IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110008610 


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 16 August 2006, from his Official Military Personnel File (OMPF) and promotion to the rank/grade of Sergeant Major (SGM)/E-9.

2.  The applicant defers his comments to counsel. 

3.  The applicant defers the submission of supporting documents to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the 16 August 2006 GOMOR be removed from the applicant's OMPF and his promotion to SGM.

2.  Counsel states, in a 17-page brief, that a GOMOR was wrongfully and permanently filed in the applicant’s official record by the Assistant Adjutant General of the Rhode Island Army National Guard (RIARNG) without due process and advice of counsel and without full and fair consideration of all of the evidence or the equities of the case.  He goes on to state that the applicant was serving in the RIARNG and conditionally promoted to SGM.  His promotion was contingent on completion of the U.S. Army Sergeants Major Course.  He continues by stating that the applicant had completed the first phase of the course; however, because he was under investigation his paperwork was not forwarded by the RIARNG for him to complete the course.  Once the GOMOR 

was placed in his OMPF he was no longer eligible to complete the course and had to revert to the rank/grade of master sergeant (MSG)/E-8.  He further states the applicant was given 48 hours to accept the GOMOR and retire from the RIARNG or be processed for separation.  Therefore, rather than risk losing over 20 years of faithful and honorable service, he accepted the GOMOR and retired from the RIARNG.  However, he was subsequently granted a waiver to enlist in the U.S. Army Reserve (USAR) and he served in the rank/grade of MSG/E-8; however, the presence of the GOMOR still prevents him from completing the U.S. Army Sergeants Major Course and retiring as a SGM/E-9.  He also states that there was insufficient evidence to warrant the GOMOR, that the complainant was not a credible accuser, and that the applicant has never been provided a complete copy of the investigation and un-redacted statements made by the accuser.

3.  Counsel provides:

* the GOMOR and the applicant’s rebuttal with supporting documents
* a sworn statement made by the applicant
* a memorandum of selection for retention
* 17 Noncommissioned Officer Evaluation Reports (NCOERs)
* 5 third-party sworn statements
* court and police documents related to his accuser
* an article related to the applicant’s performance as a civilian police officer

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the RIARNG as a SGM/E-9 on 16 August 2006 when he was issued a GOMOR by the Assistant Adjutant General of the RIARNG (a brigadier general) for his lack of judgment in showing a blatant disregard for the junior female enlisted members under his command by violating ethical principles and abusing his authority.  He cited examples of establishing personal relationships with junior female members, socializing with a junior female member, and his releasing personally identifiable information pertaining to a junior female enlisted member which exposed the command to civil liability for the unauthorized release of official information.

2.  On 6 September 2006, the applicant submitted a rebuttal to the GOMOR in which he disagreed with the findings and recommendation of the investigation and requested that they be set aside and no adverse action taken.  He contended that he had not been given the opportunity to defend himself or redress unfair accusations or have the witness to such accusations known to him 

or reexamined for impartiality.  Additionally, the investigation took 9 months to complete and caused him to have to cancel a seat at the U.S. Army Sergeants Major Course which he needed in order to retain his rank.  He also provided copies of emails from his accuser.

3.  On 8 September 2006, the imposing officer directed that the GOMOR be filed in his OMPF.

4.  On 30 September 2006, the applicant was honorably discharged from the RIARNG and he was transferred to the USAR Control Group (Retired) in the rank/grade of MSG/E-8.

5.  Although not fully explained in the official records, the applicant enlisted in the USAR in the rank/grade of MSG/E-8 on 15 November 2007 for an indefinite period.

6.  A review of the applicant’s record failed to show a copy of the investigation conducted in the applicant’s case.

7.  Army Regulation 600-37 (Unfavorable Information) serves as the authority for filing of unfavorable information in the OMPF.  It states that a non-punitive memorandum of reprimand or admonition will be filed in the OMPF only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient.

8.  Army Regulation 27-10 (Military Justice) provides policies and procedures pertaining to the administration of military justice within the Army.  It states that nonjudicial punishment is imposed to correct misconduct in violation of the Uniform Code of Military Justice (UCMJ.)  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty adjusting to military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Included among nonpunitive measures are administrative reprimands and admonitions and they must contain the statement indicating that they are imposed as an administrative measure and not as punishment under the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his record by removing a GOMOR from his file and promoting him to SGM/E-9.

2.  The applicant, then a member of the Rhode Island Army National Guard, was issued an administrative GOMOR on 16 August 2006.  The GOMOR, which came after an Army Regulation 15-6 investigation of several months duration, cited applicant’s poor judgment regarding establishing personal relationships with junior enlisted females in his command, to whom he regularly referred to as his “girls,” socializing after hours with a particular junior female enlisted member, and later divulging protected medical and other personal information to civilian law enforcement authorities in an attempt to discredit that same junior enlisted female with respect to harassment allegations made against her by his wife.  The GOMOR references the fact that the information on which the GOMOR was based was being provided to the applicant separately and gave him an opportunity to submit rebuttal matters.  The applicant exercised his right to submit matters in a memorandum titled “Rebuttal to Army Regulation 15-6 Investigation.”  Two days later, the GOMOR imposing authority directed that the GOMOR, along with the rebuttal, be filed in applicant’s OMPF.

3.  Contrary to the applicant’s position, there appear to be no due process flaws in the processing of his GOMOR.  The applicant was given the evidence against him and an opportunity to respond.  Nothing he provides points to anything other than a properly-administered GOMOR.  The applicant made a 15-page single-spaced statement in the course of the Army Regulation 15-6 investigation marked by repetition and evasion.  His rebuttal, though shorter, is similarly off point.  He glosses over the potential problems attendant with his befriending female junior enlisted Soldiers by protesting that he should have been counseled first.  With respect to calling the females in his command his “girls,” he cites to the Military Rules of Evidence regarding habit, as if his habitual use of the term “girls” in reference to his female subordinates somehow makes it less unprofessional or potentially disparaging and demeaning.  

4.  With respect to improperly providing confidential medical and personal information to civilian law enforcement authorities, the applicant cites to his       21 April 2006 correction of his original 6 April 2006 statement that he “believed” he had provided the information, but then later recalled that he did not and concludes that the police were entitled to the information anyway.  He cites to Title 32 and the requirement that offenses be committed in a duty status to be punishable, missing the logical inconsistency with that position as well as the fact the reprimand was administrative in nature and clearly involved conduct committed in a duty status.
5.  The fact the Army Regulation 15-6 ultimately determined there was insufficient evidence to show he engaged in an adulterous relationship does not diminish the seriousness of the errors in judgment committed by the applicant as a senior noncommissioned officer.  He was afforded all required due process with respect to his administrative GOMOR.  His removal from the list of SGM academy attendees is but a consequence of his poor judgment.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110008610



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ABCMR Record of Proceedings (cont)                                         AR20110008610



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