BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100030294 


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:

The applicant defers his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests:

* removal of the General Officer Memorandum of Reprimand (GOMOR), dated 29 April 2009, from the applicant's official military personnel file (OMPF)
* reinstatement to the Fiscal Year (FY) 2008 sergeant first class (SFC)/E-7 promotion standing list
* restoration of all back pay and allowances

2.  Counsel states there was one error associated with this application that was substantially prejudicial to the applicant's rights; specifically, both the investigating officer (IO) and the Staff Judge Advocate (SJA) found the allegations against the applicant unsubstantiated.  The applicant was charged with two specifications of wrongful sexual contact and two specifications of allowing a minor to possess alcohol.  The charges were dismissed but the applicant received the contested GOMOR.  Counsel further argues:

	a.  Army Regulation 600-37 (Unfavorable Information), through interpretation and comparison with other regulations, creates a "more probable than not" standard when it comes to substantiating derogatory information.  One would never argue that allegations that are less than probable are substantiated.
	b.  The IO is tasked with recommending whether reasonable grounds exist that an accused committed the alleged offenses.  The term "reasonable grounds" is often used interchangeably with the term "probable cause."  Both the IO and the SJA found the minor child lacked credibility and as such found the allegations unsubstantiated. 

3.  Counsel provides:

* Enlisted Record Brief (ERB)
* SJA's review memorandum
* Contested GOMOR and imposing officer's filing decision
* Applicant's rebuttal
* Applicant's appeal to the Department of the Army Suitability Board (DASEB) and DASEB denial
* Headquarters, Department of the Army (HQDA), Enlisted Standby Advisory Board (STAB) removal decision
* Removal memorandum
* DA Form 4856 (Developmental Counseling Form)
* Letter of support

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army (RA) and the U.S. Army Reserve, the applicant's records show he enlisted in the RA on 22 September 1997 and held military occupational specialties 11B (Infantryman) and 21P (Prime Power Production Specialist).  He served through multiple reenlistments and attained the rank/grade of staff sergeant (SSG)/E-6 on 1 September 2002.

2.  His ERB shows he completed the following periods of foreign service:

* Germany, from 1 April 1986 to 8 May 1988
* Uzbekistan, from 15 November 2001 to 12 May 2002
* Iraq, from 17 May 2003 to 13 November 2003
* Korea, from 10 April 2007 to 10 June 2008

3.  His ERB also shows he was awarded the Army Commendation Medal (5th Award), Army Achievement Medal, Army Good Conduct Medal (4th Award), National Defense Service Medal (2nd Award), Korea Defense Service Medal, Afghanistan Campaign Medal with campaign star, Iraq Campaign Medal with campaign star, Global War on Terrorism Service Medal, Humanitarian Service Medal, Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon, Drill Sergeant Badge, Expert Infantryman Badge, Parachutist Badge, and Air Assault Badge.
4.  During the period in question, he was assigned to the 249th Engineer Battalion, Fort Belvoir, VA.  He was selected for promotion to SFC/E-7 by the FY08 promotion selection board.

5.  On 27 July 2008, the applicant hosted a young girl, Ms. KP, who was 10 years old at the time, as a guest in his home.  It was alleged that during that visit, he touched the girl in an inappropriate manner while sitting next to her on the couch. It was also alleged that he allowed her to possess alcohol by having her mix alcoholic drinks for him.  It appears the child reported this alleged incident to her mother who in turn called military police on post.  Child Protective Services began an investigation.

6.  On 17 February 2009, court-martial charges were preferred against the applicant for two specifications of engaging in sexual contact (touching with his hand the groin and/or buttocks of Ms. KP, a child under the age of 12) at or near Fort Belvoir, VA on or about 27 July 2008 and two specifications of causing or encouraging acts rendering a child delinquent or abused (allowing Ms. KP, a child under the age of 18, to possess an alcoholic beverage at or near Fort Belvoir, VA on or about 27 July 2008).

7.  On 17 March 2009, an Article 32 investigation in the case of the U.S. versus the applicant adjourned.  The applicant, his counsel, and Ms. KP were present during the hearing.

8.  On 29 April 2009, by memorandum addressed to the Commander, U.S. Army Garrison, the Fort Belvoir SJA, after carefully considering the findings and recommendations of the IO, the charges and specifications, and the allied documents, stated the IO recommended dismissal of the charge/specifications related to the alcohol because of insufficient evidence, but the IO recommended that the other specifications be referred to a general court-martial. The SJA concluded the allegations of the charges/specifications were not warranted by the evidence in the supporting documents and as such, he recommended dismissing all the charges and specifications.  

9.  The convening authority approved the SJA's recommendation on the same date.  

10.  Also on 29 April 2009, the Garrison Commander reprimanded the applicant for inappropriate contact with a child under the age of 12 and allowing the child to possess alcohol.  The GOMOR stated his actions were disturbing and completely unacceptable.  He acted in a manner that called into question not only his ability to serve in the Army, but his capacity for human decency.  

11.  The applicant acknowledged receipt of the GOMOR and submitted a rebuttal through his civilian attorney.  His rebuttal focused on discrediting Ms. KP.

12.  On 21 May 2009, after reviewing the GOMOR imposed against the applicant and the rebuttal statement, the Garrison Commander directed the GOMOR be filed in the applicant's OMPF. 

13.  The GOMOR is currently filed in the performance section of the applicant's OMPF.

14.  A U.S. Army Human Resources Command Memorandum, dated 22 July 2009, notified the applicant he was identified for referral for removal from the SFC promotion standing list because of the GOMOR that he received.  He was also notified his record would be referred to a STAB which would make a recommendation as to whether he should be retained or removed from the promotion list.

15.  On 26 October 2009, the HQDA Enlisted STAB recommended that the Director of Military Personnel Management approve the removal of the applicant's name from the SFC promotion list.  On 19 and 23 November 2009, he was accordingly notified and/or appropriately counseled. 

16.  A review of the applicant's OMPF reveals he received an NCO Evaluation Report with the ending period 8 April 2009 reflecting the misconduct as it pertained to the GOMOR.

17.  On 26 August 2010, by unanimous vote, the DASEB denied his petition to remove the GOMOR from his records.

18.  The applicant submitted a letter of support, dated 2 May 2011, from his battalion commander who describes the applicant as a competent, dedicated, and a professional Soldier.  

19.  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 GOMOR.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

20.  A GOMOR may be filed in an enlisted Soldier's OMPF upon the order of a commander exercising general court-martial authority over the Soldier 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 GOMOR and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

21.  Chapter 7 of the regulation 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 transfer to the restricted section would be in the best interest of the Army. 

22.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 4-13d states that STABs are convened for various reasons, among them to recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list.  Additionally, paragraph 4-17 states in pertinent part that a Soldier may be referred to a STAB for various reasons, among them when a GOMOR is placed in the OMPF or adverse documentation is filed in the OMPF.  The STAB will consider the Soldier’s OMPF in addition to the documents contained in the removal action and any submission to the board by the Soldier under consideration.  The Soldier may include the opinion and statements of third-party persons in his or her submission.  Furthermore, paragraph 4-18 states that a Soldier who is removed from a promotions list may appeal that action only in limited circumstances.  The Human Resources Command will take final action on any appeal.  Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous.  The subsequent determination must be based on facts that were not available or reasonably discoverable at the time of the original action or at the time that the Soldier was notified of the removal action.  An appeal may also be submitted for other compelling reason(s).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for inappropriate contact with a child under the age of 12 and for allowing the child to possess alcohol.  The GOMOR stated that his actions were disturbing and completely unacceptable.  He acted in a manner that called into question not only his ability to serve in the Army, but his capacity for human decency.  The applicant was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision and he did so.  Subsequently, the GOMOR was referred for filing in his OMPF.  

2.  A referred decision and SJA advice inherently weigh whether the evidence will prevail at trial when the burden of proof is "beyond a reasonable doubt" which is a standard much higher than a preponderance of the evidence that is generally considered the standard for a GOMOR.

3.  According to the SJA's memorandum, the IO recommended the charge and specifications related to the alcohol be dismissed but the other charge and specification be referred to a general court-martial.  Although the SJA's recommendation was to dismiss all charges and the convening authority approved this recommendation, the convening authority believed the applicant acted in a manner that called into question his ability to serve in the Army.  

4.  The GOMOR appears to have been properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  He provides insufficient evidence to support his contentions that GOMOR should be removed from his OMPF.  

5.  Having received a GOMOR and being a promotable SSG, he was referred to a STAB that considered his OMPF in addition to any documents contained in the removal action and any statements to the board he may have submitted.  The STAB recommended and the Director of Military Personnel Management approved that his name be removed from the selection list.  The applicant appealed this decision but his appeal was denied.  There is neither an error nor an injustice in this action.

6.  As an NCO, not only did the applicant fail to conduct himself in a professional and responsible manner, his conduct reflects poorly on him the NCO corps, and the Army.  His actions displayed a lack of discipline and raised questions about his ability to effectively perform as a leader.

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)                                         AR20100030294



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ABCMR Record of Proceedings (cont)                                         AR20100030294



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