IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20100007005 


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 reconsideration of his request to remove a general officer memorandum of reprimand (GOMOR) and to retire him in the rank of colonel (COL).

2.  The applicant defers his comments to counsel. 

3.  The applicant provides a copy of a negotiated settlement between the Army and the individual with whom he was accused of having an affair, a copy of a memorandum addressed to the Board from the commanding general (CG) who imposed the GOMOR, a copy of a sworn statement from the officer who invited him to visit the United States Military Academy (USMA), a memorandum of input to the imposing CG from the applicant's CG regarding the GOMOR, a letter of input from the applicant's CG at the time regarding the applicant's current application, a copy of a sworn statement and three electronic mail (email) messages from the applicant's CG and three other COLs and a copy of his evaluation report ending on 6 June 2006.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's GOMOR be expunged from his records and that he be retired in the rank of COL with entitlement to all back pay and allowances.

2.  Counsel states that the applicant has been denied the fair, equitable and objective consideration to which his claims of error and injustice are legally due.  He goes on to state in an eight-page brief that the applicant's long and arduous ordeal began with anonymous 2006 charges of adultery and fraternization and an investigating officer (IO) was appointed to conduct an investigation and report his findings and recommendations to the CG of First Army.  He goes on to state that when the investigating officer could find no credible evidence to support the allegations, they were changed to conduct unbecoming an officer and a gentleman in violation of Article 133, Uniform Code of Military Justice (UCMJ), by creating a "perception of impropriety" in a variety of ways.  

3.  Counsel continues by stating, in effect, that the perception was created by the IO, and the applicant has been judged on the IO's opinion that is not supported by evidence.  He further states that the applicant has submitted sufficient evidence to dispute the allegations against him and that the Board has summarily ignored the evidence submitted.  He also notes that the female civilian that the applicant was accused of having an affair with was absolved of any wrongdoing and was paid cash damages for the indignities she had suffered.  Additionally, the CG who imposed the GOMOR has repeatedly objected to the applicant being retired in the rank of lieutenant colonel instead of COL.  He also states that the applicant's record of exemplary service has not been properly considered, especially since he received a Legion of Merit and his rating chain lauded his performance.  He concludes by stating that the Army Grade Determination Review Board (AGDRB) cannot administratively determine that an officer's performance was unsatisfactory when his official record reflects otherwise and since the GOMOR was based on one officer's unfounded perception.  

4.  Counsel provides no additional documents other than those submitted by the applicant through counsel.

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 and reconsidered in Docket Number AR20090012709 on           13 August 2009.

2.  The applicant was appointed as a Regular Army second lieutenant upon graduation from the USMA on 27 May 1981.  He remained on active duty as a field artillery officer and was promoted to the rank of COL on 1 December 2003.

3.  On 31 July 2005, the applicant was assigned to a United States Army Reserve Training Support Division Headquarters in Houston, Texas, for duty as the Division Chief of Staff.
4.  On 10 August 2006, the senior army advisor to the Ohio Army National Guard (a COL) was appointed as an IO pursuant to Army Regulation (AR) 15-6 to conduct an informal investigation into allegations of misconduct by the applicant.  The appointment became necessary as a result of an anonymous complaint initially examined by the Inspector General (IG) of the applicant's division.  The IO was appointed by the acting chief of staff of First Army Headquarters and he was instructed to specifically address whether the applicant had committed adultery or fraternization, whether the civilian involved in the relationship violated the UCMJ or civilian prohibitions, whether the applicant violated the UCMJ or a regulation by having an inappropriate relationship, whether the applicant violated the UCMJ through conduct unbecoming an officer or other provisions of the UCMJ, whether the applicant threatened retaliation or otherwise intimidated any staff member about communicating with the IG, Staff Judge Advocate, or police in reference to his own misconduct, whether such communications, if any, violated the joint ethics regulation (JER), whether such retaliation or intimidation actually made witnesses reluctant to provide information, whether the applicant had traveled at government expense without authority or for personal rather than government business, and whether the applicant had abused the use of government assets such as cell phones and vehicles. 

5.  The investigation commenced on 14 August 2006 and the IO finished gathering evidence on 29 August 2006.  On 31 August 2006, the IO submitted his findings and recommendations to the appointing authority.  The IO found that the allegations of adultery and fraternization against the applicant were unsubstantiated, that the allegations against the civilian were unsubstantiated, that the allegation that the applicant had an inappropriate relationship was unsubstantiated, that the issue of violating the JER was unsubstantiated, and that the issue regarding whether the retaliation or intimidation actually made witnesses reluctant to provide relevant information was unsubstantiated.

6.  The IO found that the applicant did violate Article 133, UCMJ, through conduct unbecoming an officer by creating a perception of impropriety, that he did threaten retaliation or intimidation on numerous occasions, that he traveled at government expense for personal rather than official government business, and that he abused the use of government property, specifically his cell phone.

7.  The IO also made an additional finding that the CG's aide-de-camp (a captain) conspired with a noncommissioned officer (NCO) to follow the applicant for the avowed purpose of catching the applicant in misconduct and then lied to the applicant and the CG.

8.  The IO recommended that the applicant be relieved of his position and reassigned outside of the organization, that he be issued an adverse Officer Evaluation Report (OER) that reflected the relief and reassignment, that he be issued a GOMOR to be filed in his official military personnel file (OMPF), that a command climate survey be conducted, and that the civilian's CG be notified in order to take any action deemed appropriate.

9.  On 12 September 2006, the applicant was issued an annual OER covering the period 7 June 2005 through 6 June 2006.  His rater, the Division CG (a major general) gave him an "Outstanding Performance, Must Promote" rating and indicated that the applicant had unlimited potential, possessed the insight and leadership of a general officer, and recommended that he be promoted to brigadier general.

10.  The senior rater (SR), the First Army CG and a lieutenant general, placed the applicant in the center-of mass of his SR profile and indicated that he should be retained on active duty as an action officer and assigned as either an assistant division commander, deputy combined arms center commander, or as a USARC (U.S. Army Reserve Command) chief of staff.

11.  On 15 September 2006, the First Army CG, the applicant's SR, issued the applicant a GOMOR and reprimanded the applicant for abusive behavior and conduct unbecoming an officer and a gentleman.  He went on to state that the applicant had compromised his character and created a perception of impropriety, that he had caused others to believe he was engaged in an inappropriate relationship with a civilian employee, that he had misused his government cellular phone, misused his office, created a hostile work environment, and traveled at government expense for personal reasons.  Additionally, it appeared that he intimidated subordinates not to complain to the IG or any other similar activities prior to utilizing the chain of command.

12.  On 5 October and 23 October 2006, the applicant submitted a rebuttal to the GOMOR and on 1 November 2006, the imposing CG hosted the applicant and his counsel in his office to provide any verbal rebuttal they desired to present.  As a result, the CG withdrew the 15 September 2006 GOMOR on 6 November 2006 and reissued another GOMOR based on the information the applicant rebutted and allowed him time to respond to the newly-issued GOMOR.  The applicant submitted an additional rebuttal on 13 November 2006 and on 15 November 2006, the CG determined that he would file the GOMOR in the applicant's OMPF.

13.  On 15 November 2006, the applicant submitted his request for voluntary retirement.  On 18 February 2007, a copy of his retirement application and his officer record brief were forwarded to the AGDRB due to the presence of the GOMOR in his OMPF.  The applicant was afforded an opportunity to submit matters in his own behalf and on 24 April 2007, the AGDRB convened and recommended that he be retired in the rank and grade of LTC/O-5.  The recommendation was approved on 7 May 2007.

14.  Meanwhile, the civilian employee in question had filed an Equal Employment Opportunity (EEO) Complaint based on the allegations in the AR 15-6 investigation.  On 8 June 2007, a negotiated settlement was reached between the complaintant (civilian employee) and the Army in which the Army agreed to provide training to personnel in the Division regarding dispelling rumors and not participating in or engaging in same, by providing the complainant a letter on the CG's personal two-star stationary acknowledging that the accusations in question as far as inappropriate relationships were found to be unfounded in the AR15-6 investigation, and to provide the complainant a lump sum settlement in the amount of $2,000.  In return, the complainant agreed to withdraw her complaint. 

15.  On 30 June 2007, the applicant was retired in the rank of COL and was transferred to the Retired List in the rank of LTC.  He had served 26 years, 1 month, and 4 days of total active service and the only derogatory information contained in his OMPF is the GOMOR.

16.  The applicant applied to the Board for removal of the GOMOR and retirement in the rank of COL.  On 3 August 2007, the imposing CG submitted a memorandum to the Board which explained that the purpose of the reprimand was to ensure that the applicant was not promoted and that he did not intend for the reprimand to adversely impact the applicant's retirement grade.  He went on to explain that the incidents that generated the reprimand occurred during the period of March to June 2006 and that the applicant had served over 40 months as a COL and over half of that time was served in a forward deployed status in support of Operations Enduring Freedom and Iraqi Freedom.  He further states that had he believed the applicant deserved such severe action, he would have pursued more severe punishment himself.  He recommended that the Board retire the applicant in the rank of COL.  The Board denied his application on 6 January 2009.

17.  The applicant applied for reconsideration of his application in July 2009 contending that the Board's previous decision was both arbitrary and capricious.  After reviewing the available evidence in the case, the Board again denied his application on 13 August 2009.

18.  The memorandum prepared by the applicant's rater and CG at the time in support of the applicant's appeal serves as the basis for reconsideration of his request.  The memorandum indicates that the CG believed the Army Regulation 15-6 investigation to be flawed and the resultant GOMOR was inappropriate and the administrative reduction of the applicant was inappropriate given his outstanding performance that was reflected in his OER.  He continues by stating that he had major issues with not only the fidelity of the investigation but the manner in which the IO posed his limited questions.  The number of holes and unanswered questions were substantial.  He goes on to explain some of the discrepancies.  Additionally, he states that while he did not concur, the applicant received a GOMOR and since he could not remain in the unit, he was offered command of a mobile training team (MTT) in Iraq.  The applicant explained that he had only just returned from what amounted to 3 years away from home and was going to retire.  The imposing CG had left the door open to "sitting" on the GOMOR if the applicant took the MTT assignment or retired quickly (within 
30-45 days).  However, Army regulations had a prescribed process for retirement that would take longer than the CG was willing to wait and when the applicant declined the MTT offer, the CG directed that the GOMOR be filed in his OMPF.  He was subsequently administratively reduced to the rank of LTC by the AGDRB process despite the applicant's top-notch performance.  Additionally, he states that he recommended the applicant for award of the Legion of Merit in March 2007.  He recommends removal of the GOMOR from the applicant's record and reinstatement to the rank of COL on the Retired List.

19.  Chapter 7 of Army Regulation 600-37 (Unfavorable Information), 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.

20.  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.

21.  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 Deputy Assistant Secretary of the Army for Review Boards (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 the officer's 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.

22.  Army Regulation 27-10 provides policies and procedures pertaining to the administration of military justice within the Army.  It states, in pertinent part, that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty adjusting to military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are administrative reprimands and admonitions and they must contain the statement indicating that they are imposed as an administrative measure and not as punishment under the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR should be removed from his records because he was not guilty of the offenses for which he was reprimanded has been noted.  However, the applicant was afforded due process in regards to refuting the allegations against him and was unable to convince the imposing officer (a three-star general) that he was innocent of the allegations against him.  Accordingly, it appears that the GOMOR was properly imposed against him and he was afforded the opportunity to present matters in his own behalf to the imposing officer with regards to the filing of the GOMOR.

2.  However, new information presented by the applicant's CG at the time, a major general, indicates that the imposing CG offered the applicant the choice of accepting command of an MTT in Iraq or retirement within 30-45 days in order to avoid the filing of the GOMOR in his records.

3.  While there is no doubt that the imposing CG had the authority to issue the GOMOR and no prohibitions can be found that prevents the imposing officer from making or offering such a deal, it seem inherently unfair that the applicant was placed in such a position to have to make such choices in order to convince the CG that the GOMOR should not be placed in his official records.  Simply stated, the applicant should have been able to submit matters in his own behalf to satisfy the requirement regarding the filing of the GOMOR, without regard to accepting an ultimatum from the imposing officer and be assured that his commander would have an open mind in that regard.

4.  Either the applicant deserved to have the GOMOR filed in his official records or he did not.  Offering the applicant a chance to buy his way out of having the GOMOR filed in his records by commanding an MTT in a combat zone simply does not pass the test for equitable and fair treatment in such matters.  

5.  Therefore, as a matter of equity and justice, the GOMOR should be removed from his OMPF.

6.  In regard to the applicant's contention that he should have been retired in the rank of COL, his last evaluation report in which he was rated by a major general clearly reflects that his performance was an overall top-notch performance by a combat tested senior officer and recommended that he be promoted to the rank of brigadier general.  This coupled with the fact that he was recommended for award of the Legion of Merit by a major general and the imposing CG offered him command of an MTT in order to prevent the filing of the GOMOR in his OMPF is indicative that the applicant served satisfactorily in the rank of COL.  To suggest that an officer who is deemed worthy of commanding troops in a combat zone did not serve satisfactorily in that grade for 40+ months prior simply does not pass the common sense test.  The AGDRB was not aware of these factors when it reviewed the case.

7.  Although the GOMOR will not be filed in his OMPF, it may still serve as a basis for a grade determination.  However, given all of the evidence in this case, it does not appear that the GOMOR by itself rises to the level of unsatisfactory service in the rank of COL when his 26 years of excellent performance and service, of which 43 months were served as a COL, are taken into consideration.  It is also noted that the applicant's rater (a major general) was in Texas where the applicant was stationed and was in a position to observe the applicant more than the imposing CG who was located in Georgia and had to rely on information provided to him.  Accordingly, as a matter of equity and justice, he should be retired in the rank of COL effective 1 July 2007, with entitlement to all back pay and allowances from that date.

8.  While the applicant's conduct for which he was accused is not condoned, the manner in which the GOMOR was administered (filed) in his official records simply does not pass the test of fairness and equity, especially given the applicant's many years of honorable and faithful service.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X___  ___X____  ___X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined that only partial relief should be granted.  The Board determined that the misconduct (i.e., the perception of misconduct) occurred; however, it would be equitable to transfer the GOMOR to the applicant’s restricted fiche (rather than remove it from his records).  The Board determined that the applicant should be retired in the rank of colonel/O-6.

2.  As a result, the Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR's decision in Docket Numbers AR20080000165 dated 6 January 2009 and AR20090012709 dated 13 August 2009 and, therefore recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  transferring the GOMOR and all associated documents to the restricted portion of his OMPF and 

   b. retiring him in the rank of colonel/O-6 effective 1 July 2007, with entitlement to all back pay and allowances from that date. 
   
3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the GOMOR from the applicant’s records.

4.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are 


deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________XXX_____________
                 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)                                         AR20100007005





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ABCMR Record of Proceedings (cont)                                         AR20100007005



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