RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 December 2005
      DOCKET NUMBER:  AR20050008867


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Red S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 a general officer memorandum of reprimand
(GOMOR) be expunged from his records.

2.  The applicant states the GOMOR was issued citing an offense of "sexual
harassment."  However, the Army Regulation 15-6 investigation did not find
facts consistent with sexual harassment.  Moreover, only a formal
counseling was required, not a GOMOR.  The GOMOR was also issued based on
an allegation of solicitation; however, a Graduate Medical Education
committee held a hearing and did not recommend a GOMOR.

3.  In his request for reconsideration to the Department of the Army
Suitability Evaluation Board (DASEB), the applicant noted the DASEB Summary
stated his GOMOR rebuttal indicated the misconduct occurred.  He had stated
he had remorse for the actions that led to the GOMOR but he never admitted
to the misconduct.  The chaplain he was seeing advised him to express
remorse.  Of course, he would be apologetic if someone felt wronged by him,
even if he did nothing wrong, because that is his nature.  He intended to
express a deep degree of contrition, as advised, for being at the center of
a controversy.  There was no admission of guilt.

4.  The applicant stated, in his request for reconsideration, in reference
to the solicitation allegation, he encountered a young woman who seemed to
be in trouble.  She did not appear to be a prostitute.  In addition, he was
new to the city and was unaware that the vicinity was frequented by
prostitutes.  He pulled [his car] over and inquired if she needed help.
She approached and began a friendly conversation.  She later asked him
abruptly, if he could choose, would he have sex or oral sex for twenty
dollars.  He was troubled by the question and asked her why she asked him
such a thing.  She sternly told him to just answer the question.  He
thought she was just asking his opinion so he stated "sex."  She
immediately backed away from the vehicle and he was surrounded by
undercover police officers.

5.  The applicant stated, in his request for reconsideration, he was naïve
because he was new to the area and did not know prostitutes roamed that
particular street.  In addition, coming from a French culture, where sexual
matters are more openly discussed, he was not alerted by her statement in
the same manner a local citizen would be.  He was suggestible because he
was in a mental slump.  He had not recovered from the mental exhaustion
imposed by the last two years of medical school and his recent move to the
area generated a myriad of unexpected problems.

6.  The applicant, in his request for reconsideration, stated the charge
[of solicitation] was later dropped due to a lack of evidence.  In
addition, a special military committee was convened to determine his
fitness to be a Medical Officer. After he presented his case attacking the
police report, the committee found he was clinically depressed which
resulted in his clouded judgment.  This same neutral fact-finding committee
did not recommend a GOMOR although it could have recommended such an
action.

7.  The applicant stated, in his request for reconsideration, that in
regard to the charge of sexual harassment he had several personal issues
when he first arrived at William Beaumont Army Medical Center (WBAMC) that
Ms. G___ helped him with.  Ms. G___ assisted him with getting a family
member out of the Congo, then, when the flight was cancelled, she assisted
him in retrieving his refund for the airline ticket.  He told her he
appreciated her help.  Due to the vicinity of her office and his class, he
inadvertently encountered her several times a day.  He would start a
friendly conversation with her since he was grateful for her help in the
past.  She never let him know she was uncomfortable by his presence.  In
fact, she was actively engaged in aiding him in finding a place for his
family to stay.  His comments and conduct were not of a sexual nature.

8.  The applicant, in his request for reconsideration, stated Ms. R___, Ms.
G___'s former co-worker, never observed any improper conduct by him.  Ms.
R___ stated the chaplain may have improperly influenced the escalation of a
situation which otherwise could have easily been clarified and settled at a
lower lever.  Ms. R___ stated the chaplain might have pressured Ms. G___ to
file the sexual harassment complaint and pressured Ms. R___ to not speak
out about the truth.  The same chaplain gave him spiritual advice in
reference to his incident with the police.  Chaplain G___ and Chaplain R___
knew about the controversy.  Their knowledge of what actually occurred does
not corroborate Ms. G__'s harassment claim.  Ms. G___'s late apology to him
in the presence of Ms. R___ also mitigates such a claim.

9.  The applicant, in his request for reconsideration, stated his behavior
did not fit the criteria of Army Regulation 600-20, paragraph 7-6(b).  A
reasonable person would not consider that his behavior interfered with Ms.
G___'s environment.  As to his spending an "inordinate amount of time in
Ms. G___'s office," there was a telephone available in that office and he
had several family problems he needed to take care of during his breaks.
He may have used it more often than most, but he had extenuating
circumstances with his family.  He did not comment to her, "Does your
husband appreciate you the way that he should."  He commented, "I hope your
husband recognizes your abilities because my wife does not think I give her
credit for her qualities."  He did not comment, "Hearing you speak Spanish
does something for me."  He stated, "Your Spanish is much better than I
thought."

10.  The applicant, in his request for reconsideration, stated his comments
were not of a sexual nature and he never meant them to be of a sexual
nature; therefore, he could not be found to have committed sexual
harassment.  There is no evidence other than a blind reliance on Ms. G___'s
statement to conclude his conduct was unbecoming an Officer and a
Gentleman.

11.  The applicant provides his DASEB appeal.

CONSIDERATION OF EVIDENCE:

1.  The applicant's DA Form 61 (Application for Appointment) shows he was
born in Zaire (formerly known as the Belgian Congo and currently known as
the Democratic Republic of the Congo).  A DA Form 3975 (Military Police
Report) shows he was born in Paris, France.  After having had almost 4
years of prior service in the U. S. Navy from February 1988 to December
1991, he was appointed a second lieutenant in the U. S. Army Reserve on 25
August 1994.  He was ordered to active duty as a captain in the Medical
Corps effective 9 June 1999 and ordered to report to WBAMC, El Paso, TX on
15 June 1999.

2.  On 23 June 1999, the applicant was arrested by El Paso Police
Department officers and charged with solicitation of prostitution.  An
attachment to a DA Form 3975 indicated the applicant offered to pay an
undercover detective $20.00 to engage in sexual intercourse with him and
indicated the conversation was monitored and recorded.

3.  In a statement dated 23 July 1999, Ms. G___ stated she first came into
contact with the applicant on 15 June 1999 when she helped him purchase an
airline ticket for friends in the Congo.  She stated the applicant began
visiting the office on a daily basis to use the telephone but, while he was
full of compliments and flattery, his visits soon became excessive.  She
stated she felt the line of professionalism had been crossed when he
commented that he had to go by her office just to see her to get his day
started and she soon became very uncomfortable and nervous in his presence.
 She gave examples of comments he had made, such as: "If I ever found
myself single again I would marry a Hispanic girl just like you" and "Does
your husband appreciate you the way he should."  She stated he said that
she was a real inspiration to him in many ways, and he commented that
hearing her speak in Spanish did something for him.

4.  On 23 July 1999, the applicant's commander appointed an investigating
officer (IO) to inquire into allegations involving the applicant.  The
available portion (page 3 of a 4 page document) of a DA Form 1574 (Report
of Proceedings by Investigating Officer/Board of Officers) discussed
findings and recommendations concerning Ms. G___'s allegations only.  The
IO found the applicant's conduct with Ms. G___ was inappropriate in that he
made several comments and spent an inordinate amount of time with her to an
extent that resulted in her discomfort and interference of her daily
duties.  The IO stated he was not sure exactly what the applicant's
intentions were when he made the comments but he was convinced the comments
were unwelcome and made Ms. G___ feel uncomfortable.  The IO noted that,
before her complaint dated 23 July 1999, Ms. G___ did not tell the
applicant that his actions and comments made her uncomfortable.  The IO did
not find that the applicant attempted to interfere with the investigation.
The IO did find the applicant discussed the allegations with Ms. G___'s
supervisor, which reflected poor judgment on his part.

5.  The IO recommended the applicant receive a formal written counseling
statement for his inappropriate conduct with Ms. G___.

6.  On 12 August 1999, the Commanding General, U. S. Army Air Defense
Artillery Center and Fort Bliss issued a GOMOR to the applicant for the
solicitation incident and for his conduct with Ms. G___.  In regards to his
conduct with Ms. G___, the Commanding General stated the applicant's
conduct violated Article 92 of the Uniform Code of Military Justice (UCMJ)
(Sexual Harassment) and Article 133 of the UCMJ (Conduct Unbecoming an
Officer and Gentleman).

7.  The applicant submitted a statement with the GOMOR.  He expressed his
"most sincere and deepest regret about the incident which led to his being
arrested and charged for solicitation of a prostitute."  He stated there
was "never a motive for me to engage myself in such an act of misconduct."
He stated the incident occurred in a period in which he was in a state of
mental slump generated by an ongoing emotional turmoil.  As for the
incident with Ms. G___, he wished to "reiterate my sincere regret for what
she had endured with me.  My real intent was not to cause her harm of any
sort, but merely to praise her, to appeal to her sympathy…"

8.  The applicant's chain of command (Company C commander, Troop Command
commander, and WBAMC commander) recommended the GOMOR be filed in his
Official Military Personnel File (OMPF).  On 7 September 1999, the
Commanding General directed the GOMOR be filed in the applicant's OMPF.

9.  On 8 August 2004, the applicant appealed to the DASEB for removal of
the GOMOR.  On 4 November 2004, the DASEB denied his request.

10.  On 5 February 2005, the applicant requested the DASEB reconsider his
appeal.  In support of his appeal, he provided dozens of letters of
support, an Army Achievement Medal award recommendation, two Officer
Evaluation Reports, and a newspaper article.

11.  The applicant provided letters of support from Chaplain G___, retired,
and from Chaplain R___.  Chaplain G___ stated he believed he (Chaplain
G___)
was one of the first people Ms. G___ talked to about the situation [with
the applicant]. Chaplain G___ stated in part, "Mrs. G___ thought that (the
applicant) was being overly friendly and frequently returning to her office
to take care of his personal matters.  She was wondering whether (the
applicant) had some hidden agenda for her.  She didn’t seem to be anything
other than puzzled by the situation…After Mrs. G___'s meeting with Chaplain
C___ the whole situation took a different turn of events.  I was not
privileged to the content of their conversation."

12.  Chaplain R___ stated in part, "I concur with Chaplain (MAJ) G___'s, U.
S. Army (RET) comments about what may have actually happened.  I personally
worked for Chaplain (LTC) C___ (RET), Chaplain G___, and with (the
applicant) at the same time at WBAMC.  I also knew Mrs. G___ during that
same time at WBAMC.  I think there was a basic breakdown in communication.
I believe emotions prevailed over something not as big as it was made out
to be."

13.  The applicant provided a statement of support from Ms. R___,
apparently a co-worker of Ms. G___'s.  Ms. R___ stated in part, "To the
best of my knowledge, (the applicant) never suggested anything sexual,
lewd, or inappropriate to Ms. G___...I saw him interact with Ms. G__ on
several occasions and he always showed the utmost respect and courtesy when
addressing her…One afternoon during business hours, someone called my
office (it was a man's voice) and said I should "mind my own business" and
to "stay out of it."  At first, I didn't know what "it" was until I
approached Ms. G___ about the mysterious call.  She very briefly revealed
the situation she was involved in.  Ms. G___ also said that the hospital
chaplain pressured her to report (the applicant)."

14.  The one available statement from Ms. R___ does not indicate that Ms.
G___ apologized to the applicant.

15.  The applicant provided a memorandum of support from Ms. L___, the
Administrator for Graduate Medical Education, and from Lieutenant Colonel
B___, the Director of Graduate Medical Education, WBAMC.  They noted the
applicant had come to the Internal Medicine Residency program under a great
deal of stress due to family and financial pressures.  The Graduate Medical
Education committee convened a hearing to address the incidents.  The
applicant had presented numerous reference memorandums addressing his
personal and professional character to the committee.  The references noted
the applicant to be a hard working, kind, sociable, disciplined, and
compassionate individual.  The committee felt the applicant had potential
to succeed as a medical officer in the Army and voted to keep him in the
Residency program.  He received formal counseling thereafter to help
alleviate his personal stressors.  The committee recommended that no
adverse action be taken against the applicant.

16.  On 15 March 2005, the DASEB voted to transfer the GOMOR to the
restricted portion of the applicant's OMPF.

17.  Army Regulation 600-37 sets forth policy and procedures to authorize
placement of unfavorable information about Army members in individual
official personnel files, and ensure that the best interest of both the
Army and the Soldier are served by authorizing unfavorable information to
be placed in and, when appropriate, removed from official personnel files.
In pertinent part, it states 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.  Such
documents may be appealed on the basis of proof that their intended purpose
has been served and that their transfer will be in the best interest of the
Army.

18.  Army Regulation 600-20 (Army Command Policy), in effect at the time,
stated sexual harassment was a form of gender discrimination that involved
unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature when…such conduct interfered with an
individual's performance or created an intimidating, hostile, or offensive
environment.

19.  Army Regulation 600-20, currently in effect, paragraph 7-6b states a
hostile environment occurs when Soldiers or civilians are subjected to
offensive, unwanted, and unsolicited comments or behavior of a sexual
nature.  If these behaviors unreasonably interfere with their performance,
then the environment is classified as hostile.

DISCUSSION AND CONCLUSIONS:

1.  The fact the Army Regulation 15-6 investigating officer and the
Graduate Medical Education committee did not recommend the applicant
receive a GOMOR did not prevent the applicant's Commanding General from
making an independent decision to issue a GOMOR.  The commander was not
bound to follow either the IO's recommendation to give the applicant
written counseling or the Graduate Medical Education committee
recommendation that no adverse action be taken against the applicant.

2.  The applicant's contention the Army Regulation 15-6 investigation did
not find facts consistent with sexual harassment has been considered.
However, only one page of the DA Form 1574 is available and none of the
supporting documents related to the investigation are available.  It cannot
be determined what the commander reviewed when he made his decision to cite
sexual harassment in the GOMOR.  In the absence of evidence to the
contrary, it is presumed he had sufficient evidence to cite sexual
harassment in the GOMOR.

3.  The applicant contended, regarding the solicitation incident, that he
was naïve because he was new to the area and did not know prostitutes
roamed that particular street.  In addition, coming from a French culture,
where sexual matters are more openly discussed, he was not alerted by her
statement in the same manner a local citizen would be.  It is difficult to
ascertain what culture the applicant came from.  One document shows he was
born in France; another document shows he was born in Zaire (once known as
the Belgian Congo), and there is no evidence of record to show where he was
raised.

4.  However, the applicant served in the U. S. Navy from February 1988 to
December 1991.  It is not credible to believe the applicant, by 1999, had
not acculturated himself to American mores and customs and particularly to
American mores and customs in a military town.  It is difficult to believe
he was caught in a police sting because he was naïve and he was new to the
area or because he came from a French culture.

5.  The applicant contended the charge of solicitation was later dropped
due to a lack of evidence.  However, he provides no evidence to show why
the charge was dropped.  An attachment to a DA Form 3975 indicated the
applicant's conversation with the undercover detective was monitored and
recorded.  No record of that conversation was provided by the applicant.

6.  The applicant, in his appeal to the DASEB, provided statements from Ms.
R___, Chaplain G___, and Chaplain R___ as evidence that he did not sexually
harass Ms. G___.  However, Ms. R___ only stated that, to the best of her
knowledge, the applicant never suggested anything sexual, lewd or
inappropriate to Ms. G___.  Chaplain G___ acknowledged he was not
privileged to the content of the conversation between Chaplain C___ and Ms.
G___.  Chaplain R___ only stated that he concurred with Chaplain G___'s
comments about what may have actually happened.

7.  The applicant contended Ms. R___ stated Chaplain C___ may have
improperly escalated the situation and pressured Ms. R__ not to speak out
about the truth.  However, Ms. R___, in her statement, used the terms,
"may" and "might have."  She did not unreservedly state that Chaplain C___
acted improperly.  Ms. R___ did state that Ms. G___ said the hospital
chaplain pressured her to report the applicant; however, she provides no
proof that Ms. G___ made that statement.

8.  The applicant contended Ms. G___ made a late apology to him in the
presence of Ms. R___.  However, the only available statement from Ms. R___
does not indicate Ms. G___ made an apology.  If Ms. G___ apologized to the
applicant, the applicant does not provide a statement from her to indicate
what the apology was for.

9.  There is insufficient evidence to show the GOMOR was improperly or
unjustly issued to the applicant.  Therefore, there is an insufficient
basis on which to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__tsk____ __rld___  __jbm___  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.




                                  __Ted S. Kanamine_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008867                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |134.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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