IN THE CASE OF: BOARD DATE: 10 March 2022 DOCKET NUMBER: AR20210005150 APPLICANT REQUESTS: through counsel, * Removal of a General Officer Memorandum of Reprimand (GOMOR), dated 24 August 2017, from his Army Military Human Resource Record (AMHRR) * Reinstatement on the promotion list for Chief Warrant Officer Three (CW3) * A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Brief * 2 GOMOR * Acknowledgment of Receipt of Reprimand * Email Counseling Packets * Letters of Support * Commanders Inquiry * Standards of Conduct Officer Report * Exhibit 1: Memorandum, Subject: Directive for Standards of Conduct Office Inquiry * Exhibit 2: Memorandum, Subject: Negative Leadership Practices * Exhibit 3: Memorandum, Subject: 15-6 Investigating Officer Findings and Recommendations * Exhibit 4: Memorandum, Subject: Review of Commander’s Inquiry * Exhibit 5: Marriage License * Exhibit 6: DD Form 214 (Certificate of Release from Active Duty) * Exhibit 7: Photograph Log and Photos * Exhibit 8-10, 13, 15: DA Form 2166-8-1 Noncommissioned Officer Evaluation Report Counseling (NCOER) and Support Form JML__ * Exhibit 11-12: DA Form 4856 (Developmental Counseling Form) * Exhibit 14: Sworn Statement * Exhibit 16: DA Form 1351-2 (Travel Voucher or Sub voucher) * Exhibit 17-20: Memorandum, Subject: Testimonies of R__, B__, H__, and P__ * Exhibit 21: Memorandum, Subject: Potential Special Agent Misconduct Involving the applicant * Exhibit 22: Email * Exhibit 23-24: Travel Voucher or Sub voucher * Exhibit 25: Email * Exhibit 26: Memorandum, Subject: Defense Travel Service (DTS) Records Review * Exhibit 27-32: Memorandum, Subject: Testimony of J__, T__, S__, S__, P__, and J__ * Exhibit 33 and 36: Sworn Statement of O__, R__ * Exhibit 34: Email * Exhibit 35: Memorandum, Subject: Testimony of A__ * Exhibit 37: Email * Exhibit 38: Memorandum, Subject: No Contact Order * Exhibit 39: Rights Warning Procedure/Waiver Certificate * Exhibit 40: Memorandum, Subject: Interview of Applicant * Exhibit 41: Memorandum, Subject: Testimony of P__ * Exhibit 42 and 43: Email * Exhibit 44: Corrections Needed * Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings * Memorandum, Subject: Memorandums of Support, Major General G__ and Chief Warrant Officer 5/CW5 M__ FACTS: 1. Counsel states the applicant received numerous support letters recommending that the GOMOR not be filed in his AMHRR. Exhibit 1, Memorandum, Subject: Directive for Standards of Conduct Inquiry, dated 28 November 2015, shows the allegations and issues that should be addressed. He had many supporters arguing for his retention and even his reinstatement as a U.S. Army Criminal Investigation Division (CID) agent at the board of inquiry (BOI) (Exhibit 6: DD Form 214-Staff Sergeant/SSG/E-6 L__ was honorably discharged from active duty on 14 August 2015 to attend civilian school). Even the general officer who imposed the GOMOR and directed its filing now supports the applicant being promoted, which suggests that he believes removal of the GOMOR from his AMHRR is appropriate. Under these circumstances, the Army Board for Correction of Military Records (ABCMR) should correct his records by removing the GOMOR and reinstating his promotion to CW3. The applicant deserves to have the GOMOR removed from his AMHRR and to be reinstated to the CW3 promotion list. 2. Counsel provides: a. An email, dated 21 January 2015, which shows the applicant sent the rating scheme for various Soldiers with a statement to let him know as soon as possible if he needed to make adjustments. b. Numerous memoranda, subject: Letter of Support, that state, in effect, the applicant was hard to work with at times but always stood up for his people. He could be difficult and abrasive and stubborn at times because he was a self-proclaimed perfectionist. He was a good agent who was passionate and dedicated. He enforced the standard even when it was not politically gratifying to do so. There was no favoritism witnessed. He would always take the time to show Soldiers the right way to do something and would never leave a Soldier alone in the office to work, even if his work was completed. He received constant push-back from some of his subordinates and very little support from his seniors. He conveys a positive religious lifestyle for his family. His DD Form 214 shows he completed 4 years, 7 months, and 7 days of active duty. He was never seen intimidating, unfair, belligerent, bullying, or in any way creating a hostile environment toward those around him or subordinate to him. A letter, dated 27 December 2013, from S__, referred to an email he sent on 12 August 2012 that was being used to defame the applicant. It was a joke after the applicant left his computer unlocked. It was an immature joke they all participated in when someone left their computer unlocked. c. A memorandum, subject: Commander’s Inquiry, dated 23 December 2013, which stated the applicant’s personality is abrasive towards everyone and that Special Agents (SA) H__, SA H__, and SA N__ would perceive the applicant's attitude would promote a hostile work environment. The manner in which this information is portrayed is directly and intentionally misleading. SA B__ did inform SA C__ that his personality was "abrasive," but continued by stating this was a result of the position he maintained and the duties he performed. SA B__ further stated this "abrasive" attitude contributed to the success of the office and was only magnified by his strict adherence to regulation as well as his insistence his subordinates did the same. None of the clarification was recorded and the report submitted by SA C__ simply reported the applicant was "abrasive towards everyone". SA B__ related SA H__, SA N__, and SA H__ were subordinates of the applicant and may feel differently about him, as SA B__ had no reason to feel degraded or demeaned. This was mischaracterized by SA C__ as SA H__, SA H__, and SA N__ would perceive his attitude would promote a hostile work environment." d. A memorandum, subject: Commander’s Inquiry, dated 27 December 2013, which stated on 5 March 2013, CW3 C__ interviewed SGT H__ on three occasions regarding email correspondence sent between the applicant and others in the Fort Polk CID Office. On the third interview, SA H__ was asked directly about an email which the applicant made a comment about SGT L. SGT H__ believed this was meant as a joke to ease tensions in the office, and not to hurt her feelings. SA H__ further stated he had talked to SGT L__ in regards to this email, and she appeared embarrassed. He did have an emotional response because he was made to feel as though he had to answer questions that where tailored to paint a good leader in a bad image. He was not allowed to put in his statement anything which did not show the applicant as an unfit leader. He requested to add a statement which supported the applicant as a leader and his positive character. The applicant always places the needs of his subordinates above his own, and does everything in his power to ensure their welfare. The applicant is one of the best leaders SGT H__ has ever had the privilege to work underneath. e. A memorandum, subject: Standards of Conduct Office Report, dated 25 January 2017, which states the report was approved and forwarded for appropriate disposition. Evidence that the applicant failed to treat subordinates with dignity and respect, made derogatory comments about them, and fostered a hostile work environment would also be considered per Brigadier General (BG) G__. f. Exhibit 1: memorandum, subject: Directive for Standards of Conduct Inquiry, dated 28 November 2015, shows the allegations and issues that should be addressed. g. Exhibit 2: memorandum, subject: Negative Leadership Practices, 2015, shows the record of negative leadership practices within the 90th Military Police Detachment (CID), Fort Polk, LA. SGT M__, stated the applicant came to him the very first month he was in the unit and told him he did not like him or the way he carried himself, nor did the rest of the SA’s in the office. SGT M__ stated the applicant made inappropriate comment suggesting SGT L__ would be expiration term of service (ETSing) sooner rather than later because he was to impregnate her. The applicant instructed Soldiers in a manner that was offending and not conductive to learning. The applicant asked him “why do your talk like that?”. SGT M__ stated he was Puerto Rican and he was from New York city and has an accent. There was no consistency in report writing among the applicant and CW3 O__. The applicant would change what was put out by CW3 O__. The applicant would dismiss what SGT M__ had to say at the morning update. SGT M__ states, members of their unit suspected the applicant and SSG L__ were having an inappropriate relationship. To his knowledge, the applicant was SSG L__’s rater, and the applicant gave her an outstanding evaluation. They even volunteered to deploy simultaneously. h. Exhibit 3: memorandum, subject: 15-6 Investigating Officer Finding and Recommendations, dated 8 April 2013, shows the basis for the inquiry was to inquire about the applicant sending of inappropriate emails to his subordinates, and concerns about inappropriate physical behavior such as “ear flicking” the applicant would do to his subordinate Soldiers in the CID office. The recommendations for the applicant were that he be required to attend a block of Leadership Training in order to “Create a positive organizational climate which produces the setting for positive attitudes and effective work behaviors and treats subordinates with dignity, respect, fairness, and consistency and foster a healthy command climate." Every leader at the CID office indicated that the case agents are under staffed, overworked and stressed out from the current work load. Because of this stress in the workplace, it was recommended the applicant conduct a leader/Soldier session on how to deal with stress in the work environment. An official Letter of Reprimand should be placed in his accreditation file at the Fort Benning, GA office only and be destroyed upon his permanent change of station (PCS) from the Benning CID Battalion. Finally, due to his dedication and thoroughness in working CID cases to the end, it is recommended that he be retained as a CID agent, either in his current office or another CID office upon his PCS. i. Exhibit 4: memorandum, subject: Review of Commander’s Inquiry, dated 21 March 2013, revealed an apparent dislike of the applicant by several office members, some reporting that he was verbally abusive and created a hostile working environment. Some personnel made derogatory comments about his belittling subordinates, while others did not have any negative comments to report. The complaints were more general, many lacking specific examples of how personnel were belittled or how the applicant created a hostile working environment. The emails with multiple recipients were determined to be efforts at humor, and the recipients did not take offense. However, the content of the emails (one confirmed sent by the applicant) was inappropriate. Leaders should not have partaken in that activity, and should have stopped it when they became aware. The Standard of Conduct Office (SOCO) report, revealed no prior misconduct reported. The applicant had approximately 12 years of service. j. Exhibit 5: a Marriage License, dated 25 July 2015, shows a marriage celebrated between the applicant and SGT L__. k. Exhibit 6: Staff Sergeant/SSG/E-6 L__ was honorably discharged from active duty on 14 August 2015 to attend civilian school. (The applicant’s now spouse). Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 8 years, 2 months, and 8 days of active duty. l. Exhibit 7: Photographs. m. Exhibit 8 and 9: Noncommissioned Officer Evaluation (NCOER) and Support Form of SSG L__, dated 1 February 2013, shows the applicant as the rater. n. Exhibit 10, 13, 15: NCOER and Support Form, of SSG M__, dated 18 February 2015, shows the applicant as the rater. o. Exhibit 11: Developmental Counseling Form, SSG M__, dated 18 March 2015, shows the applicant counseled him on 17 March 2015, for having a status report discovered in his desk after a system scrub was completed and it was determined the report was due out on the same day. p. Exhibit 12: Developmental Counseling Form, Sergeant First Class/SFC/E-7 M__, dated 18 July 2016, shows the applicant counseled SFC M__, regarding appointment of additional duties and expectations. q. Exhibit 21: memorandum, subject: Potential SA Misconduct Involving the applicant and SGT L__, dated 29 May 2013, SFC P__, in effect, states and anonymous source notified him that the applicant and SGT L__ were involved in misconduct in the form of fraternization and that he coordinated with CW2 R__ and recommended action be initiated to confirm/refute allegations of any potential misconduct. He also recommended SGT be moved from under the direct supervision of the applicant immediately, as he was currently her Team Chief. CW2 R__ declined to initiate any formal action such as an AR 15-6 Investigation or Commander’s Inquiry. He stated he did not feel there was any evidence of misconduct as the source declined to provide any further information. r. Exhibit 22: Email from P__, dated 12 November 2014, states the applicant told him he destroyed the office as the Detachment SGT. The applicant stated it was P’s__ fault case work failed the Inspector General Inspection and destroyed morale which was why case work suffered. He stated everyone in the office despised him. He stated P__ needed to stop helping MM with the Detachment SGT transfer and let him sink or swim. s. Exhibit 26: memorandum, subject: DTS Records Review, the applicant and SSG L__, Fort Lenard Wood, Temporary Duty’s (TDY’s), 2013, states the applicant improperly facilitated the TDY of SSG L__ to Fort Leonard Wood so it coincided with dates he was also going to be TDY to Fort Leonard Wood. Review of the TDY vouchers for both the applicant and SSG L__ revealed they were both TDY to Fort Leonard Wood from 7-26 September 2013 (SSG L__) and 7-21 September 2013 (the applicant). Both departed on 7 September 2013 and both listed an overnight stop in Little Rock, AR. Both stayed at the same hotel and submitted individual receipts for room charges. Both left Little Rock on 8 September 2013 and arrived at Fort Leonard Wood that day. The applicant was lodged from 8 September to 20 September 2013 and listed 2 guests for his room. t. Exhibit 38: memorandum, subject: No Contact Order, dated 7 May 2013, shows that on 6 March 2013, a restraining order was applied for and given to the applicant’s wife H__. The applicant was informed of the restraining order and given a verbal no contact order. Further he was ordered to respond to the Vernon Parrish Sheriff’s office and obtain a copy of the restraining order. The restraining order said he was not to abuse, harass or bother his wife in any manner, and that he was to report for a court date on 22 April 2013. He was to have no contact other than to discuss the custody of his children. Any contact he had with his wife to exchange his children would be done in the presence of either CW2 R__ or the Detachment Sergeant. u. Exhibit 40: memorandum, subject: Interview of the applicant (Standards of Conduct Office), dated 21 December 2016, prior to invoking his rights, he became very emotional and was crying. He talked for a few minutes about what a good leader he was and how Soldiers needed training. He said he tried to train the substandard Soldiers to the best of his ability. He stated that if he did not train them properly, then who will. He related that some Soldiers, specifically M__ was not fit for CID because they were not MPs (he referenced the fact that M__ was a cook). He also stated that in the previous inquiries no one stood up for him and he did not believe anyone would stand up now. He also related that he was being penalized for being a good leader and that his career was over. He said he did not want to provide a statement and thought it was in his best interest to consult with Trial Defense Services. He needed to be monitored for any signs of emotional distress. His demeanor was better by the time he was released. v. A memorandum, subject: Petition to Remove GOMOR, dated 29 August 2020, from his battalion operations officer CW5 M__, shows he endorsed the applicants petition for removal of the GOMOR form his official files. He has worked directly with the applicant on numerous occasions. He has been able to see the applicant perform duties with the newly formed Agent Indoctrination Program (AIP), which is responsible for training newly arrived CID Special Agents and Military Police men and women to the PSB. He has spoken to the applicant's supervisor on many occasions and all can attest to his dedication to the mission of protecting the Department of Defense's most senior leaders. The applicant has continued to provide exceptional support to the program and the organization. The applicant has remained a consummate professional. He is dedicated to the organization and has vowed to make it better. He has learned a valuable lesson and wants to use that to make himself a better leader, husband, father, and Warrant Officer. Removing the GOMOR and allowing him to be considered for promotion will only serve to refine these strengths. w. memorandum, subject: Memorandum of Support, dated 3 September 2020, from the Major General who issued the GOMOR to the applicant for misconduct surrounding his relationship with an NCO who was his subordinate. This relationship caused actual or perceived favoritism and resulted in low morale in the Fort Polk CID Office. He reprimanded the applicant for this and for demonstrating a pattern of failing to treat his subordinates with dignity and respect. He was asked to conduct a review of this reprimand, and in doing so contacted the officers and noncommissioned officers who led and served with the applicant following this incident. Each of these individuals spoke highly of his character and his potential for continued service in the Army. Despite facing career-ending repercussions, the applicant remained committed to CID, its Agents, and its Soldiers. While he maintains that the reprimand was appropriate and warranted, the applicant has demonstrated a capacity to learn from his mistakes and rehabilitate. He has worked hard to attain the resiliency, character, and maturity the Army expects from its leaders. He assesses that the applicant has reaffirmed his commitment to the Army and its values and has demonstrated a potential to serve in the Army at a higher grade 3. Review of the applicant’s service records shows: a. Having had prior enlisted service (15 November 1999 to 14 November 2004 and 21 March 2006 to 27 October 2010), the applicant was appointed as a Reserve warrant officer of the Army and executed an oath of office on 28 October 2010. b. He entered active duty on 28 October 2010. He held military occupational specialty 311A (CID Special Agent). He was promoted to Chief Warrant Officer Two (CW2) on 28 October 2012. c. On 26 March 2013, an investigating officer was appointed pursuant to an AR 15-6 (Procedures for Investigating Officers and Boards of Officers) to investigate allegations involving the sending of inappropriate emails from the applicant to subordinates, concerns about the leadership, command climate and situational awareness of his team leaders and other subordinates in the Fort Polk CID office. The investigations also raised concerns about inappropriate physical behavior such as "ear flicking" that the applicant would do to his subordinate Soldiers in the Fort Polk CID office. d. On 8 April 2013, the IO rendered his findings and recommendations: (1) The IO found the physical contact ranged from a touch to rub behind or on the ear of each Agent and these events ranged from once to a few and numerous times over the past six months; and the applicant telling others not to bring up the issues. (2) The leaders were not aware of the ear flicking activity and the Soldiers involved never brought it to the attention of leaders. (3) The applicant’s comments while seeming benign created an atmosphere of tension and subsequently promoted a toxic work environment among those working directly for him. His continual disdain for his subordinates and failure to treat each with dignity and respect greatly contributed towards a dysfunctional office in regards to a productive working environment. (4) The IO recommended the applicant be required to attend a block of Leadership Training in order to “Create a positive organizational climate which produces the setting for positive attitudes and effective work behaviors and treats subordinates with dignity, respect, fairness, and consistency and foster a healthy command climate." Every leader at the CID office indicated that the case agents are under staffed, overworked and stressed out from the current work load. Because of this stress in the workplace, it was recommended the applicant conduct a leader/Soldier session on how to deal with stress in the work environment. An official Letter of Reprimand should be placed in his accreditation file at the Fort Benning, GA office only and be destroyed upon his reassignment from the Benning CID Battalion. Finally, due to his dedication and thoroughness in working CID cases to the end, it is recommended that he be retained as a CID agent, either in his current office or another CID office upon his PCS. e. On 23 December 2013, a Commander’s Inquiry was completed. It indicated that the applicant’s personality was abrasive towards everyone and that SA H__, SA H__, and SA N__ perceived the applicant's attitude would promote a hostile work environment. The manner in which this information was portrayed was directly and intentionally misleading. SA B__ did inform SA C__ that his personality was "abrasive", but continued by stating this was a result of the position he maintained and the duties he performed. SA B__ further stated this "abrasive" attitude contributed to the success of the office and was only magnified by his strict adherence to regulation as well as his insistence his subordinates did the same. None of the clarification was recorded and the report submitted by SA C__ simply reported the applicant was "abrasive towards everyone". SA B__ related SA H__, SA N__, and SA H__ were subordinates of the applicant and may feel differently about him, as SA B__ had no reason to feel degraded or demeaned. This was mischaracterized by SA C__ as SA H__, SA H__, and SA N__ would perceive his attitude would promote a hostile work environment." f. On 28 November 2016, the Deputy Commanding General of CID ordered a Directive for Standards of Conduct Office Inquiry to address the applicant's: * failure to treat subordinates with dignity and respect, making derogatory comments about them, failing to support the Army EO program, and fostering a hostile work environment * fraternize and marry an NCO * list false counseling dates on an NCO Evaluation Report g. On 21 December 2016, during an interview, the applicant stated, prior to invoking his rights, he became very emotional and was crying. He talked for a few minutes about what a good leader he was and how Soldiers needed training. He said he tried to train the substandard Soldiers to the best of his ability. He stated that if he did not train them properly, then who will. He related that some Soldiers, specifically M__ was not fit for CID because they were not MPs (he referenced the fact that M__ was a cook). He also stated that in the previous inquiries no one stood up for him and he did not believe anyone would stand up now. He also related that he was being penalized for being a good leader and that his career was over. He said he did not want to provide a statement and thought it was in his best interest to consult with Trial Defense Services. He needed to be monitored for any signs of emotional distress. His demeanor was better by the time he was released. h. On 24 August 2017, the applicant was reprimanded. The GOMOR states he was reprimanded for his misconduct surrounding his relationship with SSG L__, a noncommissioned officer who was his direct subordinate, and is now his wife. He violated Army policy when he fraternized with SSG L__. His relationship and interaction with SSG L__ caused actual or perceived favoritism within the CID office that resulted in low office morale. Finally, he had a pattern of not treating subordinates with dignity and respect, which caused an unhealthy work environment and further degraded the office’s morale. (1) As a warrant officer, CID special agent, and someone who held multiple leadership positions, he was expected to be an example for his subordinates and to abide by all laws and regulations. Soldiers are entitled to outstanding leadership and he failed in this duty. His actions have embarrassed himself and the United States Army Criminal Investigation Command. (2) This was an administrative reprimand imposed under the provisions of Army Regulation (AR) 600-37 (Unfavorable Information), 19 December 1986, and not as a punishment under the Uniform Code of Military Justice. The imposing officer considered whether to file this reprimand permanently in his AMHRR. Prior to making his decision, he would consider any matters the applicant presented to him. He was provided a copy of the evidence that formed the basis for the reprimand. He would immediately acknowledge receipt of the reprimand in writing. He might forward any matters he wished the imposing officer to consider in extenuation, mitigation, or rebuttal within seven calendar days. He would consider any matter the applicant submitted before rendering a decision. i. On 18 September 2017, the applicant submitted a rebuttal to the GOMOR. He requested the reprimand be destroyed, or, in the alternative, locally filed. He stated that * he treated his subordinates with dignity and respect * SSG M__’s initial complaint was based on poor evaluations and his evaluations of SSG M__’s performance were honest, properly completed, and accurate * his relationship with SSG L__ during the time he was her rater was purely professional * although the GOMOR identifies a pattern of maltreatment of subordinates, the SOCO and AR 15-6 investigations disproved any mistreatment and determined that he “did not violate AR 600-20)” regarding the treatment of subordinates. He supported the EO program j. On 2 November 2017, the imposing general officer reviewed the GOMOR and the applicant's rebuttal, and ordered permanent filing of the GOMOR filed in the applicant’s AMHRR. k. On 26 January 2018, by memorandum, subject: Elimination from the CID Program, the Commanding General, CID, after careful consideration of the supporting documentation, directed the applicant be eliminated from the CID Program without convening an Accreditation Review Board. The decision was based on the applicant’s receiving a GOMOR for fraternizing with a subordinate, ill treatment of subordinates and fostering a hostile work environment. The CID elimination constituted permanent withdrawal of accreditation as a special agent. Therefore, he must be processed for mandatory branch transfer and directed permanent filing of this memorandum in the performance portion of his AMHRR. l. On 3 August 2018, the U.S. Army Human Resources Command (HRC) directed him to show cause for retention on active duty because of misconduct, moral or professional dereliction and derogatory information m. On 24 October 2018, the Commander, U.S. Army Military District of Washington, directed that a Field Board of Inquiry (FBOI) be conducted. The FBOI that was conducted on 11 December 2018, and approved on 16 January 2019, determined that he would be retained on active duty without reassignment. The elimination action from active duty is therefore closed. The DA Form 268 (FLAG), initiated at HRC has been closed. Documents contained in his AMHRR which were the basis for directing him to show cause for retention on active duty may only be removed through an appeal to the Department of the Army Suitability Evaluation Board (DASEB). n. On 30 January 2019, by memorandum, Subject: Closing of Elimination Action, the applicant was advised that he would be retained on active duty without reassignment. The elimination from the service action was therefore, closed. o. On 13 August 2019, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB), to remove the GOMOR from his AMHRR. On 24 August 2017, the DASEB voted to deny removal of the GOMOR. The DASEB found that based on the available evidence, the applicant has not provided clear and convincing evidence which shows the GOMOR is inaccurate, unjust, or otherwise flawed. The DASEB stated: (1) In order to remove a GOMOR from the official record, the burden of proof rests with the applicant 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 AMHRR. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. (2) An administrative reprimand is a management tool within the sole discretion of the imposing officer. The imposing officer stated after considering the supporting documents, including matters submitted in rebuttal, and all facts and circumstances surrounding the reprimand, he directed the GOMOR be permanently placed in his AMHRR. (3) The filing of the GOMOR was not unjust. The governing regulation permits the issuance of a written reprimand when there is reasonable belief that someone has deviated from the Army values, personal conduct, or the expectations of a Soldier. (4) A BOI is limited to making a determination on whether to retain (with or without reassignment) an officer on active duty or to eliminate an officer. Neither the IA nor the DASEB is bound by the BOI's findings or recommendations. The purpose of the BOI was to give the applicant a fair and impartial hearing determining if he would be retained in the Army. Therefore, the BOIs decision or recommendations do not impact the GOMOR or any other derogatory information in the appellant's AMHRR. (5) The governing regulation states the officer who directed the filing in the AMHRR of an administrative GOMOR, admonition, or censure may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in part. The basis for such determination must be provided to the DASEB in sufficient detail so as to justify the request. The appellant did not submit a letter from the imposing officer stating the GOMOR is unjust or untrue or new evidence was being considered or discovered. (6) The applicant has not provided clear and convincing evidence to support the removal of the GOMOR. The Board must assume a presumption of regularity. Once a DASEB GOMOR is properly filed in the AMHRR, it is presumed to be administratively correct and filed pursuant to an objective decision by competent authority. p. The applicant submitted a request for voluntary retirement and he was accordingly retired from active duty in the rank of CW2 on 31 May 2021. 5. Army Regulation 600-8-29 (Officer Promotions), 25 February 2005, prescribed policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. Paragraph 1-10 (Promotion Eligibility) stated promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the Secretary of the Army. For centralized promotions, eligibility is based on an officer's active date of rank and time in grade. Chief Warrant Officers two, three and four, these officers may not be considered for promotion to the next higher grade until they have completed 2 years of active duty in their current grade. 6. By regulation (AR 15-185), the ABCMR may, in its discretion, hold a 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, a majority of the Board found partial relief is warranted. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. A majority of the Board considered the amount of time that has passed since the applicant received a GOMOR and the fact that he has retired and determined it would be appropriate to transfer the GOMOR and all allied documents to the restricted folder of the applicant's AMHRR. The Board determined this action should have no impact on any decision made to remove him from a promotion list. 3. The Board unanimously found the GOMOR was warranted and found insufficient evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its removal from the applicant's AMHRR. The Board unanimously determined that the GOMOR should remain in his record and the member in the minority determined the evidence does not support transferring the GOMOR to the restricted folder of his AMHRR. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the GOMOR dated 24 August 2017 and all allied documents to the restricted folder of his AMHRR. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. a. A memorandum of reprimand may be filed in a Soldier's AMHRR 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 AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7. b. Paragraph 7-2 provides that 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 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 AMHRR. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such 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. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-26 (Referred OERs) states OERs with any negative or derogatory comments will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to Headquarters Department of the Army. b. Chapter 4 (Evaluation Report Redress Program) states the program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred. c. Paragraph 4-7 (Policies) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Alleged bias, prejudice, inaccurate or unjust ratings, or any other than administrative error are substantive in nature and will be adjudicated by the Army Suitability Review Board (ASRB). After resolution of the appeal, the appropriate reviewing agency amends the rated Soldier's records. If the rated Soldier has been nonselected for promotion, the ASRB will also determine if promotion reconsideration is warranted as a result of the change to the evaluation report. d. Paragraph 4-8 (Timeliness) provides that because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. Substantive appeals will be submitted within 3 years of an OER through date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR. The ASRB will not accept appeals that are over 3 years old or appeals from Soldiers who are no longer on active duty or part of the USAR or ARNG. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) states OERs will be filed in the performance folder of the OMPF. 4. Army Regulation 600-8-29 (Officer Promotions), 25 February 2005, prescribed policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. a. Paragraph 1-10 (Promotion Eligibility) stated promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the Secretary of the Army. For centralized promotions, eligibility is based on an officer's active date of rank and time in grade. Chief Warrant Officers two, three and four, these officers may not be considered for promotion to the next higher grade until they have completed 2 years of active duty in their current grade. b. Paragraph 1-11 (Approving Promotion Board Recommendations) stated promotion boards make recommendations to the President of the United States. The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports. Promotions to the grade of major and above must be confirmed by the Senate. 5. Army Regulation (AR) 15-185 (ABCMR) 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, which is that what the Army did was correct. a. 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. /NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005150 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1