BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013944 


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 requests the removal of a general officer memorandum of reprimand (GOMOR), dated 4 August 2004, from his official military personnel file (OMPF).

2.  The applicant states that the GOMOR is untrue because he did not have a sexual relationship with Mrs. B---, the investigation officer (IO) recommended that no action be taken against him, and the records from the investigation are lost.  He adds that there is a contradiction between the GOMOR and the Officer Evaluation Report (OER) he received at the time he was given the GOMOR.  On the one hand, the GOMOR states that a commissioned officer must set an example of the highest standards of personal and professional conduct.  On the other hand, the OER states that he was an outstanding officer with a comment to promote at first look.  The GOMOR should be removed because it is unfair, unjust, and untrue.  He adds that Mrs. B--- never gave a statement to the IO and stated again that the IO recommended no action be taken against him.  The IO also stated in his investigation that a Judge Advocate General (JAG) officer reviewed the investigation and agreed that no action be taken because the facts did not support the allegations.  He also asks why would the command award him the Army Commendation Medal and give him a favorable OER if the command believed he was guilty of the allegations. 

3.  The applicant provides copies of his DA Forms 67-9 (Officer Evaluation Report) for the periods from 28 April 2004 through 7 February 2005, 8 February 2005 through 7 February 2006, 7 February 2006 through 6 February 2007, 1 September 2007 through 2 September 2008, and 3 September 2008 through 27 June 2009; a copy of a certificate, dated 25 May 2005, showing award of the Army Commendation Medal; a copy of his appeal memorandum, dated 12 April 2007, to the Department of the Army Suitability Evaluation Board (DASEB); a copy of the DASEB response memorandum, dated 25 October 2007; a copy of the GOMOR, dated 4 August 2004; and a copy of a certificate, dated 23 November 2005, showing award of the Bronze Star Medal, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as an U.S. Army Reserve (USAR) second lieutenant in the Engineer Corps on 27 April 1988.  He served in various staff and leadership positions in the USAR, the Louisiana Army National Guard, and back to the USAR and was promoted to captain on 25 April 1996.  He was assigned to the 3rd Battalion, 381st Regiment, 2nd Brigade, 75th Division (Training Support), Houston, TX, effective 3 June 2001.

2.  On 5 January 2003, the applicant was promoted to major and on 27 January 2003, he was ordered to active duty as a member of his Reserve unit in support of Operation Enduring Freedom. 

3.  On 4 August 2004, the applicant was reprimanded by the Commanding General (CG) of the 75th Division for engaging in a relationship with Mrs. B---, the wife of a Soldier deployed to Iraq that appeared to many unrelated persons inappropriate between April and December 2003.  The applicant was also married during that time, until his divorce was finalized in July 2003.  His behavior included coming and going from her residence in the early morning and late night hours.  Neighbors observed his car parked at her residence overnight on numerous occasions.  This conduct gave the appearance of being an adulterous affair and illustrated extremely poor judgment.  The GOMOR also stated that:

	a.  Commissioned officers must set an example of the highest standards of personal and professional conduct and that nothing less is accepted from officers in this command.  

	b.  Although Mrs. B--- may have misled him about her marital status, he (the applicant) could not have been mistaken about his own.  

	c.  He (the CG) intended to file the GOMOR in the performance section of the applicant's OMPF and the applicant had the opportunity to submit matters in rebuttal to the allegations.
4.  On 4 August 2004, the applicant acknowledged receipt of the GOMOR and elected to submit matters on his own behalf.  He subsequently submitted a rebuttal on 5 August 2004 in which he requested the GOMOR remain in his local file.  He indicated that he understood the seriousness of the incident and that he regretted the final outcome of his actions.  He also stated that he took full responsibility for his actions and he wanted to make it absolutely clear that he was not asking for exoneration, but another opportunity to serve.  He also conveyed his sincere apologies for any difficulties created by his behavior to his chain of command and fellow Soldiers.  He concluded that this incident had made him a stronger leader and that this life-learned experience would allow him to better coach, teach, and mentor the Soldiers who serve under him.  

5.  On 10 August 2004, by memorandum, the applicant's brigade commander indicated that he concurred with the battalion commander's recommendation to file the GOMOR in the applicant's OMPF as part of his permanent record.  He further remarked that the applicant's conduct was prejudicial to the good order and discipline of not only his organization but the entire command.

6.  On 17 August 2004, after reviewing the applicant's rebuttal and considering all matters available and the recommendations by his chain of command, the CG directed the GOMOR be filed on the applicant's OMPF. 

7.  The GOMOR is currently filed in the performance portion of the applicant's OMPF.

8.  The applicant's records further show he was honorably released from active duty on 26 January 2005 to the control of his USAR unit.  He was awarded the Army Commendation Medal for meritorious service while assigned to the 3rd Battalion, 381st Regiment, 2nd Brigade, 75th Division (Training Support), from June 2001 to February 2005.  He also received an OER from 28 April 2004 through 7 February 2005 that shows he received "Yes" entries for all areas of professionalism) (Army values and leadership attributes/skills/actions), a rating of "outstanding performance-must promote" by his rater, and a best qualified-center of mass" rating by his senior rater.

9.  On 27 February 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 27 February 2005 to 14 February 2006 and in support of Hurricane Katrina Relief efforts from 
15 February 2006 to 23 November 2006.  He was honorably released from active duty to the control of his USAR unit on 23 November 2006.  He has meritorious service in support of Operation Iraqi Freedom.

10.  On 12 April 2007, the applicant petitioned the DASEB for removal of the GOMOR from his OMPF.  However, on 25 October 2007, by memorandum, he was notified that after careful consideration, the DASEB voted to deny the removal of the GOMOR from his records. 

11.  The applicant submitted copies of several OERs for the periods from 8 February 2005 through 7 February 2006, 7 February 2006 through 6 February 2007, 1 September 2007 through 2 September 2008, and 3 September 2008 through 27 June 2009, that essentially show a trend of outstanding performance and center of mass ratings. 

12.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

13.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of Army Regulation 600-37.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for misconduct and that it was filed in his OMPF.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  The applicant's response was received and considered.  Subsequently, the GOMOR was referred for filing in his OMPF.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

2.  With respect to the applicant's contentions that the GOMOR is unjust, unfair, and untrue, the quality of service of a Soldier on active duty is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  The applicant did not receive a GOMOR because he had a sexual relationship with Mrs. B---; he received it because he failed to conduct himself in a professional and responsible manner.  As a field grade officer and married individual, he knew or should have known not to have any relationship with the wife of a deployed Soldier that could appear inappropriate.  His conduct was inexcusable and his actions brought discredit to himself, the officer corps, and the Army.  His actions displayed a lack of discipline and raised questions about his ability to effectively perform as a leader.  

3.  The applicant's Army Commendation Medal recognized his service over a period of 5 years whereas the GOMOR reprimanded him for a behavior that occurred over a much shorter period of time.  Furthermore, the OER rating he received during the period of the GOMOR reflected the overall applicant's performance and/or potential.  An omission by the rater or the senior rater, intentional or otherwise, not to address the GOMOR on the OER does not invalidate the GOMOR or excuse the applicant's actions. 

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)                                         AR20090013944



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ABCMR Record of Proceedings (cont)                                         AR20090013944



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