IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20080017645 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel with regard to his requests, statements and supporting documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge from the Regular Army (RA) on 3 November 2006 be voided and that he be reinstated to active duty.  He also requests that all documents relating to adverse action taken by an administrative elimination board be removed from the applicant’s Official Military Personnel File (OMPF).

2.  Counsel states, in effect, that the applicant was advanced through the ranks to pay grade E-7 and that he was honorably discharged to accept an appointment as a warrant officer in the Army.  He states that the applicant’s conduct and efficiency ratings were outstanding; that he received numerous awards and decorations; that he completed several military training courses; and that he held a number of duty assignments throughout his military career.  Counsel goes on by stating what he contends to be the facts and circumstances surrounding the applicant’s discharge from the Army.  He states that the applicant was denied due process to contest the allegations against him; that he was denied an administrative or show cause hearing; that he was denied equal protection as a minority member of the United States Army when he was 



discharged without an administrative hearing; and that he was denied the benefit of a rehabilitative transfer.  Counsel also cites court cases which he contends are applicable laws and regulations that pertain to the applicant’s case.

3.  Counsel provides in support of the applicant’s appeal a copy of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 3 November 2006; copies of the orders and certificate promoting him to the rank of sergeant first class; a copy of his Noncommissioned Officer Evaluation Reports (NCOERs) for the periods September 1998 through March 2004; a copy of his DD Form 214 dated 14 April 2005; a copy of his Officer Record Brief; a copy of his Officer Evaluation Report (OER) for the period 29 June 2005 through 30 November 2005; a copy of a memorandum addressed to him dated 13 July 2006, subject “Initiation of Officer Elimination”; a copy of his rebuttal to the memorandum recommending his involuntary separation from active duty, dated 9 August 2006; copies of statements that were submitted in his behalf dated 19 July 2006, 22 July, 24 July 25 July, and 26 July 2006; a copy of a memorandum dated 8 September 2006, recommending his elimination from the service with a General, Under Honorable Conditions Discharge; excerpts from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) dated 6 June 2005; and excerpts from Army Regulation 600-8-24 (Officer Transfers and Discharges) dated 12 April 2006.

CONSIDERATION OF EVIDENCE:

1.  On 24 January 1995, the applicant enlisted in the RA in Miami, Florida, for 3 years and 28 weeks, in the pay grade of E-1.  He successfully completed his training as a parachute rigger.

2.  He received successful and superior NCOERs for the periods September 1998 through March 2004 and he was promoted through the ranks to the pay grade of E-7.

3.  The applicant was honorably discharged on 14 April 2005, under the provisions of Army Regulation 635-200, paragraph 16-1A(1), to accept an appointment as a warrant officer in the United States Army Reserve (USAR).  Accordingly, on 15 April 2005, he accepted an appointment as a warrant officer one (WO1) in the USAR.

4.  On 5 April 2006, the applicant was furnished a General Officer Memorandum of Reprimand (GOMOR) by his division Commanding General (CG) for deliberately making sexual comments and demonstrating unprofessional conduct towards a subordinate female enlisted paratrooper.  The GOMOR states that he 

was also being reprimanded for his disrespect of and sexual discrimination towards a senior female commissioned officer.  The applicant was informed that his misconduct included repeated calls that were not work related to the female enlisted paratrooper after being told to stop, and inappropriate and sexually explicit comments to the same paratrooper regarding taking his clothes off to determine “if I was good enough.”  The GOMOR also states that he then made comments to a female commissioned officer that he would not salute her; that female soldiers are a cancer and need to be weeded out of the Army; and that he disliked working with women.  The applicant was told that his pattern of inappropriate and unprofessional behavior as a warrant officer had clearly created and fostered a hostile working environment in his unit as the enlisted female paratrooper did not immediately report the incident because she believed that she would handle the situation and, due to his position of authority, she believed that nothing would be done, or worse, she feared reprisal.  He was told that as an officer, he was responsible for ensuring a work environment free from sexual harassment and instead his actions reflected a blatant disregard for Army values, Army Regulation, the responsibilities of leadership and the morale and welfare of his unit.  He was also told that his misconduct was grossly incompatible with the high standards of military discipline expected of a warrant officer and seriously called into question his values and judgment.

5.  The CG concluded the GOMOR by informing the applicant that the reprimand was being imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice and that his intent was to file the GOMOR in his OMPF.  The applicant was told that GOMOR was being referred for his information and acknowledgement of his rebuttal opportunity; and that he had 7 days to respond to the information contained therein.

6.  In undated correspondence, the applicant submitted a rebuttal to the GOMOR stating that he did not sexually harass the paratrooper; however, he acknowledged that certain impropriety or lapse of judgment on his part placed him in a position where such claims might be made and on first appearance, may raise legitimate concerns on the part of his chain of command.  He stated that the paratrooper was speaking with another Soldier about allowing a man buy her a lot of drinks as he was trying to get her drunk so he could take advantage of her.  He stated that when he asked her why or how she managed to decline that proposed proposition, she responded “because he wasn’t good enough.”  He stated that strictly as a joke he responded “If I were not in uniform, I might ask if I were good enough.”  He stated that she was laughing and being flirtatious and that she was making comments led him to believe that he had not been in uniform, she would have answered affirmatively.  


7.  In his rebuttal, the applicant stated that it was totally erroneous that he ever said anything about taking his clothes off and that although the paratrooper and the other Soldier tried to embellish the allegations that she made against him, nowhere does she say that he made any reference to taking his clothes off or any so-called sexually explicit comments.  He stated that he never asked for sex, to kiss her or to touch her and that the other Soldier states that she assumed that he was just flirting harmlessly was accurate and fair.  In the rebuttal, the applicant went on to dispute the sworn statement made by the paratrooper and to dismiss the sworn statement made by the other Soldier as hearsay.  The applicant went on to state that on his own accord and in mutual agreement with the female paratrooper, they both allowed that they may have been letting their professional guards slip by teasing with one another and by the few brief phone conversations that they had.  He stated that while he accepted responsibility for his actions and acknowledged his responsibility as a unit leader, it was unfortunate that the mere uncorroborated allegations by any female Soldier, enlisted or officer would also invariably be deemed factual in every alleged detail.  

8.  In his rebuttal the applicant stated that while he could not know for certain the motive for expanding and embellishing the factual basis in the matter, it was clear that he never asked or engaged in sexual intercourse; that he never used a sexually explicit language during any conversation with her; that if he called her on her cell phone, she could see who was calling and freely not answer it; that every conversation that he had with her was amicable; that she had no apparent discomfort with him helping her move to a new residence; that she begged to be allowed to stay in the same squad and section when she had the opportunity to move; that she told members of her chain of command that everything was fine; and that the allegations were raised only after he began providing constructive evaluations of her duty performance.  The applicant went on to state that he did not sexually discriminate against his platoon leader nor does she allege in her memorandum for record and subsequent sworn statement that he did.  He stated that while she alluded to some reticence on his part to be strictly deferential regarding saluting in the area of operations, she did not say nor imply that such reticence, if any, was due to her being female as opposed to her being a new junior officer.  He stated that the investigating officer overstated the case and that his findings were erroneous.  He stated that it was his platoon leader’s narrow interpretation of his views toward female Soldiers that unfairly concluded that he has negative views of female Soldiers.  

9.  The applicant concluded his rebuttal by stating that at worse, it can only be said that he was trying to suggest reasonably informal protocol in certain parts of the area of operation and that his platoon leader could have said that he would always salute her, when appropriate and that if she had said this and he refused 

then it could be said that he was disrespectful.  The applicant suggested that he receive a written counseling statement in lieu of a GOMOR and he gave his solemn word that he would never again exercise such bad judgment or compromise his professional standards.  Along with his rebuttal, the applicant submitted three character references all attesting to his professionalism and good character.  The GOMOR was filed in the performance section of his OMPF, along with his rebuttal.  The AR 15-6 investigation was not filed in his OMPF.

10.  On 9 June 2006, the CG notified the applicant that he had considered the misconduct and the supporting documents and the CG directed that the GOMOR be filed in his OMPF.  On 15 June 2006, the applicant acknowledged receipt of the final determination and he specified that he understood that the GOMOR would be filed in his OMPF. 

11.  On 13 July 2006, the applicant was notified by his commanding officer (CO) that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-4(a), (b) and (c), due to substandard performance of duty, misconduct and professional dereliction, and derogatory information.  His CO stated that his actions were based on the applicant’s failure to exercise leadership of an officer of his grade; his misconduct and professional dereliction because he engaged in conduct unbecoming an officer and a gentleman; and a GOMOR that he received which was filed in his OMPF.  There are typographical errors made in the notification with regard to the cited regulation.  The proper regulation and paragraphs are Army Regulation 600-8-24, paragraphs 4-2(a), (b) and (c).  

12.  In the notification, the applicant’s CO stated that on 30 January 2006 a Commander’s Inquiry (Army Regulation (AR) 15-6 investigation) was initiated into allegations that he sexually harassed and engaged in inappropriate conduct towards a female enlisted paratrooper in his company; that he made sexual comments towards her and repeatedly called her about non-work related subjects, including her weekend plans; that he grabbed her hand inappropriately in the work place; and that on 6 February 2006 the allegation of inappropriate conduct was substantiated.  His CO stated that on 23 February 2006, the applicant’s new platoon leader went to him to introduce herself and he stated to her that she should not expect a salute of him and not to take it personally; that he disliked working with women as women disrupted unit cohesion; that females needed to be weeded out because they were like poison, like a cancer that needed to be cut out.  The applicant’s CO stated that on 14 March 2006 another AR 15-6 investigation substantiated the allegations of disrespect and found that his verbal expression and opinion of female Soldiers in the military had a negative effect on the work environment.  His CO stated that on 24 May 2006, 

the applicant received a GOMOR for his conduct and the reprimand was filed in his OMPF.  The applicant was informed of his options and he was told that he had 30 calendar days to acknowledge receipt of the notification. 

13.  On 9 August 2006, the applicant submitted a rebuttal to the notification to show cause for retention on active duty.  In his rebuttal, the applicant cited his length of service; his awards and decorations; his military education and training; his military assignments; and his OERs as the basis for his retention on active duty.  The applicant stated that he did not sexually assault the female enlisted paratrooper; that she engaged in a conversation with another female Soldier and she commented that a man had been trying to buy her drinks, probably trying to get her drunk so that he could take advantage of her.  He stated that when he asked her how she managed to decline the drinks, she replied, somewhat flirtatiously, that the man wasn’t good enough, or words to that effect.  He stated that, as a joke, he responded by saying something to the effect that if he was not in uniform, he might ask if he was good enough.  He stated that he should not have made the remark; however, at the time, she laughed and did not seem to be offended.  

14.  In his rebuttal to the notification the applicant stated that during the fall of 2005, he had several other conversations with the female paratrooper, which included a conversation about a problem she was having with her wrist; and another conversation about how she was feeling depressed because her husband was being deployed.  He stated that the conversations and contact ended, except for one occasion when he made arrangement to get members of the platoon to help her make a personal move of her household goods and belongings.  He stated that he also participated in the move and that she seemed appreciative; that he never asked her to engage in sexual intercourse; that he never used any sexually explicit language in any conversation with her as every conversation that they had was friendly; that she never appeared to be uncomfortable around him at work; and that she only raised the allegations 5 months after he began to provide her a constructive evaluation of her duty performance.

15.  The applicant went on to state in the rebuttal to the notification to show cause for retention on active duty that he was not disrespectful towards his platoon leader and he did not sexually discriminate against her.  He stated that he was trying to say that in the platoon area of operations, she might not always be saluted; that he harbored absolutely no ill-will towards his platoon leader or women in the military; and that he had never been accused of sexual discrimination or harassment as he had always gotten along with males and females.  He stated that he had been rated by three senior female Soldiers and 

received excellent ratings; and that not a single female Soldier interviewed by the AR 15-6 investigating officer stated that they felt he had a general disrespect for women in the military.  The applicant submitted character statements from other Soldiers as part of his rebuttal and he stated that he objected to being involuntarily discharged from the Army without having the opportunity to present his case to a board of officers, although he was a probationary warrant officer.  He concluded by stating that he had 11 years of service and that he could and would be an asset to the Army.  The applicant contended that he should receive a rehabilitative transfer and that a rehabilitative transfer was also required in accordance with Army Regulation 600-8-24.

16.  On 8 September 2006, the CO submitted his recommendation for the applicant’s elimination to the Commander, Human Resources Command (HRC), Alexandria, Virginia.  Records show that on 3 November 2006, the applicant was discharged under honorable conditions (general), under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct.  He had completed approximately 11 years, 9 months and 11 days of net active service. 

17.  On 11 September 2008, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB denied his request on 21 July 2008, finding that his discharge was proper and equitable.

18.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  This regulation provides, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

19.  Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4 prescribes the tasks, rules, and steps for eliminating officers in the Active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security.  This regulation provides that an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer's patriotism, 

valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.  Every officer deserves a fair chance to demonstrate their capabilities.  When an officer shows ineffective tendencies (especially if the officer is inexperienced) when practicable, they will be given another chance under another commander.  The officer's ineffectiveness will be systematically recorded in documents that specify each period covered, duties observed, and defects noted.  Recommendations for elimination action will not be based on generalities and vague impressions.  It is necessary to document, in writing, the precise reasons an officer is considered ineffective.

20.  Army Regulation 600-8-24, chapter 4-20 provides the rules for processing an elimination of a probationary officer.  It states, in pertinent part, that a probationary officer is a warrant officer who has fewer than 3 years service since original appointment in his/her present component.  If at any time during the processing of the recommendation, the officer no longer meets the probationary criteria, the case will be processed under the provisions of paragraph 4-18 of this regulation.  An officer identified for elimination may tender a resignation in lieu of elimination; request discharge in lieu of elimination; or apply for retirement in lieu of elimination if otherwise eligible.  Processing an officer’s recommendation for elimination under this paragraph does not require referral to a Board of Inquiry or a Board of Review unless the officer declines to elect one of the options and a discharge under other than honorable conditions is recommended.  If the officer declines to elect one of the options and if an honorable discharge or a general discharge (under honorable conditions) is recommended, the Commanding General, Human Resources Command will forward the case to the Secretary of the Army for final decision.  The General Officer Show Cause Authority will make a formal recommendation concerning the options submitted by the officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s counsel contends that the applicant’s discharge from the RA on 3 November 2006 should be voided and that he should be reinstated to active duty.  He also contends that all documents relating to adverse action taken by an administrative elimination board should be removed from his OMPF.

2.  His contentions have been noted and the documents that he submitted have been considered during the review of this case.  However, the available evidence suggests that the adverse actions taken against the applicant by the Army were proper and that the documents that are currently contained in his OMPF were filed in accordance with the applicable regulation.

3.  The Army has an interest in maintaining certain records and the applicant and/or his counsel has failed to provide sufficient evidence to show why the documents to which his counsel is referring should not remain a matter of record.  The fact that he disagrees with the information contained therein is not a sufficient justification for removal of documents that were properly filed in his OMPF.

4.  The available evidence indicates that the applicant was investigated twice as a result of allegations of misconduct and/or professional dereliction and both times the allegations against him were found to be substantiated.  He was also furnished a GOMOR as a result of his acts of misconduct.  Neither the applicant nor his counsel has provided documentation that suggests the adverse action taken against him was improperly filed in his OMPF.  Therefore, there is no basis for removal from his OMPF of any documents to which the applicant and his counsel are referring. 

5.  There is no evidence in the available records that suggests that any of his rights were violated during the discharge process or during the investigations that were conducted prior to his discharge process.  Therefore, there is no basis for voiding his discharge and reinstating him to active duty.  He was a probationary officer with less than 3 years of active service since his appointment and in accordance with the applicable regulation, processing his recommendation for elimination did not require referral to a Board of Inquiry or a Board of Review as he was furnished a general discharge.

6.  The applicant opted to submit a rebuttal to the request to show cause for his retention on active duty and case was forwarded, along with a recommendation that he be eliminated from the Army, to the appropriate authority for consideration and determination.  He has submitted insufficient evidence to show that he was denied equal protection as a minority member of the United States Army.

7.  Army Regulation 600-8-24 does provide that every officer deserves a fair chance to demonstrate their capabilities and when an officer shows ineffective tendencies (especially if the officer is inexperienced) and when practicable, they will be given another chance under another commander.  The same regulation provides that an officer who will not or cannot maintain the required standards will be separated.  He had two AR 15-6 investigations initiated against him and both allegations were substantiated.  

8.  The applicant’s discharge was not based on one isolated incident and therefore a rehabilitative transfer was not practical.  The available records suggest that the appropriate authority determined that he did not maintain the standards required of an officer of the United States Army and that he was discharged accordingly.  There has been insufficient evidence submitted to contradict the overwhelming evidence which indicates that the actions taken by the Army in his case were proper.  The burden of proving otherwise rests with the applicant and/or his counsel.

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 this requirement.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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.



      _______ _   _XXX______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080017645



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ABCMR Record of Proceedings (cont)                                         AR20080017645



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