IN THE CASE OF:	  

		BOARD DATE:	        28 May 2009

		DOCKET NUMBER:  AR20090005947 


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.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s Special Forces Tab be reinstated; that a general officer memorandum of reprimand (GOMOR), dated 1 June 2007, be removed from his official military personnel file (OMPF) and that he be promoted to E-7.

2.  Counsel states, in effect, that the applicant's Special Forces Tab was revoked on 10 September 2007 and the basis for the revocation was that, on or about 29 January 2007, the applicant and other members of his Special Forces Detachment left their firebase in order to travel to a brothel located in Afghanistan.  Prior to this, the applicant received a GOMOR for the same alleged misconduct and his command initiated action to separate him for commission of a serious offense (involvement of soliciting a brothel in a combat theater).

3.  Counsel states that an administrative board convened on 18 December 2007 to determine whether there was a preponderance of evidence to support the allegation of misconduct and whether the applicant should be retained.  The applicant testified at the administrative board that on three occasions he visited a Chinese restaurant in January 2007 outside of Afghanistan with four other Soldiers, that all he did was eat at the restaurant, and that he never saw anything that would suggest any other activity such as prostitution was going on in the restaurant.  The applicant testified that on 29 January 2007 his team sergeant had a meeting with all the members and told them about the unauthorized activities outside the wire, that the team sergeant ordered them not to go outside the wire without authorization, and that after the meeting the applicant never returned to the Chinese restaurant.  The applicant also testified that initially he told his commander that he did not go to the brothel but the following day he told his commander that he did visit the restaurant in downtown Kabul.  The administrative board members found that the allegations were not supported by a preponderance of evidence, the findings were unanimous, and the findings and recommendations of the board were approved.

4.  Counsel states that the applicant appealed the revocation of the Special Forces Tab and the basis for such request for reinstatement was the finding that the underlying misconduct which served as the basis for the revocation of the tab and which also served as the basis for the GOMOR had been found not to be substantiated by the administrative board.  On 29 July 2008, the applicant's appeal to have his Special Forces Tab was disapproved.

5.  Counsel recommends that relief be granted based on the applicant's Noncommissioned Officer Evaluation Reports, academic reports, combat service in Afghanistan, and awards and decorations.

6.  Counsel provides 12 attachments outlined on page 9 of his undated memorandum and a letter, dated 28 October 2008, with four enclosures outlined on page 2 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 November 1999 and reenlisted on 8 February 2002 for a period of 4 years.  He was promoted to the rank of staff sergeant on 1 May 2005.

2.  Counsel provided a copy of the findings of the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation, dated April 2007, which states, in pertinent part, that the applicant initially denied visiting the Chinese restaurant but later admitted in a verbal statement to a captain that he had traveled to the Chinese restaurant and solicited sexual services from prostitutes.  The investigating officer recommended revocation of the Special Forces Tab, that a GOMOR be filed in his military records, and revocation of his security clearance.

3.  On 1 June 2007, the applicant received a GOMOR for misconduct (leaving his firebase in order to travel to a brothel located in Kabul, Afghanistan, while deployed in support of Operation Enduring Freedom).  The applicant's GOMOR also states that in order to satisfy his own personal desires, he compromised his personal safety by conducting a movement away from his firebase without a valid mission.  On 6 September 2007, the commanding general directed the GOMOR be filed in the applicant’s OMPF.

4.  In response to the GOMOR, on 23 July 2007, the applicant signed a memorandum in which he stated that he realized he made an extremely poor decision and took full responsibility for his actions.  He offered his sincere apology and assured the imposing authority that nothing "of this nature will ever happen again."  The applicant did not state he was not guilty of the misconduct which served as a basis for the GOMOR.

5.  U.S. Army John F. Kennedy Special Warfare Center and School Permanent Orders 253-5, dated 10 September 2007, show the applicant’s Special Forces Tab was revoked.

6.  On 16 November 2007, the applicant appeared before an administrative separation board.  During the board proceedings, the applicant admitted that he had visited the Chinese Restaurant outside of Kabul about three times but only went there for food and left.  He stated he never saw anything that would suggest any other activities such as prostitution was going on in that restaurant.  The applicant stated during the proceedings that he wanted to stay in the Army, that he felt he still had a lot to offer, and wanted to retire from the Army.  He stated he knew he was under oath and that he never participated in any activities in a brothel.  He states his commander misunderstood him and that he never told the commander that he had visited the brothel.

7.  The administrative separation board concluded the "allegations in the notice of proposed separation are not supported by a preponderance of the evidence" and recommended the applicant be retained in the Army as a combat engineer.

8.  On 21 February 2008, the applicant requested reinstatement of his Special Forces Tab.

9.  On 26 June 2008, the applicant submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB) requesting that the GOMOR be removed from his OMPF.

10.  On 25 July 2008, the Commander, U.S. Army Special Operations Command (USASOC), Fort Bragg, North Carolina, disapproved the applicant’s request for reinstatement of his Special Forces Tab.  He stated that the tab revocation action in the applicant's case was appropriate; that his actions were inconsistent with the integrity, professionalism, and standards of conduct expected of a Special Forces Soldier; that despite his 8 years of creditable service he failed to take on the mantle of discipline, responsibility, and trust required of a Special Forces Soldier; and that his blatant disregard of command policies and procedures while deployed, as well as his lack of integrity and discipline when questioned regarding his misconduct, compromised his ability to lead Soldiers within the community.

11.  On 29 July 2008, counsel was notified by the Staff Judge Advocate, USASOC, Fort Bragg, North Carolina, that the Commanding General, USASOC, disapproved the applicant's request for reinstatement of his Special Forces Tab.  The letter also states, in pertinent part, "I apologize for the length of time it has taken to process this action."

12.  On 6 October 2008, the applicant was honorably discharged in the rank of staff sergeant as a result of parenthood.

13.  There is no evidence of record which shows he was promoted to sergeant first class prior to his discharge.

14.  On 31 October 2008, the DASEB denied the applicant’s request to remove the GOMOR from his OMPF.  The DASEB concluded that based on the evidence submitted that it did not appear the administrative separation board considered the very same evidence which served as the basis for the GOMOR.  Rather, the summary of the administrative separation board suggested the decision was based on the testimony of the applicant.  The DASEB noted that the applicant took responsibility for his actions when he responded to the GOMOR on 23 July 2007 and made no statement which contradicted the basis for the GOMOR which was that he left his firebase to travel to a brothel in order to satisfy his own personal desires which compromised his personal safety.  The DASEB determined that the evidence presented did not establish clearly and convincingly that the GOMOR was untrue or unjust and that the presumption of regularity should not be applied.

15.  A review of the restricted section of the applicant’s OMPF revealed a copy of the 1 June 2007 GOMOR in question.

16.  Paragraph 1-31c(9)(f) of Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the Special Forces Tab may be revoked by the awarding authority (Commander, U.S. Army John F. Kennedy Special Warfare Center) if the recipient has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School.
17.  Paragraph 1-31c(9)(g) of Army Regulation 600-8-22 states that the Special Forces Tab for Active and Reserve Component Soldiers will be reinstated by the Commander, U.S. Army Special Operations Command, Fort Bragg, North Carolina, when fully justified.

18.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation also provides, in pertinent part, that administrative letters of reprimand will be filed in the performance section.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions and the applicant’s military career and combat service were carefully considered.  However, the findings of the Army Regulation 15-6 investigation state the applicant initially denied visiting the Chinese restaurant but later admitted in a verbal statement to a captain that he had traveled to the Chinese restaurant and solicited sexual services from prostitutes.  As a result, the applicant, a staff sergeant, received a GOMOR for misconduct stemming from leaving his firebase in Afghanistan to travel to a brothel located in Kabul, Afghanistan.  In his written response to the GOMOR, he stated that he realized he made an extremely poor decision.  Since he offered no explanation that the decision was only to visit a restaurant and not a brothel, it is a reasonable inference that he was acknowledging that he visited a brothel.  Since this misconduct is inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier, the applicant’s Special Forces Tab was revoked.

2.  Evidence of record shows the applicant's Special Forces Tab was revoked by the correct awarding authority, and subsequently reviewed by the Commander, U.S. Army Special Operations Command.  Therefore, there is an insufficient basis for granting the applicant’s request to reinstate his Special Forces Tab. 

3.  The 1 June 2007 GOMOR is properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that it was improperly imposed.  Therefore, there is no basis for granting the applicant’s request that this GOMOR be removed from his OMPF.

4.  There is no evidence of record which shows the applicant was promoted to sergeant first class prior to his discharge on 6 October 2008 or that he was even selected for promotion to sergeant first class prior to his discharge.  Therefore, there is no basis for granting his request for a promotion to sergeant first class.



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.



      _______ _  X _______   ___
       	   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)                                         AR20090005947



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ABCMR Record of Proceedings (cont)                                         AR20090005947



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