IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20220000708 APPLICANT REQUESTS: through counsel, removal of the general officer memorandum of reprimand (GOMOR), 13 November 2019, from his Army Military Human Resource Record (AMHRR). 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) * Counsel's Letter to the Army Review Boards Agency, 6 January 2022 * GOMOR, 13 November 2019 (listed as exhibit A) FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. The applicant respectfully requests removal of the written reprimand. The request is based upon the improper filing of the reprimand in his AMHRR. As a preliminary matter, please note the applicant requested removal of the reprimand by the Department of the Army Suitability Evaluation Board (DASEB) and his request was denied on 20 September 2021. Accordingly, the applicant has exhausted his other administrative remedies. The following facts, circumstances, and regulations support his position. b. The reprimand filed in the applicant's AMHRR is improper under the regulation. Some of the objectives of Army Regulation 600-37 (Unfavorable Information) are to apply fair and just standards to all Soldiers and to protect the rights of individual Soldiers as well as to permit the Army to consider all available relevant information (see paragraph 1-6). To create just standards, the regulation contains several standards for filing a reprimand in the AMHRR. To file a reprimand in the AMHRR, the reprimand must, among other things, have the order of a general officer (to include one frocked to the rank of brigadier general (BG)) senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual.? c. The reprimand is not authorized for filing in the applicant's AMHRR because it does not contain the required filing intention. In accordance with Army Regulation 600-37, paragraph 3-5c, a memorandum containing unfavorable information to be included in a Soldier's AMHRR will: * be referred to the recipient concerned for comment (see paragraph 3-7) * the referral will include reference to the intended filing of the memorandum * the referral will also include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the memorandum, provided the recipient was not previously provided an opportunity to respond to information reflected in that documentation * documents that require the approval from officials or agencies, other than the official issuing the memorandum, will be coordinated with the release authority prior to releasing to the recipient * statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing in the AMHRR * the statements and evidence, and/or any applicable written correspondence thereof, will be attached as enclosures to the memorandum d. This regulatory guidance is mandatary and was not done in this case. In this case the reprimand states: "I am considering filing this reprimand in your Army Military Human Resources Records (AMHRR) file but will make a final determination only after considering any matters you provide, as well as the recommendations of your chain of command." This only states such a filing is being considered; it is not a filing intention. This is not a reference to the intended filing, which is what the regulation requires. As a result, the reprimand was improperly filed in the applicant's AMHRR in the first place. e. Federal law dictates that an agency and government officials, including the Army, "must follow their own regulations" (Wagner v. United States, 365 F. 3d 1358, 1361 (Fed. Cir. 2004)). This was not done here. Indeed, the implication in the reprimand itself is that it is being considered for local filing. It does not state a filing intention. A copy of the reprimand is attached as exhibit A. It is important to note the individual who recommended the reprimand at the time was a colonel (COL) and had a chief judge advocate (Lieutenant Colonel (LTC) ), a senior military attorney, working directly on her staff. It is also worth noting that BG , who wrote the reprimand, would also have a senior staff judge advocate on his personal staff. Accordingly, it is reasonable to expect that if the reprimand was to be filed in the applicant's AMHRR, that chain of command would have complied with the regulation and stated a filing intention. To make it plain, when language in a regulation is emphasized it is done for a reason. Consequently, when Army Regulation 600-37, paragraph 3-5c, emphasized this language it is a requirement to comply ("A memorandum containing unfavorable information, to be included in a Soldier's Army Military Human Resource Record will…") f. If the command in this case did not wish to comply with Army Regulation 600-37, it could have requested an exception or a waiver. The proponent of this regulation is the Deputy Chief of Staff, G-1. The proponent has the authority to approve exceptions or waivers to this regulation that are consistent with controlling law and regulations. The command here did not do so. Simply put, a regulatory requirement may not be ignored even if following it is inconvenient. The applicant respectfully states that even though he disagrees with the investigation (he has maintained his innocence throughout the process) and the actions taken because of it, he understands it. The applicant does not understand the unwillingness to follow regulatory requirements. The requirements in the regulation not only protect personnel in the Army, but they protect the Army. In other words, if a command wants to file a reprimand in a Soldier's AMHRR, the command should follow the regulation to put it there. 3. The applicant's records show he was appointed as a Reserve commissioned officer in the U.S. Army Reserve in the Chaplain Corps in the rank/grade of captain/O-3 effective 25 October 2013. He graduated from the Chaplain Basic Officer Leader Course on 15 August 2014. He was promoted to major (MAJ)/O-4 effective 20 August 2018. 4. Headquarters, 364th Sustainment Command (Expeditionary), Marysville, WA, Orders VD-144-0012, 24 May 2019, ordered the applicant to active duty as a member of his Reserve Component unit (Headquarters and Headquarters Detachment, 652d Regional Support Group) to Fort Hood, TX, with a reporting date of 8 September 2019 in support of European Deterrence Initiative. 5. Headquarters, III Corps and Fort Hood, Orders HQ-260-0071, 17 September 2019, ordered the applicant to deploy in a temporary duty status in support of European Deterrence Initiative to Powidz, Poland, proceeding on or about 25 September 2019 for a period not to exceed 345 days. 6. The applicant became the subject of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation on 10 October 2019. An investigating officer (IO) was appointed on 10 October 2019 to investigate the facts and circumstances surrounding the applicant's deployment and whether he violated a lawful verbal order not to consume more than two alcoholic drinks a day. The IO was directed, at a minimum, to address the following questions: * who was with the applicant when he consumed alcoholic drinks, if any, on 5 October 2019? * what type of alcoholic drinks and how many alcoholic drinks did the applicant consume, if any, on 5 October 2019? * where did the applicant consume alcoholic drinks, if any, on 5 October 2019? * when did the applicant consume alcoholic drinks, if any, on 5 October 2019? * why did the applicant consume alcoholic drinks, if any, on 5 October 2019? * how did the applicant conduct himself after consuming alcoholic drinks, if any, on 5 October 2019? 7. On 21 October 2019, the IO completed the investigation and determined the following (see attachment with auxiliary documents): a. Summary: On 5 October 2019 between the hours of 1430 and 1800 in the town of Gniezno, Poland, the applicant consumed a minimum of four alcoholic drinks of whiskey, but maybe as high as nine alcoholic drinks according to witnesses, in a social gathering after which his behavior and demeanor degraded rapidly. b. Findings: After carefully considering the evidence, the IO determined the following regarding the questions: (1) Question 1: The IO found the following individuals were with the applicant when he consumed alcoholic drinks on 5 October 2019: * Master Sergeant * LTC * LTC * MAJ * Staff Sergeant (2) Question 2: The IO found that on 5 October 2019, the applicant violated a verbal lawful order by consuming a minimum of four alcoholic drinks of whiskey, but more likely it was closer to nine alcoholic drinks of whiskey due to his ordering double and triple-shots in a single glass. (3) Question 3: The IO found that on 5 October 2019, the applicant consumed alcoholic drinks at both Dolce Vita and Pub Pietrak in Gniezno, Poland. (4) Question 4: The IO found that on 5 October 2019, the applicant consumed alcoholic drinks between the hours of 1430 and 1800. (5) Question 5: The IO found that on 5 October 2019, the applicant was invited to two separate social engagements. (6) Question 6: The IO found that on 5 October 2019, the applicant conducted himself in a normal and consistent manner at his first social engagement but became very much degraded and inebriated during his second social engagement after all the alcohol he had imbibed took effect. c. Recommendations: (1) With regard to the applicant, the IO recommended appropriate administrative and/or UCMJ action. (2) The IO recommended publishing a written policy letter stating exactly what the unit's alcohol policy is with penalties defined. (3) The IO recommended instituting a buddy system in which accountability for adherence to unit's policy is reinforced. 8. The applicant was issued a GOMOR by the Commander, Seventh Army Training Command, Grafenwoehr, Germany, on 13 November 2019, wherein he stated: You are reprimanded for violating a verbal lawful order limiting alcohol intake to two drinks while on mission in Poland. On 5 October 2019, during a social outing with other officers and enlisted Soldiers in Gniezno, Poland, you consumed at least four drinks of whisky [sic], which rendered you visibly intoxicated. While in this inebriated state, you displayed a lack of coordination and interrupted conversations by other members of the group with unrelated comments. On the return trip to Powidz, the cab had to pull over so you could vomit. Your conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit on the armed forces. I am extremely disappointed that a commissioned officer and Chaplain would engage in this type of conduct. Your conduct reflects a gross lack of discipline, undermines your position as a Major and a Chaplain, and raises serious questions whether you have the responsibility and professionalism to continue leading and guiding Soldiers in the United States Army. This memorandum is imposed as an administrative measure under the provisions of AR [Army Regulation] 600-37 and not as punishment under Article 15, UCMJ [Uniform Code of Military Justice]. I am considering filing this reprimand in your Army Military Human Resources Records (AMHRR), but will make a final determination only after considering any matters you provide, as well as the recommendations of your chain of command. You will acknowledge this reprimand by signing the attached memorandum, and returning it to me within 10 calendar days, together with any statements or rebuttal on your behalf. 9. The applicant acknowledged receipt of the GOMOR on14 November 2019. He submitted rebuttal matters, through counsel, on 21 November 2019 (see attachment). Counsel requested filing the reprimand locally. Counsel further noted the applicant maintained his innocence and the investigation did not establish his guilt and was incomplete. The applicant established that he did not attend the meeting to define what a drink was. 10. After carefully considering the matters submitted in rebuttal, the Commanding General, Seventh Army Training Command, directed filing the GOMOR in the applicant's AMHRR on 9 December 2019. 11. A review of the applicant's AMHRR shows the GOMOR, 13 November 2019, with allied documents is filed in the performance folder. 12. Headquarters, III Corps and Fort Hood, Orders 325-0156, 21 November 2019 released the applicant from active duty, not by reason of physical disability, to his Reserve Component unit effective 2 December 2019. 13. The applicant was honorably released from active duty on 2 December 2019 by reason of completion of required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 months and 28 days of net active service during this period. Item 18 (Remarks) of this form shows: * Service in Poland 26 September 2019-20 November 2019 * Ordered to Active Duty in Support of European Deterrence Initiative in Accordance with Title 10, U.S. Code, Section 12304(B) 14. The applicant petitioned the DASEB for removal of the GOMOR, 13 November 2019, from his AMHRR. On 14 September 2021 in Docket Number AR20210013807, the DASEB by majority vote determined that the overall merits of the case did not warrant the requested relief for removal of the GOMOR. 15. The applicant is currently serving in the rank/grade of MAJ/O-4 assigned to the Headquarters and Headquarters Detachment, 652d Regional Support Group, Fort Harrison, MT. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant’s military records, the Board found that relief was not warranted. The Board carefully considered through counsel the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. One potential outcome was to grant relief based on the punishment considered as harsh and belief that a onetime incident should not impact a military career. However, upon review through counsel of the applicants petition and available military records, the Board majority determined the counsel did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant and by a preponderance of evidence that the contents of the general officer memorandum of reprimand (GOMOR) are substantially incorrect and support removal. The Board determined the applicant violated General Order #1 and became intoxicated and his conduct was unbecoming of an officer. The Board found the witness statements to be condemning and the applicant put himself in a comprising position as a leader. Furthermore, his admission of not attending the meeting for what was allowed for alcohol consumption is not an excuse. There does not appear to be any evidence the contested GOMOR was unjust or untrue or inappropriately filed in the applicant's AMHRR. Therefore, relief was denied removing the GOMOR,13 November 2019, from his Army Military Human Resource Record. 2. The purpose of maintaining the Army Military Human Resource Record (AMHRR) is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 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; it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of evidence. 2. Army Regulation 15-6 establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. 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. A memorandum of reprimand may be filed in a Soldier's Official Military Personnel File (OMPF) 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 OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). c. Paragraph 7-2 (Policies and Standards) states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d. Paragraph 7-3c (Filing Authority to Redress Actions) states an officer who directed filing an administrative memorandum of reprimand, admonition, or censure in the AMHRR may request its revision, alteration, or removal, if evidence or information indicates the basis for the adverse action was untrue or unjust, in whole or in part. An officer who directed such a filing must provide the DASEB a copy of the new evidence or information to justify the request. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR includes, but is not limited to the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 (Authority for Filing or Removing Documents in the AMHRR Folders) 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. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows memorandums of reprimand, censure, and admonition are filed in accordance with Army Regulation 600-37. //NOTHING FOLLOWS//