IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100025674 


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 general officer memorandum of reprimand (GOMOR) he received for sexual harassment in 2007 while acting as battery commander be moved to the restricted portion of his official military personnel file (OMPF) and he be allowed to remain on active duty in order to reach retirement eligibility in the event he is passed over for promotion this year.

2.  The applicant states he received a GOMOR for sexual harassment in 2007 while acting as battery commander of an air defense artillery (ADA) unit.  He made a few inappropriate statements but with no intent to harass the Soldiers in his unit.  He does not believe the punishment fits the crime.  His chain of command agreed that he had no intent to harass.  He requested that the GOMOR be transferred from his permanent file to his restricted file by the Department of the Army Suitability Evaluation Board (DASEB) so he may continue to serve, but he has been denied twice.

3.  The applicant provides:

* a self-authored statement
* DA Form 4037 (Officer Record Brief), dated 26 October 2010
* five DA Forms 67-9 (Officer Evaluation Report (OER)) for the period 6 April 2007 through 19 April 2010
* two DASEB memoranda, dated 7 October 2008 and 17 November 2009
* a DASEB Record of Proceedings (ROP) Docket Number AR20080011937, dated 2 October 2008
* DASEB ROP Docket Number AR20090016965, dated 8 October 2009
* seven certificates of training
* four awards certificates
* letter of gratitude
* seven statements of support

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve having prior enlisted service in the Regular Army and executed an oath of office on 3 August 2000.

2.  He served in staff and leadership positions as an ADA officer, including service in Iraq from 5 January 2005 to 6 August 2005, and he was promoted to captain (CPT) Regular Army on 1 January 2004.

3.  On 5 April 2007, the applicant was relieved from his assignment as a company commander for sexually harassing female Soldiers between 6 May 2006 and 3 October 2006 and for creating a sexually hostile work environment.

4.  On 5 April 2007, the applicant was reprimanded by memorandum by the I Corps and Fort Lewis Commander.  The reprimand stated an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was conducted based on an inspector general complaint and found the applicant had sexually harassed female Soldiers in the applicant's command and created a sexually hostile work environment while serving as a company commander between 6 May 2006 and 3 October 2006.

5.  The reprimand further stated the applicant made numerous inappropriate comments, sexual in nature, which constituted verbal sexual harassment.  He ordered a female Soldier to open her mail and his inappropriate inquiries about another Soldier's pregnancy demonstrated a lack of judgement and poor leadership.  His conduct was disgraceful and unacceptable and would not be tolerated.  As a captain and a company commander, he must demonstrate integrity and sound judgment and his lack of professionalism caused the commander to question the applicant's ability to lead.  The applicant dishonored himself, the command, and the U.S. Army.

6.  The applicant acknowledged receipt of the GOMOR and submitted a rebuttal.  In his rebuttal, the applicant stated he made inappropriate comments without the intent of gender bias or to cause his Soldiers to feel uncomfortable.  He further stated he made comments in his effort to relate to his young Soldiers which he should have known and now understands to be inappropriate for him to make.  He stated he learned his lesson and requested the GOMOR be filed in his local file as that would allow him to put the lessons he learned from this into practice and salvage his career.

7.  On 2 May 2007, the I Corps Commander reviewed the applicant's response and the recommendations of the applicant's chain of command and directed the GOMOR be permanently filed in the applicant's OMPF.

8.  On 2 October 2008, the DASEB determined the evidence presented did not provide substantial evidence that the GOMOR had served its intended purpose.  Accordingly, the DASEB denied his request to transfer the GOMOR to the restricted portion of his OMPF.

9.  On 8 October 2009, the DASEB again determined the evidence presented did not provide substantial evidence that the GOMOR had served its intended purpose.  Accordingly, the DASEB denied his request to transfer the GOMOR to the restricted portion of his OMPF.

10.  The applicant provides a self-authored statement wherein he requests that the GOMOR be transferred to the restricted portion of his OMPF, that the denial decision in the DASEB ROP be reconsidered and/or reversed, and that he be allowed to remain on active duty in order to reach retirement eligibility in the event he is passed over for promotion this year.  He states the GOMOR was issued on 5 April 2007 and since then he has been passed over for promotion to major twice, despite having stellar OER's.  The GOMOR has served its intended purpose of punishment and reprimand as he has sustained the loss of potential pay and career advancement.  He learned a valuable lesson in 2007; he made a poor decision that reflected on his character.  He has taken full responsibility and regrets his actions.

11.  He provides seven statements of support from senior commanders, dated 28 September 2007 to 25 September 2009, that state they support the applicant being retained on active duty and the removal of the GOMOR from his OMPF or the transfer of the GOMOR to the restricted portion of his OMPF.  The imposing authority's statement, dated 25 September 2009, directs the GOMOR be transferred to the restricted portion of the applicant's OMPF based on the recommendations of the applicant's chain of command.

12.  The applicant further states he has accomplished the following since receiving the GOMOR:

* he received an "Outstanding Performance, Must Promote" and "Best Qualified" rating for his annual OER period 6 April 2007 through 15 December 2007
* he was awarded an Army Commendation Medal in 2007
* he received an "Outstanding Performance, Must Promote" and "Best Qualified" rating for his annual OER period 15 December 2007 through 23 May 2008
* he completed the 8-week Air Defense Airspace Management Course in 2008
* he received a "Outstanding Performance, Must Promote" and "Best Qualified" ratings for his annual OER periods 24 May 2008 through 2 January 2009 and 3 January 2009 through 1 October 2009
* he completed the 7-week Joint Tactical Ground Station Course in 2009
* he completed the 4-week Space 200 course in 2009
* he was awarded an induction into the order of Saint Barbara in 2009
* he was awarded an Air Force Space Badge in 2010
* he was awarded an Army Commendation Medal in 2010
* he completed the 10-week Space Operations Course in 2010
* he was awarded several general officer letters and coins for excellence in 2010

13.  Army Regulation 600-37 (Unfavorable Information) provides 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR in April 2007 for sexually harassing female Soldiers during a 5-month period and for creating a sexually-hostile work environment while serving as a company commander.  The GOMOR was based on an Army Regulation 15-6 investigation that reached that conclusion.  He was provided with an opportunity to submit matters on his own behalf and did so.  The GOMOR was ultimately filed in the performance section of his OMPF.

2.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

3.  The applicant, a CPT in a command position, was relieved from that position for sexually harassing female Soldiers in his command and creating a sexually-hostile work environment.  As a company commander, the applicant was serving in a position of trust, responsibility, and accountability, and he was directly responsible for the development, training, welfare, and morale of all the Soldiers in his command.  He failed to live up to Army values by making inappropriate sexual comments to female Soldiers over a 5-month period.  His conduct demonstrated a lack of professionalism and brought discredit to himself, the officer corps, and the U.S. Army.  His actions displayed a lack of judgement and raised questions about his ability to effectively perform as a leader.

4.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  There is generally a reluctance to remove adverse information from an OMPF when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does remove unfavorable information, it only does so if it truly has served its intended purpose or is untrue or unjust.  In this case, the applicant's GOMOR does not seem to have served its purpose and the applicant's evidence does not convince the Board that it is untrue or unjust.  In view of the foregoing, he is not entitled to the requested relief.

5.  With respect to his contention that he should be allowed to remain on active duty in order to reach retirement eligibility in the event he is passed over for promotion this year, this request is premature.  The Board cannot rule on an event that has not yet occurred.



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 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)                                         AR20100025674



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ABCMR Record of Proceedings (cont)                                         AR20100025674



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