IN THE CASE OF:	 

		BOARD DATE:  17 January 2012  

		DOCKET NUMBER:  AR20110024423 


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 his General Officer Memorandum of Reprimand (GOMOR) and all allied documents from his official military personnel file (OMPF) or as an alternative he requests that the GOMOR be transferred to the restricted section of his OMPF.

2.  The applicant states:

* he received his GOMOR in January 2005 for an incident he believes was not properly investigated
* the intent of the GOMOR has been served, as he has not been promoted in over 7 years
* he would like the GOMOR removed, or placed in the restricted section of his OMPF so that he can be favorably considered for promotion
* he has been diligent in rebuilding his career
* the investigation that led to the GOMOR was driven by the applicant's former command sergeant major (CSM), who had a personal vendetta against him
* he has done many great things in his career since this incident occurred – he completed a voluntary deployment, served as an instructor, and attended the Senior Leaders Course (SLC), where he was selected for the Distinguished Leader Award
* he continues to excel in his current duty position; however, he wants to do more, and requests the Board's assistance in providing him an opportunity to move past this incident and serve his country in a greater capacity

3.  The applicant provided:

* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the period 1 April 2010 through 31 March 2011
* Permanent Orders 243-06, Headquarters, 2nd Battalion, 351st Infantry Regiment, Camp Shelby, Hattiesburg, MS, dated 31 August 2011
* DA Form 1059 (Service School Academic Evaluation Report), SLC, dated 17 February 2011
* DA Form 4980-14 (Army Commendation Medal Certificate)
* Enlisted Record Brief (ERB) 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) staff sergeant (SSG)/E-6 who initially entered active service on 1 October 1996.  He served in military occupational specialties (MOS) 92Y (Unit Supply Specialist) and 75F (Personnel Information Systems Management Specialist), which was later redesignated as MOS 42F.  He served in various staff and leadership positions, and currently serves in MOS 42A (Human Resources Specialist), as a Human Resources Sergeant with the 158th Infantry Brigade, Camp Shelby, MS.

2.  His ERB shows he was stationed in Germany from on or about 30 September 2002 to 10 August 2005, where he was assigned to the 90th Personnel Service Battalion (PSB), 1st Personnel Command (PERSCOM), Smith Barracks, Baumholder. 

3.  On 26 July 2004, a formal equal opportunity (EO) complaint was filed against the applicant by two female Soldiers in his unit.  On 3 August 2004, the Commander, 90th PSB, appointed an investigating officer (IO) to conduct an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation, concerning allegations of sexual harassment by the applicant.  

4.  On 10 September 2004, the IO submitted his EO Investigation Report, wherein with regard to each allegation, he concluded that "no matter what lines were crossed or were not crossed, SSG Sxxxxxx failed to separate professional and personal relationships and/or maintain boundaries with young impressionable female Soldiers in his unit, especially with private first class (PFC) Cxx, who is in his direct charge." 

5.  On 2 December 2004, while serving in the rank of SSG, the applicant was reprimanded by the Commander, Division Artillery, 1st Armored Division, for sexually harassing two female Soldiers, creating a hostile living environment, and engaging in unwanted sexual contact with a vulnerable Soldier (the applicant being her platoon sergeant).  The GOMOR stated the reprimand was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  The imposing officer made no determination regarding the filing of the GOMOR on the applicant's OMPF, and invited the applicant to submit a response for consideration.

6.  On 9 December 2004, the applicant submitted his response, in the form of a   4-page rebuttal with numerous enclosures, including a timeline dispute, witness statements, letters of support, and previous NCOERs.  He denied the allegations, took issue with certain points in the IO's report, and appealed to the imposing commander to discard the GOMOR or consider directing its filing in either his local Military Personnel Records Jacket (MPRJ) or in the restricted section of his OMPF. 

7.  Included in the submission of his response, his defense counsel sent the imposing commander a memorandum of support on behalf of the applicant, in which he stated:

* the IO's report was probably the worst foundation on which charges have been brought against a Soldier that he had yet seen in his entire career
* the charges lodged against [the applicant] became particularly egregious after reading the IO's report and recommendations, in which he points to a number of issues himself which call into question the credibility of the two young women making the allegations

8.  The defense counsel went on to state his opinion that the allegations, on which the GOMOR was based, were groundless and the applicant should be exonerated of all charges. 

9.  On 18 January 2005, the Assistant Division Commander (Maneuver),          1st Armored Division, reviewed the GOMOR, considered the applicant's response and chain of command recommendations, and directed the GOMOR be filed in the applicant's OMPF.  The GOMOR was filed in the performance section of his OMPF.

10.  In July 2005, he was reassigned back to the Continental United States (CONUS).  He received an Army Commendation Medal (ARCOM) for his permanent change of station (PCS) award.  His ARCOM citation reads in part, "for meritorious achievement while assigned to Bravo Detachment as a human resources NCO.  Your professionalism, devotion to duty, and dedication to mission accomplishment stood as an example for Soldiers to emulate."   

11.  Permanent Orders 312-008, Headquarters, Training Support Battalion,      U.S. Army Soldier Support Institute, Fort Jackson, SC, dated 8 November 2007, awarded him the Army Good Conduct Medal (3rd Award) for exemplary behavior, efficiency, and fidelity in active Federal military service during the period              1 October 2002 through 30 September 2005.

12.  His record is void of any documentation that shows he was later cited for instances of a derogatory nature.  The NCOERs he received since his reassignment from Germany to CONUS show that his duty performance has not fallen below "success." 

13.  He petitioned the Department of the Army Suitability Evaluation Board (DASEB) to have his GOMOR transferred to the restricted section of his OMPF. On 23 April 2009, the DASEB denied his request.  The DASEB directed that its decision memorandum be placed in the performance section of his OMPF, and the Record of Proceedings and allied documents be placed in the restricted section of his OMPF.

14.  The applicant's documents related to this matter are filed as follows:

* his GOMOR, consisting of a 9-page packet of documents, is filed in the performance section of his OMPF
* his allied documents, consisting of 85 pages related to the AR 15-6 investigation and GOMOR, are filed in both the performance and restricted sections of his OMPF
* the DASEB Record of Proceedings is filed in both the performance and restricted sections of his OMPF
* the DASEB decision document is filed in the performance section of his OMPF

15.  AR 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 a filing determination is made.

16.  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 AR 600-37.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

17.  AR 600-8-104 (Military Personnel Information Management/Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of his GOMOR and all allied documents from his OMPF, or as an alternative filing of the GOMOR and allied documents in the restricted section of his OMPF.

2.  The evidence of record shows the applicant received a GOMOR in December 2004 for sexual harassment, creating a hostile living environment, and engaging in unwanted sexual contact with a vulnerable Soldier.  He was afforded the opportunity to review all of the evidence against him and submit matters on his own behalf prior to a final filing decision.  

3.  Despite compelling letters of support written on his behalf, the GOMOR was referred for filing in his OMPF and was placed in the performance section of his OMPF.  He petitioned DASEB for transfer of the GOMOR to the restricted section of his OMPF; however, DASEB denied his request.

4.  The GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  There is no doubt that since his incident in 2004, the applicant has rebounded in an outstanding manner.  He has rebounded and has taken big leaps towards improving himself personally and professionally.  His duty performance has been good to outstanding, he has received awards and accolades, and he has completed the SLC.  His attitude, which is normally recognized as a major ingredient in the success or achievement of an individual, is that of a Soldier who, despite the set-back, has Soldiered on with a strong desire to serve and grow.  The GOMOR appears to have served its intended purpose.

5.  His excellent manner of performance, combined with his professional achievements, serve as evidence that he has learned proper standards of conduct and performance.  Therefore, in the interest of justice, the GOMOR, allied documents, the DASEB Record of Proceedings, and the DASEB decision document should be transferred to the restricted section of his OMPF, or removed from the performance section if already present in the restricted section to avoid duplication.  

6.  The applicant did not provide sufficiently compelling evidence to warrant the removal of his GOMOR and allied documents from his OMPF; therefore, there is an insufficient basis to grant this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X ___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* transferring the GOMOR, dated 2 December 2004, and the DASEB decision document from the performance section to the restricted section of his OMPF
* removing the allied documents and the DASEB Record of Proceedings from the performance section of his OMPF
* retaining the allied documents and the DASEB Record of Proceedings in the restricted section of his OMPF





2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the removal of the applicant's GOMOR, dated 2 December 2004, and allied documents from his OMPF.




      _______ _  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)                                         AR20110018542



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ABCMR Record of Proceedings (cont)                                         AR20110024423



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