IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100015394 


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 removal of a General Officer Memorandum of Reprimand (GOMOR), dated 2 July 2007, and a Noncommissioned Officer Evaluation Report (NCOER), for the period 1 June - 2 October 2007, from his Official Military Personnel File (OMPF).  He also requests payment of Special Duty Assignment Pay (SDAP) for the period 28 January - 27 April 2008.

2.  He states that all sworn statements from the females named in the investigation reflect he did not sexually harass them.  The investigation unsubstantiated all allegations listed in the GOMOR and the findings and recommendations of the investigation were disapproved by Major General (MG) B-----k without further investigation.  He contends that equal opportunity involvement was excluded from the investigation and no command climate survey was conducted.  All of the battalion officers were interviewed but none of the six first sergeants or any pool of females was interviewed to substantiate the womanizer allegations made Major (MAJ) M---e and members of his staff.

3.  He states that according to Captain (CPT) W------s' statement, MAJ M---e was directed by the battalion commander in December 2006 to look into the rumor.  MAJ M---e's statement reflects that he talked to CPT W------s in December 2006 about the rumor and concluded it was not necessary to inquire or pursue the matter any further.  He contends he was never made aware that rumors or allegations of misconduct existed prior to reading the GOMOR given to him on
11 July 2007.  The redacted information in the GOMOR was not blackened out, it

remained visible, and was referenced a year later in the decision to deny the removal of the NCOER for the period 1 June - 2 October 2007.  All actions initiated eight months later by Colonel (COL) S----s appear to be acts of reprisal and highly influenced by MG B-----k who was the final governing authority on the actions. 

4.  He states that the NCOER's "thru" date, senior rater, and reviewer are incorrect and the rater and senior rater comments are invalid because they did not meet the qualifications to rate him.

5.  He states the GOMOR should be removed from his military records as it represents a pattern of injustice exercised against him.  From the investigation to the subsequent actions it appears the GOMOR was an impermissible attempt to inflict punishment against him.  

6.  He states that before a GOMOR is filed in the performance portion of the OMPF, it is necessary to consider the circumstances and alternative punishment available.  Despite the recommendations of MAJ B-----t, the investigator who recommended caution regarding the alleged incidents and a command climate survey, no sensing sessions took place.  No counseling statements were ever initiated to inform him that allegations of misconduct existed and no alternative punishment or additional training were ever considered rather that the harshest punishment imposed in contradiction to the regulatory guidance.  The absence of counseling statements or the implementation of lesser corrective measures is in error and an injustice.

7.  He states Soldiers who witness or otherwise know of incidents of sexual harassment are obligated to remedy and to report such behavior.  Attempts should always be made to solve problems at the lowest possible level within an organization.  No such attempts were made to correct the alleged improper behavior to ensure prevention of future harassment allegations. 

8.  He states that enlisted Soldiers are subject to involuntary separation for the commission of a serious offense.  A GOMOR is an administrative measure and not intended as punishment.  An attempt to separate a Soldier for a serious offense on the basis of a GOMOR is improper and is in error, an example of a pattern of injustice against him. 

9.  He states that because the filing of negative information in the OMPF has potential career-ending implications, special care is necessary before documentation is included in the OMPF.  When the original GOMOR was written, a finding of disrespect was included.  However, after review of his rebuttal,
MG B-----k directed that references to the disrespectful conduct be redacted from the reprimand.  Instead, the line referencing the disrespect was crossed through leaving the original information clearly visible.

10.  The applicant provides the documents identified in a list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  At the time of this application, the applicant was serving on active duty in the rank/grade of sergeant major (SGM)/E-9.

2.  On 11 May 2007, an Investigating Officer (IO) was appointed by the Commander, U.S. Army 2nd Recruiting Brigade, surrounding allegations that the applicant was disrespectful in language towards commissioned officers in the Miami Recruiting Battalion.

3.  The IO made the following findings:

	a.  The preponderance of evidence suggested the applicant's actions in the initial complaint did not cross the threshold of disrespect.

	b.  The preponderance of evidence suggested the applicant did not sexually harass CPT V--e, Mrs. R---n, Mrs. G------z, or Mrs. O-------a.  However, the applicant's actions at the Puerto Rico Annual Training Conference (ATC) were inappropriate and unprofessional.  He was overly familiar with the spouses of his subordinates with whom he had no personal relationship.  His actions put several of these women in a situation where they felt extremely uncomfortable.

	c.  His general observations of the battalion indicated that there was a certain level of distrust of the SGM.  The rumor mill was hard at work at the Miami Battalion and as a result, he was looked upon with suspicion especially related to females.  Officers within the battalion did not trust the SGM and had no professional relationship with him.

4.  The IO recommended the following:

	a.  that no further action be taken in the allegation of disrespect;

	b.  the applicant be reprimanded for his inappropriate and unprofessional behavior at the Puerto Rico ATC and be cautioned about further behavior of that nature;

	c.  the battalion commander look at options to improve the relationship between the SGM and the officers in order to build a trusting relationship; and

	d.  conduct a command climate survey and sensing session.  

5.  On 2 July 2007, the Commanding General (CG), U.S. Army Recruiting Command (USAREC), disapproved the findings of the IO and found that the preponderance of evidence established that the applicant:

	a.  was disrespectful in manner, language, and deportment toward
MAJ M---e;

	b.  made unwelcome and inappropriate comments to CPT V--e concerning her marital status and her relationship with her fiancée; and

	c.  made unwanted and unwelcomed sexual advances and inappropriately touched the spouses of three NCOs at the Puerto Rico ATC.

6.  On 2 July 2007, he received a formal written reprimand for misconduct while serving as the Command Sergeant Major (CSM) of the U.S. Army Recruiting Battalion, Miami.  The imposing commander stated that the preponderance of the evidence established he was disrespectful in manner, language, and deportment toward MAJ M---e, routinely treated other officers assigned to the battalion with contempt, made inappropriate comments toward CPT V--e concerning her marital status, and made unwanted sexual advances and touched in inappropriate manners the spouses of three NCOs officers.

7.  In a memorandum, dated 2 July 2007, the applicant was informed by the CG, 
USAREC, that based on the report of investigation, he was directing his relief as the CSM of the U.S. Army Recruiting Battalion, Miami. The applicant was also informed that a relief for cause NCOER was to be prepared by his rating officials.

8.  On 9 August 2007, the applicant submitted a rebuttal to the CG's relief for cause and reprimand and requested revocation of the relief for cause NCOER, GOMOR, and reinstatement as the CSM of the Miami Recruiting Battalion.  

9.  On 31 August 2007, the CG stated that after reviewing the report of investigation, the chain of command's recommendations, and the applicant's rebuttal with supporting documentation, the applicant's requests for reinstatement as CSM of the Miami Recruiting Battalion and revocation of the GOMOR were denied.

10.  On 31 August 2007, the CG directed that the GOMOR be filed in the applicant's OMPF with references to the disrespectful conduct redacted from the document.

11.  The applicant received a "Relief for Cause" NCOER with a through date of 
2 October 2007, because of poor judgment in dealing with subordinates.  It shows:

	a.  in part IV (Army Values/Attributes, skills/Actions) he received a "No" in block 5 "Honor" and the following negative bullet comment:  "Soldier exhibited lack of judgment in dealing with family members...."

	b.  in part IVd (Leadership) the rater placed his "X" in the Needs Improvement box and provided the following comment:  "Soldier failed to live up to the Army Values and was relieved of his position as CSM."

	c.  in part IVf (Responsibility & Accountability) the rater placed his "X" in the Needs Improvement box and provided the following:  "The rated NCO has been notified of the reason for the relief."

	d.  in Part Va (Overall Performance and Overall Potential for Promotion) the rater placed his "X" in the Marginal box.

	e.  the senior rater rated the applicant in the Overall Performance and Overall Potential for Promotion section (in part Vc and d) as "4-Fair" and "4-Fair" respectively, with the following bullet comment:  "Relieved for cause as Battalion CSM because of poor judgment in dealing with subordinates."

12.  Orders Number 008-08, issued by U.S. Army Special Missions Recruiting Brigade, Fort Knox, KY, dated 8 January 2008, directed his reassignment to the U.S. Army Southern Command for the purpose of daily duty status/accountability for the period 28 January 2008 through 8 July 2008.

13.  On 14 March 2008, the Deputy G-1, USAREC, submitted for the command a corrected NCOER requesting the replacement of the filed report in the applicant's OMPF.  The changes to the contested report included:

	a.  On the posted NCOER, the period covered, the nonrated code, and the authentication are incorrect in accordance with Army Regulation 623-3 (Evaluation Reporting System) and DA Pamphlet 623-3 of the same title.

	b.  The relief for cause NCOER was generated based on the notification of relief on 2 July 2007.

	c.  The "thru" date was incorrectly calculated by incorporating time elapsed during a formal appeal using the open door policy on 2 October 2007.

	d.  The correct period covered is 1 June 2007 through 2 July 2007, causing the authentication on the posted NCOER to be incorrect.

	e.  On the filed NCOER, the rater remained the same with no changes to his bullet comments.

	f.  The correct senior rater, COL G--l, the Brigade Commander, made changes to his bullets in Part V.  

	g.  The correct reviewer on the date of relief was Brigadier General O-r, the Deputy Commanding General, with no changes to Part lId. 

	h.  The Soldier has been notified of the requested changes and refuses to sign.

14.  In a memorandum, dated 24 March 2008, the Commander, U.S. Army 2nd Recruiting Brigade, informed the applicant he was recommending his removal from the CSM Program and termination of SDAP.

15.  Orders Number 30-01, issued by the U.S. Army Miami Recruiting Battalion, Miami, announced the termination of the applicant's SDAP effective 28 January 2008.

16.  On 30 April 2008, the Department of the Army Suitability Evaluation Board (DASEB) denied his request for removal of the GOMOR from his OMPF.

17.  On 27 October 2008, the Army Special Review Board (ASRB) denied his request for removal of the contested NCOER from his OMPF.

18.  Army Regulation 623-3 states:

	a.  the primary purpose of a Commander’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at Headquarters, Department of the Army.
	b.  pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful.  Additionally, the regulation states that a personality conflict between the applicant and a rating official does not constitute grounds for a favorable appeal; it will be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

	c.  each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.

	d.  rating officials must prepare complete, accurate, and fully-considered evaluation reports.  This responsibility is vital to the long-range success of the Army's missions.  With due regard to the NCO's current grade, experience, and military schooling, evaluations should cover failures as well as achievements; however, evaluations will not normally be based on isolated minor incidents.

	e.  evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the applicant.

	f.  the minimum rater and senior rater qualifications and the minimum rating period are 30 rated days.  The fundamental purpose of this restriction is to allow the rated NCO sufficient time to react to performance counseling during each rating period.  Authority to waive this 30-day minimum rating period and rater and senior rater qualification period in cases of misconduct is granted to a general officer in the chain of command or an officer having general court-martial jurisdiction over the relieved NCO.

19.  Army Regulation 600-37 (Unfavorable Information) 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. 

	a.  Chapter 7 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 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. 

	b.  contains guidance on transfers of OMPF entries.  It states that letters of reprimand, admonition, or censure may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals approved under this provision will result in transfer of the document from the performance portion to the restricted portion of the OMPF.

20.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states that administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the OMPF.

21.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management) states that:

	a.  the SDAP is a monetary incentive paid to enlisted Soldiers who qualify for and serve in designated special duty (SD) assignments that have extremely demanding duties requiring extraordinary effort for satisfactory performance or an unusual degree of responsibility.

	b.  Relieved Soldiers will not be reassigned until SDAP has been terminated and, if appropriate, reclassification action taken.

	c.  Soldiers' SDAP will be terminated when:

		(1)  The unit commander determines the Soldier has failed to maintain all the requirements for continued receipt of SDAP.

		(2)  The Soldier is reclassified to a specialty that is not designated to receive SDAP.

		(3)  The Assistant Secretary of the Army, Manpower and Reserve Affairs, during the biennial review determines receipt of SDAP is no longer appropriate.

	d.  recommendations for removal from, or reinstatement to, SDAP positions will contain justification and will be sent through, and acknowledged by, the Soldier to the approving commander.  The termination or reinstatement date is the actual date the Soldier was removed from or reinstated to the SD assignment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of a GOMOR and an NCOER from his OMPF and payment of SDAP for the period 28 January - 27 April 2008 have been carefully considered.

2.  By regulation, a GOMOR accepted for filing in the OMPF is presumed to administratively correct and to have been properly 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 to warrant its removal from the OMPF.

3.  The evidence of record confirms the GOMOR was issued based on sufficient evidence showing the applicant committed acts of misconduct.  Records show the imposing commander disapproved the recommendations and findings of the investigation.  The IO recommended no further action be taken on the allegation of disrespect but recommended a reprimand for inappropriate personal and professional behavior.

4.  He received a relief for cause NCOER for his poor judgment in dealing with subordinates.  He contends the senior rater and reviewer were incorrect and the rater and senior rater comments were invalid because they did not meet the qualifications to rate.  However, the relief for cause NCOER was directed by a general officer authorized to waive the minimum rater and senior rater qualifications.

5.  The evidence shows he rebutted the GOMOR and NCOER on essentially the same grounds he now uses in his application to this Board.  He failed to produce sufficient evidence to meet the burden of proof necessary to support relief.  Absent any evidence corroborating his assertions that the investigation was based on nonfactual evidence, he received unfair and unjust punishment, and/or that the GOMOR he received was issued in retribution, there is insufficient evidence to support removal of either the GOMOR or the NCOER.

6.  In reference to his request for SDAP for the period 28 January - 27 April 2008, orders show he was reassigned for the purpose of daily duties/accountability effective 28 January 2008.  In effect, his duties as a recruiter were terminated on this date and his SDAP correctly terminated effective the same date.  

7.  In view of the foregoing, there is an insufficient 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)                                         AR20100015394



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ABCMR Record of Proceedings (cont)                                         AR20100015394



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