PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 November 2002
         DOCKET NUMBER: AR2002071622


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

         The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, the removal of a relief for cause officer evaluation report (OER), a general officer memorandum of reprimand (GOMOR), all derogatory information related to and derived from his relief for cause from his Official Military Personnel File (OMPF), and promotion reconsideration if appropriate.

3. The applicant states, in effect, that he was unjustly denied due process during an investigation conducted under the provisions of Army Regulation 15-6, in which statements were hastily taken and were grossly inaccurate. He further states that the command used undue command influence to discourage potential witnesses from providing information to investigating officials and failed to recognize that the allegations against him were not substantiated. Instead, the command relied on the investigating officer’s report to relieve him from command, issue him a GOMOR and to recommend his elimination from the service. In support of his application he submits an extensive two-volume brief of argument and supporting evidence.

4. The applicant’s military records show that he enlisted on 14 July 1992 for a period of 4 years and 17 weeks for training as an infantryman under the station of choice and college repayment enlistment option. He successfully completed his training and was promoted to the pay grade of E-5 on 19 June 1993, when he entered the Officer Candidate School (OCS) at Fort Benning, Georgia. He successfully completed OCS and was honorably discharged on 27 September 1993, for the purpose of accepting a commission and being ordered to active duty.

5. He was commissioned as a second lieutenant in the Chemical Corps on 28 September 1993, with a concurrent call to active duty. He completed the Chemical Officer Basic Course as the honor graduate and was transferred to Fort Campbell, Kentucky. His first OER (center of mass) indicated that his performance was above average and that he had improved the morale and readiness of his platoon with his calm leadership style. His second OER (above center of mass) was even more complimentary and indicated that he exceeded his peers in decision making ability, technical and tactical expertise, organization skills and communication skills. He continued to excel as a chemical officer, was promoted to the rank of first lieutenant in September 1995 and branch transferred to the Adjutant General (AG) Corps in 1997. He attended the AG Officer Advance Course in 1997 and was selected for the Commandant’s List upon completion of the course. He was then transferred to Fort Bragg, North Carolina, and was promoted to the rank of captain in September 1997.

6. His initial assignment was as a battalion adjutant for which he received an above center of mass OER. He was then transferred to the position of Deputy Chief of Staff, G1, for which he received a center of mass OER and then assumed command of a Detachment of a Personnel Services Battalion in June 1999.

7. On 28 April 2000, a female noncommissioned officer (NCO) in the pay grade of E-6 filed a sexual harassment complaint against the applicant and stated that it was her intent to put a stop to the unwanted behavior by her commander. She also stated that the harassment began in February 2000 by the commander making a sexually harassing statement during Sergeant’s Time training in the presence of two other NCOs. She further contended that the commander offered to strip and do a lap dance for $20.00 or more in front of witnesses, that he bought flowers for her, that he referred to females in the unit as “Delta Angels”, that he bought her dinner at an Italian Restaurant, professed his feelings for her and touched her on the leg. He also gave her a ruby and diamond necklace in a shotgun envelope in front of witnesses and he presented thong underwear to two NCOs who were departing at the hail and farewell. She provided a list of 20 names of persons who witnessed the harassment.

8. On 1 May 2000, an investigating officer was appointed to conduct an investigation into the allegations made by the NCO under the provisions of Army Regulation 15-6 and Army Regulation 600-20. The investigating officer read the applicant his rights and the applicant elected to exercise his right to remain silent and seek counsel.

9. The investigating officer interviewed 23 persons, including the accuser and the battalion commander, using a somewhat generic list of questions ranging from eight to 11 questions. The battalion commander indicated that he was pleased with the applicant’s performance as a commander and indicated that the applicant had improved both performance and morale of the unit. His only concern was that the applicant had presented two pair of thong underwear to two departing staff sergeants during a hail and farewell. He indicated that he questioned the applicant about the appropriateness of the event and was informed that it was an inside joke. While he intended to discuss it further in private, he never did.

10. The investigating officer interviewed the accuser’s supervisor and executive officer of the unit (a female Chief Warrant Officer Two (CW2)) who indicated that the accuser had filed the harassment complaint as a means to get out of the detachment because of the late hours and stressful environment.

11. The detachment sergeant (E-7) indicated that he had not witnessed any inappropriate behavior but that the accuser had indicated that she was uncomfortable around the applicant and later that he had given her a gold chain. When he approached the commander, the commander denied it and acted as if he did not know what he was talking about. He did indicate that he (the applicant) had previously stated that he had issues with the accuser.

12. The investigating officer completed his investigation on 11 May 2000 and concluded that the preponderance of the evidence confirmed the accuser’s complaint of sexual harassment. He further opined that the applicant’s conduct was unbecoming an officer and violated the Army Fraternization Policy. He also opined that there was insufficient evidence to show that the applicant’s acts were cruel to soldiers or that he mistreated soldiers.

13. The applicant was notified on 16 May 2000 of the commander’s intent to relieve him from command. On 2 June 2000, with the assistance of counsel, the applicant filed an appeal in which he asserted that the allegations were false and exaggerated beyond all reasonable proportions. He explained that the accuser had made the allegations after her rater (CW2) had counseled her on her conduct towards himself. He further explained his version of the events as he recalled them.

14. On 6 June 2000, the group commander (a colonel) submitted a recommendation to the commanding general (CG) indicating that he had approved the findings of the investigation, had suspended the applicant from command and found that his rebuttal was without merit. He recommended that the CG delegate the case to the Deputy CG for disposition and that the applicant be given a GOMOR.

15. The applicant was officially relieved of command on 9 June 2000 and was reassigned within Fort Bragg. He received a GOMOR for misconduct on 26 June 2000 and responded on 20 July 2000 to the effect that on the advice of his attorney, a formal reply could not be prepared until August 2000. He requested that the GOMOR be withdrawn or filed locally until a reply could be formulated.

16. On 30 June 2000, he received a relief for cause OER covering the period from 25 June 1999 to 9 June 2000. The report was adverse in nature and was based on the results of the investigation. The chain of command recommended that he not be promoted or retained and he received a bottom block rating. The report was referred to the applicant and he indicated that he disagreed with the report and intended to file an appeal of the OER in accordance with the applicable regulation.

17. On 1 December 2000, the applicant’s commander submitted a recommendation recommending that the applicant appear before a Show Cause Board based on his conduct as an officer and the substantiated investigation. The recommendation was approved on 22 December 2000 and the applicant was notified on 5 January 2001.
18. The Show Cause Board convened at Fort Bragg on 30 May 2001 with the applicant represented by both military and civilian counsel.

19. The group commander testified that he had directed the investigation and while he was aware that the accuser had been counseled by her supervisor for possible promotion of sexual harassment herself by talking about sexual things in the workplace, he found it disturbing that the commander would go with the NCO who became his accuser to the Raleigh MEPS station to do five promotion packets. He opined that it was not appropriate for him to go with a female by himself. He further opined that the conduct in the unit was what he considered a hostile environment and that the applicant should not command again. In cross-examination, the commander acknowledged that a Command Climate Survey was conducted and that the scores were very high. He also indicated that he did not review the applicant’s record of performance or achievements and that his decision was based on the results of the investigation.

20. The battalion commander testified that the applicant was doing a good job prior to his relief and that the seriousness of the allegations against him as well as the results of the investigation warranted his relief. He also indicated that the applicant had raised the morale and performance of the unit and that he knew that the applicant was concerned and had issues with the NCOs of his unit.

21. The detachment executive officer and personnel technician (CW2) testified that the applicant’s leadership style was such that he was a very persuasive officer who gave soldiers a chance to develop and gave them a second chance to do good. He took care of soldiers when NCOs were not taking care of them and that caused some resentment among the NCOs. He raised morale in the unit dramatically, to the point that soldiers wanted to reenlist and to be in that unit. She went on to state that the accuser worked for her and she had concerns about her behavior because she had a tendency to flirt with male customers. On 25 April 2000, she counseled the accuser in writing because it had been brought to her attention that she was making suggestions that she could manipulate the applicant and it was her opinion that the accuser was trying to manipulate him. She informed the accuser that her comments about the commander were creating a hostile environment in the unit. The accuser then informed her that the applicant had given her a necklace and a card. She volunteered to bring them in and never did. At that point she offered to assist the accuser in filing a formal complaint if she desired to do so and the accuser responded that she did not need to do so. When questioned about the allegations made in the complaint, the CW2 indicated that the comments either were not spoken or that they were distorted because she was present during several of the alleged incidents. She further indicated in regards to the thongs presented to the two departing NCOs that she (the CW2) suggested it as a gag gift and he (the applicant) went to the two NCOs to see if they had a problem with it. Neither did and they both thought it was alright. She also stated that the commander never said that he would wear a thong and do a lap dance nor was his behavior inappropriate. In regards to the commander going to Raleigh with his accuser, she and the commander made the decision that he should go because there was going to be a visiting official at the MEPS and the CW2 felt he would be the appropriate person to go. The accuser was the only NCO available to do the promotion packets and neither saw any reason why the commander and an NCO should not go.

22. The CW2 went on to state that the unit was having trouble with its NCOs and that the detachment sergeant had been counseled repeatedly. Furthermore, at the time the investigation was being conducted, the battalion commander addressed the unit in formation and told the unit that they did not have to give the applicant’s counsel any information. It was her opinion that the battalion commander did not want them to speak to the applicant’s lawyers and she could see that they were scared when they were released. She spoke to the battalion commander and told him that it was her perception that the soldiers were scared of talking and he was telling the soldiers not to say anything. The battalion commander checked back with her at least twice to see if anyone had talked to the applicant’s lawyers. Additionally, the detachment sergeant had a meeting with the NCOs in which he told the NCOs that if they stick together they could hurt the applicant and on at least one occasion, when a soldier wanted to make a statement, the detachment sergeant told him not to do that. She went on to state that she relayed much more information to the investigating officer that was not reflected in her statement and was told by the investigating officer not to discuss it with anyone. She did not believe that the investigating officer could see the relevance of her statement about there being friction between the applicant and the NCOs.

23. One of the accuser’s subordinates, whom she named as one of the people who witnessed the harassment and presentation of the necklace by the applicant, was called to testify. She testified that she worked in the same room as the applicant and never saw the applicant engage in any of the activities he was accused of. Additionally, she was not present when the applicant gave her a necklace in a shotgun envelope as the accuser professed. In regards to the battalion commander’s address to the unit formation, she stated that while he never said they could not talk to the applicant’s lawyers, it was very intimidating and made them feel that they would be looked down on if they did. When questioned as to his exact words, the witness stated that it was along the lines of if someone contacts you about the applicant, go through us before you speak. She also stated that the commander had given her an envelope with money in it because finance had taken money out of her pay and she could not pay her bills. He told her that when he was younger someone helped him out and hopefully someday she would do the same. She considered it an offer of generosity and nothing more.

24. A civilian female employee who worked with the accuser was also called to testify and was named by the accuser as a witness to the harassment. She testified that she never saw the applicant exhibit any inappropriate behavior or conduct and opined that he had boosted the morale in the unit dramatically. She explained that the allegations described were somewhat exaggerated or embellished.

25. Another soldier named by the accuser was called to testify. This individual was the commander’s driver and he testified that he was with the applicant quite frequently and he never heard any comments regarding a sexual interest in the accuser. In fact, he (the applicant) did not like her too much. He (the applicant) had made comments regarding her abilities as an NCO and did not feel that she was a good NCO. He also stated that he never saw the applicant give the accuser a shotgun envelope and did not tell her that he knew what it was, as she alleges. He went on to state that the investigating officer did not record his statement the way he gave it and he opined that the investigating officer wrote it down the way he wanted to. He further explained that he was present when the comments about stripping were made and it was taken completely out of context. One of the females made the comment, as the applicant walked in, that she bet the applicant would strip for money or words to that effect and the applicant replied, “Yeah, right, ha, ha.” However, when he explained this to the investigating officer, he already had it in his mind what he wanted to hear. In regards to the comments that the applicant called his accuser his “sugar momma,” he explained that one day the applicant walked in just as the accuser was saying that he was her “sugar daddy” and he said “yeah right, and you are my ‘sugar momma.’ It caused everyone to laugh and nothing was thought of it.

26. Several other soldiers and civilians testified to the effect that the investigating officer did not accurately portray their responses to his questions, that they did not see the applicant do anything that could be construed as sexual harassment and that they had been led to believe by the battalion commander and detachment sergeant that they should not do or say anything to help the applicant.

27. The applicant testified that the first thing he noticed when he assumed command was that morale was low and there was no Family Support Group in place. He undertook to change it immediately and was successful. The second thing he noticed is that the NCOs were not taking care of soldiers the way they should be, so he implemented a laid back, but professional working environment that would allow soldiers to come and talk to him when the NCOs could not help them. When he first arrived he had a good group of NCOs; however, they rotated out and the replacements were not as good. The detachment NCO was a problem from the start and could not handle even the simplest tasks. He went on to state that prior to the accuser making the complaint, her supervisor (CW2) came to him and explained that she was going to counsel her because of the way she acted in his presence. Her supervisor felt she was flirtatious and bordering on unprofessional behavior. He agreed that she needed to be counseled and felt that it was appropriate for the CW2 to do it. He further stated that he continued to have problems with his NCOs and was told that he would have to live with what he had. His battalion commander even acknowledged during his performance counseling that he had gotten the short end of the stick in that regard. He went on to explain in great detail his version of the events in question and stated that with the exception of being firmer with some NCOs earlier on, he would not change a thing in the way he commanded the detachment.

28. The investigating officer testified telephonically that he remembered the CW2 mentioning friction between the applicant and the NCOs but did not find it credible or expressed strongly enough to include in the statement. He indicated that he typed up the statement and gave everyone an opportunity to sign them only if they agreed to the content. Everyone was afforded the opportunity to change their statements and given the information he had, he believed the investigation was properly conducted.

29. On 31 May 2001, the board determined that the applicant was professionally and morally derelict in the performance of his duties and his behavior clearly demonstrated gross misconduct. The board recommended that he be eliminated from the service due to his misconduct and/or moral or professional dereliction and that he be issued a General Discharge Certificate.

30. Meanwhile, the applicant had submitted an appeal of the relief for cause OER to the Officer Special Review Board (OSRB). The OSRB returned the appeal without action, contending that there was insufficient evidence to warrant consideration of his appeal.

31. The Show Cause Board results were forwarded to the Total Army Personnel Command in December 2001 and were forwarded to the Army Board of Review for Eliminations (ABRE) in January 2002, for review by that board. On 16 January 2002, the ABRE recommended that the applicant be discharged under honorable conditions based on misconduct, moral or professional dereliction. However, on 30 January 2002, the Deputy Assistant Secretary of the Army for Army Review Boards elected not to accept either of the board’s recommendations and directed that the applicant be retained and reassigned. He was reassigned on 15 April 2002.

CONCLUSIONS:

1. After a thorough review of the government’s presentation of evidence at the Board of Inquiry (Show Cause Board) and the rebuttal submitted by the applicant during and subsequent to that board, the Board does not believe that the Army met its burden by a preponderance of the evidence in this case.

2. The Board notes that the most serious allegations of sexual harassment were that the applicant, during a 1-day temporary duty (TDY), professed his affection to his accuser and on two occasions presented her with gifts of a necklace and flowers. There were no witnesses to the alleged TDY incident, so the accuser’s credibility is essential to support this allegation. All of the accuser’s other allegations were fairly discredited by sworn statements of the majority of the witnesses she said would corroborate her version of the alleged incidents. Those witnesses testified either that the incidents did not occur as described by the accuser or were so taken out of context as to misrepresent their true import.

3. Additionally, his accuser did not surface her allegations until she was being counseled by the applicant’s deputy for inappropriate behavior towards the applicant, which behavior was the opposite of what one would expect from a victim of sexual harassment. Taken as a whole, the accuser’s credibility is highly questionable and it appears she likely concocted her allegation to retaliate for the counseling she received concerning her own inappropriate behavior, to escape long hours her job demanded, or to compromise the applicant who had recently counseled other NCOs in the unit who were her friends.

4. Specifically, other witnesses refuted the accuser’s report of when and how the applicant gave her a necklace. Other witnesses refuted her version of the discussion concerning the applicant’s offer to strip down to a thong and perform lap dances for $20.00 and one witness stated that it was the accuser who suggested that the applicant would perform the act. The Valentine’s Day presentation of flowers was explained by several witnesses as a presentation to all of the women of the detachment and it was only the accuser who claimed that the applicant told her in a private conversation that they were really just for her.

5. Another allegation that the applicant had inappropriately presented thongs as going away gifts to two departing members of the unit was adequately explained as joke or gag gifts, which had been approved in advance by the recipients who were not offended. The allegation he improperly used the term “Delta Angels” was also explained. The women who worked in the office coined the phrase and considered it a compliment.

6. The Board finds that there was substantial evidence that the applicant was a popular and caring commander who did not engage in the type of behavior that the accuser alleged. Morale was at an all time high, except among a handful of NCOs who had been counseled for their substandard performance and coincidentally provided the only adverse information about the applicant.

7. It is also noted that the accuser was not called to testify by the government, and thus was not subjected to cross-examination by the applicant or his counsel which detracts from the weight that should be given to her statements and substantially weakens the strength of the Army’s presentation of the evidence.

8. The Board also finds disturbing, the battalion commander’s comments to the members of the unit whereas he suggested that if contacted by the applicant’s counsel, they did not have to tell them anything and if contacted, let members of the chain of command know about it. Also highly disturbing was evidence that the detachment sergeant also warned unit members not to provide information favorable to the applicant. This obviously had a chilling effect on witnesses coming forward on the applicant’s behalf and limited his ability to effectively respond to allegations.

9. Inasmuch as the OER and GOMOR are based solely on the allegations of sexual harassment and the adverse administrative actions that flowed from the command’s belief those allegations had been substantiated, the validity of those documents rests squarely on the proof of those allegations. If those allegations have not been proven, then his relief for cause OER and GOMOR based on those same allegations can not be allowed to stand.

10. The Board recognizes that the applicant’s performance before and after the allegations were made against him were indicative of an outstanding officer with a promising career. While the Board cannot make him whole again in terms of his command time credit, the Board directs that the Relief for Cause OER ending 9 June 2000, be removed from his OMPF in its entirety, that the period be declared non-rated time, and that a nonprejudicial statement be placed in its place.

11. The Board also directs that the GOMOR dated 26 June 2000, and all related documents, be removed from his OMPF in its entirety.

12. Additionally, the Board directs that documents related to his OER, GOMOR and elimination from the service, that flowed from the allegations of sexual harassment, be removed from his OMPF and returned to the Board for filing.

13. In the event that the applicant has been considered for promotion to the rank of major and was not selected, the Board directs that he be reconsidered by a promotion standby board under the same criteria as the original board, after his records have been corrected.
14. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION: That all of the Department of the Army records related to this case be corrected:

a. by removing from the OMPF of the individual concerned the Relief for Cause OER ending on 9 June 2000, by designating the period as non-rated time and by placing a nonprejudicial statement in its place.

         b. by removing the GOMOR dated 26 June 2000 and all related documents from his OMPF in its entirety; and

         c. by removing all documents related to his elimination from the service that flowed from the allegations of sexual harassment from his OMPF and returning them to the Board for filing.

d. by placing his records before a Standby Review Board (if applicable) for all major promotion boards that considered and did not select him, based on his records at the time.

e. Following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:

__fe ____ ___le____ ___tl____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______Fred Eichorn______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071622
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/11/21
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 221	111.0005/VOID OER
2. 1020	134.0400/REM GOMOR
3. 328	134.0000/REM DER INFO
4.
5.
6.