IN THE CASE OF: BOARD DATE: 28 September 2010 DOCKET NUMBER: AR20100016575 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF) or in the alternative, transfer of the GOMOR to the restricted portion of his OMPF. 2. The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel states relief should be granted for the following two reasons: the GOMOR was not supported by the weight of the evidence when it was issued and as such there was an error or an injustice. Additionally, the applicant has shown substantial evidence that the GOMOR has served its purpose and it would be an injustice to keep the GOMOR in the applicant's file. 2. In reference to the GOMOR not being supported by the weight of the evidence, counsel provides a synopsis of the applicant's deployment in the Philippines and his subsequent relationship with a lieutenant (LT) from the Armed Forces of the Philippines. Counsel states that on 2 June 2007, the applicant and the LT were at two different social events at separate locations. However, they exchanged text messages that were described as mutually flirtatious and sexually suggestive throughout the night. After leaving their social events, the applicant and the LT met on the road home as agreed upon. The applicant walked the few blocks home with the LT, they stopped to talk, and the LT leaned in to kiss the applicant and he kissed her back. However, the next morning the LT allegedly accused the applicant of kissing her without her consent and grabbing her buttocks, but she refused to make a written or verbal statement. 3. On 3 June 2007, an investigating officer (IO) was appointed to conduct an investigation into the facts surrounding the allegations. After reviewing and collecting the evidence, the IO stated the applicant violated the fraternization policy, committed indecent assault, and made a false official statement. Based on the IO's report, the applicant received a GOMOR for "conduct unbecoming an officer and for making a false official statement." 4. Counsel offers the allegation of making a false official statement was not supported by a preponderance of evidence. He describes what the Uniform Code of Military Justice (UCMJ) interprets as making a false official statement and maintains the IO's determination that the applicant made a false official statement was in error. The counsel states the IO asked "what was the nature of the applicant's relationship with the LT" which the applicant described as a business relationship. He maintains the applicant's statement was true and as such, he cannot be guilty of making a false official statement. Furthermore, counsel states even if the statement was false there was no evidence presented that the applicant knew the statement to be false, or that he intended to deceive the IO by making a false statement. As such, counsel opines all language suggesting the applicant made a false official statement should be removed from the GOMOR and all records reflecting the same. 5. Counsel states the IO's determination that the applicant committed indecent assault was not supported by a preponderance of the evidence. He maintains the IO determination was in error because none of the four service members who described the applicant's actions had any personal knowledge of the events on 2 June 2007. He adds the four stories described by the IO as consistent contained numerous material inconsistencies regarding the alleged indecent assault itself, including the whereabouts and the indecent touching that occurred. He offers two of the four statements were coerced by the Battalion Judge Advocate and the victim's advocate and were only obtained after they convinced the LT to speak with them after she refused to make a statement. The other two statements lacked any sign of reliability and are the results of a series of retelling of the events. 6. Counsel offers the IO relied on statements made by the alleged victim that were made "off the record" and only two of the seven interviews conducted by the IO were signed by witnesses. Based on these reasons, he does not believe the GOMOR, in reference to making a false official statement and indecent assault, were supported by the preponderance of the evidence. Counsel states the only evidence presented that the applicant committed assault or made a false official statement are the unsworn allegations the LT conveyed through hearsay. 7. In September 2009, the applicant filed a request with the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR from his OMPF or in the alternative, transfer of the GOMOR to the restricted portion of his OMPF. However, counsel maintains DASEB's decision to deny the applicant's request is unjust and in error. The DASEB abused its discretion when it imposed additional requirements to transfer the GOMOR. He offers there is no requirement to provide any information that the Soldier has been deprived of the benefits granted other Soldiers. He adds the analyst evaluating the applicant's case found that the applicant provided substantive evidence that the GOMOR has served its intended purpose and it was in the best interest of the Army to transfer the GOMOR. He maintains imposing additional requirements not set forth in the regulation is an abuse of discretion and therefore both unjust and in error. 8. Counsel provides the following: * DASEB Record of Proceedings * Memorandum for Record, Subject: Applicant's Cell Phone Messages * Memorandum for Record, Subject: Interview with Applicant * Memorandum for Record, Subject: Victim Advocate Interview * Five Interviews and two Sworn statements with witnesses * IO appointment orders * Army Regulation (AR) 15-6 Investigation * GOMOR * Fiscal Year (FY) 2010 Major, Army Selection Board Results * Officer Evaluation Reports * Electronic Mail, Subject: Applicant * Two Supporting Letters * Memorandum for Record, Subject: Initiation of Elimination CONSIDERATION OF EVIDENCE: 1. The applicant's records show he is currently an active duty captain with a date of rank of 1 January 2005. 2. On 3 June 2007, an IO was appointed to conduct an AR 15-6 investigation into the facts surrounding the applicant's alleged drunkenness and unwanted sexual advances towards a female member of the Armed Forces of the Philippines. 3. On 10 June 2007, the IO stated the applicant did not violate the alcohol consumption or the curfew policy. However, the IO substantiated the following findings: a. Fraternization Policy: Based on the applicant's own admission of touching and kissing the accuser, the applicant violated the Joint Special Operations Task Force-Philippines (JSOTF-P) Commander's Personal Conduct Policy which prohibits fraternization with Philippine nationals. b. Indecent Assault: There was sufficient evidence to conclude the applicant's actions constituted indecent assault. The applicant claimed that all of his interactions with the accuser were consensual, but he gave the IO reason to question his truthfulness. The accuser conveyed a consistent story to four (4) U.S. service members that described the applicant's actions as nonconsensual and also described the accuser's actions to resist the applicant's advances. The applicant admitted to kissing and touching the accuser. c. False Official Statement: The applicant made a false official statement to the IO. After waiving his rights and agreeing to an interview, the applicant was asked to describe what transpired with the accuser on the evening in question, and to specifically describe any physical contact with her. The applicant stated the extent of his contact was kissing the LT and putting his hands on her hips and lower back. In the applicant's conversation with the first sergeant (1SG) he said he also put his hands down her pants. Additionally, when the IO asked him to describe his relationship with the accuser to include his phone messages, he said they were all business related; however, the text messages the applicant sent to the accuser on the night of 2 June 2007 were clearly flirtatious and sexually suggestive and not at all business-like in nature. 4. In regard to the applicant, the IO recommended the following: a. The applicant should face an Article 15 for failure to obey an order, making false official statements, and indecent assault. b. Since the accuser and her chain of command are unwilling to cooperate with further investigations any attempt to force the issue could result in irreparable damage to relations with the host nation's counterparts; therefore, no further action should be taken to have the accuser document the indecent assault. c. The applicant should be questioned again to address the inconsistencies in his statements in regard to the nature of the physical contact, the accuser's resistance to that contact, and the nature of their relationship and communications. 5. On 26 June 2007, the applicant received the GOMOR for conduct unbecoming an officer and making a false official statement in violation of the UCMJ. The Commanding General stated while deployed to the Philippines in January 2007, the applicant interacted with a female member of the Armed Forces of the Philippines in violation of the Joint Special Operations Task Force-Philippines (JSOTF-P) Policies and Personal Conduct. He stated the applicant exchanged sexually suggestive text messages with her, forcibly kissed and groped her, and lied about his contact with her to the IO. 6. On 17 July 2007, the applicant submitted a rebuttal to the GOMOR and admitted he had a lapse in judgment in violating the JSOTF-P Commander's Directive. He said he was truly sorry for the impact it may have had or could have to the future of their mission. However, he added there were significant differences between the actions he committed and the actions described in the GOMOR and in the findings of the IO. He stated the following: a. The IO never directly interviewed the alleged victim; therefore, the IO's findings were based on inconsistent second-hand accounts. b. The IO referred to a statement given by the 1SG wherein the 1SG states the applicant admitted to forcing his hand down the LT's pants which he did not do or admit to doing in his conversation with the 1SG. c. The IO referred to flirtatious text messages between the applicant and the LT as proof the applicant had been covering up information about the nature of their relationship. The applicant said up until the day of the incident his previous text messages to the LT had been generally about business. He said as he understood it, the intent of the question was to establish if there was a romantic relationship prior to the night of the incident which there was none. 7. The applicant continued by providing a brief synopsis of his contributions as an officer and a leader. He provided copies of previous OERs and two character statements from former supervisors that attested to his outstanding performance of duty during their tenure. The applicant concluded by requesting the GOMOR be withdrawn or placed in his military personnel file. 8. On 21 August 2007, the Commanding General stated he reviewed the matters pertaining to the GOMOR and directed that it be filed in the applicant’s OMPF. 9. On 1 September 2009, the applicant submitted an appeal to the DASEB to either remove the GOMOR from his OMPF or transfer it to the restricted portion of his OMPF. He cited the same reasons as his counsel in his appeal to this Board. He provided a copy of his AR 15-6 investigation, several copies of OERs, and statements of support from his current Battalion Commander and Deputy Brigade Commander. The analyst recommended denial of the applicant's request for removal, citing the applicant failed to provide clear and convincing evidence that the GOMOR was untrue or unjust. 10. However, the analyst recommended the GOMOR be transferred to the restricted portion of his OMPF. The analyst said the statements from the applicant's current Battalion and Brigade Commanders attested to his outstanding performance of duty. Additionally, the three OERs submitted by the applicant since the GOMOR was imposed, rated his performance as "Outstanding Performance, Must Promote," and recommended him for promotion to major. Therefore, the analyst stated the applicant provided substantive evidence that the GOMOR has served its intended purpose and that it is in the best interest of the Army to transfer the GOMOR to the restricted portion of his OMPF. 11. Notwithstanding the analyst’s recommendation, the DASEB determined that the evidence submitted was not sufficient to warrant the relief requested. The board stated the following: Although it has been over 2 years since the applicant received the GOMOR, he does not take responsibility for his actions or shows the least bit of remorse. He has not provided any evidence to show he has been disadvantaged or deprived of any rights or privileges normally afforded to those officers who uphold the standards associated with "Army Values." The applicant did not submit any letters of support from his prior chain of command who supported imposition of the GOMOR or from the imposing authority, supporting removal or transfer action. The DASEB noted the fact that the applicant received an adverse OER depicting the incident resulting in the GOMOR; however, this adverse action is considered a natural consequence of his misconduct and does not provide sufficient mitigation to meet the criterion of "intent served." As an officer, he violated his position of trust and responsibility. The DASEB noted his commendable performance since receiving the GOMOR, but determined that it is not in the best interest of the Army to transfer the GOMOR to the applicant’s restricted file at this time, and therefore, by unanimous vote, denied the applicant's request. 12. The applicant provided two OERs that assessed his duty performance first as the Battalion Plans Officer from 31 August 2007 through 30 June 2008 and later as the Battalion S-3 from 1 July through 1 October 2008. Both reports were rendered while he was assigned to Headquarters and Headquarters Company, 9th Civil Affairs Battalion. The applicant was rated as "Outstanding Performance, Must Promote" and "Best Qualified" by his raters and senior raters on both reports with supporting comments. 13. The applicant provided the same two letters of support to the DASEB as he provided from his current Battalion and Brigade Commanders as previously discussed. 14. The FY10 Major Selection Board Results, released on 25 March 2010, do not contain the applicant's name. 15. On 3 June 2010, the Commanding General, Human Resources Command (HRC) notified the applicant that he was identified by the FY10 Major, Army, Maneuver, Fires, and Effects Promotion Selection Board to Show Cause for retention on active duty under the provisions of Army Regulation 600-8-24, because of misconduct, moral or professional dereliction. This action was based on a series of substantiated derogatory activity and conduct unbecoming an officer as indicated in the GOMOR. 16. It appears the applicant provided a rebuttal to the elimination board along with 11 supporting statements from senior officers recommending that he be retained. 17. A review of the applicant's records show he received an annual referred OER for the period 31 August 2006 through 30 August 2007, during the period of the GOMOR. The rater and the senior rater assessed his duty performance as "Unsatisfactory Performance, Do Not Promote." The "No" blocks were checked in Army Values blocks 6 (Selfless-Service) and 7 (Duty). Additionally, in Leader Attributes/Skills/Actions, he received a "No" in blocks b.1.3 (Emotional) and b.3.2 (Decision Making). To support the "No" blocks and the "Do Not Promote" ratings, the rater and senior rater made the following comments: a. Rater: After 5 months of successful support to the JSOTF-P he demonstrated gross poor judgment with a female member of Philippine Armed Forces. As a result, the U.S. Ambassador to the Philippines and the Commander, JSOTF-P, decided he should be redeployed back to the States. His lack of emotional control, placing himself above the mission and neglecting his moral obligations, reflect an attitude unworthy of promotion anytime in the near future. Although the consequences for the [applicant's] action should be severe, they should be commensurate with his violation. With appropriate counseling and mentorship, he could recover from this setback and make useful contributions to the Army. He possesses the potential to succeed and be promoted in the future if he dedicates himself. b. Senior Rater: [Applicant] performed solidly until he fractured the trust of his company and significantly damaged the mission and reputation of this battalion. He contributed well to the War on Terrorism in the Pacific Command Region and had a promising career with the Civil Affairs Branch. He made a poor decision and regrets the impact that his actions have had on the mission and the unit. Upon his return from the Philippines, he was reassigned to work in the Battalion Operations section and has applied himself to regain the trust and confidence that he lost. After weighing all factors he recommended that the applicant not be promoted at this time, but that he should be retained in the Army. Through training, mentoring and coaching he could overcome his actions and continue to contribute as a US Army officer with Civil Affairs. 18. The applicant's records also show he received an OER that assessed his duty performance from 2 October 2008 through 1 October 2009 as the Company Commander, Headquarters and Headquarters Company, 9th Civil Affairs Battalion. The applicant was rated as "Outstanding Performance, Must Promote" and "Best Qualified" by his rater and senior rater with supporting comments. 19. Army Regulation 600-37 (Unfavorable Information) 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 20. Army Regulation 600-37 states that the DASEB will transfer from the performance to the restricted portion of the OMPF those administrative letters of reprimand, admonition, or censure that are determined upon appeal to have served their intended purpose, when such transfer would be in the best interest of the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant's counsel states the GOMOR was not supported by the weight of the evidence. He cites discrepancies with the interviews conducted by the IO and argues that the statements obtained were inconsistent with each other. Counsel further states the only evidence presented that the applicant committed assault or made a false official statement are the unsworn allegations the LT conveyed through hearsay. 2. The evidence of record shows the applicant received a GOMOR for conduct unbecoming an officer and making a false official statement. The IO stated when he asked the applicant to describe his relationship with the accuser to include his phone messages, the applicant said they were all business related. However, the IO said the text messages the applicant sent to the accuser on the night of 2 June 2007 were clearly flirtatious and sexually suggestive and not at all business-like in nature. The nature of the text messages is also confirmed by the applicant as well as his counsel. Therefore, regardless of the applicant's contentions, the applicant's text messages support that the applicant did in fact make a false statement or at least enough evidence existed for the IO to recommend issuing the GOMOR to conclude he made a false statement. 3. In view of the foregoing, the applicant's counsel has provided no evidence to show that the statements listed on the GOMOR were untrue or unjust. Therefore, there is no basis to remove the GOMOR from the applicant's OMPF. 4. Counsel contends that in the alternative the GOMOR should be transferred to the restricted portion of the applicant's OMPF. Counsel argues that the DASEB abused its discretion when it imposed additional requirements to transfer the GOMOR. The DASEB analyst determined the GOMOR had served its intended purpose and it was in the best interest of the Army to transfer the GOMOR. 5. Army Regulation 600-37 allows the DASEB to transfer administrative letters of reprimand from the performance to the restricted portion of the OMPF after determining that "the intended purpose has been served." Whereas counsel may view the DASEB as overstepping their authority, "the intended purpose has been served" is subjective and, therefore, left to the discretion of the board members. The DASEB did not apply a more stringent standard, but rather was explaining the factors weighed in exercising their discretion. 6. Evidence of record shows the applicant received a GOMOR on 26 June 2007, which was 3 years ago. He has since received three outstanding OERs, one in which he served as the company commander. He has provided two letters of support from his current Battalion and Brigade Commanders attesting to his outstanding performance of duty. Therefore, the applicant's outstanding performance of duty rendered after the issuance of the GOMOR and his support from his chain of command is sufficient evidence to show the intent of the GOMOR has been served. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the 26 June 2007 GOMOR to the restricted portion of his OMPF. The decision of the Board is not retroactive and does not serve as a basis to grant the applicant consideration by a Special Selection Board. _______ _ _X______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20100016575 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016575 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1