IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010                                   

		DOCKET NUMBER:  AR20100018150 


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:

* The removal of a General Officer Memorandum of Reprimand (GOMOR), dated 26 May 2005 from his official military personnel file (OMPF) or in the alternate, transfer the GOMOR to the restricted section of his OMPF
* Restoration to the Fiscal Year 2008 (FY08) Maneuver, Fire, and Effects (MFE) lieutenant colonel (LTC) Promotion List
* Retroactive promotion to LTC, effective 1 March 2009 

2.  The applicant states he received a GOMOR on 1 June 2005 but it was not filed on his OMPF until 27 June 2008.  Meanwhile, he was considered and selected for promotion to LTC by the FY08 LTC MFE Promotion Board.  He adds that as soon as the GOMOR was filed, he was identified for a show cause board for retention in the Army.  The Army ultimately ordered that he be retained but the Secretary of the Army ordered his name removed from the promotion list.  He also states the following:

	a.  The untimely filing of this GOMOR works as an injustice because his record prior to this GOMOR was superb.  After the GOMOR was issued, the incident that caused the GOMOR was reflected on his Officer Evaluation Report (OER) for the period and there is every indication that the promotion board was aware of this OER and still selected him for promotion.  


	b.  His performance since the GOMOR has also been excellent.  He has received excellent OERs that placed him in the top 1% to 5% of his senior raters' rated population, served in Iraq for 15 months, and he was awarded two Bronze Star Medals.   

	c.  By regulation unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete should not be filed in a Soldier's official personnel file.  In his case, the GOMOR was filed almost 3 years after its issuance with no explanation of the delay in its disposition.  He has served the Army well and has had a spotless record.  If the intent of this GOMOR is to correct an inappropriate behavior, this objective has been served.  

3.  The applicant provides the following documents:

* Six character reference letters or letters of support
* The Department of the Army Suitability Evaluation Board (DASEB) denial letter
* DA Form 1059 (Service School Academic Evaluation Report)
* Copies of DA Forms 67-9 (OER) prior to the GOMOR, for the periods 960914-970830; 19971001-19971208; 19980101-19980731; 19980801-19981217; 19981218-19990624; 19990625-20000624; 20000625-20001129; 20020513-20030402; and 20030403- 20040402
* Copies of his DA Forms 67-9 since the GOMOR for the periods 20060617-20070101; 20070102-20070503; 20070504-20071130; 20071201-20080710; 20080711-20090211; and 20090212-20091108
* Officer Record Brief
* memorandum, dated 10 July 2008, Subject: Matters of Consideration Regarding Retaining his Name on the Promotion List
* Memorandum, dated 23 September 2008, Subject: Initiation of Elimination
* Memorandum, dated 9 December 2009, Subject: Termination of Elimination

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Regular Army second lieutenant in the Field Artillery (FA) branch on 30 May 1992.  He served in various staff and leadership positions, completed several military training courses, and he was promoted to captain on 1 June 1996. 

2.  His records show he served in Korea from December 1997 to January 1999.  His records reflect awards of the Bronze Star Medal (2nd Award), Meritorious Service Medal (2nd Award), Army Commendation Medal (2nd Award), Army Achievement Medal (3rd Award), Army Superior Unit Award, National Defense Service Medal (2nd Award), Iraq Campaign Medal with one bronze service star, Global War on Terrorism Service Medal, Korea Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Air Assault Badge, Combat Action Badge, and Senior Parachutist Badge. 

3.  On 4 June 2002, he was assigned as a company tactical officer/company commander at the U.S. Military Academy (USMA), NY.  On 1 May 2003, he was promoted to major (MAJ).  In July 2004, he was assigned as a Special Assistant to the Commandant for Honor Matters.  

4.  A copy of the report of investigation is not available for review with this case; however, the records contain several statements that indicate the following:  

	a.  Between July 2004 and March 2005, an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) was conducted to look into allegations of an inappropriate relationship between the applicant and a female cadet.  The applicant took particular interest in a female cadet and began to develop a relationship with her while she was enrolled in the Honor Mentor Program.  The relationship started with routine correspondence and contact with her, often one on one at his house, study halls, sports games, restaurants, post exchange, his office (during on and off duty hours), her barracks room, and via email and phone.  He described this contact as morale checks and mentorship.  She described the contact as enriching at first but it turned into what she thought was an improper relationship based on frequency and perceptions. 

	b.  Furthermore, upon completion of the mentorship program, he maintained contact with her through personal visits to different places including his office and her barracks room.  In one email he solicited her presence at meals and in another he asked that she teach him how to dance.

5.  On 26 May 2005, the applicant was reprimanded by the Superintendent, USMA, for poor judgment, conduct unbecoming an officer, and misuse of his position for engaging in an inappropriate relationship with numerous cadets between July 2004 and March 2005.  He treated cadets as his military peers; engaged in unprofessional personal conversations with a female cadet, and aggressively pursued a personal relationship with a female cadet which included multiple visits to her barracks room, purchasing gifts for her, sending her multiple emails, and corresponding with her parents.  He even used his official position to accelerate the processing of her honor matters.  The GOMOR also stated that:

	a.  His actions were reprehensible.  He disregarded military standards and intentionally or through gross error in judgment compromised his ability to serve as a Special Assistant for Honors.  
	b.  His behavior compromised the integrity of the entire honor system and undermined the values of the center.  

	c.  His actions demonstrated a gross lack of judgment and a complete failure to live up to his duty as an officer.  

6.  On 1 June 2005, the applicant acknowledged receipt of the GOMOR and elected to submit matters on his own behalf.  He subsequently submitted a rebuttal in which he took full responsibility for his actions and acknowledged he demonstrated poor judgment, misused his special position, failed to observe the traditional senior-subordinate relationship, and failed to maintain a mentoring climate.  He further stated that although his failures were significant he thought he had potential for future service and chronicled his achievements.

7.  On 8 June 2005, after reviewing the applicant's rebuttal and considering all matters available and the recommendations by his chain of command, the superintendent directed the GOMOR be filed on the applicant's OMPF. 

8.  The GOMOR is currently filed in the performance portion of the applicant's OMPF.  The date of filing is shown as 27 June 2008.

9.  During February-March 2008, the applicant's records were considered for promotion to LTC by the FY08 LTC MFE Operations Support (OS) and Forces Sustainment (FS) Promotion Selection Board (PSB).  His name was listed as a selectee for promotion upon the PSB's official release on 1 July 2008.

10.  It is unclear if the GOMOR's filing on 27 June 2008 or his referred OER triggered his referral to a Promotion Review Board (PRB); nevertheless, it appears his records were referred to a PRB as a result of derogatory information in his file. 

11.  On 10 July 2008, by memorandum addressed to the President, PRB, the applicant requested his name remain on the promotion list.  He reaffirmed his position that the GOMOR was an inaccurate reflection of his conduct, morality, professionalism, and judgment.  He further highlighted his achievements since the GOMOR, specifically a strong OER that reflected a very outstanding performance.  He again acknowledged the seriousness of the GOMOR and its implications but added the GOMOR contained significant factual errors that he sought to correct.  He also pointed out that the negative information was referenced in his OER; yet, the promotion board selected him.


12.  On 23 September 2008, by memorandum, the U.S. Army Human Resources Command (HRC), Alexandria, VA, notified the applicant that he had been identified by the MFE Division to show cause for retention on active duty under the provisions of paragraph 4-2b (5 & 8) of Army Regulation 600-8-24 (Officer Transfers and Discharges) because of misconduct, specifically, the GOMOR.

13.  On 9 December 2008, by memorandum, HRC-Alexandria notified the applicant that his elimination action had been terminated and he would be retained. 

14.  The facts and circumstances surrounding his removal from the promotion standing list are not available for review; however, on 18 February 2009, the Secretary of the Army ordered his name removed from the FY08 LTC MFE Promotion List.

15.  His records show, since his GOMOR, he has:

* Completed resident Intermediate Level Education (ILE)
* Completed two branch-qualifying positions as a battalion S-3 and as an executive officer
* Served in Iraq from 27 November 2007 to 14 February 2009

16.  He was also awarded the Bronze Star Medal for achievement from 15 to
19 December 2008, the Bronze Star Medal for service, and the Meritorious Service Medal for service.

17.  He submitted the following documents:

	a.  Copies of several OERs (prior to the GOMOR) covering various rating periods from 14 September 1996 through 2 April 2004.  His OERs show he was rated as fully qualified by his raters and mostly above center mass by his senior raters.

	b.  Copies of five OERs (after the GOMOR) covering various rating periods from 17 June 2006 through 8 November 2009.  His OERs show he was rated as fully qualified by his raters and 3 out of 5 of his OERs show he was rated above center mass by his senior raters.




	c.  Six character reference letters or letters of support, dated on various dates between 2008 and 2010 from several senior officers who agreed that he should be retained and promoted to LTC, as follows:

		(1)  Statement, dated 12 November 2008, from Major General (MG) CMS, Commanding General, 82nd Airborne Division, in relation to the show cause board.  MG CMS stated that while the applicant did demonstrate poor judgment, his actions were not rooted in any personal or moral failing worthy of dismissal from the Army.  He also believed that retaining the applicant on active duty was in the Army's best interest 

		(2)  Statement, dated 22 April 2010, from MG JWH, Chief of Staff, U.S. Army Forces Command, in which he describes the applicant as a superb officer who had made outstanding contributions to the Army.  He also states he is convinced the Army would be best served by retroactively promoting the applicant. 

		(3)  Undated statement from Brigadier General AWB, G-3, U.S. Army Europe, in which he strongly recommends removal of the GOMOR from the applicant's records and his retroactive promotion to LTC.  He describes the applicant as a competent and outstanding professional and the sort of officer the Army needs. 

		(4)  Statement, dated 21 April 2010, from Colonel (COL) JER, Commander, 3rd Brigade Combat, 4th Infantry Division, in which he ranks the applicant among the best officers he has served with during his military career. 

		(5)  Statement, dated 26 April 2010, from COL RMC, Commander, 214th Fires Brigade, in which he describes the applicant as one of the most talented officers in the brigade.  He further confirms the applicant is already performing at the LTC level and that he should be retroactively promoted to LTC.

		(6)  Undated statement from LTC GPB (Retired) who also describes the applicant's professionalism as unparalleled and strongly recommends the removal of the GOMOR and the applicant's retroactive promotion to LTC. 

18.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that an administrative memorandum 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 memorandum 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.

19.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, 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 of Army Regulation 600-37.

20.  Army Regulation 600-8-29 (Officer Promotions) provides for prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  Chapter 8 provides for promotion review boards (PRB).

	a.  Paragraph 8-1b states the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board.  This authority has been delegated to the Secretary of the Army.  A Promotion Review Board (PRB) is used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion.  In such instances, a PRB may also be conducted when an officer’s name appears on a report of a selection board, although the Secretary’s final decision or recommendation may not be made until the report is approved by the President or his authorized designee.  An officer, in a grade above second lieutenant, is considered to be on a promotion list when the officer’s name appears on a report of a promotion selection board which has been approved by the President or his authorized designee.

	b.  Paragraph 8-2b (Basis for Referral) states an officer may be referred to a PRB for the following reasons (the list is not exclusive): A referred OER; a Memorandum of Reprimand placed in the OMPF; adverse documentation filed in the OMPF; the initiation of elimination action under the provisions of Army Regulation 600-8-24; or other derogatory information received by Headquarters Department of the Army (HQDA) but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.


	c.  Paragraph 8-6 (Notice to Officer) states before the PRB convenes, the officer under review will be informed, by memorandum, of the reason for the action and provided a copy of any information that will be considered by the board.  The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB and the officials reviewing the recommendation.
(Fourteen days from the date of receipt of the information is considered a reasonable opportunity, unless good cause is shown for extending the time).

	d.  paragraph 8-7 (Notification) states officers considered by a PRB will be informed of the results, in writing, through their chain of command.  Notice will be sent after appropriate authority takes final action on the PRB’s recommendation. Barring extenuating circumstances, this notice should be sent within 180 days after HQDA determines that such consideration should occur.

	e.  Paragraph 8-10 (Effects of Removal) states an officer whose name is removed from a promotion list continues to be eligible for consideration for promotion.  The next regular selection board convened to consider officers for promotion to that grade and competitive category will consider the officer (if otherwise eligible), provided this removal action does not constitute the officer’s second non-selection for separation purposes.  If the next board does not recommend promotion, this will constitute the officer’s second non-selection.  If the next board recommends promotion, the officer may petition the Secretary of the Army to be granted the same date of rank and position on the Active Duty List the officer would have had if the officer’s name had not been removed from the promotion list.  If the next selection board that considers an officer in a grade below colonel does not recommend the officer for promotion, or if the officer’s name is again removed (either from the report of the selection board or from the promotion list), or, in the case of promotion to grades above captain, the Senate does not give its advice and consent to the promotion, the officer will be considered for all purposes to have twice failed selection for promotion.

21.  Army Regulation 600-8-24 prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Paragraph 4-2b states that elimination action may be or will be initiated as indicated below for misconduct, moral or professional dereliction, or in the interests of national security, in cases of acts of personal misconduct (including but not limited to acts committed while in a drunken or drug intoxicated state) and conduct unbecoming an officer.






DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for poor judgment, conduct unbecoming an officer, and misuse of his position by engaging in an inappropriate relationship with numerous cadets between July 2004 and March 2005.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  The applicant's response was received and considered.  Subsequently, the GOMOR was referred for filing in his OMPF. 

2.  The GOMOR was properly administered in accordance with applicable regulations and it is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.  It is unclear why it took 3 years for this GOMOR to be filed on his OMPF.  Nevertheless, the fact remains that the GOMOR was administered and ordered filed in his OMPF.  The quality of service of a Soldier on active duty is affected by conduct that is of a nature that brings discredit on the Army or is prejudicial to good order and discipline.  The applicant was aware of the imposition and filing decision.  

3.   The applicant has not provided sufficient evidence for removal of the GOMOR from his OMPF.  However, a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  There is no doubt that after his mistake in 2005, the applicant has rebounded in an outstanding manner. He has taken big leaps towards improving himself personally and professionally. He has rebounded since the above incident and successfully completed several assignments and received among the best OERs.  He was awarded several awards and recently deployed to Iraq. 

4.  Since his GOMOR, he has revealed nothing but a progressively noteworthy advancement, both in achievements and maturity.  He has proven through performance that he is dedicated to bettering himself and generating a positive influence on those with whom he associates.  His attitude, which is normally recognized as a major ingredient in the success or achievement of an individual, is that of an officer who, despite the set-back, has Soldiered on with a strong desire to serve and grow.  

5.  The applicant's date of rank to MAJ is 1 May 2003.  He has been in the zone for consideration for promotion to LTC.  However, the existence of the GOMOR on his performance fiche is a detractor that sticks out as soon as his records are reviewed.  Therefore, in the interest of justice, the applicant's GOMOR should be transferred to the restricted section of his OMPF.

6.  The available evidence indicates the applicant was considered by the 2008 promotion board.  It is therefore reasonable to presume he reviewed his promotion file and would have known the GOMOR was not filed.  Therefore, the record remained incomplete and inaccurate for consideration by the promotion board and his selection for promotion was based on an incomplete record.   

7.  Since his file contained derogatory information (a referred OER based on a GOMOR), his file was referred to a PRB.  The OER and his rebuttal communicated much of the same information in his GOMOR.  Hence, the filing of the GOMOR may not have been the only reason his records were referred to the PRB.  In any case, the PRB considered his record as well as his appeal memorandum and appears to have recommended the removal of his name from the promotion list.  Since the Secretary of the Army ordered his name removed, he is no longer promotable and cannot have a retroactive promotion.  Additionally, this removal only creates the potential for a [future] non-selection and is not considered a non-selection. 

8.  The strong and positive third party letters of recommendation or statements of support speak highly of the applicant.  However, most of these statements were from superiors or peers subsequent to the GOMOR.  The authors were not in a position to fully appreciate the expectations from and the responsibilities of the USMA Superintendent.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the GOMOR was properly imposed and therefore removal of it from his OMPF is not warranted.  Further, the Board believed that, given the rank of the applicant and the age of the subordinate affected, the intent of the GOMOR has not yet served its purpose.  Furthermore, any future promotion board should be able to review the applicant's entire record to determine the applicant's fitness for promotion to the next higher grade.

2.  Therefore, the Board determined that the evidence presented was insufficient to warrant the requested relief.



      _______ _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)                                         AR20100018150



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ABCMR Record of Proceedings (cont)                                         AR20100018150



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