IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100015992 


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 his General Officer Memorandum of Reprimand (GOMOR) from his official military personnel file (OMPF).  The applicant also requests to appear before the Army Board for Correction of Military Records (ABCMR) to clarify facts, dates, and any questions that the Board may have concerning his case.

2.  The applicant states:

* he questions the necessity of back-to-back investigations into the same allegations
* the first investigation found proof that his former wife lied in her sworn statements
* his former wife's later statements were viewed as credible despite the findings she previously lied
* the second investigating officer (IO) based his findings on supposition and conjecture and not fact
* his matters for consideration were never answered
* the legal sufficiency review of the investigation he requested was never accomplished

3.  The applicant continues that when it became evident that his former wife's statements were being considered credible and his counter-claims and proof of her fabrication were being ignored, he requested trial by court-martial.  That 

request was denied and he was "only" given administrative action (the GOMOR) which has resulted in his removal as a professor at the U.S. Military Academy (USMA), loss of timely promotion to colonel, and the loss of the primary custody of his teenage sons that had previously been awarded to him by a New York State divorce court.

4.  He adds that during his lowest moments, his private actions were construed as unprofessional behavior.  While he must take responsibility for his actions, those actions appear horrible if taken out of context.

5.  The applicant provides the documents which he lists in his application to this Board.

CONSIDERATION OF EVIDENCE:

1.  On 3 June 2009 the applicant, a Regular Army lieutenant colonel (LTC/O-5) who was on the promotion list to colonel (COL/O-6), serving as a USMA professor, was flagged (suspension of favorable personnel actions).  This prevented his promotion to COL.  On 8 June 2009, an IO was appointed to answer the following questions concerning the applicant:

* was he still married to his (then) wife
* was it reasonable for the applicant and a female CPT to think that the applicant was divorced
* did the female CPT pursue a relationship with the applicant
* what is the nature of the relationship between the applicant and the female CPT and how has it evolved since they met
* at any time has their relationship been adulterous or otherwise inappropriate
* did the applicant ever send e-mail messages in the name of his former wife without revealing that he was not his former wife
* did the applicant ever suggest to his former wife that she commit suicide
* is there sufficient evidence that the applicant viewed illegal pornography to warrant initiation of a criminal investigation
* did the applicant and the female CPT engage in any conduct that would constitute conduct unbecoming an officer, conduct prejudicial to good order and discipline or of a nature to bring discredit upon the Armed Forces, or conduct in violation of any other article of the Uniform Code of Military Justice (UCMJ)
* is there evidence that the applicant does not possess the judgment and/or character required of a USMA professor

2.  The IO completed his investigation, finding that:

* due to the language used by the judge at the divorce proceedings ("The divorce is granted"), the applicant believed that he was divorced on 17 March 2009
* on 23 December 2007 the applicant's wife, a Regular Army LTC, confessed to having an extramarital affair while in Egypt
* both the applicant and the female CPT denied having sexual intercourse
* the female CPT described her relationship with the applicant as "boyfriend and girlfriend"
* the applicant started seeing the female CPT socially in the fall semester 2008
* when the applicant started seeing the female CPT socially, he informed his superior officer of the friendship and he was cautioned against adultery and the perception of an improper relationship
* the applicant and the female CPT maintained a low-key, platonic relationship until the applicant's divorce hearing
* the relationship between the applicant and the female CPT became closer and more romantic after the divorce hearing
* the applicant and the female CPT both admitted that the applicant spent the night at her house because he had been drinking alcoholic beverages, but denied sexual activity
* the applicant and the female CPT took leave to go to Arizona and Florida together, and went to two social functions as a couple, but this occurred after the divorce hearing
* there is no evidence of adultery
* the applicant opened an e-mail account in his wife's name and impersonated her in e-mail messages to the Australian officer with whom his wife had an extramarital affair
* the applicant sent the Australian officer two accusatory, profane, and insulting messages in his own name
* the applicant admitted to once suggesting to his wife that she commit suicide, but had done that soon after her confession of adultery
* there was pornography on the applicant's computer, but nothing illegal and the applicant stated that his children were viewing those sites, not him
* the applicant's actions constituted unfair dealing, indecency, indecorum, injustice, and cruelty; but these were mitigated by the applicant's wife's admission of having an extramarital affair
* the applicant's dishonesty compromises his standing as an officer
* 
the applicant communicated with his wife's commander in Egypt without her knowledge which led to her loss of assignment, a GOMOR, and forced retirement
* the applicant was deceitful in hiding from his wife correspondence about her which lasted a period of weeks and months which resulted in creating more difficulty for his wife while she was depressed and experiencing the end of her marriage and career
* the applicant's superior officer ordered him to move from his home, personally supervised the move, and arranged to have his privately owned weapons removed from his possession because of the possibility that the relationship between the applicant and his wife might deteriorate into violence
* the applicant engaged in at least six acts of indiscretion, deceit or poor judgment between December 2007 and April 2008.  While the applicant was angry, hurt, confused, and bitter, he was manipulative, cruel, deceitful and cunning in his actions toward his wife, a woman who, regardless of her actions, was clinically depressed and in need of a husband's care and concern.

3.  The IO recommended that the applicant be tendered a letter of concern and that his flagging action be lifted.

4.  Prior to the convening authority taking final action on the IO's findings and recommendation, new evidence was received in the form of allegations by his wife.  Based upon that new evidence, the convening authority reopened the investigation.  However, the IO had departed on a sabbatical, so a new IO was appointed.

5.  On 12 August 2009, a second IO was appointed to answer the following questions concerning the applicant:

* is it more likely than not that prior to 17 March 2009 the applicant engaged in a relationship with the female CPT that was inappropriate for a married Army officer?  Specifically, address the nature of their relationship from December 2008 until 17 March 2009, including the amount of time they spent together
* is it more likely than not that the applicant lied to the first IO concerning any aspect of his relationship to the female CPT?  Specifically address his statement on 16 July 2009 that he had not had sexual intercourse with the female CPT and whether this statement was inconsistent with anything he said to his wife on 18 and 24 May 2009
* is it more likely than not that the applicant told his wife that if she ever wanted to see her boys again she would have to tell the IO that she fabricated everything she had told another officer
* is it more likely than not that the applicant told his wife that if she ever wanted to see her boys again she would have to tell the IO that everything she had said to him previously was made up to get the applicant in trouble and that she wanted to retract her statements and end the investigation
* is it more likely than not that the applicant communicated certain language to his wife that expressed a present determination or intent to wrongfully injure the reputation of another officer

6.  The second IO found:

* the applicant and the female CPT were dating prior to his divorce hearing as evidenced by the female CPT visiting him at work, a "double date" in December 2008 (the applicant and the female CPT went to dinner with another couple), the applicant staying at the female CPT's house after all the guests left a party she was having, and the applicant's statement that after Christmas break his relationship with the female CPT was a "close one."  The female CPT visited him at work, she held his hand before his surgery, and they attended parties together socially
* the applicant's intentions were clear, with him saying "Later in the fall, as [the female CPT] and I realized we would want to become more romantically involved after I was divorced, I went back to [his superior officer's] house to tell him specifically about [the female CPT]."
* the fact that people could describe the behavior of the applicant and the female CPT shows their relationship was noticed and not discreet
* the applicant had extensive training in ethics, honor, respect and behavior expectations as a USMA cadet and later as a USMA instructor
* the female CPT was a lawyer
* both the applicant and the female CPT should have known better than to date while the applicant was still married
* the applicant and the female CPT had an inappropriate relationship prior to 17 March 2009 while he was still married
* the applicant's dating of the female CPT while married was prejudicial to good order and discipline at the USMA
* there was insufficient evidence in which to determine whether the applicant told his wife she needed to recant her statements if she ever wanted to see her boys again or that the applicant said anything which would indicate an intent to wrongfully injure the reputation of the female CPT's superior officer
* other than the applicant's wife's statements, there was no evidence that the applicant's relationship with the female CPT became sexual after the divorce hearing
* it would appear that the applicant and the female CPT's relationship turned sexual after his divorce hearing but prior to his divorce decree.  This was based on the IO's "conjecture and likelihood - two healthy typical adults who have been dating, are mutually attracted to one another and who have been waiting for many months to pursue their relationship more fully - but up to this point were restrained by the fact that one was married - are likely to have had sexual relations once freed by the married partner's divorce."
* when the applicant realized he wasn't actually divorced, he lied to the first IO concerning whether he was having a sexual relationship with the female CPT.  The IO qualified this finding with the statement "I freely acknowledge my belief is based upon supposition and conjecture… and that I lack a truly solid basis for this conclusion…I still believe it to be more likely than not that they lied, but I will temper my recommendations below with consideration for the weak underpinnings of my belief."

7.  The second IO concluded that:

* by the applicant dating while still married prior to 17 March 2009, his conduct constituted a significant and serious departure from that expected of officers and must be addressed with appropriate action.  It also displays a lack of judgment on his part
* the applicant may have committed adultery between the date of his divorce hearing and his divorce decree, but all parties involved believed him to be divorced at that point
* the applicant lied to the first IO about not having sexual intercourse as of 15 June 2009 since it appears his relationship with the female CPT became sexual after his divorce hearing

8.  Based on those findings, the second IO recommended the applicant:

* be reprimanded for inappropriate behavior
* be relieved as a USMA professor
* be issued an evaluation report reflecting his lack of judgment
* be referred to a Promotion Review Board (PRB)
* remain flagged until completion of the PRB 

9.  On 29 October 2009, the applicant was issued a GOMOR.  In the GOMOR it was stated:

You are reprimanded for dating another officer on the U.S. Military Academy faculty while still married to your wife, a retired officer.  By a preponderance of the evidence, an investigating officer found that this inappropriate relationship began several months before your divorce hearing on 17 March 2009, the day you have said you first believed you were divorced.  This investigating officer also found that it was more likely than not that you lied to a previous investigating officer about the nature of this relationship after the divorce hearing.  You are reprimanded for that too.

You are also reprimanded for suggesting to your now former wife that she should commit suicide; opening an e-mail account in her name and impersonating her in e-mail messages; contacting, without her knowledge, her commander, her mother, and other family members and friends about her infidelity; and throwing your family's computer into the Hudson River after learning your wife could monitor your use of it   I originally intended to remove you as an academy professor but not file this adverse information in your military records, but I now think this conduct should be documented in your records.  Your actions fall far short of what is expected of a senior officer and call into question your potential to serve in positions of significant responsibility.

10.  On 12 November 2009, the applicant submitted a memorandum, subject:  Matters for Consideration, Reprimand dated 29 October 2009.  In that memorandum the applicant stated:

* officers of the opposite gender are allowed to be friends
* provably false and misleading statements by his (then) ex-wife were not corroborated by the IO but was taken as factual evidence instead of unsupported allegations
* the allegation of lying to the first IO is based upon only supposition and conjecture of the second IO
* his legal rights were violated in the investigation

11.  The applicant continued by describing:

* his divorce proceedings
* the highly contested legal battle for custody of their children
* 
how his wife made the allegations against him (which resulted in the investigation) in order to get custody of their children
* how his friendship with the female CPT remained within the parameters established by his senior officer

12.  The applicant expounds upon his belief that all of the allegations made by his ex-wife were fabricated or taken out of context for the sole reason to get him removed from the USMA.  He details the allegations she made against him and how those allegations are false.

13.  On 20 November 2009, the applicant's superior officer, his USMA department head, recommended that the GOMOR be modified and placed in the applicant's Official Military Personnel File (OMPF) and that the applicant be removed from his position as a professor at the USMA.  This officer stated that there was insufficient evidence to support that the applicant and the female CPT began a sexual relationship after the divorce hearing.  Therefore, there was insufficient evidence to support the second IO's conclusion that the applicant lied to the first IO about him having sexual intercourse prior to his actual divorce decree.

14.  The applicant's superior officer concluded that the applicant's actions were not consistent with those expected of a senior officer and are not consistent with the level of judgment the Army needs senior officers to display even under such emotional stress; therefore, his potential to serve in positions of significant responsibility in the Army as a colonel or potentially higher was questionable.

15.  The Dean of the Academic Board, a brigadier general, recommended that the GOMOR be filed in the applicant's OMPF.  The Dean acknowledged that the applicant's divorce was bitter and contentious in which there is ample blame for all parties.  However, he based his recommendation on his belief that the applicant's overall conduct prior to and during the course of the investigations had fallen far short of the judgment, professionalism, and standards expected and demanded of senior officers and Academy professors.

16.  On 3 December 2009, the Superintendent of the USMA ordered the GOMOR be filed in the applicant's OMPF.

17.  The applicant's military records show that he was given an Officer Evaluation Report (OER) for the period ending 10 February 2010.  The OER was extremely laudatory, with the exception of comments made concerning his GOMOR and 
pending PRB.  Based solely on those two facts, the applicant's performance and 

potential were rated as "Other" and he was rated below center of mass - retain.  The applicant submitted a rebuttal to the OER, which was filed with the OER in his OMPF.

18.  On 29 April 2010, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant's request to move his GOMOR to the restricted portion of his OMPF.

19.  In the processing of this case the Board's staff contacted the applicant who stated that a PRB convened to consider whether he should be removed from the promotion list, but the PRB was ordered to be reconvened due to administrative error in its consideration of the applicant's case.  The PRB has not as yet been reconvened.

20.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part that administrative letters 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 letter 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 filing determination is made.  Letters of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance portion of the OMPF. The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then 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.

21.  Army Regulation 600-37, chapter 7 provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate a reprimand, admonition, or censure (normally for Soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to the restricted section would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If the appeal is denied the DASEB letter of denial will be filed on the performance portion of the OMPF, the appeal itself and any associated documents will be filed on the restricted portion of the OMPF.  Otherwise this Board may act in accordance with Army Regulation 15-185 (ABCMR) and the Soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

22.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  It provides, in pertinent part, that an application for correction of military records, associated documents, and the decision pertaining thereto will normally be filed in the OMPF of the individual concerned.  In those cases where such action would tend to nullify the relief provided the documents will be returned to the ABCMR for permanent filing.

23.  Army Regulation 15-185, paragraph 2–11 (ABCMR hearings) states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  In the first investigation, while the IO found that the applicant committed a number of actions which exhibited indiscretion, deceit or poor judgment, there was no evidence or indication of adultery.  The first IO found the applicant and the female CPT maintained a low-key, platonic relationship until the applicant's divorce hearing.

2.  Having essentially the same verifiable evidence, the second IO came up with a polar opposite conclusion that the applicant and the female CPT were dating.  He based that conclusion on the female CPT visiting him at work, a "double date" in December 2008 (the applicant and the female CPT went to dinner with another couple), the applicant staying at the female CPT's house after all the guests left a party she was having, and the applicant's statement that after Christmas break his relationship with the female CPT was a "close one."  Also mentioned was the fact the female CPT visited him at work, she held his hand before his surgery, and they attended parties together socially.

3.  The difference between the two conclusions would appear to be what the two investigating officers would consider dating.  The first IO saw no wrongdoing with the applicant and the female CPT's friendship.  The second IO viewed that relationship as dating.  In this regard, it would appear that the second IO was using his own views of dating and not the generally held views of dating to base his recommendation.  However, the second IO caveated his "findings" by saying his belief was based upon supposition and conjecture, he lacked a truly solid basis for this conclusion, and had weak underpinnings for his belief.

4.  In the absence of any public displays of affection or indication that the applicant was consistently paying for expenses he and the female CPT incurred while together, there is insufficient evidence to show that the applicant and the female CPT were dating.
5.  As for the second IO's finding that the applicant lied to the first IO when he said he and the female CPT didn't have a sexual relationship after his divorce hearing, the second IO also caveated this finding by saying it was based upon supposition and conjecture, that he lacked a truly solid basis for this conclusion, and he had weak underpinnings for his finding.  It is noted that the applicant's superior officer stated that there was insufficient evidence to show that the applicant's relationship with the female CPT became sexual after the applicant's divorce hearing.

6.  While a GOMOR is not subject to the rules of evidence, there must be a factual basis for a reprimand.  In this case there is absolutely no evidence that the applicant and the female CPT's relationship became sexual after the divorce hearing.  Absent a factual basis for this finding, it was inappropriate.

7.  Since the second IO had no basis for his findings that the applicant dated the female CPT and his relationship with her turned sexual after the divorce hearing, those findings should be removed from his investigation.

8.  Since those findings are now removed from the investigation, there would be no basis for the first paragraph of the applicant's GOMOR (which refers to those two findings).

9.  The applicant was also reprimanded for suggesting to his now former wife that she should commit suicide; opening an e-mail account in her name and impersonating her in e-mail messages; contacting, without her knowledge, her commander, her mother, and other family members and friends about her infidelity; and throwing his family's computer into the Hudson River after learning his wife could monitor his use of it.  The applicant has not contested these findings.

10.  But these actions must be viewed in proper perspective.  They were all associated with his wife's infidelity and eventual divorce proceedings.  Some of the matters are questionable for a GOMOR as they were not necessarily illegal.

11.  It is noted that the first IO recommended that the applicant be tendered a letter of concern and that his flagging be lifted after making these very same findings.

12.  In addition, it is noted that the officer issuing the GOMOR stated that he originally intended to remove him as an academy professor but not file this adverse information in his military records (which would have been, in effect, 

approving the first IO's recommendation), but now thinks this conduct should be documented in his records.  Given this mindset, with the removal of the two most serious findings, findings which were not contained in the first investigation, it would now be appropriate to remove the GOMOR from the applicant's OMPF since it would appear that was the imposing officer's original intent.

13.  Since the GOMOR is to be removed from the applicant's records, it would also be appropriate to remove from his records:

* his OER for the period ending 10 February 2010 with an appropriate entry placed in his OMPF explaining the unrated period
* his rebuttal to this OER
* the DASEB review of his case
* from the second investigation, any mention that the applicant was dating prior to his divorce hearing and lied to the first IO

14.  It would also be appropriate to show that the applicant's flagging action was favorably closed since he now has not been given a GOMOR or any other disciplinary action.

15.  Based on the flagging action being favorably closed, it would be appropriate to show that the applicant was promoted to COL on the date of his eligibility.

16.  Finally, since there is now no GOMOR in the applicant's records and his records have been corrected to show he was promoted, there would be no reason for a PRB to consider whether the applicant should be removed from the promotion list.

17.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

BOARD VOTE:

___X____  ____X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Removing from the second investigation any mention that the applicant was dating prior to his divorce hearing and lied to the first IO
* Removing the GOMOR from the OMPF
* Removing the DASEB review from his OMPF
* Removing the OER for the period ending 10 February 2010 from the OMPF and inserting an appropriate statement in the OMPF to explain the nonrated period
* Removing the applicant's rebuttal to the OER
* showing the applicant's flagging action was favorable closed
* Promoting the applicant to COL on the date of his eligibility 
* Terminating the PRB proceedings in his case

2.  The Board further recommends that following completion of the administrative corrections directed herein, these Proceedings and all related documents be returned to the ABCMR for permanent filing.



      ________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)                                         AR20100015992



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ABCMR Record of Proceedings (cont)                                         AR20100015992



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