ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF: 

		BOARD DATE: 17 December 2021

		DOCKET NUMBER: AR20210008572


APPLICANT REQUESTS: removal of the general officer memorandum of reprimand 
(GOMOR), 22 March 2017, from the restricted folder of his Official Military Personnel 
File (OMPF).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	Letter, undated
*	U.S. Army Recruiting and Retention Command Memorandum (Endorsement of 
Request for Removal of General Officer Memorandum of Reprimand (Applicant)), 
25 September 2020

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, 
U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records 
(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 states he would like the GOMOR removed for the following reasons:

	a.  First and foremost, he believes the GOMOR to be erroneous. The verbiage of the 
letter of reprimand contains information that is not true. It also states the reasons he 
was being investigated were "substantiated." This is 100-percent false as the only thing 
that was substantiated was that after years of being investigated, there was nothing 
tangible that could be found and used against him to prove any misconduct.

	b.  The letter of reprimand reads as though he was convicted of a crime, although 
the content is simply explaining why he was being investigated as if the author of the 
GOMOR cut and pasted from the U.S. Army Criminal Investigation Command (CID) 
letter. Not only has he never been convicted of a crime related to this investigation, he 
has never been charged with a crime relating to it. He was investigated for misuse of 
the Guard Recruiting Assistance Program (G-RAP). He has always and still maintains 
his innocence regarding the false accusations relating to the investigation. At no point in 
time did he engage in G-RAP impropriety and at no point in time during his tenure as a 
recruiter did he commit any of the offenses listed in the GOMOR. Because of this, he 
believes the GOMOR to be 100-percent fallacious.

	c.  He is also requesting removal of the GOMOR because he was under the 
impression at the time he acknowledged and signed the memorandum that it was the 
only choice he had. The general officer who issued the written reprimand informed him 
that it was a mere formality due to the fact that he had been investigated, and with the 
GOMOR being filed his restricted folder, neither he nor anyone else would ever see the 
document again. Because he was not of sound mind due to the physical and mental toll 
that the near 4-year investigation had taken on him, he didn't question anything and 
acknowledged and signed the GOMOR while only skimming the contents. Had he read 
it more thoroughly and with a clearer state of mind, he would have realized and 
understood the memorandum to be what it was, a farce.

	d.  In addition, after a 3-year investigation by the CID where his entire life (including 
financial purchase history, bank records, interviews with co-workers and recruits, etc.) 
was combed through, followed by another year-long investigation by the North Dakota 
Army National Guard (NDARNG), along with his own personal statements of innocence, 
nothing was found supporting the accusations being levied against him. During this 
time, he also took and passed a polygraph test to further show his innocence in the 
matter.

	e.  Finally, he would like the GOMOR removed from his OMPF because, ultimately, 
he was exonerated by The Adjutant General of North Dakota using the lowest threshold 
of evidence to determine any misconduct on his behalf.

3.  The applicant is currently serving in the ARNG.

4.  The CID memorandum (Law Enforcement Report – 1st Final), 27 January 2017, 
states:

	a.  The Operation Raptor investigation pertained to the NDARNG G-RAP based on a 
memorandum of transmittal received from the Fort McCoy CID Office, Fort McCoy, WI. 
The memorandum of transmittal reflected that in March 2013, a recruiting assistant 
(name masked) contacted his command and confessed to engaging in fraudulent  
G-RAP practices with a recruiter (name masked) and the applicant.

	b.  The investigation determined the recruiter (name masked) and the applicant, 
while acting in concert with the recruiting assistant (name masked) and other recruiting 
assistants, created, or assisted in creating, recruiting assistants accounts they had 
access to and utilized to fraudulently nominate potential Soldiers in the G-RAP 
database for their financial gain. There were approximately 120 recruiting assistants 
associated with the two recruiters and an estimated potential fraudulent amount of 
approximately $300,000.

	c.  Due to the number of recruiting assistants associated with the recruiter (name 
masked) and the applicant, the scope of the investigation focused on the recruiting 
assistants who received a significant G-RAP payment.

	d.  The CID office located and interviewed 20 recruiting assistants. Of those 
interviewed, all of these recruiting assistants indicated involvement with either one or 
both recruiters. Of these 20 recruiting assistants, the majority of them indicated they 
were encouraged by either the applicant or the recruiter (name masked) to create a  
G-RAP account. The G-RAP account creation process was expedited by the recruiter 
(name masked) or the applicant, providing the required answers needed to complete 
the enrollment process.

	e.  The recruiting assistant (name masked) and a second recruiting assistant (name 
masked) received three payments of $750 each and reported they did not know their 
actions were in violation of the G-RAP policies.

	f.  The recruiting assistant (name masked) admitted to splitting G-RAP payments 
with the applicant and a recruiter (name masked) using "untraceable cash."

	g.  With the assistance of the applicant, a recruiting assistant (name masked) 
created his G-RAP account and received "dead lead cards" from the applicant and a 
recruiter (name masked) that contained the names and phone numbers of prospective 
Soldiers with whom the applicant and a recruiter (name masked) had already spoken to, 
but who did not join the NDARNG. Other than re-contacting these leads and directing 
them to recruiters, the recruiting assistant (name masked) had no other interaction with 
them. The recruiting assistant (name masked) admitted he gave his logon identification 
and password to the recruiter (name masked) and the applicant, which allowed them to 
nominate potential Soldiers in the G-RAP, but denied sharing any G-RAP payments 
with anyone.

	h.  The CID office interviewed a former recruiter (name masked). During the 
interview (name masked) related that he had once heard the applicant and a recruiter 
(name masked) discussing the "kick back system" in G-RAP. (Name masked) stated he 
never received any type of money from any recruiting assistants whom he worked with 
while he was a recruiter. A review of records showed the recruiter (name masked) was 
only a full-time recruiter for about a year. During the course of the investigation, the 
recruiter (name masked), was only referenced once by a recruiting assistant whom he 
was involved with in the kickback scheme. That recruiting assistant related that it was 
the applicant who told the recruiting assistant that he owed the recruiter (name masked) 
money for a G-RAP nomination. According to the recruiting assistant, it was the 
applicant who collected the money and he never had any discussion with the recruiter 
(name masked) about it.

	i.  The total loss to the government, including Docupak fees and pertaining only to 
the titled subjects, was $45,000.

	j.  Legal Coordination: On 26 January 2017, (name masked), Assistant 
U.S. Attorney, U.S. Attorney's Office for the District of North Dakota provided final legal 
opinions and opined probable cause existed to believe the applicant, the recruiter 
(name masked), and (names masked) committed the offenses of fraud against the 
U.S. Government, aggravated identity theft, wire fraud, and conspiracy. The Assistant 
U.S. Attorney opined there was no probable cause to believe the recruiting assistant 
(name masked) committed the offenses of aggravated identity theft, wire fraud, or 
conspiracy. No additional investigative efforts were required. The report was provided to 
the commander for consideration of action.

	k.  The Assistant U.S. Attorney (name masked) declined to prosecute based on the 
expiration of the statute of limitations and the dollar amount falling below the Assistant 
U.S. Attorney's prosecution threshold.

5.  He was issued a GOMOR on 22 March 2017 wherein the Adjutant General of 
North Dakota, Joint Forces Headquarters, stated:

	a.  The applicant was reprimanded. The CID conducted a criminal investigation and, 
based on the probable cause of the evidence, substantiated the report of fraud against 
the U.S. Government, aggravated identity theft, wire fraud, and conspiracy for which he 
was named as the reported perpetrator. These offenses are in violation of Articles 81, 
132 and 134, of the Uniform Code of Military Justice. This conduct is a serious violation 
of integrity and trust the United States placed in him as a member of the Armed Forces.

	b.  By his actions, he broke faith with his fellow service members, the NDARNG, and 
the public whom they serve. He violated their core values and his responsibilities as a 
noncommissioned officer. Military law, custom, and tradition require a high standard of 
conduct by all of their members. These standards of conduct require the highest moral 
principles as well as unquestionable integrity, even in a situation where it is easy to take 
advantage. As a noncommissioned officer, he had a duty to act responsibly, to exercise 
mature judgment, to set a proper example for subordinates, and earn the respect of his 
superiors, peers, and subordinates. He must never act in a manner that brings discredit 
to the military, which he has done by engaging in committing identity theft, wire fraud 
and conspiracy.

	c.  The reprimand was imposed as an administrative measure in accordance with 
Army Regulation 600-37 (Unfavorable Information) and not as punishment under the 
Uniform Code of Military Justice. It was, however, intended to promptly and directly 
signal The Adjutant General's disapproval of his conduct. He was given 30 days from 
receipt of the memorandum to provide any information in rebuttal in writing for 
consideration prior to a filing decision.

6.  On 27 March 2017, the applicant acknowledged receipt of the reprimand and 
indicated he would submit written matters in his own behalf. His written rebuttal is 
unavailable for review.

7.  The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 
30 October 2017, shows:

	a.  The applicant's offenses as follows:

*	7 December 2007 – Fraud Against the United States, Title 18, U.S. Code
*	25 May 2007 – Conspiracy, Title 18, U.S. Code
*	25 May 2007 – Aggravated Identity Theft, Title 18, U.S. Code, Article 134
*	25 May 2007 – Fraud Against the United States, Title 18, U.S. Code
*	28 November 2007 – Conspiracy, Title 18, U.S. Code
*	28 November 2007 – Fraud Against the United States, Title 18, U.S. Code
*	27 July 2008 – Aggravated Identity Theft, Title 18, U.S. Code, Article 134
*	27 July 2008 – Fraud Against the United States, Title 18, U.S. Code
*	4 October 2010 – Aggravated Identity Theft, Title 18, U.S. Code, Article 134
*	4 October 2010 – Fraud Against the United States, Title 18, U.S. Code

	b.  Block 10a (Commander's Remarks) lists the law enforcement report and states 
the statute of limitations expired and prosecution of subjects in this case file was 
declined by the Assistant U.S. Attorney.

8.  On 17 November 2017, his battalion commander recommended filing the GOMOR in 
the restricted folder of his OMPF.

9.  On 13 February 2018 after considering the circumstances surrounding the reprimand 
and the recommendations of the applicant's chain of command, the GOMOR-imposing 
authority directed permanently filing the GOMOR in the restricted folder of the 
applicant's OMPF.



BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered.  
Regulatory guidance provides that once a reprimand is filed in the OMPF, the reprimand 
and associated documents are permanent unless removed by the appropriate authority.  
Furthermore, once an official document has been properly filed in the OMPF, it is 
presumed to be administratively correct and to have been filed pursuant to an objective 
decision by competent authority. Thereafter, the burden of proof rests with the individual 
concerned to provide evidence of a clear and convincing nature the document is untrue 
or unjust, in whole or in part, thereby warranting its alteration or removal from the 
OMPF. Based upon a preponderance of the evidence, the Board determined there is 
insufficient evidence that shows the criteria allowing for the removal of the GOMOR 
from his OMPF was 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.  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 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 600-8-104 (Army Military Human Resource Records Management), 
effective 7 May 2014, prescribes policies governing the Army Military Human Resource 
Records Management Program. The Army Military Human Resource Record (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.

3.  Army Regulation 600-37 (Unfavorable Information), effective 20 January 1987, set 
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 3 (Unfavorable Information in Official Personnel Files) stated 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.

	b.  Paragraph 3-4 states filing of nonpunitive administrative letters of reprimand, 
admonition, or censure in official personnel files, such as 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 (Appeals).

	c.  Paragraph 7-2 (Policies and Standards) 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 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.

	d.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20210008572


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