BOARD DATE: 18 August 2020 DOCKET NUMBER: AR20180011778 APPLICANT REQUESTS: * removal of the general officer memorandum of reprimand (GOMOR), dated 31 October 2010, from his Army Military Human Resource Record (AMHRR) * an upgrade of his retirement award * a personal appearance hearing 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 * Memorandum, National Guard Bureau (NGB), dated 29 August 2005, subject: Army National Guard (ARNG) Operational Review Program Inspection * Memorandum, NGB, dated 30 November 2005, subject: U.S. Property and Fiscal Office for Colorado Operational Review Program Response * Memorandum, Colorado ARNG, dated 15 January 2007, subject: Reply to ARNG Operational Review Program Inspection of October 2006 * email, dated 14 October 2010 through 7 March 2012, subject: Freedom of Information Act * Memorandum, Colorado ARNG, dated 16 October 2007, subject: Receipt for DA Form 201 (Military Personnel Records Jacket) * Four Memorandums, Land Component Commander, Colorado ARNG, dated 21 October 2010, subject: Letter of Reprimand Regarding Personal Integrity * email, Land Component Commander, Colorado ARNG, dated 8 November 2010, subject: Letter of Reprimand * Memorandum, NGB, dated 30 November 2010, subject: Notice of Indebtedness * Memorandum, Applicant, dated 15 December 2010, subject: Response to Notice of Indebtedness * email, Applicant, dated 6 January 2011, subject: Inspector General Report * Memorandum, Applicant, dated 13 January 2011, subject: Letter of Reprimand * Memorandum, Applicant, dated 20 January 2011, subject: Response to Reprimand * Memorandum, Land Component Commander, Colorado ARNG, dated 17 May 2011, subject: GOMOR for (Applicant) * Freedom of Information Request, undated * Letter, Defense Finance and Accounting Service (DFAS), dated 6 July 2011 * Letter, Records Release Office, Office of the Inspector General, dated 28 July 2011 * email, Applicant, dated 30 August 2011, subject: Issues * Letter, Investigations Division, Office of the Inspector General, dated 11 October 2011 * DA Form 4037 (Officer Record Brief), dated 13 June 2012 * DA Form 4980-12 (Meritorious Service Medal), dated 29 May 2013 * Eight DA Forms 67-9 (Officer Evaluation Report (OER)) covering the periods 14 June 2003 through 30 June 2013 * Memorandum, Colorado ARNG, dated 26 June 2013, subject: Lost Personnel Files for (Applicant) * Memorandum, Applicant, undated, subject: Waiver/Remission Narrative (Applicant) * DD Form 214 (Certificate of Release or Discharge from Active Duty) REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 3. Army Regulation 600-37 (Unfavorable Information), in effect at the time, set forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensured that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensured 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 official personnel files. a. Paragraph 3-4 (Filing of Nonpunitive Administrative Letters of Reprimand, Admonition, or Censure in Official Personnel Files) stated the authority to issue and direct the filing of such letters in the military personnel record jacket of commissioned officers and warrant officers is restricted to: (1) The recipient's immediate commander or a higher-level commander in the chain of command. (2) The designated rater, intermediate rater, or senior rater under the Officer Evaluation Reporting System. (3) An general officer who is senior to the recipient or an officer who exercises general court-martial jurisdiction over the recipient. b. Chapter 7 (Appeals and Petitions) stated appeals and petitions for removal of unfavorable information are to be directed to the Department of the Army Suitability Evaluation Board. This chapter set forth the policies and procedures whereby a person may seek removal of unfavorable information from official personnel files. c. Paragraph 7-2a (Appeals for Removal of Official Military Personnel File (OMPF) Entries) stated 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. Therefore, 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 form the OMPF. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 5. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. Paragraph 1-16 (Reconsideration or Appeal of Previous Award Recommendations) states a request for reconsideration or the appeal of a disapproved or downgraded award, or a request for an upgrade of a previously approved recommendation, must be placed in official channels within 1 year from the date of the awarding authority's decision. b. Pursuant to Title 10, U.S. Code, section 1130, a Member of Congress may request a review of a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not authorized to be presented or awarded due to time limitations established by law or policy for timely submitted for reconsideration. 6. Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army to the following agency: Commander, U.S. Army Human Resources Command, Attention: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The applicant's unit must be clearly identified along with the period of assignment and the award being recommended. A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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. The applicant's request for an upgrade of his retirement award, which the approving authority downgraded on 13 May 2013, is beyond the 1-year date of the awarding authority's decision. The applicant may pursue his claim for the requested award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130. This portion of his request will not be considered further in this record of proceedings. 3. The applicant states: a. This submission is a follow up to the original request he made in 2015. He is not sure if it is from that date, but the issue remains the same as the August 2018 request. (Note: The applicant's records contain no evidence of a previous request.) b. The GOMOR-issuing officer was not in his chain of command. The GOMOR is inconsistent with any evaluation or record of his performance. 4. His memorandum for the Department of the Army Suitability Evaluation Board, dated 1 August 2018, states: a. He originally submitted a package for remedy in September 2015 and received no relief or response. b. Brigadier General (BG) R____ B____ who issued the GOMOR was not in his chain of command and had no authority over him during any of the proceedings in 2010 and 2011. BG B____ was incapable of drafting a memorandum of reprimand and generated four different versions. The process was flawed throughout and only after BG B____ was coached during an investigation involving his own ethical conduct, use of Government funds, and circumstances involving his promotion, was a final memorandum drafted. The content of the final version references previous events that were undefined, unsubstantiated, or perhaps completely in error. c. There is no action in his personnel file or mention of poor conduct or judgment in his officer evaluations. d. BG B____ guided the process, limited access to materials of import, restricted matters key to the inquiry, and denied him access to matters on his behalf that he requested under the Freedom of Information Act. e. The information he requested regarding his discussion with the Inspector General on site in 2011 was not accessible to him. Although he did receive a response to his concern over one part of the GOMOR filing decision, he did not receive a finding on the issues associated with command authority and details of the larger investigation regarding the ethical conduct and command climate. f. The copies of language records are not maintained by testing sites for more than a few years and the inquiry into his records occurred 5 years after the fact. He requested BG B____'s assistance to stop his specialty pay in 2006 before the inquiry was initiated. He requested a pay stoppage and collection. He received neither and this went on for over a year. The debt was never processed appropriately and thousands of dollars more were withdrawn from his pay than what was owed. g. The U.S. Fiscal Property Office failed miserably in their performance and operations. Failures included records management and maintaining audits of specialty pay. This made pay adjustment difficult. h. He was subsequently promoted and given a command, then a directorate position and a Joint Staff position managing the largest budget in the Colorado National Guard. i. He provides a timeline of events surrounding the events and circumstances of his foreign language proficiency pay and the issuance of his GOMOR. 4. He was serving in the Colorado ARNG in the Active Guard Reserve Program in the rank/grade of colonel/O-6 as the Director of Manpower and Personnel when he became the subject of a U.S. Army Criminal Investigation Command (CID) investigation. 5. On 21 October 2010, he was reprimanded in writing by BG B____, Land Component Commander, Colorado ARNG, for failing to pay a known debt in a timely manner, making false statements and attributing the subsequent investigations to conspiracy, and demonstrating several judgment and personal integrity issues not appropriate for his grade and experience. a. The investigation confirmed his actions were inadequate in dealing with overpayments of special pay and constitutes dereliction of duty. The investigation confirmed he provided false statements to the CID investigating agent. Together these two facts constitute conduct unbecoming an officer. b. This is the second time he was investigated for judgment issues. The consequence for a second offense could have been his removal from the service. Instead, he will continue to serve and is required to repay the sum of money that is owed to the Government, and there will be no options for promotion or continued service beyond his scheduled retirement. 6. The CID memorandum, dated 22 November 2010 (initiated 16 February 2010), subject: CID Report of Investigation – Final, states the applicant was the subject of an investigation for violation of Article 121 (Larceny of Government Funds), Uniform Code of Military Justice (UCMJ), and Article 132 (Fraud), UCMJ. a. The investigation determined he committed the offenses of fraud and larceny of Government funds when he collected the foreign language proficiency pay allowance that he was not authorized. b. A review of his education records and Defense Language Institute records revealed he did not recertify his language proficiency since 1999 to receive the foreign language proficiency pay allowance. c. He also received jump pay (hazardous duty incentive pay – parachute duty) between 1 January 1999 and 31 March 2008 that he was not authorized. A review of his jump records revealed several years with no documented jumps. d. The total estimated loss to the U.S. Government was $34,455.00. 7. The U.S. Property and Fiscal Office for Colorado memorandum, dated 30 November 2010, subject: Notice of Indebtedness, informed the applicant that he was found indebted to the U.S. Government for hazardous duty incentive pay in the amount of $5,110.00 and foreign language proficiency pay in the amount of $15,350.00. 8. The applicant's memorandum, dated 20 January 2011, subject: Response to Reprimand, states: a. He was supposed to have access to a legal assistance attorney; however, both full-time military attorneys are representatives of the organization and therefore unavailable for assistance. He has not received all the data he requested but feels compelled to provide a timely response. b. He does not concur with the assumptions made in the body of the GOMOR, nor does he accept the assertion that he made any false statements during the inquiry. c. He actively pursued resolution of his debt from its first occurrence in 2006 and requested termination of the foreign language proficiency pay. He was not as attentive as he should have been in addressing his debt. 9. The memorandum from BG B____, Land Component Commander, Colorado ARNG, dated 17 May 2011, subject: GOMOR for (Applicant), states: a. He carefully reviewed the case file and the GOMOR, dated 21 October 2010, and carefully considered the rebuttal matters submitted by the applicant on 20 January 2011. b. The applicant was given representation of choice in a formal Article 32, UCMJ, investigation into the charges brought against him by the CID. c. The applicant's response to the GOMOR revisits some issues brought forward during that investigation and new items that attempt to fog the issue of guilt. He is responsible for the situation he is in – in debt to the Government for funds erroneously received and guilty of knowing he was receiving those funds erroneously. The GOMOR was modified twice on the applicant's behalf, but his concerns remain. d. He directed filing the GOMOR in the performance folder of the applicant's OMPF. 10. The Office of the Inspector General letter, dated 11 October 2011, states: a. The U.S. Army Inspector General Agency concluded an investigation into the applicant's allegation that the Land Component Commander, Colorado ARNG, improperly issued a GOMOR. The allegation was substantiated. b. The evidence established BG B____ issued and filed a GOMOR that was administratively incorrect in the applicant's OMPF without affording him due process. While BG B____ eventually resolved the issues associated with the GOMOR, this came after U.S. Army Inspector General Agency involvement. c. The Vice Chief of Staff of the Army approved the report of investigation. No further action will be taken by the Office of the Inspector General Investigative Division pertaining to the allegation. The report of investigation is not available for review. 11. He provides an email from an investigating officer (I/O), COL D___ A. R____, dated 5 January 2011, in which she states that she sent him an excerpt of her I/O report that pertains to the computation of the amount of his debt. She states she also included a spreadsheet that she used. The record is void of and the applicant did not provide a copy of the I/O excerpt or the spreadsheet. 12. The applicant provides an undated FOIA request for the complete base report and findings, all matter pertaining to him in the process/report, and special references pertaining to a GO letter of reprimand. 13. The applicant provides a response from the DAIG, dated 28 July 2011, which indicates that he submitted a FOIA request dated 20 July 2011. The DAIG states it is unable to provide the requested information due to its use in an ongoing investigation. 14. He provides his OERs covering the periods 14 June 2003 through 13 June 2004 (annual), 14 June 2005 through 5 February 2006 (change of duty), 6 February 2006 through 5 February 2007 (annual), 6 February 2007 through 10 May 2007 (change of duty), 11 May 2007 through 13 July 2009 (extended annual), 14 July 2009 through 1 March 2010 (change of duty), 2 March 2010 through 1 March 2011 (annual), and 2 March 2011 through 30 June 2013 (complete the record) showing he was consistently rated "Best Qualified" with the exception of his final report. His OER covering the period 14 June 2004 through 13 June 2005 is not in evidence. 15. He retired on 30 June 2013. His DD Form 214 shows in: * item 12c (Net Active Service This Period) – 15 years, 11 months, and 27 days * item 12d (Total Prior Active Service) – 7 years, 11 months, and 5 days * item 24 (Character of Service) – Honorable * item 28 (Narrative Reason for Separation) – Sufficient Service for Retirement BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 1. Regarding the applicant’s request for removal of the GOMOR, dated 31 October 2010, from his Army Military Human Resource Record (AMHRR), the Board found insufficient evidence that the GOMOR was untrue or unjust. a. The Board considered the applicant’s contentions that there was a lack of unit record-keeping, he was not required to keep jump records for more than two years and that he made numerous attempts to request the curtailment of his FLPP. However, the Board found insufficient independent, corroborating evidence to support those contentions. Independent, corroborating evidence might have existed in I/O findings and recommendations, the complete CID investigation or the complete IG investigation, but the record is void of and the applicant did not provide them. b. The Board carefully considered the applicant’s contention that the GOMOR administering official was not eligible to write the letter because he was not in his chain of command and the AO was “incapable of drafting a letter of reprimand and generated 4 different versions,” of it. The Board considered that the DAIG substantiated the applicant's allegation that the Land Component Commander, Colorado ARNG, improperly issued the GOMOR and evidence established BG B____ issued and filed a GOMOR that was administratively incorrect in the applicant's OMPF without affording him due process. However, the Board found that, with DAIG involvement, as of the 4th version of the GOMOR, the version finally filed in the applicant’s AMHRR, the issues were resolved, and no further action would be taken by the Office of the Inspector General Investigative Division pertaining to the allegation. The record is void of a FOIA request for the full DAIG ROI subsequent to 28 July 2011. c. The Board found that the applicant’s misconduct was recorded in the CID ROI, initiated 16 February 2010 and finalized 22 November 2010. The Board considered the behaviors noted in the CID ROI to be evident of the personal misconduct for which the applicant received the GOMOR. The record is void of and the applicant did not provide the full CID investigation with sworn statements, the findings and recommendations or spreadsheet from the investigating officer (COL D____ A. R____), or the full IG report that may have provided independent corroborating evidence of the applicant’s contentions. 2. Regarding the applicant’s request for award upgrade, see Administrative Notes (below the signature block). 3. Regarding the applicant’s request for a personal hearing before the Board, the applicant's request was carefully considered. The Board found that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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: Including the Administrative Notes (below the signature block), the Board found 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. ADMINISTRATIVE NOTE(S): The applicant's request for an upgrade of his retirement award, which the approving authority downgraded on 13 May 2013, is beyond the 1- year date of the awarding authority's decision. The applicant may pursue his claim for the requested award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011778 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1