RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         08 FEBRUARY 2005
      DOCKET NUMBER:  AR20040000079


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Ms. Susan Powers                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that all documents pertaining to a sexual
harassment allegation, including a relief for cause evaluation report and a
General Officer Memorandum of Reprimand (GOMOR), be expunged from his
Official Military Personnel File (OMPF).

2.  The applicant states that the sexual harassment investigation “went
before legal review twice.”  He notes that the first time the “review was
unsubstantiated” but the second time the “review was substantiated” based
on sworn statements from two enlisted women.  He states that one of the
statements was the “second statement” rendered by one of the enlisted
women.

3.  The applicant states that Army Regulation 600-20 states that the
investigating officer must interview every individual with first hand
knowledge of the facts surrounding the validity of an allegation and must
also interview everyone who can substantiate the relationship or
corroborate the relationship between the complainant and the alleged
perpetrator.  He notes that the regulation states that the investigating
officer must interview the person who initially received the formal
complaint, the complainant, any named witnesses, and the alleged
perpetrator.

4.  He states that a memorandum dated 10 May 2002 (Suspension from Duty
Position), clearly states that due process was not followed.

5.  The applicant contends that the record is unjust because of
discrepancies and contradictions in various statements rendered by
individuals involved in the case. Those contradictions included the wording
used by individuals when making statements, on different dates, to
different individuals, as well as minor discrepancies in wording during
statements rendered by different individuals.

6.  He states that one enlisted woman, PFC T, was specifically named in the
complainant’s statement as a witness to the alleged sexual harassment, but
was not called to write a statement.  He notes that another enlisted
Soldier, whom the enlisted woman lodging the complaint said had been
informed of his harassment, was not called to corroborate the enlisted
woman’s statement.

7.  He states that he presented evidence that one enlisted woman who
claimed to also have been harassed by him was on leave during the period
she alleged the harassment occurred.

8.  He also states that he presented evidence that one of the enlisted
women who was supposed to have been sleeping during one of the harassment
events was actually awake “because she spoke a few words to me” and that he
and the woman lodging the complaint were “in uniform.”

9.  He states that the statement from a third enlisted woman (Sergeant K),
who also indicated that he had harassed her, was suspicious in that she
stated he was in her room in March 2000 and a member of her promotion board
in October 2001 when he was not assigned to Fort Hood until August 2000 and
was deployed to Egypt in October 2001.  He states the woman was never
assigned or attached to his unit and was not living in the barracks with
his Soldiers.

10.  The applicant argues, in effect, that the investigating officer was
not thorough enough, did not ask specific enough questions when
discrepancies appeared in various statements, and may have coerced
individuals into making statements.  He cites “handwritten” questions on
statement forms as evidence of possible coercion.  He argues that there was
plenty of time for the enlisted women to “correspond about the allege[d]
harassment.”

11.  The applicant concludes, “based on the greater weight of evidence [he]
presented, contradictions between sworn statements, inconsistent
questioning of witnesses, and false statements written as the truth, the
allege[d] harassment complaint at least warranted additional
investigation.”  He maintains that his commander was influenced to sign the
GOMOR and in spite of stating that she had considered the circumstances
surrounding the letter of reprimand, in her sworn statement she said she
never saw the “packet on [the applicant] and was not part of the appeal
process.”

12.  The applicant maintains that there is “substantive evidence of
injustice throughout the appeals process” and requests that everything be
expunged.

13.  The applicant provides a copy of the Department of the Army
Suitability Evaluation Board denial of his appeal to have the GOMOR
removed, a copy of the Enlisted Special Review Board denial of his
evaluation report appeal, a copy of the sexual harassment complaint packet,
a copy of his rebuttal to the general court-martial authority and GOMOR
authority, and a copy of the relief for cause evaluation report.





CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant entered
active duty in July 1983 and has served on continuous active duty.  He
executed an indefinite enlistment contract in January 2003 and was promoted
to pay grade
E-7 in March 1998.  His performance evaluation reports, with the exception
of the relief for cause evaluation report, have been complimentary, showed
that he has consistently been rated as successful or excellent in various
rating categories and generally considered fully capable or among the best
by his raters.  His senior raters have, for the most part, rated him in the
second block for overall performance and potential.  He has, on occasion,
been rated in the top block.  He has been awarded several Army Commendation
Medals and several Army Achievement Medals, in addition to multiple Army
Good Conduct Medals.

2.  On 2 April 2002 Private (E-2) G lodged an equal opportunity complaint
against the applicant.  In her lengthy, handwritten statement, she stated
that she arrived at Fort Hood in March 2002 and had an inprocessing
interview with the unit’s first sergeant (the applicant).  Private G
indicated that during the interview the applicant initially asked questions
about her training but then began asking questions of a more personal
nature, including her age, marital status, and whether or not she had
children.  He then talked about maturity level and stated “damn [Private G]
if I wasn’t your 1SG.”  She stated that the statement shocked her and that
the applicant closed the session by saying they would need to talk more
later.

3.  She related that on 20 March 2002 she was picking up her room when she
realized that the applicant had entered her room when she thought it was
her roommate (PFC Z) returning.  She stated the applicant began to look
around the room, opened the refrigerator, and questioned her about the
alcohol in the refrigerator.  She indicated that she explained she had not
previously cleaned up because she had just heard that her mother was
diagnosed with cysts in her breast.  She stated the applicant asked her if
she needed to go on emergency leave.  Ultimately, the applicant sat down in
a chair and she continued to pickup her room, but indicated that she felt
uncomfortable.  She stated that at one point the applicant grabbed her hand
and told her to come here, and writes the words “closer to the chair where
he’s sitting at” in parenthesis and then told her he needed to give her a
personal inspection.  She states he questioned her about her shorts and
pulled her sweatpants down revealing her shorts and then moved his hand up
her leg and at one point lifted her shirt up telling her that she is petite
with a small frame.  She states at that point her roommate (PFC Z) came in
and was surprised to see the applicant.  The roommate departed and another
Soldier knocked on the door to borrow a pair of gloves and the applicant
closed the door, reached for her and kissed her, and then departed.

3.  She related that later that same day, 20 March 2002, the applicant
called her room and asked why she was not at a 1715 formation and then told
her he wanted to meet her after a formation on Thursday, that he would rent
a room, and then gave her his phone number.  She related the phone number
was not the same number on the unit roster.  The phone number turned out to
be the applicant’s cell phone number.

4.  The applicant related that she informed her supervisor MSG (master
sergeant) M about feeling uncomfortable with the applicant’s actions.

5.  On 23 March 2002 Private G indicated that she was told to report to the
applicant regarding a room inspection.  She stated that the applicant told
her that they had a room inspection and that while her room was neat and
very clean she did have an unsecured closet and cabinet.  The applicant
handed her a trash bag containing her valuables and told her to inventory
the items.  She related that the bag contained her tennis bracelet and cell
phone among other things.  She was then released, returned to her room,
only to find that the room had been trashed with all of her clothes on her
bed and that she was particularly disturbed that her personal items were on
top of the pile where everyone could see them.  She also related that the
trash bag contained personal letters and some personal numbers.

6.  On 2 April 2002 a memorandum appointed a field grade officer to conduct
a formal investigation into allegations of sexual harassment made by
Private G.

7.  As part of the investigation, Private G rendered a second, more concise
statement, which focused on the incident that occurred on the morning of
20 March 2002 when the applicant entered Private G’s room.  In that
statement she did state that she pulled up her shirt, which was not the
same as in her original statement that the applicant had pulled the shirt
up.

8.  The applicant also rendered a statement as part of the investigation.
In his statement he said that on the morning of 20 March 2002 he related
that he occasionally goes through the barracks prior to morning PT
(physical training) and that he knocks on all of doors and whoever answers
the door first is where he starts.  He stated that he knocked on Private
G’s room and entered when she answered.  He asked what was going on, stated
that he said it was good that she was up and ready for PT, said her room
looked good, and asked where her roommate was.  He stated that Private G
told him she had just talked to her mother and found out she was ill and
that he offered to help her with emergency leave if she needed it.  He also
stated that he was able to get Private G to admit that she went AWOL
(absent without leave) during training and told her not to repeat the
incident now that she was at her permanent duty assignment.  He indicated
that he gave her his cell phone number and told her to talk to MSG M.
Regarding the subsequent room inspection he related that Private G was the
only Soldier with unsecured valuables and that “as usual” he put her
valuables in a trash bag provided by the other NCO (noncommissioned
officer) that was with him.  He stated that he never called the applicant
and never did a personal inspection of her.  When asked why he felt Private
G would make these allegations he said he had no idea, but that she had
“hinted” during inprocessing that she could by-pass the 1SG and get things
done by the battalion command sergeant major.  He said after these
allegations he called her former unit 1SG and discovered that Private G had
received two article 15’s, one for AWOL and another for being disrespectful
toward her drill sergeant.

9.  The investigating officer obtained statements from a variety of
individuals.  Several of the statements revolved around procedures used by
the applicant to conduct inspections, whether he knocked prior to entering
rooms, and if he had taken unsecured items.  The responses to questions,
both typed and hand-written on the statements, were inconsistent.  Some
said that unsecured items were confiscated during inspections while others
said they were not.  Most indicated that the applicant knocked before
entering the room and that he did come to rooms before morning PT.  Private
G’s roommate confirmed that the applicant was in their room on the morning
of 20 March 2002.

10.  The statement render by Sergeant K, which the applicant argues is
suspicious, was completed on 8 April 2002.  In that statement Sergeant K
related that the applicant was a platoon sergeant for another company in
her battalion and that she was living in the same barracks as some of his
Soldiers.  She stated that in March 2000 the applicant came to her room, in
civilian clothes, and began asking questions about when she came to Fort
Hood, who she was hanging out with, and if she was dating anyone.  After
she asked him who he was he told her and then she asked him to leave.  She
noted that he came by her room again the following weekend and she told him
to leave her alone or she would file a complaint.  She related that he had
not spoken to her since but was on a “Promotion/Pre-Audie Murphy Board” in
October 2001 and March 2002.

11.  The investigating officer appears to have initially concluded that
there was sufficient evidence to substantiate Private G’s allegations and
that the applicant may also have violated Article 121 (larceny) and Article
134 (indecent assault).  However, a 30 April 2002 legal review of the
findings concluded that “the findings are not legally sufficient at this
time” and recommended that two individuals be reinterviewed.  One of the
individuals (Specialist R) was noted by Private G to have knowledge of
sexual harassment by the applicant but was not questioned about that in her
original statement and another individual (Specialist D), who was not
interviewed initially was said to have also had problems with the
applicant.

12.  Specialist R related that she was chosen to accompany the applicant’s
unit on an overseas exercise and that she met the applicant upon arriving
at the unit in September 2001.  She related that about a week later there
was a knock on her door, she answered and it was the applicant.  She said
he told her that he was just checking up on Soldiers, that it was a routine
thing he did, and she noted that he was unaccompanied.  She stated that
because the applicant had just woken her up she was in her t-shirt,
underwear, and had a sheet wrapped around her.  She indicated that he
inspected her room and then started to make small talk and asked her what
she had on under the sheet and then began asking more personal questions.
She stated that she did not like the direction the conversation was going
and said she needed to get ready for PT and then woke her roommate up.  She
indicated that the applicant then left saying he needed to go check another
Soldier’s room to see if she was up.  She stated that other Solders have
confided in her about similar or worse situations with the applicant and
that she believes the other women did not report their incidents because
they were afraid of retribution.  She states she did not say anything
because she did not want to jeopardize her chance of deployment overseas
for the exercise.  Her statement was rendered on 2 May 2002.

13.  The second Soldier, Specialist D, rendered her statement on 2 May 2002
also.  In that statement she noted that there had been “numerous situations
with [the applicant] which made [her] uncomfortable.”  She stated that he
came to her door and told her he was just checking on some of the Soldiers.
 She stated that it was during the Christmas holidays and she was doing
laundry and that the applicant was not a member of her unit at the time.
She said he looked around then took a seat and asked her to sit down.  She
said she sat on the edge of the bed and he began asking personal questions
and when she said she needed to check on her clothes he pulled on her wrist
to stop her and then hugged her.  She said she asked him to stop at which
time her roommate (PFC T) asked if she was all right.  She wrote that this
incident occurred in 2000 and then appears to have scratched over the last
“0” and written a “1.”  The entry, unlike other corrections on the
statement is not initialed.  A leave request does show that Specialist D
was on leave during the Christmas holidays in December 2001.  She also
related a second incident when, as the unit first sergeant, the applicant
entered her room with his key and when she challenged him about not
knocking he responded that he did knock and no one answered.  She also
noted that the applicant would make comments to her in passing such as
“damn [D] you’re fine as hell” and “when you gonna let me lick that thing.”


14.  The investigating officer ultimately concluded that there was
sufficient evidence to substantiate the claim of sexual harassment.  He
based his conclusion on the applicant’s established pattern of visiting
female barracks rooms unaccompanied, a pattern of disregard for Soldier’s
privacy, that he entered rooms unannounced, performed room inspections
outside the parameters stated by the Company Commander, and that he elected
to give Private G his private cell phone number.  He concluded that while
there was no witness to the kiss he can place the applicant in Private G’s
room, and with witnesses to her emotional state following the incident, and
the applicant’s established pattern there was “little doubt in [his] mind
that [the applicant] has violated article 92 of the UCMJ [Uniform Code of
Military Justice].”  The investigating officer clarified inconsistencies in
the location of Private G’s roommate on 20 March 2002 and her inability to
recollect actual events that transpired after the applicant kissed her.  He
concluded that he felt Private G and her roommate were telling the truth.

15.  The investigating officer recommended appropriate disciplinary and
administrative actions, including relief for cause, letter of reprimand,
and/or court-martial.

16.  A second legal review, completed on 8 May 2002 found the investigation
legally sufficient and the recommendation consistent with the findings.
The applicant was subsequently suspended from his duties as unit first
sergeant and provided the opportunity to rebut the findings of the
investigation.

17.  On 23 May 2002 the applicant submitted a rebuttal to the investigation
noting essentially the same arguments he made in the application to this
Board.  He cites prior disciplinary problems by both Specialist R and
Specialist D as evidence that they are untruthful.  He argued that the
investigation was unfair because he was never afforded the opportunity to
present evidence on his own behalf.

18.  On 29 May 2002 the commanding general, Headquarters III Corps and Fort
Hood, reviewed the complaint, the investigation, and the applicant’s
appeal, and found the investigation findings legally sufficient and the
allegations of sexual harassment substantiated.

19.  On 2 July 2002 the applicant received his Relief for Cause performance
evaluation.  The evaluation noted that the applicant exhibited
“inappropriate behavior with subordinates during off duty hours not in
compliance with current Army EO policy and sound judgment.”  It also noted
that his “inappropriate contact with junior enlisted within the detachment
is inconsistent with current Army values.”

20.  On 5 July 2002 he received a GOMOR which noted that he was being
reprimanded for:

      sexually harassing female soldiers in your unit while you were
      assigned as the First Sergeant.  Over a two-year period you sexually
      harassed four junior female soldiers.  You hugged, kissed, and touched
      your victims against their will.  You also made inappropriate,
      sexually explicit comments to them and entered their barracks rooms
      during off-duty hours without first knocking.  On at least one
      occasion, you used a key to enter a female soldier’s locked barracks
      room without the soldier’s permission.


21.  The applicant appealed both the reprimand and the evaluation report,
again citing essentially the same arguments cited in his appeal to this
Board.  Members of his chain of command recommended that the reprimand be
filed in the applicant’s OMPF.  His company commander, Captain S, noted
that she considered the “circumstances surrounding this reprimand” and
recommended that it be filed in the applicant’s OMPF.  The reprimand was
filed in the applicant’s OMPF.

22.  The Department of the Army Suitability Evaluation Board denied the
applicant’s petition to remove the GOMOR and the Special Review Board
denied his request to alter or withdraw the performance evaluation report.

23.  Evidence submitted by the applicant disputing information in the
sexual harassment investigation include the statement from Specialist D’s
roommate, PFC T.  In her statement, PFC T indicates that she was Specialist
D’s roommate between April 2000 and March 2001.  She states that she never
saw the applicant touch Specialist D or hear her ask him to stop or that
she felt uncomfortable when the applicant was in the room.  She stated that
she never heard any Soldier say the applicant acted inappropriately towards
them at work or in the barracks.

24.  The applicant also submitted a statement from another Soldier (PFC A)
who was the roommate of Specialist R.  That Soldier indicated that she only
recalled the applicant being in her room one time with Specialist R and at
that time the applicant and Specialist R were both in uniform.  She also
indicated that Specialist R never told her that the applicant made her feel
uncomfortable or was acting inappropriately.

25.  Army Regulation 600-20 states that the policy of the Army is that
sexual harassment is unacceptable conduct and will not be tolerated.  It
states that sexual harassment is a form of gender discrimination that
involves unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature and that any person in a
supervisory or command position who uses or condones implicit or explicit
sexual behavior to control, influence, or affect the career, pay, or job of
a Soldier or civilian employee is engaging in sexual harassment.
Similarly, any Soldier or civilian employee who makes deliberate or
repeated unwelcome verbal comments, gestures, or physical contact of a
sexual nature is engaging in sexual harassment.

26.  The regulation notes that the purpose of any investigation of sexual
harassment is to determine to the maximum extent possible what actually
occurred, to assess the validity of allegations made by the complainant, to
advise the commander of any leadership or management concerns which might
contribute to perceptions of unlawful discrimination and poor unit command
climate, and to recommend appropriate corrective actions.

27.  It also states that a substantiated sexual harassment complaint is a
complaint that, after the completion of an inquiry or investigation,
provides evidence to indicate that the complainant was more likely than not
treated differently because of his or her race, color, national origin,
gender, or religious affiliation.  The standard of proof is a
“preponderance of the evidence” standard.  This means that the findings of
the investigation must be supported by a greater weight of evidence than
supports a contrary conclusion and more credible and probable than any
other conclusion.  The “weight of the evidence” is not determined by the
number of witnesses or volume of exhibits, but by considering all the
evidence and evaluating various factors.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s entire argument for removal of the GOMOR, Relief for
Cause evaluation report, and all associated documents, revolves strictly
around what he argues are “discrepancies” in the wording of various
statements and his contention that the investigation was not properly
conducted.  The evidence available to the Board, however, suggests that the
investigation was conducted appropriately, that the “discrepancies” in the
wording utilized in various statements is not so out of place or
overwhelmingly inaccurate to question the validity of the claims made by
the four individuals who claim to have been subjected to the inappropriate
actions of the applicant.

2.  The applicant has not shown that the information contained in
statements rendered by the women he claimed may have had previous
disciplinary actions was inaccurate, or that they should be discounted
because of those prior problems.

3.  The applicant argues that the statement of Specialist D cannot be true
because she was on leave in December 2001 when he was alleged to have
entered her room and hugged her.  The written statement was made in 2002.
The statement appears to indicate that she may initially have written 2000
and may have then crossed it out to show a 1 instead of the last 0.
However, unlike other corrections, that correction is not initialed.
Additionally, the statement from Specialist D’s roommate (PFC T) indicated
that they were roommates between April 2000 and March 2001.  Hence the
incident had to have happened in December 2000, not 2001 when they were no
longer roommates.  As such, other evidence available to the Board does not
support the applicant’s argument that Specialist D was less than truthful
in her statement.

4.  Additionally, the applicant’s use of PFC T’s statement to discredit
Specialist D’s statement is also not entirely convincing.  PFC T merely
indicated that she did not “see” the applicant touching Specialist D or
hear her ask the applicant to stop.  She does not say the applicant was not
in the room, nor does she say that she did not ask Specialist D if she was
all right.

5.  While the applicant also attempts to discredit the statement by
Specialist R utilizing a statement from her roommate, PFC A, the statement
by Specialist R indicates that PFC A was asleep during the incident with
the applicant.  She also does not state that she told her roommate about
the incident.  PFC A merely indicates she recalls the applicant in her room
only one time with Specialist R and they were in uniform at the time.

6.  The applicant would like the Board to believe that these women got
together and made up these statements.  However, he has not shown such was
the case, beyond his own personal argument.  The evidence confirms that the
applicant was the first sergeant of a unit, that he often went to the rooms
of female Soldiers prior to the beginning of the duty day to “check” on
them, and he did this unaccompanied.  Clearly, such behavior was
inappropriate and the statements of four women Soldiers bears out the
inappropriateness of his actions.

7.  The evidence suggests that the investigation was conducted
appropriately, that the investigating officer interviewed appropriate
individuals, despite the applicant’s argument to the contrary, and that his
findings and recommendations were based on the preponderance of the
evidence.  There appears to be no coercion on the part of the investigating
officer or members of the applicant’s chain of command to influence the
findings and recommendation or to the filing of the GOMOR in his OMPF.

8.  Members of the applicant’s chain of command, and officials at both the
Department of the Army Suitability Evaluation Board and the Special Review
Board have reviewed the same arguments the applicant has made to this Board
and found no basis to reverse any of the outcomes of the investigation.

9.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MP __  ___SP __  ___SP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  ____Margaret Patterson______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040000079                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050208                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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