IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20100009169 


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 that the General Officer Memorandum of Reprimand (GOMOR) be removed from the performance portion of his Official Military Personnel File (OMPF) and/or transferred to the restricted portion of his OMPF.

2.  The applicant states he was issued the GOMOR based on false accusations of fraternization and unprofessionalism made by a female first lieutenant (1LT).  An investigation into the credibility of this 1LT was conducted and the 1LT was, herself, issued a GOMOR for fraternization and conduct unbecoming an officer.  Had this information been available to the issuing officer, he would not have been given the GOMOR.  He has adjusted his behavior to remove any actions that would give an illusion of unprofessionalism.

3.  The applicant provides numerous documents including copies of the GOMOR, his appeal of the GOMOR; a 24 March 2009 U.S. Army Human Resources Command, Alexandria, VA memorandum, subject:  HQDA Enlisted Standby Advisory Board (STAB) Removal Decision Pertaining to (applicant's name and social security number); a DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report for the period 1 May 2007 through 31 January 2008; his Department of the Army Suitability Evaluation Board (DASEB) proceedings; and Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) concerning accusations of behavior unbecoming an officer, including fraternization and inappropriate behavior surrounding 1LT G----.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a sergeant first class (SFC)/E-7, was assigned as an instructor at the Sapper Leader Course (SLC), Fort Leonard Wood, MO in June 2004.

2.  On 10 October 2007, an allegation of sexual harassment was filed against the applicant.

3.  On 15 October 2007, AR 15-6 investigation concerning the applicant found the following:

	a.  one source of the allegations, 1LT G----, was found to be less than credible;

	b.  all of the information against the applicant came out only after 1LT G---- failed the patrolling phase of the SLC for the 3rd time;

	c.  1LT G---- had made similar charges against her own chain of command (5th Engineers) that were dismissed as unsubstantiated;

	d.  1LT G---- was under investigation for conduct unbecoming a commissioned officer and inappropriate relationships with another enlisted Soldier;

	e.  1LT G---- demonstrated that she used her sexuality for personal gain and she made inappropriate accusations when her goals were not achieved by this method;

	f.  the applicant; however, had a history of behavior unbecoming an NCO in that he had received nonjudicial punishment for adultery and there was a statement from a member in his past chain of command that indicated he had a history of this type of behavior previously.

4.  The applicant's unit commander opined the applicant put the integrity of the SLC, NCO Corps, and himself in question by being on a first-name basis with a student.  The commander also opined that this implies the possibility of intent to form a relationship that exceeds the reasonable expectations of an instructor-student relationship.  The commander recommended that the applicant be issued a GOMOR and that it be placed in his unit file or the restricted portion of his OMPF.

5.  The Commanding General (CG) reviewed the investigation report and issued the applicant a GOMOR on 26 November 2007.  The CG reprimanded the applicant for his conduct towards female Sapper students, stating the applicant had developed unprofessional relationships with two female students.  His interaction with these two individuals included:

* going to their rooms
* hugging them
* having frequent discussions with them unrelated to the mission
* assisting in their course preparation
* maintaining a first-name basis with these individuals
* many of his conversations were interpreted as sexual advances
* he used his position as Phase Chief to facilitate many of these interactions

6.  The applicant rebutted the GOMOR concerning his actions and provided
13 letters of support from former students, this included several letters from former female students.  All of the letters of support indicated that they never saw the applicant treat female students different from male students.  The applicant admitted that he may have been lax in some ways, leading to an illusion of impropriety, but he never did anything inappropriate.

7.  On 14 February 2008, the CG reviewed the charges, the applicant's additional statements and submissions, and determined it was appropriate to file the GOMOR in the performance portion of the applicant's OMPF.

8.  The applicant's NCOER covering the period 1 May 2007 through 31 January 2008 shows he was rated as "success" or "excellence" in all blocks except leadership which shows he "needs improvement."  He was still recommended for promotion to master sergeant at the first opportunity.

9.  The applicant's last two NCOER's show he was rated among the best and recommended immediate promotion to master sergeant.  The senior rater placed him in the top block for both performance and potential.

10.  On 4 March 2009 the DASEB denied the applicant's request to move the GOMOR to the restricted portion of his OMPF.  It opined that the applicant had not provided any evidence that the GOMOR had any substantive errors in it or that it was shown it had served its intended purpose.  As a part of the rationale for denial, the DASEB noted an NJP for adultery and a statement from a former member of the applicant's chain of command due to improper behavior.  These items are not included in the applicant's interactive Personnel Electronic Record Management System (iPERMS) file except as referenced in the proceedings of the GOMOR and the DASEB proceedings.
11.  A 24 March 2009 Army Human Resources Command, Alexandria memorandum notified the applicant's command that he had been removed from the 2008 Master Sergeant Promotion Selection List.

12.  The applicant was able to obtain a copy of the AR 15-6 investigation proceeding against 1LT G---- through the Freedom of Information Act (FOIA).  The investigation report references the applicant as only one of several personnel giving testimony.  The investigator concluded that, although the applicant may have a reason to see 1LT G---- discredited, his testimony was corroborated by testimony from other service members.

13.  As a result of this investigation, 1LT G----'s unit commander recommended that 1LT G---- be retained from deploying, that at the minimum court-martial action be considered against her and that she be removed the captains list.  It was also recommended that several other individuals receive administrative or disciplinary action as a result of the incidents that led to 1LT G----'s AR 15-6 investigation.

14.  1LT G---- received a GOMOR for fraternization, conduct unbecoming an officer, and making false official statements.

15.  AR 600-37 (Unfavorable Information) states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.  These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions as result in selecting soldiers for positions of public trust and responsibility, or vesting such persons with authority over others, should be based on a thorough review of their records.

DISCUSSIONS AND CONCLUSIONS:

1.  The applicant contends that the GOMOR that he was issued should be removed from the performance portion of his OMPF and/or transferred to the restricted portion of his OMPF.  The applicant contends he was issued a GOMOR due to false accusations of fraternization and unprofessionalism based on the allegations of a female 1LT who was issued a GOMOR for fraternization with and conduct unbecoming an officer.  The applicant believes that if this information were available to the issuing officer he would not have been issued the GOMOR.  He contends that he has adjusted his behavior to remove any actions that would give an illusion of unprofessionalism.

2.  From the opinions expressed by the applicant's unit commander and the CG, it appears that it was an appearance of impropriety more than any overt act that resulted in the applicant being issued the GOMOR.  The investigating officer and the applicant's unit commander both took into consideration that the source of the majority of the allegations, 1LT G----, was found to be less than credible.

3.  While the AR 15-6 investigation brings into question the credibility of 
1LT G----'s statements against the applicant, it does not address the allegations as they relate to the applicant and his actions.

4.  The applicant has professed that he did not do anything improper but does state that some of his actions could be considered to give an "illusion" of impropriety.  He also admits that he may have been unduly friendly or that some of his actions could have been taken as exceeding the standards set for interaction between an instructor and student.

5.  He states that he has modified his behavior to avoid future illusions of impropriety.  However, he did not provide any supporting evidence to show this.  

6.  Instructors, by virtue of their positions, are held and they must hold themselves to a higher standard than most other Soldiers.  As in this case the appearance of impropriety is almost as bad as an overt intentional act.  The applicant has failed to submit evidence that would support his request.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

___X____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the GOMOR has served its intended purpose.  The applicant has received two "max" NCOERs since the GOMOR was issued, indicating he has learned his lesson.  Therefore, while there is no evidence that the GOMOR was issued in error, which would warrant removing it from his OMPF, the Board recommends that the requested relief of transferring the GOMOR to his restricted file be granted based upon intent served.



      _________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)                                         AR20100009169



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ABCMR Record of Proceedings (cont)                                         AR20100009169



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