RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2007
      DOCKET NUMBER:  AR20070010770


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 the general officer memorandum of reprimand
(GOMOR), dated 28 August 2001, be removed from his Official Military
Personnel File (OMPF).

2.  The applicant states that the evidence clearly and convincingly shows
that he neither attempted to engage in sexual relations with a prostitute,
nor did he violate any force protection policy by being out of uniform off
Camp Butmir, nor did he compromise the safety of the Stabilization Force
(SFOR) mission by allowing an unauthorized civilian to ride in a SFOR
vehicle.  The GOMOR was a result of a blanket punishment issued by a
command thousands of miles from the alleged incident.  The blanket
punishment was intended to set an example and eliminate any questionable
activities going on in the Bosnia-Herzogovina area of responsibility.  The
Headquarters, SFOR military police (MP) recommended that no disciplinary
actions be taken against him based on a thorough investigation of the
facts.

3.  The applicant states that, though the GOMOR was transferred to the
restricted section of his OMPF, it continues to substantially limit his
ability to serve and excel at the rate of his peers.  The GOMOR hinders him
from realizing his true promotion potential as evidenced by his being
passed over for promotion twice (in fiscal years 2001 and 2002).

4.  The applicant provides the GOMOR, dated 28 August 2001, and a Summary
of Facts with three Exhibits:

      Exhibit 1.  a statement, faxed on 21 February 2003, from Lieutenant
(Chaplain) M___, U. S. Naval Reserve; a statement, dated 13 February 2003,
from Captain H___, the Command Judge Advocate for the U. S. National
Support Element with duty at Camp Butmir, Bosnia-Herzegovina at the time
the GOMOR was initiated; a Headquarters, SFOR International MP Company, MP
Report; a copy of a SFOR identification card for the female civilian
mentioned in the GOMOR; and a North Atlantic Treaty Organization (NATO)
document, undated, concerning the female civilian mentioned in the GOMOR;

      Exhibit 2.  a memorandum for record (MFR), dated 30 July 2007,
subject:  Force Protection and Uniform Code for the Sarajevo Area of
Operations; and portions of Annex C (Dress and Vehicle Movement Codes) to
[NATO] Standing Operating Procedure (SOP) 3601; and a Welcome to Operation
Joint Force, Sarajevo, Bosnia-Herzegovina packet;

      Exhibit 3.  duplicates of documents in Exhibit 1; and
      Exhibit 4.  a 3-star general officer’s note of thank you; six officer
evaluation reports; a Purple Heart award certificate; two Joint Service
Commendation Medal award certificates; two Army Commendation Medal award
certificates; a Meritorious Service Medal award certificate; and an Army
Achievement Medal award certificate.

5.  The applicant also provides a Department of the Army Suitability
Evaluation Board (DASEB) Decision Summary and a 20 February 2003 memorandum
to the DASEB.

6.  The applicant also requests a personal appearance before the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  The applicant was commissioned a second lieutenant out of the Reserve
Officers’ Training Corps and entered active duty around January 1992.  He
was promoted to first lieutenant on 30 March 1993 and to captain on 1 April
1995.

3.  Around March 2001, the applicant was deployed to Sarajevo as chief of a
forward-deployed contracting office.

4.  On 28 August 2001, the Commanding General, 21st Theater Support Command
issued a GOMOR to the applicant for misconduct during the last week in May
2001.  The misconduct included attempting to engage in sexual relations
with a prostitute, violating force protection policies by being out of
uniform off Camp Butmir, and compromising the safety of the SFOR mission by
allowing a civilian to ride in a SFOR vehicle he was also riding in.

5.  The applicant rebutted the GOMOR.  He stated he understood that he
placed himself in a situation that allowed his command to question his
integrity and discipline as a result of his trust in a fraudulent
individual and his misjudgment in the uniform wear while not on the Butmir
Base Camp.  He stated he unknowingly accepted a fraudulent identification
by an individual who presented herself as an SFOR interpreter.  He did not
participate in or ever attempt to engage in any sexual relations with a
prostitute while deployed in support of Operation Joint Forge at Camp
Butmir.

6.  The Commanding General determined the GOMOR should be permanently filed
in his OMPF.

7.  The applicant provided a statement, faxed (apparently to the DASEB) on
      21 February 2003, from Lieutenant (Chaplain) M___, U. S. Naval
Reserve.  Chaplain M___ stated that he was the Chaplain for Camp Butmir
during the six months he served with the applicant at Camp Butmir.  On the
day in question, he, the Chaplain, was the senior officer on the scene and
the commander of the vehicle in question.  The applicant was a passenger.
While traveling back to Camp Butmir, a young lady approached them and asked
if she could have a ride to a nearby restaurant.  She spoke English, had an
SFOR badge (which later turned out to be counterfeit), and stated she was
an interpreter for Camp Butmir. He, the Chaplain, gave her a ride.  At no
time did they suspect her to be carrying falsified documents because he had
seen her on the base on several occasions.

8.  Chaplain M___ went on to state that he then gave the young lady a ride
to her home.  Contact with local nationals at their homes was encouraged
for chaplains and for Soldiers to foster better community relations.  After
about 10 minutes, he went to the latrine and noticed the adjacent rooms had
about six beds.  He immediately notified the applicant that the house
looked like a brothel and they needed to leave.  As they were inside of a
home, the failure to be in their field jacket posed no force protection
risk.  However, they were in complete uniform while they were traveling in
the vehicle or in public places.

9.  Chaplain M___ also stated that he disputed the allegation that the
applicant solicited sex from the young lady.  That incident never happened
nor was there a moment/time where that could have happened.  The applicant
was in the Chaplain’s presence the entire day for the most part.  If the
young lady accused the applicant of that action, the Chaplain would
strongly argue that no opportunity existed for it to happen.

10.  The applicant provided an MFR from Captain H___, the Command Judge
Advocate for the U. S. National Support Element with duty at Camp Butmir,
Bosnia-Herzegovina at the time of the alleged incidents.  Captain H___
stated that a primarily-Irish contingent of MPs investigated into how the
young lady in question came to possess the SFOR identification card.  Among
the MP findings were that several foreign officers assisted her in getting
the false identification.  Several U. S. officers were found to have
engaged in sexual encounters with her, though they were unaware at the time
that she had false identification.  There was no evidence of any link
between the applicant and the false identification or sexual contact with
the lady.

11.  Captain H___ also stated that the applicant was found to have been
present when the young lady took an apparently unauthorized ride in a non-
tactical SFOR vehicle, driven by an Army (sic) Chaplain.  He recommended to
the installation commander that as there was no credible link between the
applicant and any significant misconduct that no action should be taken
against him.  He redeployed immediately after that recommendation and had
no further role in processing the applicant’s case.

12.  The applicant provided a Headquarters, SFOR, International MP Company,
MP Report, dated 26 June 2001.

13.  Paragraph 2b of the MP Report related an interview with Major B___.
Major B___ admitted having sexual relations with the young lady.  He also
stated that, on 23 May 2001, he was talking to the applicant.  He told the
applicant about his encounter with the young lady and that the applicant
“had advised him that she had stolen his money.”  The rest of this
paragraph is not clear as to whether the “he” and “him” references refer to
Major B___ talking about himself or talking about the applicant.

14.  Paragraph 2c of the MP Report related an interview with the applicant.
 He acknowledged being with the lady in question on 23 May 2001 in the
company of the chaplain (i.e., Chaplain M___).  He stated, in part, that
the chaplain offered to drive the young lady and a friend of hers home, and
the applicant went with them.  He stated that he went to use the toilet
and, when he returned, the young lady told him that they must leave.  He
stated that she had two condoms in her hand and that the condoms were his.
He further stated that they left the house and he had no further contact
with her.

15.  The MP Report noted that, after an investigation, it was learned that
the young lady had one (fraudulent) SFOR identification card and one
(fraudulent) SFOR ration card.  She was questioned.  She stated that she
had met with a Major B___ and had sex with him at her home, and that she
had met with a Captain G___ and had sex with him on a number of occasions.
The applicant was not mentioned during her interview.  She stated she was
not a prostitute.  In an interview the next day, she stated that she had
met with Warrant Officer M___ and had sex with him at her house.  The
applicant was not mentioned during this interview.

16.  The MP Report noted that it appeared from the statements recorded from
the SFOR personnel involved in the investigation that the young lady met
SFOR personnel and brought them to her home.  Once at the house she
encouraged them to take a shower, and while doing so she would steal money
from their wallets or clothing.  After she had sex with the men she would
ask for loans of varying amounts of money.  The MP Report stated, “It is
difficult to condemn (the lady) as being a prostitute as she does NOT
request money in lieu of sexual favors prior to the commencement of sexual
activities.  It has been established that she prefers to steal money from
wallets or clothing while the unsuspecting SFOR males take a shower.”

17.  The conclusions in the MP Report were that Captain G___ committed a
breach of SFOR’s Force Protection Regulation 0936 and that Warrant Officer
M___ should have informed the French police earlier that he had been in
contact with a civilian female and that she had the opportunity to steal
his missing SFOR identification card.  The applicant’s name was not
mentioned in the Report’s conclusions.

18.  The applicant provided an MFR from Lieutenant Colonel F___, the
National Support Element/Base Support Battalion Commander during the time
in question.  He stated it was his responsibility to ensure that all
personnel who processed into NATO and U. S. billets in Croatia and Bosnia
were knowledgeable of and complied with the Uniform Code and Force
Protection rules that applied to his area of operations.  He stated that
the uniform code for Camp Butmir and the Sarajevo area was simply the duty
uniform, specifically battle dress uniforms with soft cap for Army
personnel.  He noted that he had to rely on his recollection of his year-
long tour as the commander on the ground.  He stated that it was his
opinion that, unless a visit to the home of a local national was strictly
for business, that he could not see how removing a blouse could be a
uniform violation in Sarajevo, much as he would not consider it a violation
to remove his jacket at a friend’s residence in the States.

19.  The applicant provided Annex C to SOP 3601.  Paragraph 3 of this SOP
stated that commanders were delegated the authority to establish the alert
state, dress code, and vehicle movement code for their area of
responsibility in accordance with the SOP.

20.  In September 2002, the applicant was notified that he was not
recommended for promotion (apparently for the second time), but he was
recommended for selective continuation.

21.  In December 2002, the applicant appealed the GOMOR to the DASEB.  The
DASEB noted that the applicant’s contentions that he did not attempt to
engage in sex with the person, that he did not know the person was
unauthorized, and that he was unaware that removing his shirt was not
authorized were presented to the issuing authority through the
investigations and his rebuttal statement.  The issuing authority decided
to administer the GOMOR after considering the same contentions and
evidence; therefore the DASEB was not convinced that the GOMOR was either
inaccurate or issued unfairly.  The DASEB did, however, transfer the GOMOR
to the restricted section of the applicant’s OMPF.

22.  On 1 October 2003, the applicant was promoted to major.

23.  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 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.

24.  Army Regulation 15-185 governs operations of the Army Board for
Correction of Military Records (ABCMR).  Paragraph 2-11 of this regulation
states that applicants do not have a right to a hearing before the ABCMR.
The regulation provides that the Director of the ABCMR or the ABCMR may
grant a formal hearing before which the applicant, counsel, and witnesses
may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  On 28 August 2001, the applicant was issued a GOMOR for misconduct;
specifically, attempting to engage in sexual relations with a prostitute,
violating force protection policies by being out of uniform off Camp
Butmir, and compromising the safety of the SFOR mission by allowing a
civilian to ride in a SFOR vehicle he was also riding in.

2.  The applicant’s contentions and the evidence he provided have been
carefully considered.  The DASEB’s findings have been carefully considered.
 Based upon the evidence available, it is difficult to see the bases upon
which the issuing authority issued the GOMOR.

3.  The first allegation was that the applicant attempted to engage in
sexual relations with a prostitute.  Chaplain M___ stated that the
applicant was in the Chaplain’s presence the entire day and no opportunity
existed for the applicant to have made that alleged attempt.  The applicant
mentioned, in an interview with the MPs, that the lady handed the applicant
two condoms; however, that is not evidence that he initiated or sought any
sexual relations with her.

4.  The Headquarters, SFOR, International MP Company, MP Report of
Investigation referenced an interview with Major B___, in which it appears
Major B___ related a conversation with the applicant that implied the
applicant also had sexual relations with the lady, but there is no further
corroboration of that implied statement.  The lady herself was interviewed
twice, and while she mentioned having sexual relations with several other
officers, she did not mention the applicant in any connection (with either
having sexual relations or with attempting to have sexual relations with
her).

5.   The MP report also stated, “It is difficult to condemn (the lady) as
being a prostitute as she does NOT request money in lieu of sexual favors
prior to the commencement of sexual activities.”  Since there appears to
have been no other lady (prostitute or not) involved in the alleged
incident, and if the official investigation determined that the lady was
not a prostitute, it is difficult to understand how the applicant could
have attempted to engage in sexual relations with a “prostitute.”

6.  The first allegation appears to be groundless based upon more than just
semantics.  It is one thing to accuse a lady of participating in immoral or
promiscuous sexual activities; it is another thing to accuse her of
participating in unlawful sexual activities.  The available evidence
indicates the lady did not meet the legal definition of prostitute.  The
preponderance of the evidence (the chaplain’s statement, the applicant’s
statement, the lady’s statements) indicates the applicant did not even
attempt to engage in sexual activities of an immoral nature with her.

7.  The second allegation was that the applicant violated force protection
policies by being out of uniform off Camp Butmir.  Lieutenant Colonel F___,
who was the National Support Element/Base Support Battalion Commander
during the time in question and whose responsibility it was to ensure that
all personnel who processed into NATO and U. S. billets in Croatia and
Bosnia were knowledgeable of and complied with the Uniform Code and Force
Protection rules that applied to his area of operations, made a reasonable
and convincing argument.  The applicant and Chaplain M___ visited the
lady’s home on a personal visit.  It was Lieutenant Colonel F___’s opinion
that he could not see how removing a blouse could be a uniform violation in
Sarajevo, much as he would not consider it a violation to remove his jacket
at a friend’s residence in the States.  If the commander whose
responsibility it was to enforce the uniform code for the area did not
believe the applicant violated that code, it is difficult to understand the
reasoning behind the GOMOR issuing authority’s contending the applicant did
violate it.

8.  The third allegation was that the applicant compromised the safety of
the SFOR mission by allowing a civilian to ride in a SFOR vehicle he was
also riding in.  Chaplain M___, who was the senior officer on the scene and
the commander of the vehicle during the incident in question, stated that
at no time did they suspect the young lady to be carrying falsified
documents.  Chaplain M___ stated he did not suspect that because he had
seen her on the base on several occasions, implying that the lady’s
falsified identification cards had been good enough to pass the inspection
of trained gate guards.  The applicant, as the junior officer in the
vehicle, was not in a position to tell Chaplain M___ he could not allow the
lady to ride in the vehicle.  It is difficult to understand why the
applicant should have been punished for allowing a situation that he did
not have the authority to prevent.  It is also difficult to understand why
the applicant should have been punished when, as it appears the young lady
had SFOR identification that passed the muster of trained gate guards, it
appears he had no reason to believe her being in the vehicle was
unauthorized.

9.  In the absence of extraordinary circumstances the Board is normally
reluctant to substitute its judgment for that of the commander who was on
the scene on the question of guilt.  However, in this case, the commanding
general was not the commander right on the scene.  Lieutenant Colonel F___
was the commander on the scene, and he said the applicant did not violate
the uniform code.  The MP report indicated the young lady was not a
prostitute; therefore, the applicant could not have attempted to engage in
sexual relations with a “prostitute.”  The Command Judge Advocate on the
scene stated there was no credible link between the applicant and any
significant misconduct and no action should be taken against him.

10.  The preponderance of the evidence indicates that the GOMOR was issued
unfairly.  It should be removed from his OMPF, and his records should be
submitted to a duly constituted Special Selection Board for reconsideration
for promotion to major under the fiscal years 2001 and 2002 criteria.

BOARD VOTE:

__jev___  __rdg___  __rch___  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:


     a.  removing the GOMOR dated 28 August 2001 and all related documents
from his Official Military Personnel File;

     b.  following administrative implementation of the foregoing,
submitting his records to duly constituted Special Selection Boards for
reconsideration for promotion to major under the 2001 and 2002 criteria;

     c.  if he is selected for promotion that his records be further
corrected by  promoting him to major and assigning the appropriate date of
rank or, if he is not selected for promotion, he be notified accordingly;
and

     d.  in accordance with Army Regulation 15-185, following completion of
the administrative corrections directed herein, this Record of Proceedings
and all documents related to this appeal be returned to this Board for
permanent filing.




                                  __James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070010770                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070919                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |134.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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