IN THE CASE OF:	

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090014512 


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, in effect, requests the removal of the following documents from his official military personnel file (OMPF):

	a.  an administrative general officer memorandum of reprimand (GOMOR), dated 28 February 2007;

	b.  a DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 7 April 2007; and

	c.  a DA Form 67-9 (Officer Evaluation Report) for the period ending 3 April 2007.

2.  The applicant states, in effect, the investigation conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) which led to these adverse actions was neither thorough nor impartial.  He contends the investigation did not meet the standards of proof detailed in Army Regulation 15-6, paragraph 3-10(b) (Standard of Proof).  The applicant opines that the investigating officer (IO) failed to properly and accurately analyze the evidence during the development of the findings and conclusions.  He further opines the weight of the evidence does not support the allegations.  The applicant concludes the investigation was flawed because the inexperienced IO did not ascertain and consider the evidence on both sides of the issue.

3.  The applicant refers to paragraph 3-10(b) of Army Regulation 15-6, which stipulates, "Unless another directive or an instruction of the appointing authority establishes a different standard, the findings of investigations and boards governed by this regulation must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, after considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion.  The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness's demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity."

4.  The applicant provides the following documentary evidence in support of his request:

	a.  the IO's findings and recommendations pertaining to the Army Regulation 15-6 investigation;

	b.  the GOMOR, dated 28 February 2007;

	c.  the DA Form 2627, dated 7 April 2007;

	d.  his response to the GOMOR, dated 8 March 2007;

	e.  his response to the DA Form 2627, dated 18 March 2007;

	f.  his legal counsel's response to the DA Form 2627, dated 23 March 2007;

	g.  a self-authored slide presentation entitled "Second Reading";

	h.  one complete DA Form 2823 (Sworn Statement) and portions of five additional DA Forms 2823, rendered during the period 2-12 February 2007, disputing the findings and recommendations of the IO;

	i.  five DA Forms 2823, rendered during the period 7-8 March 2007, disputing the portion of the GOMOR pertaining to his shooting gestures and communication of a verbal threat; and

	j.  three DA Forms 2823, rendered during the period 7-8 March 2007, disputing the portion of the IO's findings pertaining to a witness's claim that she heard a conversation between him and a female behind the closed door of his quarters.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 14 June 1986.  He completed initial entry training in area of concentration 88 (Transportation).  The applicant served in various staff and leadership positions within continental United States and overseas and was promoted to first lieutenant on 27 May 1989, to captain on 24 May 1994, and to major on 27 June 2001.  He entered active duty in the Active Guard Reserve Program on 14 June 1998.

2.  On 31 January 2007, Lieutenant Colonel (LTC) A____ was appointed as an IO to conduct an informal investigation under the provisions of Army Regulation 15-6 regarding the conduct of the applicant and Specialist (SPC) B____, a female junior enlisted Soldier also belonging to the applicant's unit.  The IO was specifically directed to investigate the following matters:

	a.  determine whether the applicant placed a loaded magazine into the magazine well of his assigned weapon and whether this was in violation of policy and regulation; and

	b.  determine whether the applicant and SPC B____ were engaged in an inappropriate relationship as defined by Army Regulation 600-20 (Army Command Policy), paragraph 4-14 (Relationships between Soldiers of Different Rank).

3.  During the course of his investigation, the IO obtained and analyzed detailed telephone records; an interview with SPC B____; and sworn statements from the applicant, 12 commissioned officers, six noncommissioned officers, two government civilians, and a civilian contractor.  On 15 February 2007, the IO submitted his findings and recommendations to the commanding general of the 377th Theater Support Command.

	a.  The IO found the applicant was in violation of the 377th Theater Support Command's Operations Order 007-001 for placing a loaded magazine in the magazine well of his assigned weapon and for failing to properly clear the weapon in accordance with established procedures on 29 January 2007.  The violation was admitted by the applicant and was witnessed by his company commander.  The IO opined the verbal counseling given to the applicant on the date of the offense by his battalion commander was appropriate and sufficient for the infraction.

	b.  The IO found that an inappropriate relationship between the applicant and SPC B____ was responsible for an adverse impact on discipline, morale, and the applicant's authority and ability to accomplish his mission as battalion executive officer in violation of Army Regulation 600-20, paragraph 4-14(b).  In accordance with the standards of proof detailed in Army Regulation 15-6, paragraph 3-10(b), the IO determined these findings were supported by greater weight of evidence than support a contrary conclusion and that the conclusion is more credible and probable than any other conclusion.  His findings were based upon:

		(1)  a witness who saw SPC B____ go to the applicant's quarters;

		(2)  two witnesses who saw a female depart the applicant's quarters;

		(3)  a witness who heard a female speaking behind the closed door of the applicant's quarters;

		(4)  25 instances where the applicant initiated calls to SPC B____'s personal cellular phone, 68 percent of which were initiated between 1900 and 2400 hours;

		(5)  a witness who heard the applicant make an inappropriate and explicit sexual comment concerning SPC B____; and

		(6)  a prevalent and pervasive belief shared amongst enlisted and officer personnel within the applicant's unit and its higher headquarters that the applicant and SPC B____ were involved in a relationship.

	c.  The IO recommended the applicant be:

		(1)  given a GOMOR to be placed in his OMPF;

		(2)  relieved from the duties and responsibilities as battalion executive officer; and

		(3)  reassigned to a position that removed him from direct contact with personnel with whom he typically associated at two specific geographic locations.

4.  On 28 February 2007, the commanding general of the 377th Theater Support Command (Forward), reprimanded the applicant for misconduct which was substantiated by an Army Regulation 15-6 investigation.  He noted that:

	a.  from December 2006 through January 2007, while assigned as the battalion executive officer, the applicant engaged in an inappropriate personal relationship with a junior enlisted female Soldier in violation of Army Regulation 600-20, paragraph 4-14;
	b.  the applicant exhibited threatening and inappropriate behavior through hand gestures of shooting someone and uttering the comment to a fellow officer that he would "blow his head off" if he did not provide adequate information;

	c.  this was an administrative reprimand imposed under the provisions of Army Regulation 600-37 (Unfavorable Information), and not as punishment under the UCMJ, Article 15; and

	d.  he was considering whether this action should be filed in the applicant's OMPF.

5.  On 2 March 2007, the applicant acknowledged receipt of the GOMOR and elected to submit matters on his own behalf.  In his response, the applicant denied that he engaged in an inappropriate personal relationship with a junior enlisted Soldier.  He also stated the conclusion that the investigation substantiated that he exhibited threatening and inappropriate behavior through hand gestures of shooting someone and uttering the comment to a fellow officer that he would "blow his head off" was not supported by evidence.  He requested the GOMOR process stop immediately.  The applicant presented the following points in his defense:

	a.  Mr. W____ did not declare that he saw SPC B____ go to the applicant's quarters in his sworn statement.  It was not until after questioning by the IO that he wrote and signed the sworn statement.  The applicant also contends that Mr. W____ could not have seen anyone going into his quarters because the view was obstructed by plants and submitted photos in an attempt to demonstrate this point.

	b.  He contended that a lieutenant and a chaplain did not actually see females leaving his room, they merely saw them in the doorway.  He also pointed out the fact that he had two female suitemates who shared a common foyer.

	c.  He contended that it was impossible to hear a conversation from behind closed doors at his quarters based upon his inability to hear conversations from his neighbor's room.  He also stated his neighbors who lived across the hall attested to not being able to hear conversations from his room.  In an attempt to demonstrate this point the applicant conducted a test with three other service members and obtained sworn statements from them attesting they could not hear anything from the rooms.

	d.  He stated he has a master's degree in counseling and contended the phone calls to SPC B____ were in response to her request for counseling.  He said she declined his recommendation for her to speak to the chaplain because she did not trust him or any other male in the unit due to some previous gossip.  The applicant stated that he was also frequently counseling five other Soldiers by listening and checking up on them.

	e.  He denied making an inappropriate and explicit sexual comment concerning SPC B____ and stated that it was inconceivable to him how the IO would summarily dismiss the character of a field grade officer in favor of the questionable character of a junior enlisted Soldier like the one who made the allegation.  He then indicated that he and the witness did not get along because he refused to let her go into downtown Kuwait City in spite of her daily requests to do so.

	f.  He argued that the prevalent belief throughout the unit that he and SPC B____ were involved in a relationship did not substantiate this finding.  He contended that when asked if they thought or had personally observed anything that would lead them to believe he and SPC B____ were involved in an inappropriate relationship, the majority of the Soldiers interviewed by the IO either said "no" or "don't know" and only one said "yes."  The applicant stated the only person to answer "yes" was a captain whom he had reprimanded and counseled verbally on several occasions regarding his substandard performance.

	g.  He disputed the finding that there had been a breakdown in the trust and confidence of the Soldiers in him.  The applicant contended that the only difficulties he had were with Soldiers who were substandard performers; specifically, three junior officers and a junior enlisted Soldier whom he had previously disciplined.  He stated he had been very demanding on the officers and senior noncommissioned officers to get the unit to the next level.

	h.  He admitted to making the hand gesture of shooting someone and uttering the comment to a fellow officer that he would "blow your head off," but argued the incident was blown out of proportion.  The applicant obtained sworn statements from several personnel who were present during the incident, wherein they stated that they did not feel threatened by his actions.  He also contended that none of the command and primary staff complained or brought to his personal attention that what he did was inappropriate or threatening during or after the meeting.  He concluded the hand gesture and statement were made "in the context of figuratively showing our Soldiers that failing to coordinate with other key players during the week was setting that Soldier or section up for failure for the meeting and it equated to putting a round in the chamber."

	i.  He proclaimed it was abundantly transparent that the investigation was not thorough and impartial.  He stated the IO misrepresented the evidence, failed to ask the right questions from enough people, accepted statements from less than credible sources, relied on input from one of his friends in the unit, passed his opinions on as facts, and produced the wrong findings and conclusions without any concrete evidence.  He summarized the conclusions of the investigation were based upon hearsay and conjecture.

6.  On 12 March 2007, the commanding general of the 377th Theater Support Command (Forward) informed the applicant he was considering whether he should impose nonjudicial punishment (NJP) upon him under Article 15 of the UCMJ for violating Article 134 of the UCMJ by knowingly fraternizing with SPC B____ in violation of the customs of the U.S. Army that officers shall not fraternize with enlisted persons on terms of military equality, to wit:  unprofessional and non-business related phone calls and communication.

7.  The applicant elected not to demand trial by court-martial, requested a closed hearing, indicated he did not want anyone to speak on his behalf, and indicated he would submit matters in defense, mitigation, and/or extenuation immediately.  On 14 March 2007, as a result of the closed hearing, NJP was imposed which consisted of forfeiture of $3,000.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 14 September 2007.  The imposing commander directed this Article 15 be filed in the performance section of the applicant's OMPF.

8.  On 18 March 2007, the applicant submitted an appeal of the Article 15 to the commanding general of Coalition Forces Land Component Command (CFLCC) (the appeal authority at the next higher level of command) for consideration.  In his appeal, the applicant denied having an inappropriate relationship with SPC B____ and asserted that he had been happily married for over 20 years and was the proud father of four children.  He related his family's emphasis on instilling and living up to good values.  He also noted that members of his family had served in World War I, World War II, the Korean War, Vietnam, and Operation Desert Storm and he was proud to be continuing that tradition by serving in Operation Iraqi Freedom.  He highlighted his service to country, civilian education, and military education.  The applicant concluded the Article 15 would have a permanent negative impact on his career and respectfully requested a finding of not guilty.

9.  On 23 March 2007, the applicant's legal counsel submitted an appeal of the NJP under Article 15 to the commanding general of CFLCC.  Counsel asserted the investigation leading to the Article 15 had serious evidentiary flaws of which the appeal authority should be aware.  He stated that this action could not go forward for the reasons stated below:

	a.  it was a poorly conducted investigation based upon some of the same contentions the applicant included in his appeal to the GOMOR;

	b.  hearsay evidence may be the basis for administrative action, but not criminal.  NJP is a criminal proceeding and hearsay evidence is prohibited in criminal proceedings;

	c.  the IO should have considered the applicant's character and witness's motives to lie;

	d.  the IO failed to obtain a sworn statement from SPC B____ and instead produced a transcript of a memorandum where he claims the transcript is a true copy, which means the investigation was not thorough;

	e.  the applicant's desire to have 20 witnesses present for the appeal of his Article 15 with the expectation they would give a clear understanding of his character and the motives of others to fabricate; and

	f.  the applicant could not be punished unless he was found guilty beyond reasonable doubt.

10.  On 28 March 2007, after reviewing the applicant's rebuttal and considering all matters available, the commanding general of the 377th Theater Support Command (Forward) directed the GOMOR be filed in the applicant's OMPF.  The GOMOR is currently filed in the performance section of the applicant's OMPF.

11.  On 1 April 2007, the commanding general of the 377th Theater Support Command (Forward) informed the commanding general of CFLCC he had reviewed the matters submitted by the applicant concerning his appeal of the Article 15 and determined there was nothing that would warrant his recommendation to reconsider the findings or punishments imposed in the Article 15.  He also stated he afforded the applicant a lengthy hearing and had personally interviewed SPC B____ and 10 other Soldiers of the applicant's command and was not convinced that any improper relationship did not occur.  He concluded the applicant's behavior ran counter to the standard he had set for his officers and the result this action could have on his career should have been considered before he chose to engage in the conduct that he did.

12.  On 7 April 2007, CFLCC's legal advisor informed him he had reviewed the record of NJP, the report of investigation, and the matters submitted by the applicant and concluded the proceedings were conducted in accordance with law and regulation and that the punishment imposed was not disproportionate to the offenses committed.  He recommended that the commanding general of CFLCC deny the applicant's appeal.  The DA Form 2627 shows the commanding general of CFLCC denied the applicant's appeal on 7 April 2007.  This form is currently filed in the performance section of the applicant's OMPF.

13.  The performance section of the applicant's OMPF contains a DA Form 67-9, dated 9 April 2007, which was rendered for the period 15 September 2006 through 3 April 2007.  The reason for submission was "relief for cause."  This form shows the rater indicated the applicant did not demonstrate the values of honor and integrity, he performed unsatisfactorily, and he should not be promoted.  The rater stated the applicant "allowed himself to be caught in a compromising situation leading to him receiving an Article 15 for conduct unbecoming and was subsequently relieved of his responsibilities."  The senior rater indicated the applicant should not be promoted and his potential was below the center of mass compared with officers in the same grade.  The senior rater stated, "he failed to uphold high personal moral standards.  He received an Article 15 for fraternizing with an enlisted Soldier under his command...was suspended from his duties and subsequently removed as the battalion executive officer.  Do not promote nor select for advanced schooling."  The applicant elected not to provide any comments to accompany this referred evaluation report and there is no indication in his records that he ever submitted an appeal of this report.

14.  On 1 October 2007, the applicant was released from active duty with an honorable characterization of service and transferred to the USAR Control Group (Reinforcement).

15.  The applicant was transferred to the Retired Reserve following his completion of more than 20 years of Reserve duty effective 10 February 2009.

16.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.

   a.  Paragraph 1-9 provides, in pertinent part, that the regulation does not require that an investigation be conducted before adverse administrative action, such as relief for cause or punishment under the provisions of Article 15 of the UCMJ, can be taken against an individual.

   b.  In addition, there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the 
Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards.

17.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.  When discovered by the custodian or requested by the Soldier concerned, transfer documents mistakenly filed in the performance or service section to the restricted section of the OMPF.

18.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

19.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and 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.

20.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 of this regulation 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.  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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

21.  Army Regulation 600-37 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 a filing determination is made.

22.  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.

23.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

24.  Paragraph 3-6 of Army Regulation 27-10 addresses the filing of an NJP and provides, in pertinent part, that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

25.  Paragraph 3-18 of Army Regulation 27-10 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates that the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, to request to be accompanied by a spokesperson, to request an open hearing, and to examine available evidence.

26.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the GOMOR, DA Form 2627, and DA Form 67-9 for the period ending 3 April 2007 currently filed in his OMPF should be removed were carefully considered and determined to lack merit.

2.  The applicant's contention that the Army Regulation 15-6 investigation was conducted by an inexperienced officer is unfounded.  The evidence shows a field grade officer in the rank of LTC conducted an informal investigation under the provisions of Army Regulation 15-6 regarding the conduct of the applicant and SPC B____.  During the course of his investigation, the IO obtained and analyzed detailed telephone records; an interview with SPC B____; and sworn statements from the applicant, 12 commissioned officers, six noncommissioned officers, two government civilians, and a civilian contractor.  The applicant's contention that the IO failed to properly and accurately analyze the evidence during the development of the findings and conclusions is purely a matter of his opinion and is not supported by any evidence that he presents.

3.  Prior to presenting his findings and recommendations to the commanding general of the 377th Theater Support Command, the IO confirmed his understanding that in accordance with the standards of proof detailed in Army Regulation 15-6, paragraph 3-10(b), his findings had to be supported by greater weight (preponderance) of evidence than that which supports a contrary conclusion and that the conclusion had to be more credible and probable than any other conclusion.

4.  The commanding general of the 377th Theater Support Command (Forward) reviewed the investigation, the matters submitted by the applicant concerning his appeals of both the GOMOR and the Article 15, afforded the applicant a lengthy hearing, personally interviewed SPC B____ and 10 other Soldiers of the applicant's command, and was not convinced that any improper relationship did not occur.  He concluded the applicant's behavior ran counter to the standard he had set for his officers and the result this action could have on his career should have been considered before he chose to engage in the conduct that he did.  As a result, he decided to issue the GOMOR and impose the Article 15 upon the applicant and directed the filing of both documents in the performance section of his OMPF.

5.  The applicant appealed these decisions to the commanding general of CFLCC who reviewed the report of investigation and the matters submitted by the applicant and his counsel, concluded the proceedings were conducted in accordance with law and regulation and that the punishment imposed was not disproportionate to the offenses committed, and denied the applicant's appeal.

6.  The evidence confirms that the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with his commander.  He had the opportunity to decline the Article 15 at any time prior to the imposition of punishment being announced and to demand trial by court-martial.  His election to accept the Article 15 was simply a choice.  Instead, he opted to conduct his own investigation and attempt to discredit the findings and recommendations of the IO through the use of semantics, statements from witnesses of his choosing, and photographs of the area near his living quarters.

7.  The applicant's assertions that certain Soldiers had ulterior motives as well as questionable character are not supported by any evidence or argument he provides.  In fact, they are undermined by the fact that no one in his chain of command acknowledged these allegations and allowed their statements to remain integral to the disciplinary process.

8.  The evidence shows the IO interviewed Soldiers of various ranks and positions, he afforded witnesses the opportunity to add any comments they wished, and he presented statements both in support of and against the applicant.  Additionally, the commanding general of the 377th Theater Support Command (Forward) afforded the applicant the opportunity to have 20 witnesses of his choosing present matters on his behalf during the appeal process.  Therefore, the applicant's contention that the disciplinary process did not ascertain and consider the evidence from both sides of the issue is unfounded.

9.  The applicant contends the investigation did not meet the standards of proof detailed in paragraph 3-10(b) of Army Regulation 15-6 based upon mathematical conclusions that the majority of those interviewed said they had no personal knowledge of an inappropriate relationship or that they did not feel threatened by his hand gesture of shooting someone and utterance of the statement he would "blow your head off."

10.  The number of people is irrelevant because the regulation clearly stipulates, "The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness's demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity."  The IO took this into consideration and determined a prevalent and pervasive belief shared amongst enlisted and officer personnel within the applicant's unit and its higher headquarters was that the applicant and SPC B____ were involved in a relationship.  It is noted that although not everyone felt threatened by the applicant's hand gesture and statement, some people did.  Additionally, the IO provided his rationale for weighting the available evidence as he did.

11.  An Army Regulation 15-6  investigation does not drive the commander's decision to offer an Article 15; they are separate actions.  Under the provisions of Article 15, the commander must find beyond a reasonable doubt the Soldier committed the offense.  He/she is not bound by the Army Regulation 15-6 IO's recommendation and may rely on any evidence presented.  In this case, the commanding general personally interviewed witnesses following completion of the investigation and found the applicant guilty.

12.  The evidence shows the applicant received a GOMOR, Article 15, and adverse OER for misconduct.  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 by two general officers.  Subsequently, the GOMOR and Article 15 were referred for filing in the performance section of his OMPF.

13.  The evidence shows each of these documents were properly administered in accordance with applicable regulations and are properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

14.  The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

15.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.  The applicant failed to submit evidence that the documents in question that are filed in the performance section of his OMPF are untrue or unjust.  Therefore, they are deemed to be properly filed and should be retained in his OMPF.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090014512



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20090014512



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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