IN THE CASE OF:	

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090019260 


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 reconsideration of his earlier request to remove a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF), reinstatement of his Special Forces Tab, and to be promoted to sergeant first class, pay grade E-7.  He also requests reimbursement for all related lost pay, allowances, promotions and special reenlistment bonuses that he would have been otherwise entitled to receive, or retain, had he not lost his special forces status and received the GOMOR.

2.  Counsel states that the basis for the applicant's GOMOR, loss of the Special Forces Tab, and loss of promotion were directly related to the false allegation made against him.  The applicant was accused of leaving his firebase on 
29 January 2006, to travel to a brothel located in Kabul.  This did not happen.  The administrative separation board considered this allegation and the supporting evidence and concluded there was insufficient evidence to conclude misconduct had occurred. 





3.  Counsel provides, in support of this request for reconsideration, a copy of the original Record of Proceedings with enclosures; an acknowledgment letter dated 30 October 2008; denial of application, dated 1 June 2009; resume of the polygraph examiner; a report of the results of a comprehensive polygraph examination administered by a certified and licensed polygraph examiner, leave and earnings statement and reenlistment agreement; and a congratulatory letter for selection for promotion to pay grade E-7.

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 AR20090005947, on 28 May 2009.

2.  The polygraph examination is new evidence that requires consideration by the Board.  Reimbursement of lost pay and allowances is a new issue that requires consideration.

3.  In the original Record of Proceedings, the Board discussed and concluded the following:

	a.  Counsel's contentions and the applicant’s military career and combat service were carefully considered.  However, the findings of the Army Regulation (AR) 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.

	b.  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. 

	c.  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.

	d.  There is no evidence of record which shows the applicant was promoted to sergeant first class prior to his discharge on 6 October 2008.  He was discharged before his sequence number came-up.

4.  On 1 June 2007, the applicant received a GOMOR for leaving his firebase in order to travel to a brothel located in Kabul, while deployed in support of Operation Enduring Freedom.  His actions also compromised his personal safety by conducting a movement away from his firebase without a valid mission.  His actions had constituted a serious departure from the high standards of integrity, professionalism and conduct expected of a noncommissioned officer.  The GOMOR was imposed as an administrative measure and was not as punishment under Article 15, Uniform Code of Military Justice.

5.  On 18 December 2007, an administrative separation board convened to consider the applicant for separation, due to the commission of a serious offense, for his involvement in soliciting a brothel in a combat theater.  It concluded that the allegations were not supported by a preponderance of the evidence and recommended that he be retained in the U.S. Army and that all of his rights and privileges be restored.

6.  The report of the applicant's polygraph examination, as provided by the applicant's counsel, indicate that he was asked the following three questions and gave the corresponding answers:

	a.  Is your statement you gave the board a truthful statement?  Yes.

	b.  Are you lying when you say that you did not know about the prostitution at the Chinese Restaurant?  No.

	c.  Are you withholding any information that should have been in your statement to the board?  No.

7.  The polygraph examiner stated that the data collected during the polygraph examination was evaluated and scored using numerical and/or global procedures.  Consistent and significant responses commonly associated with deception were not observed at the relevant questions, and the numerical evaluation of the data placed the final opinion well within the non-deceptive range.  The examiner concluded that the applicant was truthful.  The examiner's conclusion was cross-checked using a computerized scoring algorithm.

8.  In a letter provided by the applicant's counsel, dated 20 March 2008, the Commanding General, Fort Bragg, North Carolina, congratulated the applicant on his selection for promotion to sergeant first class, pay grade E-7.

9.  CONSIDERATION OF EVIDENCE, paragraph 12, of the original Report of Proceedings, states that the applicant had been discharged as a staff sergeant, pay grade E-6, on 6 October 2008 due to parenthood.  His characterization was honorable.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the basis for the applicant's GOMOR, loss of the Special Forces Tab, and loss of promotion were directly related to the false allegation made against him.  He further contends that the applicant should be reimbursed for subsequent loss of pay and allowances resulting from the false allegation.

2.  The available evidence clearly shows that the applicant received a GOMOR for misconduct, by leaving his firebase without a valid mission; by compromising his own safety; and by traveling to a brothel.  Subsequently, the applicant's commander recommended him for separation based on his involvement in soliciting a brothel in a combat theater.  However, the administrative separation board determined that the recommendation was not supported by a preponderance of the evidence.  This did not exonerate his action of leaving the firebase and putting himself at risk.  The commander based his decision to impose the GOMOR on credible evidence developed during the AR 15-6 investigation.  The administrative board's determination does not require a change to the commander's decision concerning the GOMOR.

3.  The available evidence clearly shows that the applicant was separated due to parenthood.  He did not contest this action.

4.  The polygraph results provided by the applicant's counsel indicate that the applicant had not lied about his knowledge of the brothel or that he had withheld any information from the administrative separation board.  However, a polygraph examination does not determine truthfulness.  It simply measures biological responses to questions.  Polygraph examinations are not proven reliable and are not admissible at courts-martial or in most civilian courts.  Polygraph examinations are subject to manipulation and may be defeated by an examinee through a number of tactics.  The results of a polygraph should not be put above the statements and observations of witnesses who have knowledge of the incident.

5.  There is no available evidence showing that the applicant lost his promotion to sergeant first class, pay grade E-7 due to any misconduct.  He was discharged due to parenthood.  Therefore, there is no evidence showing that he was unjustly denied any pay or allowances.

6.  In view of the above, the applicant's request should be denied.

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 AR20090005947, dated 28 May 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)                                         AR20090019260



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ABCMR Record of Proceedings (cont)                                         AR20090019260



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