault Response Coordinator (SARC) sometime in 2009. A commander's inquiry into this matter was initiated by the Recruiting and Retention Battalion Commander on 9 November 2009. However, the final report of this commander's inquiry has since been destroyed and was therefore unavailable to this investigation team. The investigators determined, by the preponderance of the evidence, the unrestricted report of sexual assault was not substantiated. It was recommended the initial findings by the investigating officer and his team that the perpetrator and victim were involved in an inappropriate professional relationship more consistent with military fraternization and adultery than sexual assault be reinforced. d. On 23 July 2013, he was issued a GOMOR for engaging in an inappropriate professional relationship, adultery, and misuse of government equipment. The Commanding General (CG) stated: (1) An investigation conducted by the National Guard Bureau (NGB) Complex Administrative Investigations Program found that he was involved in a relationship with Sergeant (SGT) X____. X____. in 2009. It was clear from the evidence that he [applicant] frequent personal communication with SGT X____., a member of his team, late at night and/or early in the morning and that the two of them had sexual intercourse at least once as evidenced by her pregnancy. Furthermore, it was his understanding that he [applicant] fed her recruiting leads, which showed favoritism and impropriety. At all times he was married to another individual. It was clear from the report that he not only misused his authority, but his GSA vehicle and phone. (2) His ongoing relationship with SGT X____. compromised the integrity of his supervisory authority; caused unfairness to other members of the recruiting command; and had an adverse impact on the discipline, authority, more, and ability of the command to accomplish its mission. Furthermore, his [applicant] use of his senior rank for personal gain was exploitive and caused harm to a junior NCO. (3) As a senior NCO, his conduct was unacceptable. His judgement was further mistrusted as he was married and adultery was a criminal act under Maryland Law. He advised the applicant of his rights. e. On 13 September 2013, after carefully considering all matters available and the recommendations by the applicant's chain of command, the CG directed permanently filing of the GOMOR in the applicant's OMPF. f. On 31 December 2016, he was honorably released from active duty and reverted to the MDARNG. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 4 months, and 16 days of active service. g. On 28 March 2014, he was honorably retired from the MDARNG. His NGB Form 22 (Report of Separation and Record of Service) shows he completed over 32 years of total service. 6. By regulations: a. AR 600-37 (Unfavorable Information) – administrative memorandums of reprimand may be issued to a Soldier for adverse action. The memorandum will be referred to the Soldier. Statements or other evidence furnished by the recipient will be reviewed and considered before a filing determination is made. b. AR 600-8-104 – for a GOMOR, once placed in the OMPF becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s counsel contentions were carefully considered. Regulatory guidance provides that once a reprimand is filed in the OMPF, the reprimand and associated documents are permanent unless removed by the appropriate authority. Furthermore, 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. The Board agreed the criteria allowing for the removal of the GOMOR from his OMPF was not met and, therefore, recommends denying the applicant’s requested 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-37 (Unfavorable Information) provides that an administrative memorandums 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 regulation states: a. 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 Official Military Personnel File (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 chapter 7. 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. 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. d. Unfavorable information filed in the OMPF that indicates substandard leadership ability and a lack of promotion potential, morals, or integrity must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making positions of significant trust and authority or positions or appointments screened for suitability personnel decisions. Other unfavorable character traits of a permanent nature should be similarly recorded. e. Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder. Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. The above 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. 3. AR 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record, including the OMPF. a. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Documents authorized for filing in the OMPF are kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also serves to protect the interests of the Soldier and the Army. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by the Army Board for Correction of Military Records or other authorized agency. b. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board or this Board). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005904 12 1