IN THE CASE OF:	  

		BOARD DATE:	 27 March 2012 

		DOCKET NUMBER:  AR20110018083 


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 reconsideration of his previously denied request for the following on behalf of the applicant:

* 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 2008 (FY08) sergeant first class (SFC)/
E-7 promotion standing list
* restoration of all back pay and allowances

2.  Counsel states:

* the wording "inappropriate contact with a child under the age of 12 and allowing that child to possess alcohol…" contained in the applicant's GOMOR was highly prejudicial language
* the applicant presented evidence that the allegations were untrue and were not supported by a preponderance of evidence, as such the allegations should not form the basis for an adverse action
* the applicant's daughter who was present the night of the incident and did not testify at the Article 32 investigation is now above the age of 16 and is in a more mature position to memorialize her observations
* his daughter's statement is critical for the Board's review because it explains why the alleged victim lied

*	his daughter believes the alleged victim fabricated the allegations because she had been scolded for going through the applicant's kitchen looking for alcohol
*	when scolded, the alleged victim walked the short distance home earlier than her parents expected
*	the alleged victim lied when asked why she was home early
*	the alleged victim had previously made a false allegation against another individual and the lie was perfectly consistent with her psychiatric issues discussed in the original application and at the Article 32 investigation

* given the absence of evidence of misconduct and credibility issues the GOMOR should be removed in the interest of justice

3.  Counsel provides:

* declaration from the applicant's daughter
* self-authored statements from Master Sergeant (MSgt) SW
* self-authored statements from Chief Warrant Officer Two (CW3) RDS

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100030294, on 24 May 2010.

2.  Records show that having had prior service in the Regular Army (RA) and the U.S. Army Reserve, the applicant 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.

3.  His Enlisted Record Brief (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
4.  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.

5.  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.

6.  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.  Child Protective Services began an investigation.

7.  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).

8.  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.  The Article 32 investigating officer (IO) prepared a report recommending dismissal of the charge/specifications related to the alcohol because of insufficient evidence, but recommended that the other charge/specifications related to sexual contact be referred to a general court-martial.

9.  The Fort Belvoir Staff Judge Advocate (SJA) reviewed the Article 32 report and the IO's recommendations.  On 29 April 2009, by memorandum addressed to the Commander, U.S. Army Garrison, the SJA opined the charges were not supported by the evidence and recommended dismissing all of the charges and specifications.
10.  The convening authority (the Commander, U.S. Army Garrison) approved the SJA's recommendation on the same date.

11.  On 29 April 2009, the Garrison Commander reprimanded the applicant for inappropriate contact with a child under the age of 12 and for allowing the child to possess alcohol.  The GOMOR stated the applicant's 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.  

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

13.  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. 

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

15.  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 Standby Advisory Board (STAB) which would make a recommendation as to whether he should be retained on or removed from the promotion list.

16.  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. 

17.  A review of the applicant's OMPF reveals he received an NCO Evaluation Report (NCOER) with the ending period 8 April 2009 showing he lacked self-control and received two negative counselings for alcohol-related incidents.

18.  On 26 August 2010, by unanimous vote, the Department of the Army Suitability Evaluation Board (DASEB) denied his petition to remove the GOMOR from his records.

19.  Applicant's counsel submits a declaration from the applicant's daughter attesting to what she witnessed the night of the alleged incident, as well as other incidents involving the alleged victim.  The declaration included the following:

* "I (applicant's daughter), age 16, grade 11, would like to make the following declaration under penalty of purgy [perjury] to the best of my knowledge."
* "I would like to share what I know about [Ms. KP], the activities, and her behavior in general that took place around the neighborhood and other kids, including my own friends."
* "Then I will get into my own personal account of the events that took place on the night in question."
* "From when my family and I first moved into the neighborhood I had only ever seen [Ms. KP] a few times, but her name was not short of mention during conversation I would have with my friends."
* "I can recall a time when she became rather inappropriately infatuated with a friend of mine, "X."
* "…she began following him around and constantly standing on his front porch, ringing the doorbell, insistently trying to get him to go be with her…"
* "…also her history of lying, anything [Ms. KP] may say or accuse cannot be credible."
* "My dad, who had been watching the tv (television) prior, gave up the remote and watched the movie with them."
* "Even after I had insisted the girls stop making a mess in the kitchen, [Ms. KP] continued many times on her own to keep concocting whatever mess she had thought of."
* "At on [one] point I went in to find her attempting to get into one of my parent's bottles of liquer [liquor]."
* "Immediately me and "X" went inside to put everything up where she could no longer get into it.  Mainly because it has always been instilled into my sister and I never to touch alcohol."
* "At this point [Ms. KP] finally retreated into the living room on our recliner."
* "I might add she [Ms. KP] seemed quite emmbarassed [embarrassed], frustrated, and on edge for being caught."
* "After the move ended, [Ms. KP] went upstairs and changed into her pajamas.  Shortly thereafter, she returned downstairs, she began telling everyone that she needed to go home to get her favorite stuffed animal so she could sleep with it."
* "My dad tried to get her to give him her phone number so he could call her mom, but she refused and said it was fine, she walked home this time of night all the time, and then left."
* "This was about 11:30, at which time my dad went to bed.  I stayed up watching tv and then later the movie, "The Shining" after everyone else went to sleep."
* "…I then fell asleep to later be woken by the MPs (military police) knocking and ringing our doorbell, then arresting my dad."
* "In my own insight, the only reason I can think of that caused [Ms. KP] to make up this lie to her parents in the first place would be to conceal her own fault."
* "Seeing how frustrated and nervous she was before in getting caught trying to obtain alcohol, she must have presumed I might tell her parents."
* "That being she told her parents a lie to avoid trouble."
* "I would also like to include that this is my first statement made regarding the subject at hand." 

20.  Additionally, counsel submits letters of support from a MSgt and a CW3 (who claims he was the applicant's former supervisor and NCOER rater).  Both letters address the applicant as a professional and indicate that he was treated unfairly by his chain of command.  The CW3 states the rating scheme on the applicant's NCOER for the period 9 April 2008 through 8 April 2009 does not accurately reflect what the actual rating scheme should have been at the time.  Neither letter mentioned that the applicant was involved in any misconduct.

21.  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 a filing determination is made.

   a.  Chapter 7 of this regulation provides that 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 this regulation.

   b.  Chapter 7 of this regulation also 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.  

   a.  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. 

   b.  Furthermore, paragraph 4-18 states that a Soldier who is removed from a promotion 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 declaration from the applicant's daughter and the two letters of support were carefully considered.

2.  The information provided in the declaration was available at the time the Article 32 investigation was conducted and charges preferred.  The applicant was afforded the opportunity to submit a rebuttal to the GOMOR and the option of having his daughter provide a statement at the time of the incident.  Based on the passage of time and the age of the applicant's daughter the facts contained in her declaration may or may not be as they were when the incident occurred.  As a result it is determined that this declaration is insufficient evidence to support removal of the GOMOR.

3.  The letters of support were considered.  However, they are also insufficient evidence to support removal of the applicant's GOMOR.  

4.  The applicant's former rater (CW3) indicates the applicant's NCOER for the rating period 9 April 2008 through 8 April 2009 contains an incorrect rating scheme.  This NCOER indicates the applicant was counseled because he lacked self control and received two negative counseling's for alcohol related incidents.  If the CW3 had information that the applicant's rating scheme was incorrect he was obligated to ensure that the information was disclosed at the time.  However, no such information was submitted with this application and there is no evidence to indicate that any such evidence was submitted at the time.  Retrospective thinking is not a basis for correction of military records.  

5.  In view of the foregoing evidence, counsel has not provided clear and compelling evidence which shows the GOMOR was improperly administered in accordance with applicable regulations or the GOMOR is improperly filed in the performance section of the applicant's OMPF.  

6.  Based on the facts that are available counsel provides insufficient evidence to support his contentions that the GOMOR should be removed from the applicant's OMPF.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100030294, dated 24 May 2011.



      _______ _   __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)                                         AR20110018083



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ABCMR Record of Proceedings (cont)                                         AR20110018083



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