ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20170010982 APPLICANT REQUESTS: * the General Officer Memorandum of Reprimand (GOMOR), dated 5 April 2012, be removed from his official record * in effect, a review of his first Department of the Army (DA) promotion review board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * AR20170003070 – Report of Proceedings with Full Debt Relief dated 6 June 2017 FACTS: 1. The applicant states he believes the GOMOR was filed due to lack of a thorough review by the California Army National Guard (CAARNG) Judge Advocate General’s office and the poor and inaccurate information provided to the Commanding General, Brigadier General (BG) DJC. a. A recent review by the National Guard Bureau (NGB) and the Army Review Boards Agency provided a decision that warrants removal of the GOMOR. There are other instances where BG DJC and the CAARNG leadership have requested removal of GOMORs for other Soldiers of the CAARNG in light of the recent decision and events. b. He was informed through an inquiry that although a response is not permitted, the GOMOR may have been a factor in his non-selection for his first Department of the Army (DA) promotion review board c. He noted that all of his Officer Evaluation Reports (OERs) will show that he was always rated “must promote” or “promote up” until the time of his resignation. He believes that the unwarranted and unjust GOMOR caused the non-select determination for both of his promotion review boards. 2. The applicant provides the Report of Proceedings with the full debt relief determination for incentives he received and where he was indicated as having knowledge that it was improper for him to accept the funds. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 February 1998. He was released from active duty and enlisted in the CAARNG Guard on 9 November 2005. b. On 8 August 2007, he received Orders Number 220-1068, appointing him as a second lieutenant (2LT) in the CAARNG c. On 2 July 2008, he received a memorandum appointing him as a Reserve commissioned officer in the grade of 2LT for an indefinite term. d. He completed the Military Intelligence Officer Leader Course from 9 June to 24 September 2008. He was promoted to first lieutenant effective 18 February 2009. e. He served in Kosova from 21 January 2009 to 17 July 2010. f. He received four DA Forms 67-9 (OER) prior to the GOMOR which reflected in Part V (Performance and Potential Evaluation, the rater placed an “X” on the “Outstanding Performance, Must Promote” block and in Part VII (Senior Rater) the senior rater marked the “Best Qualified” block: * period covered 25 September 2008 thru 14 November 2009 * period covered 15 November 2009 thru 20 July 2010 * period covered 21 July 2010 thru 11 December 2010 * period covered 12 December 2010 thru 4 August 2011 g. On 5 April 2012, the applicant received a GOMOR for his conduct as an officer in the CAARNG in that he knowingly received Student Loan Repayment Program (SLRP) payments and an Officer Accession Bonus (OAB) for which he was clearly not entitled. The GOMOR reads: (1) An investigation has revealed that you improperly received $30,600.00 in SLRP funds. From 2 July 2007 until 30 September 2008, he worked as a Specialty Recruiter with the Accession Task Force his position gave you the knowledge, training, and experience necessary to know the payments he received were improper. Yet, while working at the Accession Task Force, you received $30.600.00 of which, on 4 February 2008, $24,000 was sent to United Services Automobile Association (USAA) Federal Savings Bank, a private non-educational lending company. In addition, on 19 October 2007, an additional $6,600.00 was improperly sent to your US Department of Education Joan. He received those funds despite never contracting for SLRP. Further, he accepted these lump sum payments despite his knowledge that it was improper to receive SLRP in this manner, and for this amount. In addition to the SLRP funds, he received an improper OAB in the amount of $20.000.00 that he never contracted for and were not eligible to receive. The maximum authorized amount for this bonus was $10,000.00. (2) This reprimand is given as an administrative measure under the provisions of AR 600-37 (Unfavorable Information) paragraph 3-4 and not as punishment under Article 15 of the Uniform Code of Military Justice. Its purpose is to censure him for his unacceptable conduct and to advise him that similar actions will no be tolerated. This GOMOR may be filed in his Official Military Personnel File (OMPF); as such he has the opportunity for acknowledgement and rebuttal pursuant to paragraph 3-6, AR 600-3 7. h. On 3 May 2012, he submitted a rebuttal with supporting documentation and stated: (1) Based on the investigation conducted, there was no evidence to support the claim that he knowingly accepted improper payments. There was no malicious intent on his part and during the two year period he has endured the process, there has been no evidence of substantiating charges or violations on his behalf. (2) He did not receive training, instructions, nor advice on policies, procedures, and processes on incentive regulations. He denies any wrongdoing and offers evidence to support his statement. i. On 12 July 2012, after thoroughly reviewing all matters submitted in response to the memorandum of reprimand and after careful consideration, the imposing general officer directed the GOMOR and all related documents, be permanently filed in the performance section of the applicant's OMPF. j. He received three OERs following receipt of the GOMOR which reflected in Part V the rater placed an “X” on the “Satisfactory Performance, Promote” block and in Part VII the senior rater marked the “Fully Qualified” block: * period covered 5 August 2011 thru 4 August 2012 * period covered 5 August 2012 thru 1 April 2013 * period covered 2 April 2013 thru 5 October 2013 k. On 18 July 2013, he received the results of the mandatory promotion board consideration and was identified as a non-selection. The reason for his non-selection is unknown because by law, promotion boards are not authorized to reveal the reason for non-selection. l. On 11 April 2014, he received Order Number 101-1329, directing the separation from the ARNG with a general, under honorable conditions discharge. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 12 years, 8 months, and 15 days total service for pay. m On 5 June 2017, the Army Board for Correction of Military Records rendered a decision on the case for improper receipt of funds. The Board determined the evidence provided did not indicate he had knowledge of his ineligibility and was sufficient to warrant full waiver of recoupment for satisfactory time served during his contractual obligation. The applicant was granted full relief of further recoupment efforts and reimbursement for any previously recouped monies. n. On 16 June 2017, a memorandum was sent to the ARNG Readiness Center, Appeals and Analysis, requesting administrative action be taken to effect the correction of records by no later than 5 July 2017. o. On 28 December 2017, a letter was received by the Army Review Boards Agency from the NGB, which stated action had been taken to correct the Soldier’s records and supporting documentation provided to show the Soldier had been credited with an amount equal to the original debt. 4. By regulation, a. Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct, and to have been filed pursuant to an objective decision by a competent authority. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. b. Special selection boards (SSBs) may be convened to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. He received a GOMOR for an incident in which he was later cleared. However, the GOMOR was in his record when viewed for promotion consideration. He was subsequently not selected for promotion (reason unknown) and he was discharged from service with an under honorable conditions (General) character of service. Based upon his exoneration of the incidents listed on the GOMOR, the Board determined there is enough evidence to grant relief. In addition, the Board recommends the NGB determine if his General discharge was the result of the GOMOR, and change his character of service to Honorable if the GOMOR was the only cause of the General characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the general officer memorandum of reprimand, dated 5 April 2012, and allied documents from his Official Military Personnel File; and a. submit his records to a duly-constituted Special Selection Board (SSB) for promotion consideration to the rank of CPT by the 2013 1LT – CPT APL DA Mandatory Selection Board criteria; b. if selected for promotion by the SSB, his records should be corrected by showing he was promoted on his date of eligibility as determined by the appropriate Departmental officials using the appropriate year criteria under which he was selected, provided he was otherwise qualified and met all other prerequisites for promotion; c. that he be notified of his non-selection; and d. the NGB consider change his NGB Form 22 to show character of service as Honorable if the General discharge was solely due to the GOMOR. 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) 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. The intent of this regulation is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interest of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 3 states a memorandum, regardless of the issuing authority, may be filed in the Army Military Human Resource Record (AMHRR), and managed by Human Resource Command. The General Officer directing filing must exercise General Court-Martial Convening Authority (GCMCA) over the recipient, be the designee or delegate of the individual exercising GCMCA over the recipient, been a filing authority from the recipient’s losing command, or be the chief of any designated special branch acting pursuant to their statutory authority. Memoranda filed in the AMHRR will be filed in the performance folder. b. Chapter 7 states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct, and to have been filed pursuant to an objective decision by a competent authority. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include, but is not limited to: an official investigation showing the initial investigation was untrue or unjust; decisions made by an authority above the imposing authority overturning the basis for the adverse documents; notarized witness statements; historical records; official documents; and/or legal opinions. The Deputy Assistant Secretary of the Army (Review Boards) is the final decision authority for removal of unfavorable information from the AMHRR. This authority will not be further delegated. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) states that the OMPF is defined as permanent documentation within the AMHRR that documents facts related to a Soldier during the course of his or her entire Army career, from time of accession into the Army until final separation, discharge, or retirement. The purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, and any other personnel actions. Once properly filed in the AMHRR the document will not be removed from the record unless directed by selected authorities such as the ABCMR, Army Discharge Review Board, Department of the Army Suitability Evaluation Board, and Army Special Review Board. 3. Army Regulation 600-8-29 (Officer Promotions) provides for career progression based upon recognition of an officer’s potential to serve in positions of increased responsibility. Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers. a. Paragraph 7-1 (Overview) states special selection boards (SSBs) may be convened to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 7-7 (Information provided to special selection boards) states an SSB will consider the record of the officer as it should have been considered by the original board. The record will be compared with a sampling of those officers of the same competitive category who were recommended and not recommended for promotion by the original selection board. c. Paragraph 7-8 (Effect of nonselection) states a commissioned officer (below the grade of colonel) or warrant officer considered by an SSB and recommended for promotion has failed selection for promotion. d. Paragraph 7-11 (Rules for processing requests for special selection board promotion reconsideration) states officers who discover that material error existed in their file at the time they were nonselected for promotion may request reconsideration. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010982 4 1