ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 September 2019 DOCKET NUMBER: AR20170008052 APPLICANT REQUESTS: removal of his 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) * self-authored letter to the Army Review Boards Agency (ARBA) * exhibit A, self-report to U.S. Army Reserve (USAR) Command * exhibit B, 75th Division Commanding General’s (CG) notice to applicant’s self- report of conviction * exhibit C, GOMOR proposed Major General (MG) JY 75th Division * exhibit D, court disposition dismissed with attorney representative state vs applicant * exhibit E, court disposition state vs applicant * exhibit F - Ms. SW witness statement and intent to testify * exhibit G - order judge BW Middlesex superior court vacate plea and fines and restitution to be returned * exhibit H - service record documentation * exhibit I - Trenton Times article man accused of hunting violation * exhibit J – Colonel (COL) CPM witness statement applicant, no unfavorable action FACTS: 1. The applicant states his GOMOR is factually incorrect, unjust, and a gross mischaracterization of himself and the actions which it refers to. No military investigation was conducted despite his requests, but a conclusion of guilt remains. The accusations set forth in the GOMOR contrary to both court and law enforcement investigators findings in which he was found not guilty. There was overwhelming evidence contrary to the conclusions stated in the GOMOR that were presented and not considered. The GOMOR was signed prior to considering the evidence presented. He has exhausted all other administrative channels available to correct this injustice. a. The allegations presented in the GOMOR are factually incorrect and does not consider all information available as required by Army Regulation (AR) 600-37 (Unfavorable Information). The filed memorandum has caused and continues to cause him distress and damage to his civilian and military career. He prepared a rebuttal to the accusations but it was not considered apparently as the GOMOR was signed and dated on 1 August 2015 by MG JY which was before receipt of his response which had an extension date of 30 September 2015. b. The reprimand was filed without consideration of all the information included in the defense rebuttal on the allegations. Despite his repeated requests for a commander's Inquiry or to conduct a formal investigation (15-6) to protect his rights, he was subjected to an informal, personal and overzealous persecution by a judge advocate general (JAG) officer working for the 75th Division. The officer personally took an interest in him as he took on permanent change in stations to different duty assignments in the USAR. 2. The applicant provides: a. Exhibit E, court disposition state vs applicant, dated 4 April 2013, shows the applicant had a court date on 3 April 2013. The first offense was making annoying communications in an annoying and alarming manner. He plead guilty on 3 April 2013 and the finding was guilty. He was ordered not to have contact with the victim. The second offense was harassment. He plead not guilty on 3 April 2013 and the finding was dismissed-other. b. Exhibit I - Trenton times article, dated 5 April 2013, states the applicant was accused of harassing a women. He was charged on 7 March 2013 with two disorderly persons charges of stalking and harassment for allegedly sending threatening e-mails and online messages to a NC woman in 2012. He made an agreement with the NJ municipal prosecutor that he would admit to the violation of a hunting ordinance, a charge even lower than a petty disorderly person's offense, and the criminal charges would be dropped. c. Exhibit A, self-report to USAR Command (USARC), on 5 April 2013 the applicant reported his harassment charge to his command. All criminal charges were dropped. He adamantly denied the allegations made by the complainant. The court issued an order of protection in his favor against the alleged complainant and an order of protection in her favor against him. He plead to the local ordinance on advice of counsel due to it not being a crime, but a violation on the level of a speeding ticket. The prosecutor made such an offer with the dismissal of the harassment charge due to their poor level of confidence in the matter. d. Exhibit B, 75th Division commanding general’s notice to the applicant’s self-report of conviction, dated 21 June 2014, shows MG JY offered the applicant an opportunity to provide him any additional matters to consider. e. Exhibit G, on 19 March 2015, judge County, Superior Court of , vacated the guilty plea and restitution. He ordered all restitution that was paid to be returned to the applicant immediately. The matter was removed for a new trial before a different municipal court judge. f. Exhibit C, GOMOR from MG JY, 75th Division, for misconduct, was received by the applicant on 1 August 2015. g. Exhibit D, court disposition dismissed with attorney representative, state vs applicant, dated 3 August 2015. The applicant’s attorney acknowledged receipt of the certified dispositions, which shows, the degree was certain conduct prohibited. The applicant pled not guilty on 3 April 2013 and the finding was dismissed-other. The disposition date was 4 June 2015. The charges were dismissed in the South Brunswick Municipal County. His attorney requested that the certified dispositions and the automated traffic system/automated complaint system entries be amended. Each indicate code 3 under the disposition section indicting "Dismissed-other”. This is not an accurate reflection of what occurred on the record in South Brunswick, as this was a transfer matter. On the record, the disposition in open court was a directed verdict of not guilty. Accordingly, the appropriate designation is code number 2 indicating not guilty. Indeed, this fact was reported to the court in the [attorney’s] original letter requesting the certified copy of disposition. h. Exhibit F, Ms. SW witness statement and intent to testify, dated 28 September 2015, states she assisted the [applicant] as a legal admin during the time of these matters. In the complaint from the alleged victim there was a discussion of email messages that might have been alarming. Ms. SW prepared the letters that were in the email messages as attachments from the [applicant] with his signature that he states were sent. These notices were addressed to the anonymous hosting accounts and service providers for the stalking and malicious websites they have information confirming belong to the [alleged victim]. These messages were not in any way malicious, they were not harassing by any reasonable person's standards in any way. They were standard cease and desist notifications and digital millennium copyright act take down notices. These notices could only by interpreted as alarming or make the, recipient fearful if the receiving party was responsible for defamation and copyright infringement. She provided a detailed letter for her witness statement of events (detailed letter enclosed in packet). i. On 30 September 2015, the applicant submitted a statement in response to the GOMOR imposing authority for alleged misconduct. He adamantly denied the allegation and implication the JAG officer prepared for the GOMOR letter. The investigating officer disregarded key evidence and facts in his investigation. It became apparent there was also requested information withheld which jeopardized his legal defense. He has reason to believe that there was official misconduct and apparent acts of reprisal in the conduct of this investigation which violate federal law according to the Whistleblower Protection Act of 1989, and violate 101-12, AR 600-20 (Army Command Policy), section 5-12, and DoD Directive 7050.06. He provided a detailed self-authored letter of what occurred (detailed letter enclosed in packet). j. Exhibit H, service record documentation, he provided his Soldier record brief, dated 16 January 2013. In addition, he provided a resume of his service career which consists of his assignments, military and civilian education, training, and significant accomplishments. k. Exhibit J, COL CPM witness statement, dated 5 November 2015. COL CPM supervised the [applicant], when he was assigned to the 78th Training Division (TD), Joint Base McGuire-Dix-Lakehurst, NJ as Chief of Staff. He was made aware of a scheduled criminal court proceeding involving the [applicant]. An informal investigation into the matter was initiated. He interviewed the [applicant], who provided details as to the allegations made and clarified what had happened. According to his statement the proceeding was concluded, criminal charges were dropped, and he had to pay a fine for a petty municipal ordinance (a hunting violation) to dispose of the matter. He adamantly denied what he was accused but explained he was in a no win situation as there was significant bias in the proceeding. He also alleged there were threats made through the prosecuting attorney that his partner who was a JAG officer would make this adversely affect his military career if he did not accept the settlement plea. Based on the informal investigation conducted, the evidence proving there was no conviction of any crime, the 78th TD command made a determination there would be no unfavorable action taken against the [applicant] and there would be no filling of the matter into his Army Military Human Resources Records Management (AMHRR). He believes Lieutenant P___ advised via return reply email to the USARC Staff Judge Advocate (SJA) of the 78th Division command's disposition of the matter, the [applicant’s] self-report memorandum, and the court disposition document. There were no objection, question, or further action requested from 84th Training Command or USARC SJA after this determination was submitted to the best of his knowledge. They assumed the matter closed and no further action was warranted. 4. A review of the applicant’s service record shows: a. He enlisted in the USAR on 3 September 1986 as a cadet, he was appointed as a reserve commissioned officer and executed an oath of office on 3 June 1989. b. He served in a variety of stateside assignments, including Iraq from 2004-2005. 5. On 1 August 2015, the applicant received an administrative GOMOR which reflected the following: a. [MG JY] reprimand [applicant] for sending a series of emails that were fearful and annoying to a female civilian in late 2012, which the [applicant] admitted to the judge on in the Municipal Court. When the [applicant] later sought to withdraw his guilty plea, he submitted a disingenuous sworn statement to the appellate court falsely claiming that he believed he pled guilty to a hunting ordinance violation, which statement is not supported by the transcript of the municipal court proceeding. b. As a commissioned officer, the [applicant] must always conduct himself according to the moral values and legal standards required of a professional Soldier. The [applicant’s] behavior was a gross departure from those standards and demonstrated a disturbing lack of judgment. The [applicant’s] conduct was far below the standards of an officer of his grade and experience, and was inconsistent with the Army values. The [applicant’s] lack of honor and disgraceful conduct is gravely disappointing to him. The [applicant’s] misconduct reflects badly on himself and the U.S Army. c. This is an administrative memorandum of reprimand imposed under provisions of AR 600-37, and not as punishment under the uniform code of military justice, Article 15. MG JY intended to file this written reprimand in the applicant’s OMPF. He gave him 7 calendar days from the date he received the reprimand to submit matters on his own behalf. 6. On 15 November 2015, after considering the GOMOR, the supporting documentation, and his written response rebuttal, the imposing general officer directed the GOMOR be filed in the performance portion of the applicant’s OMPF. 7. On 7 July 2011, he received his 20 year letter from the U.S. Army Human Resources Command for his eligibility to retire at age 60. He will be 60 years old in 2027. 8. He received a DA Form 67-10-2 (Field Grade Plate (04-05; CW3- CW5) Officer Evaluation Report (OER)) for a period covering 1 July 2016 thru 30June 2017, part I (Administrative), block I states he received this OER for retirement. 9. By regulation 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. 10. By regulation, AR 600-8-104 (AMHRR) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Table 3-1 states that specific disciplinary information will be filed in the performance section of the OMPF unless directed otherwise by an appropriate authority (the Department of the Army Suitability Evaluation Board or this Board). The regulation further states: * 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 BOARD DISCUSSION: After review of the application and all evidence, the Board found relief is not warranted. The applicant’s contentions were carefully considered. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that evidence of record shows he admitted in court to events listed within the GOMOR. 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 for removal of the GOMOR from his OMPF was not met. 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. Army Regulation (AR) 600-8-104 (Army Military Human Resources Records Management (AMHRR)), in effect at the time, provides policies for the creation, utilization, administration, maintenance, and disposition of the AMHRR. This regulation states that only those documents listed in Appendix B are authorized for filing in the AMHRR and/or in the Interactive Personnel Electronic Records Management System (iPERMS). a. Paragraph 3-8, the OMPF is reflective of a Soldier’s permanent record stored in iPERMS. There are various folders within the OMPF, which document a Soldier’s military career. Not every Soldier’s OMPF will have the same number and types of folders. The types and number of folders contained within the OMPF will differ based on career path and status. For a complete listing of folders authorized for inclusion in the OMPF see table 3–1. b. Table 3-1 (Official military personnel file folders in the Army Military Human Resource Record) contains the performance, service, restricted, medical, other, state/territory folders. The performance folder contains performance related information to include evaluations, commendatory documents, specific disciplinary information, and training/education documents. The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty. This folder populates various board related applications (for example, Army Selection Board System, National Guard Army Board System). 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. b. Paragraph 7-2 (Policies and Standards), paragraph a (Appeals for removal of OMPF entries), contains guidance on removals of OMPF entries. It states 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. Normally, consideration of appeals is restricted to grades E6 and above, to officers, and to warrant officers. Although any Soldier may appeal the inclusion of a document placed in his or her file under this regulation, the appeals of Soldiers in grades below E-6 will only be considered as an exception to policy. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court- martial orders. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008052 8 1