BLUF: The Army’s reprimand (GOMOR) process is broken, fundamentally unfair, and should be substantially overhauled.
The Army Reprimand System: Broken and Abused
A General Officer Memorandum of Reprimand -- GOMOR -- is the kiss of death in a Soldier’s Official Military Personnel File (OMPF). A GOMOR is called, and is often meant to be, a “Career Killer." A GOMOR will certainly block a Soldier’s promotion. Increasingly, GOMORs trigger “Elimination Proceedings" (aka “Show Cause Boards"). Tens of thousands of Soldiers will be separated as the Army “shapes" its new force. Soldiers with reprimands in their OMPFs are low-hanging fruit. If they have a GOMOR in their OMPF, they need to protect their careers and appeal those reprimands.
The dirty secret: a GOMOR is the Army's way of punishing Soldiers when the evidence isnt' there. The Army requires no standard of proof for a reprimand to be filed, permanently, in a Soldier’s official military records. Army Regulation 600-37, “Unfavorable Information," requires only an “objective decision by competent authority." A General Officer can determine, unilaterally and without external review, that the reprimand be filed in a Soldier’s permanent records.
GOMORs punish Soldiers where the “evidence" fails to meet any standard of proof. This is fundamentally unfair. For instance, Soldiers are reprimanded for committing the crime of “adultery" based on “evidence" that would never withstand a court-martial. Soldiers unintentionally accepting a too-high amount of money for off-post housing allowance are reprimanded for the crimes of “larceny" and “defrauding the U.S. Government," regardless of a lack of wrongful intent.
Ironically, these reprimands state the crime, and the article from the Uniform Code of Military Justice, but the Soldier is afforded virtually none of the safeguards of the Uniform Code of Military Justice (UCMJ) they ostensibly violated. A reprimand may state, “You violated Article 132 of the Uniform Code of Military Justice, Frauds Against the United States," but nowhere is there a discussion of the elements required to satisfy a conviction of fraud. There is no requirement in a GOMOR to prove the crime under the UCMJ. So there is, in fact, no “military justice" (Uniform Code of Military Justice) at all. Not only is this patently unfair, it doesn’t pass the common sense test. But GOMORs have become the everyday work-around. The overtly accepted attitude is, “The evidence isn’t there, so we’ll give Captain Jones a GOMOR." It’s the Army’s dirty little secret. It needs to stop.
Oz: Reprimands of East and West
There are two kinds of reprimands: 1) those imposed as a punitive measure under Article 15, the Uniform Code of Military Justice; and 2) “administrative" reprimands. Article 15s are nonjudicial punishment. A Soldier is “offered an Article 15" and given the option to accept it, or demand trial by court-martial. If the Soldier accepts the Article 15, part of the punishment may be a reprimand filed in his permanent records. This is fair; the Soldier was given the opportunity to defend himself against the evidence at trial, with a verdict by an impartial jury. If he accepts the Article 15, by definition he accepts whatever punishment fits the misconduct, to include a punitive reprimand.
It’s the “administrative reprimand" that’s broken and needs to be fixed. Illustrating the inherent unfairness is the following case in point:
A senior Non-Commissioned Officer (NCO) received a GOMOR for misconduct. He was one of a total of fifteen Soldiers, all disciplined for essentially the same wrongdoing. The other fourteen Soldiers were all offered, and accepted, Article 15s. In other words, none of them demanded trial by court-martial; none of them challenged the evidence. The NCO, however, received a GOMOR, not an Article 15. The GOMOR was filed in this NCO’s official record. The NCO contacted the author of this article and adamantly denied the allegations. He wanted to appeal the GOMOR to the Department of the Army Suitability Evaluation Board (DASEB). The investigation enclosed with the GOMOR included the innocuous note that -- the fourteen other Soldiers received Article 15s, but: “CoC [Chain of Command] believes SM [servicemember] will demand trial by Court-Martial. Intent is to prevent SM from being promoted."
Of the fifteen Soldiers, therefore, this NCO was the only one who intended to demand trial by court-martial. Knowing that, the chain of command made a conscious decision to not offer him an Article 15; to not offer him trial by court-martial; to not permit him to challenge the evidence in front of a jury. Was this legal? Yes. Was it fair? No. The Army’s administrative reprimand process is being abused. Soldiers are being denied justice as a result. (The NCO’s appeal was granted by the DASEB. The GOMOR was removed from his official files.)
First, Army Regulation 600-37, “Unfavorable Information," was published in 1986. It is one of the oldest Army Regulations in the Army inventory. It drastically needs revision. New safeguards must be built into the reprimand process.
Standard of Proof
Currently, there is virtually no required standard of proof for a reprimand filed in a Soldier’s Official Military Personnel File. It should be, minimally, preponderance of the evidence, similar to that required in Army Regulation 15-6: "must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, after considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion."
GOMOR -- or Article 15
Another obvious fix: if a Soldier is presented a General Officer Memorandum of Reprimand to be filed in his permanent records, he should be required to be offered, in the alternative, an Article 15. Once offered an Article 15, the Soldier can then decline it and demand trial by court-martial. This would allow the Soldier to have his day in court. This would be “military justice." This would be fair.
No Reference to Crimes Under the UCMJ in GOMORs
A further safeguard would prohibit reprimands from citing to crimes from the Uniform Code of Military Justice the Soldier is charged with having committed without benefit of a court-martial. The Army should not be allowed to try, and convict, Soldiers of serious UCMJ crimes through the administrative reprimand process. This evidentiary workaround is unfair and unjust and must stop.
Renovate the Reprimand Mill
The entire “reprimand mill" needs revamping. Typically, an investigating officer is appointed to look into alleged misconduct. After a few weeks or months, he produces a report with “findings and recommendations." The vast majority of these investigating officers have never conducted an investigation in their lives. Rarely do they have any investigative training whatsoever. They are first instructed to meet with the servicing Staff Judge Advocate (SJA) (or, actually, a junior Judge Advocate in the SJA office). The JA instructs them how to take “sworn statements"; “what evidence to look for"; “who to interview"; etc. Note: the SJA works for the commander, who appointed this investigating officer. The commander, his SJA, and now the investigating officer are all on the same prosecutorial team. Is this fair to the Soldier? No. Add to that, the investigating officer is typically in the commander’s chain of command and is going to receive his Evaluation Report either from that commander directly, or from the commander’s chain of command. Everyone wants to please the commander and get a good Evaluation and get promoted. Often, the investigating officer simply looks for, and finds, whatever evidence will justify his having been appointed to look into the matter in the first place. Ask yourself, under these dynamics, what are the chances for a fair and impartial investigation? The answer should be clear: slim to none.
Suggested fixes. First, ensure the independence of investigating officers. Eliminate conflicts of interest. Investigating officers should be required to not be in the appointing commander’s chain of command. Next, ensure the investigative competence of the investigating officer. An outstanding Battalion S-3 does not necessarily make an outstanding investigating officer. Consider appointing Inspector Generals (IGs) to conduct investigations. This makes sense. IGs are already school-trained. They’re taught to be impartial, to see both sides. Finally, ensure the investigating officer receives legal advice from an impartial Judge Advocate General -- JAG -- outside the commander’s chain of command. Protect the integrity of the process. Avoid even the appearance of partiality.
Monitor Reprimands at HQDA
A General Officer has extraordinary power to end a Soldier’s career with a reprimand filed in his OMPF. There must be checks and balances on this power. In the current fiscal environment, these reprimands increasingly serve as bases for Elimination Proceedings. Presently, there is no oversight of General Officer reprimands. This needs to change. Headquarters, Department of the Army, should require from Army Human Resources Command (HRC), reports, and copies, of all reprimands directed for filing in Soldiers’ OMPFs. These reprimands should be reviewed by The Judge Advocate General of the Army (TJAG). When questionable, inappropriate, or legally insufficient reprimands come to TJAG’s attention, TJAG should personally contact that General Officer.
The weakness of evidence supporting administrative reprimands is often tragic. Investigations are routinely biased ab initio. Systemic flaws in the reprimand process can and must be fixed. There have been three complete re-publications of the Manual for Courts-Martial since 2000. Yet AR 600-37 hasn’t been touched in 25 years. It needs to be gutted, stripped, re-thought and re-written. Injustices are being done to Soldiers through the administrative reprimand process. This has got to stop. Something must change.
Military Law Attorney