IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090012709 


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:

1.  The applicant defers to counsel requests, through counsel, in effect, reconsideration of the Board's denial of his request for his general officer memorandum of reprimand (GOMOR), with all related documents, to be removed from his Official Military Personnel File (OMPF); and that his records be corrected to show that he was placed on the Retired List in the rank of colonel, pay grade O-6.

2.  The applicant provides a memorandum from the CG who gave him the GOMOR.  The CG states that "this brief period of missteps is in stark contrast to what was otherwise an unblemished 26 year career."  The CG recommends that the applicant be placed on the Retired List in the rank of colonel.  This document was reviewed by the Board in its first consideration of this case.

3.  Subsequent to the receipt of the applicant's counsel's request for reconsideration, he resubmitted his original application which was denied by the Board, and a list of documents which he lists as enclosures.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states that the Board should have granted the applicant's request since he was innocent of any wrongdoing and was punished for acts that he did not commit.  As such, the Board's decision was arbitrary and capricious.

2.  Counsel continues by citing legal rulings concerning the purpose and authority of the Board.  Counsel then provides a "snapshot" of the applicant's illustrious career and of the awards and decorations he earned during that career.  

3.  Counsel then chronicles how an investigation was initiated against him due to charges of adultery, and how that investigation determined that the charges were unfounded.  However, the investigating officer (IO) determined that the applicant was guilty of assorted misconduct because the same unsubstantiated conduct created an appearance of misconduct.  Counsel alleges that this finding was based on information supplied by an officer the applicant had "fired" and another officer who was known to have lied while conspiring to implicate the applicant in wrongdoing.

4.  Counsel states that even though the applicant submitted a detailed rebuttal responding to this finding and the other substantiated findings in the investigation, the IO's findings stood and were accepted by the commanding general (CG) who gave the applicant the GOMOR.

5.  Counsel adds that the basis of the applicant's first request to the Board was that the findings of the investigation against him were premised upon nebulous perceptions rather than on a preponderance of real evidence that actually refuted all the charges.  The applicant "made his case" by essentially reiterating the litany of shortcomings that he had identified in rebuttal to the investigation and GOMOR.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080000165, on 6 January 2009.

2.  Counsel's argument that the Board's decision was arbitrary and capricious is new argument and requires the Board to reconsider the case.

3.  The applicant's record shows that he was appointed as a second lieutenant in the Regular Army on 27 May 1981 and continuously served on active duty for over 25 years, attaining the rank and pay grade of colonel, pay grade O-6 on 1 December 2003.

4.  On 8 August 2006, an informal investigation was initiated against the applicant based on an anonymous allegation of adultery between the applicant and a military technician, GS-11, who is also a master sergeant in the United States Army Reserve (USAR).
5.  On 10 August 2006, an IO was appointed to investigate the anonymous allegation, report the findings, and make a recommendation to the CG.

6.  On 31 August 2006, the IO submitted his findings and recommendations to the Staff Judge Advocate (SJA) for legal review.  

7.  On 11 September 2006, the SJA reviewed the IO's findings and recommendations and found the IO's findings and recommendations legally sufficient.  The findings and recommendations were submitted to the CG.

8.  On 15 September 2006, after reviewing the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation, the CG approved the IO's findings and recommendations and notified the applicant of the proposed adverse action against him as a result of the investigation.  In the substituted background, findings and recommendation, the IO found that:

   a.   the allegation of adultery and fraternization were unsubstantiated because the IO could find no eyewitnesses who could state that they had personally observed the act of copulation, and while the woman whom the applicant was suspected of fraternizing with was a Reserve noncommissioned officer as well as a Federal employee, she was never seen in uniform, a requirement for a finding of fraternization. 
   
   b.  the allegation of failure to obey an order or regulation by having an inappropriate relationship was unsubstantiated because the woman whom the applicant was suspected of fraternizing with was never seen in uniform.
   
   c.  the allegation that the applicant violated Article 133 of the Uniform Code of Military Justice was founded.  The IO stated that this conclusion was based on a greater weight of evidence than supports any contrary conclusion.  The IO continues that the applicant's association with the woman whom the applicant was suspected of fraternizing with created the perception of impropriety, the perception of an inappropriate relationship, and the perception of partiality.  The IO explains:
   	
   	(1)  the woman whom the applicant was suspected of fraternizing with was seen departing the applicant's Bachelor Officer's Quarters (BOQ) room at 0037 hours on 16 March 2006 by an eyewitness who was assigned to the room across from the applicant's room.
   
   	(2)  while both the applicant and the woman whom the applicant was suspected of fraternizing with denied ever being in the other's hotel or BOQ rooms at any time other than to quickly drop off packages or luggage, the applicant admitted through email that the woman whom the applicant was suspected of fraternizing with was in his BOQ room as late as 2230 hours discussing an email with him.
   
   	(3)  the applicant's car was seen and photographed parked and empty in the parking lot of a hotel that the woman whom the applicant was suspected of fraternizing with was staying.
   
   	(4)  at 2150 hours, the woman whom the applicant was suspected of fraternizing with attempted to gain entrance into the division headquarters but could not enter because of lack of access.  The applicant admitted her into the building.  The woman whom the applicant was suspected of fraternizing with later denied (initially) attempting to gain access into the building that night.
   
   	(5)  the applicant and the woman whom the applicant was suspected of fraternizing with were seen departing for lunch in separate vehicles 5 minutes apart.  The applicant and the woman whom the applicant was suspected of fraternizing with were later seen driving to the hotel where the woman whom the applicant was suspected of fraternizing with was staying.  The applicant and the woman whom the applicant was suspected of fraternizing with returned to the headquarters building 5 minutes apart later in the day.
   
   	(6)  the applicant made a false official statement when he denied that he answered a phone call from the woman whom the applicant was suspected of fraternizing with when, in actuality, two of his subordinate officers were present.  In addition, the applicant opted to deliver something to the hotel of the woman whom the applicant was suspected of fraternizing with instead of ordering one of his subordinate officers to deliver it, even though the hotel was not on his way home.
   
   	(7)  the billing records of the applicant's Government phone showed that he called the woman whom the applicant was suspected of fraternizing with 55 times from 1 February to 20 June 2006 from times ranging from 0226 hours to 2117 hours.  The IO could not get the billing records of the phone the woman whom the applicant was suspected of fraternizing with because he did not have a court order.
   
   	(8)  the applicant directed that the desk of the woman whom the applicant was suspected of fraternizing with be placed outside his office door even though, according to her duties, she should be placed in another section of the headquarters.
   
   	(9)  the applicant defended the manner of dress of the woman whom the applicant was suspected of fraternizing with.
   	(10)  the applicant was abusive to his staff.
   	(11)  the applicant traveled to the US Military Academy (USMA), West Point, NY for personal reasons at Government expense.  The trip coincided with his son's entrance to the USMA.
   
   	(12)  the applicant threatened retaliation or intimidation on numerous occasions to military and civilian members of his staff.  These included threats of firing, relief from position, and/or bad efficiency reports.  The timing of these threats came only days after the applicant confronted the officer who took a picture of him in his car outside the hotel of the woman whom the applicant was suspected of fraternizing with.
   
   	(13)  a captain conspired with a noncommissioned officer to follow the applicant for the avowed purpose of catching him in misconduct and then lied.
   
9.  The CG decided to give the applicant a GOMOR.  In the GOMOR, the applicant was informed that his abusive behavior and conduct were unbecoming an officer and a gentleman.  The applicant compromised his character and created a perception of impropriety.  This caused others to believe that he was engaged in an inappropriate relationship with a civilian employee.  The evidence further indicates that the applicant misused his government cellular telephone, misused his office, created a hostile work environment, and traveled at government expense for personal reasons.  Finally, and most egregious, the applicant appeared to have intimidated subordinates not to complain to the Inspector General or other similar activities prior to utilizing the chain of command.  The applicant’s effort to insert himself into a reporting or complaint process he had no business interfering with was without question abhorrent.  He betrayed the oath of office.  His actions were prejudicial to good order and discipline and brought discredit upon the U.S. Army.  The applicant’s conduct raised serious questions concerning his judgment, his integrity, and self-discipline; his action was found to be inexcusable and disgraceful.  The CG finally added that the reprimand was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information), not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), and the GOMOR would be filed in his OMPF.  The applicant was also informed that he had 7 calendar days to reply to the GOMOR.

10.  On 5 October 2006, the applicant submitted a rebuttal to the IO's findings and proposed penalties (GOMOR).  In that rebuttal he stated that the IO conducted a very hasty and even shoddy investigation.  He charges that the IO was unable to provide one shred of credible or reliable evidence upon which to base his findings and subsequent recommendations.  The applicant said that he would show that the IO used, almost exclusively, the testimony of a very few from the command, a small minority whose opinion differed from the majority of the people assigned to the command.  The small group which provided the testimonies were individuals who had serious biases and harbored obvious motives against him:  two who were fired for poor performance and one who was a self-admitted liar.  He charged that the IO's findings were based solely on rumors, hearsay, and circumstantial evidence; and some were based on admitted lies.  The applicant argued that virtually none of the evidence upon which the IO based his findings would be found credible or reliable in a court of law or courts-martial.  The applicant adds that the IO exceeded the scope of his investigation in several cases and that when the IO discovered what he perceived to be inconsistencies in statements provided, the IO did not make any attempt to resolve the conflicts.

11.  On 18 October 2006, the applicant submitted a rebuttal to the investigation which was the basis for the GOMOR.  In that rebuttal the applicant stated that:

   a.   the IO was more interested in "getting this over with" than getting it right, and points out items he believed indicated that the investigation was hastily accomplished.  He stated he was not sure he was provided all the evidence which was used against him and points out typographical errors.  
   
   b.  He also questioned an email which was used by the IO even though it was unsolicited, unsworn, and received after he was told that the investigation was completed.  This email had to do with the positioning of the woman whom the applicant was suspected of fraternizing with in the headquarters.  The applicant explained that the woman whom the applicant was suspected of fraternizing with was recruited specifically to work with the Command Executive Officer (CXO) on a concept plan whose primary author was the CXO who had little experience in the area.  That is why he placed her outside his office since that position was adjacent to the CXO's office.  The decision on where to place her was also influenced on the applicant's desire to quell any rumors that she was being recruited to take the job of a GS-12 employee in the G-1.  The applicant also stated that the author of the email admitted to him that she had hired the woman whom the applicant was suspected of fraternizing with and had recommended her for a cash award, which are two examples used by the IO to show his favoritism towards her.  The applicant questions the coincidence of the timing of the "clarifying" email with the filing of an Equal Opportunity (EO) complaint by the woman whom the applicant was suspected of fraternizing with.  The applicant adds that the author of the email had a request to be retained beyond her mandatory removal date denied.  He questions whether her email was not sent to assist her in getting her request to be retained approved.

12.  On 1 November 2006, the CG hosted the applicant and his legal counsel in his office to provide them the opportunity to present verbal rebuttal prior to the CG making a filing determination.
13.  On 6 November 2006, the CG decided, after reviewing the applicant's rebuttal to the GOMOR and after meeting with the applicant and his counsel, to amend the original GOMOR and provide the applicant an additional opportunity to provide information in response to the amended GOMOR prior to making any filing determination.  The CG gave the applicant 7 days from receipt of the reprimand to do so.

14.  On 13 November 2006, the applicant submitted a rebuttal to the amended GOMOR.  In his statement, the applicant essentially reiterates his prior contentions by stating that he is completely innocent of any and all charges as set forth in the investigation.  He was dismayed that the charges were not dismissed based on the facts discussed in both the rebuttal and office call as well as the substantial administrative and legal errors and omissions made on the part of the IO.  He adds that to think his distinguished career of almost 26 years could be utterly destroyed by hurtful unsubstantiated lies is very distressing indeed.  The applicant added that the IO failed to provide any credible evidence to support the findings and the SJA, though knowledgeable, merely morphed the charges.  The applicant continued that the amended GOMOR did not appear to take into consideration any of the matters thoroughly discussed and refuted in the extensive rebuttal.  He added that he was still reprimanded for conduct unbecoming an officer based on a perception of impropriety.  He failed to see where the First Army SJA reviewed his rebuttal.  He added that the IO was unable to provide one shred of credible reliable evidence upon which to base his findings and subsequent recommendations.  He reiterates that he did not misuse the government telephone or his office, nor did he create a hostile work environment or travel at government expense for personal reasons.  In fact, when queried, the SJA did not even mention a hostile work environment or misuse.  He did not intimidate subordinates and he did nothing to betray his oath of office or bring discredit upon the U.S. Army.  He finally stated that he requested reconsideration of the matter of the GOMOR based on the actual greater weight of evidence.  He implored the dismissal of the false charges against him and restoration of his dignity.

15.  On 15 November 2006, the CG directed that the GOMOR be filed in the performance portion of the applicant's OMPF.  On the same day, the applicant submitted a voluntary retirement application.

16.  On 18 February 2007, a copy of the applicant's retirement application and Officer Record Brief (ORB) were sent to the Army Grade Determination Review Board (AGDRB) due to the adverse documents posted in the applicant's OMPF.  The applicant was informed that he was not permitted to appear before the AGDRB; however, he could submit any written material that he wished for consideration.  The applicant acknowledged that he had been advised that his OMPF would be reviewed by the AGDRB for a retired grade.  He further acknowledged that he had 30 days from receipt of this notification to complete the review of his records.  The applicant signed the acknowledgement document and indicated that he would submit written material for the AGDRB to consider.

17.  On 7 March 2007, the applicant submitted matters of consideration to the AGDRB.  In that memorandum, he outlined the accomplishments of his illustrious career, his placement in demanding leadership positions, and the awards and decorations he received in recognition of his dedication to duty and exceptional performance.  He questioned the credibility of the individuals who made statements which led the CG to believe that he was engaged in an inappropriate relationship with a civilian employee, and contends that the statements he submitted from members of his division are more representative of how he and his conduct was really viewed by members of his division.  The applicant then states:

   a.   that he did not misuse his Government cellular phone, that the allegation was false, and the IO was unable to offer any proof to the contrary.  
   
   b.  the allegation that he misused his office is too vague to use against him.
   
   c.  the allegation that he traveled at Government expense for personal reasons is patently false.  While his son was at the USMA, West Point, he was invited to West Point by the officer in charge of the Warfighting Simulations Center.
   
   d.  the allegation that he created a hostile work environment is false.  He was a hard task master, but his staff understood it was to get the mission done.
   
18.  The applicant asked that the weakness of the GOMOR be reviewed within the context of his much longer, and clearly documented, distinguished 26-year military career.

19.  The applicant then discussed the financial implications of retiring at a grade lower than colonel and the negative example a reduction in rank would provide to his children.

20.  On 24 April 2007, the AGDRB convened, and after reviewing the applicant's case and the additional documents submitted by the applicant, the AGDRB recommended that the applicant be retired in the grade of O-5.  On 7 May 2007, the Acting Deputy Assistant Secretary of the Army, Review Boards (DASA-RB) approved the recommendations of the AGDRB.

21.  On 26 June 2007, a major general (MG), the applicant's immediate supervisor at the time of the investigation, sent a memorandum to the CG who issued the GOMOR.  He stated, in effect, that he believed that the AGDRB erred in the applicant's grade determination for the applicant's retirement grade.  He believes that the informal investigation had a number of holes or unanswered questions; he adds that he was aware of the West Point trip that the applicant took and he was aware that the applicant's son was entering West Point at the same time.  At no time did he question the propriety of this trip.  The MG adds that he was unaware of any allegation of fraternization or inappropriate relationship and found such actions completely out of character.  The applicant's chosen method of communication with the staff was often characterized as demanding and direct.  Regarding the applicant inserting himself into a reporting or complaint process, the MG stated that the applicant had not been informed of a pending investigation.  While the applicant's intent with his staff discussion did not appear to match its effect, and was probably ill advised, it was the MG's assessment that it was not the applicant's intent to interfere with an investigation that had not yet taken place.

22.  On 30 June 2007, the applicant was honorably retired in pay grade O-5 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) for sufficient service for retirement.  He served a total of 26 years, 1 month, and 4 days of creditable active duty service.

23.  On 20 August 2007, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued to the applicant add the entry in Remarks that his Retired List grade was pay grade O-5.

24.  Chapter 7 of Army Regulation 600-37, paragraph 3–4, Filing of nonpunitive administrative letters of reprimand, admonition, or censure in official personnel files, provides for the filing of GOMORs in the OMPF.  This paragraph requires that a statement be made in the GOMOR that the reprimand has been imposed as an administrative measure and not as a punishment under UCMJ, Article 15.

25.  Army Regulation 15-80 governs the actions and composition of the AGDRB. The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.

26.  Paragraph 4-1 of Army Regulation 15-80 states, in pertinent part, that an officer is not automatically entitled to retire in the highest grade served on active duty.  Instead, an officer is retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the Army or the Secretary’s designee.  For officers below the grade of brigadier general, the AGDRB will recommend to the DASA-RB the highest grade in which an officer has served satisfactorily.  To ensure entitlement to retirement at the appropriate grade, records are screened to identify any information since last promotion that substantiates the existence of adverse findings, conclusions from officially documented investigations, proceedings, or inquiries.  If such documentation is discovered, the record must be referred to the AGDRB for review.  The AGDRB recommendation is purely advisory, and the Secretary of the Army or the Secretary’s designee is not bound by that recommendation.

27.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant refutes all of the findings of his Army Regulation 15-6 investigation.  He believes that the investigation's findings are flawed and, therefore, there was no basis for his GOMOR or the resultant decision that he did not serve successfully in the rank of colonel.

2.  In this regard, the applicant submitted the matters he raised with the Board to the IO, the CG who gave him the GOMOR, and the AGDRB.   

3.  It is noted that while the CG who issued the applicant the GOMOR later stated that he did not intend for the GOMOR to result in the applicant's loss of rank upon retirement, he did not state that he issued the GOMOR in error.  He does not state that his factual conclusions were flawed in any way.  In fact, he continues to refer to the applicant's "brief period of missteps," even as he supports his retirement in grade.

4.  A GOMOR is an administrative matter and is not subject to the rules of evidence applicable to trial by court-martial.  In a court-martial the Government must prove a Soldier's guilt beyond a reasonable doubt.  There is no such requirement for issuing an GOMOR.  The officer issuing the reprimand must only reasonably believe the recipient of the letter is guilty of the conduct in question by a preponderance of the evidence.

5.  As an example, an officer who is given a breathalyzer test by civilian law enforcement officials and is charged with driving while intoxicated based on a blood alcohol test score of .016 may have the charges dismissed in civil court for any number of reasons.  This dismissal would not preclude the officer from being given a GOMOR.  It would be reasonable for the officer issuing the GOMOR to conclude that the officer who was arrested did, in fact, drive while intoxicated based on the blood alcohol test results.
6.  The applicant has provided evidence and argument pertaining to many of the IO's findings.  However, the IO's evidence included:

   a.  the applicant, a married man, was seen by an eyewitness who was assigned to the room across from the applicant's room leaving his room in the BOQ at 0037 hours with a woman, not his wife, who worked for him in a civilian capacity.  
   
   b.  while both the applicant and the woman whom the applicant was suspected of fraternizing with denied ever being in the other's hotel or BOQ rooms at any time other than to quickly drop off packages or luggage, the applicant admitted in an email that the woman whom the applicant was suspected of fraternizing with was in his BOQ room as late as 2230 hours discussing an email with him.
   
   c.  the applicant's car was seen and photographed parked and empty in the parking lot of a hotel that the woman whom the applicant was suspected of fraternizing with was staying.
   
   d.  the applicant and the woman whom the applicant was suspected of fraternizing with were seen departing for lunch in separate vehicles 5 minutes apart.  The applicant and the woman whom the applicant was suspected of fraternizing with were seen later driving in the same vehicle into the hotel parking lot where the woman whom the applicant was suspected of fraternizing with was staying.  The applicant and the woman whom the applicant was suspected of fraternizing with returned to the headquarters building 5 minutes apart later in the day.
   
7.  These findings were based on a third-party statement (the person who was staying in the room across from him in the BOQ), an email, photographs, and eyewitness statements.  Regardless of what actually occurred in these instances, there was a clear appearance of impropriety.  At the very best, this illustrates a total lack of judgment on the applicant's part and would have warranted a GOMOR in and of itself.  

8.  The other findings of the IO are also based on independent evidence such as the billing records of the applicant's Government phone which showed that he called the woman whom the applicant was suspected of fraternizing with 55 times from 1 February to 20 June 2006 from times ranging from 0226 hours to 2117 hours.  

9.  Although the applicant continues to argue that the evidence does not support a finding of misconduct, and that his GOMOR and subsequent reduction on the Retired List were based solely on appearance, the appearance of impropriety is all that is required to issue a GOMOR.  His conduct with the civilian female, the West Point trip, his chilling of the use of non-chain of command complaint mechanisms, and his abusive, abrasive style all called his leadership, promotion potential, morals, and integrity into question.

10.  In this case, there is no doubt that the officer issuing the GOMOR reasonably believed that the appearance of impropriety was, in fact, established and due to the actions taken by the applicant.

11.  Since there is no reason to remove the applicant's GOMOR from his records and the GOMOR established a sufficient basis for determining his service as a colonel was not satisfactory, there is no basis to show that he was retired in the rank of colonel, pay grade O-6.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080000165, dated 6 January 2009.




      _______ _   __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)                                         AR20090012709



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ABCMR Record of Proceedings (cont)                                         AR20090012709


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