BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120004219 


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 requests, through a legal representative, that his General Officer Memorandum of Reprimand (GOMOR), dated 9 December 2010, be removed from his Army Military Human Resource Record (AMHRR) (formerly known as Official Military Personnel File (OMPF)) or transferred to the restricted portion of his AMHRR.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel submits several allegations regarding the applicant's GOMOR and his appeal to the Department of the Army Suitability Evaluation Board (DASEB).  Counsel states:  

	a.  the allegations in the GOMOR are unfair, untrue, and unjust.  The reprimanding official failed to inform the Soldier of his intent to file the GOMOR in the applicant's AMHRR.  Critical transcripts of adverse testimony were never provided to the Soldier and they don't exist as part of the investigation in the Soldier's AMHRR.

	b.  the DASEB denied the applicant's appeal on 20 October 2011.  DASEB's failure to consider the applicant's evidence was also unfair and unjust.  The applicant's appeal to the DASEB demonstrated the dishonesty and 
non-creditability of the individual who made these allegations against him.  

	c.  the applicant was the victim of a deceptive scheme by an abusive husband, J. V.  The applicant has spent countless hours trying to show the Army these allegations against him were false and how the source of the allegations against him involved a man who was known to be dishonest and deceptive.  The allegations and evidence should not have been accepted by the Army without confirmation and verification.  

	d.  the Army Regulation (AR) 15-6 (Procedures for Investigation Officers and Board of Officers) investigation was fatally flawed and the applicant explained this to the DASEB in detail.  The only alleged evidence of adultery was a phone call between the investigating officer (IO) and a woman who never provided a statement for this investigation.  The Memorandum for Record (MFR) cited by the IO was not included in Annex C and the applicant wasn't provided Annex C as part of the investigation.  Counsel states there was no Annex C as part of the investigation filed in the applicant's AMHRR.  Counsel states the fact that the applicant was reprimanded on the basis of an investigation that references evidence then fails to provide the evidence, is profoundly unfair.  DASEB failed to address that the investigation was missing the exhibit.

	e.  DASEB improperly interpreted AR 600-37 (Unfavorable Information).  AR 600-37, paragraph 3-4b(1) states a reprimand must include reference to the intended filing of the letter; however, the general officer never stated his intent.  Rather, he stated he had not yet made a filing determination.  The GOMOR should be removed from the applicant's AMHRR based on the reprimanding official's failure to follow the regulation.  

	f.  the applicant and Mrs. D.V. started a friendship because each were going through a divorce.  They provided mutual support and wrote each other throughout that period.  Mrs. D.V.'s husband, J.V., psychologically and physically abused her and this is well documented in the materials and court records provided to the DASEB.  Mrs. D.V.'s husband was fired from his job as a police officer for untruthfulness, deceptiveness, and dishonesty.  J.V. is the one who orchestrated these allegations against the applicant.  J.V. sought to ruin the reputation of an outstanding noncommissioned officer (NCO).  There is no evidence the applicant "irreparably damaged" their marriage and contributed to their divorce.  J.V. damaged his own marriage.
 
	g.  the two women, with whom the applicant allegedly had sexual relations, provided sworn statements alleging the emails through Facebook were fraudulent..  Anyone can set up a fictitious Facebook account.  It was irresponsible for the IO to accept Facebook emails at face value for the truth of their content and it was unjust for the DASEB to discount the sworn affidavits of the two women who stated the emails were fraudulent.  



2.  Counsel provides:

* GOMOR and supporting documents 
* Statements from a notebook
* Command and Staff, S-1 award listing
* Three DA Forms 638 (Recommendation for Award)
* Character references
* Four DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* ALSIP Police Department Performance Evaluation
* Three orders showing he was ordered to annual training
* Letter from a lawyer
* AR 15-6 
* Memorandum, Subject:  Appointment of IO
* Memorandum, Subject:  15-6 investigation - Alleged Misconduct by Staff Sergeant (SSG) (applicant's name) 
* DA Form 1574 (Report of Proceedings by IO/Board of Officers) with numerous exhibits 
* Seven DA Forms 2823 (Sworn Statement)
* Data from Facebook
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* Enlisted Record Brief
* Memorandum addressed to President, DASEB, with attachments A through F
* DASEB Record of Proceedings
* U.S. Army Human Resources Command (HRC) - St. Louis , Active Guard Reserve (AGR) Program, Commander's Guide for Handling Substandard Soldiers
* Letter from attorney addressed to Staff Judge Advocate

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the U.S. Army Reserve in the rank of sergeant first class (SFC)/E-7.  

2.  The applicant enlisted in the Regular Army on 13 September 2001.  He was released from active duty on 1 May 2006.  On the following day, he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  

3.  He was promoted to SSG on 1 July 2007.  

4.  He was ordered to active duty on 5 February 2009 in support of Operation Enduring Freedom.  

5.  On 29 September 2010, he underwent a 15-6 investigation.  In a memorandum, dated 20 October 2010, Subject:  15-6 investigation Findings and Recommendations, the IO stated that based on the preponderance of the evidence, the applicant did have an inappropriate relationship with Mrs. V.  Evidence supported he also committed adultery with Mrs. V.  The IO further stated the investigation revealed the applicant had inappropriate relationships with two other females and also committed adultery with Ms. J.E.  The IO recommended the applicant receive administrative corrective action and seek marriage counseling or take appropriate action necessary to complete divorce proceedings with his wife.  

6.  In Section VIII (Action by Appointing Authority) of a DA Form 1574, dated 21 October 2010, the appointing authority recommended approval of the IO with the following exceptions/substitutions:  

* administrative Field Grade Article 15
* remove from DS Program and remove DS Badge
* flag/bar
* Field Grade letter of reprimand (permanent file AMHRR)
* relief for cause NCOER
* remove from active duty

7.  In a memorandum, dated 28 October 2010, an Attorney-Advisor reviewed the 15-6 investigation concerning the allegations against the applicant and determined all legal requirements had been met.  The Attorney-Advisor stated the evidence supported the findings, and the findings supported the recommendations.  There was sufficient evidence the applicant engaged in an inappropriate relationship with Mrs. D.V. and with Ms. L.A. and Ms. J.E.

8.  He received an annual NCOER for the period ending 31 October 2010 which shows he was rated as a DS.  He received a "Yes" rating for all the Army values.  The rating official evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Among The Best."  The senior rater (SR) evaluated the applicant's overall performance as "Successful/Block-1" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior/Block-1."  The SR gave all positive bullet comments including a recommendation for promotion to SFC.


9.  On 9 December 2010, he received a GOMOR for engaging in inappropriate relationships with three different women, and for adultery in violation of Article 134, Uniform Code of Military Justice (UCMJ).  The commanding general (CG) of Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, GA indicated the applicant, from 2008 to 2010, while married, engaged in an inappropriate adulterous relationship with the wife of a civilian living in his community and his conduct irreparably damaged their marriage and contributed to their divorce.  At the same time, the applicant engaged in a second adulterous affair with another woman and an additional inappropriate relationship with a third woman.  The CG stated the GOMOR was administrative in nature and was not imposed as punishment under the UCMJ.  

10.  On 10 December 2010, he acknowledged receipt of the GOMOR and documents supporting the reprimand.  He also acknowledged that he understood that his rebuttal was due no later than 7 calendar days from the date he received the reprimand, unless he received an extension through the Fort Benning, Staff Judge Advocate.  He elected to submit matters within 7 calendar days.

11.  On 15 December 2010, he submitted a 7-page rebuttal to the GOMOR.  

	a.  the findings of the 15-6 investigation are wrong.  The investigation by the IO was incomplete and insufficient.  The IO interviewed him only once and he wasn't given the opportunity to respond to the investigation regarding the alleged relationships.  He provided evidence that can prove the findings of the IO were false.

	b.  he summarized his performance as a DS and as a Soldier and he lists his personal commendations.

	c.  he was investigated in September (2010) for the offense of adultery under Article 134,UCMJ.  He was read his rights and he gave a statement.

	d.  he met with his battalion commander and he was advised of his rights.  He was showed the results of the 15-6 investigation including letters written years ago and statements from two other women who were contacted by the IO.  His battalion commander informed him that he would recommend he receive a GOMOR based on the evidence.

	e.  he later asked his wife if she had exchanged emails with Ms. A or made statements to Mr. J.V., but she denied communication with these individuals.  This led him to believe that those documents were fictitious.

	f.  he noticed the notebook in question was altered.  The original book had dates on entries which were removed.  He alleged Mr. J.V. had tampered with the documents he was provided.

	g.  he cited several statements made by Mr. J.V. during the 15-6 investigation which were untrue.  These statements referenced various dates between the Summer of 2008 and August 2010 in which the applicant and Mrs. D.V. were together.  

	h.  he cited statements made by Ms. J.E. pertaining to his offense of adultery.  He attested in two statements regarding his whereabouts on 14 February 2010, had been refuted in his wife's sworn statement.  

	i.  he cited statements made by Ms. L.A. also pertaining to his offense of adultery.  Ms. L.A. stated they didn't have any sexual relationship.  

	j.  he reiterated statements made by Mrs. D.V.'s lawyer.

12.  In support of his rebuttal, he provided numerous documents demonstrating his performance, such as:

   a.  recommendations for award of the Meritorious Service Medal, Bronze Star Medal, Army Commendation Medal (1st Oak Leaf Cluster), and Army Achievement Medal (2nd Oak Leaf Cluster).
   
	b.  two character references from his rater and former company commander who stated:

		(1)  the applicant worked as Drill Sergeant (DS) in his company.  The applicant is loyal, committed to duty, and devoted to his family.  He knows the applicant very well and the allegations against him are false.

		(2)  the applicant worked under his company command as a Senior DS from 9 March to 5 November 2010.  He was impressed by the applicant's character and performance.  The applicant placed mission first, went above and beyond the call of duty, was top performer in the company, and was committed to the job.  Also, the applicant's honor and integrity was beyond reproach.  

	c.  four evaluation reports for the periods ending March 2006, 31 October 2007, 31 October 2008, and 31 October 2009 in which he was consistently rated as "Among the Best" and as "Sucessful-1/Superior-1"  (3 reports) and "Sucessful-2/Superior-2" (1 report).  

	d.  Alsip Police Department Performance Evaluation for the period 1 January to 31 December 2007 shows he received a total score of 74 points.

	e.  notarized statement from the applicant's spouse alleging the applicant read statements supposedly made by her to Mr. J.V.  She alleged she never spoke to Mr. J.V., but he repeatedly attempted to call their house number.  Mr. J.V. was advised by local police to stop calling or he would be arrested for phone harassment.  There was a statement made that on the weekend of 14 February 2010, the applicant spent the weekend with Mrs. V.  However, the applicant spent that weekend with her and their children.  In addition, she never exchanged emails on Facebook with a woman named L.A.  She attested she and the applicant were in the process of a divorce and the divorce was based on personal reasons and not any other.  

	f.  letter from Mrs. D.V.'s lawyer, dated 14 December 2010, addressed to the CG at Fort Benning, GA.  The attorney attested he represented Mrs. D.V. in her divorce case.  Mr. J.V. made allegations against the applicant regarding adultery with Mrs. D.V., who later explained her relationship with the applicant with the IO.  In his opinion, the applicant was not responsible for damaging Mr. and Mrs. D.V.'s marriage.  Mr. J.V.'s years of adultery, alcoholism, and both verbal and physical abuse led to the end of his client's marriage.  Documents show Mr. J.V. was forced to resign from his job as a police officer for damaging and dangerous conduct and behavior and he was being investigated by the Chicago Police Department and internal affairs for possibly releasing evidence on a homicide case to threaten Mrs. D.V.  

13.  In a memorandum, dated 17 December 2010, his brigade commander stated he reviewed the rebuttal and recommended the GOMOR be filed in the applicant's AMHRR.  The CG stated he had no reasonable doubts the applicant had inappropriate relationships with the three women interviewed by the IO.  

14.  In a MFR, dated 6 January 2011, his former CO stated he had been given a copy of the 15-6 investigation with the findings memorandum in order to review the findings.  His former CO contends:  

	a.  the findings in the 15-6 investigation didn't support a conclusion and there was no actual evidence presented indicating the applicant's guilt.  

	b.  the IO specified three elements of adultery under Article 134, UCMJ at the conclusion of the findings memorandum; however, the accusations were not proven.  The content of the findings memorandum showed the accuser's word against the applicant's word.  This doesn't constitute proof. 

	c.  there was a great deal of evidence that was not considered and was not covered in the 15-6 investigation.  

15.  In a document indicating the recommendations for the filing the applicant's GOMOR, it shows the company commander didn't recommend filing and the battalion and brigade commanders recommended the GOMOR be filed in the applicant's AMHRR.  

16.  In a memorandum, dated 21 January 2011, the CG stated he carefully considered the GOMOR, the circumstances of the misconduct, and all matters submitted by the applicant, along with recommendations of subordinate commanders.  He directed the GOMOR be placed permanently in the applicant's AMHRR with all allied documents.  

17.  A review of the applicant's military records in the Interactive Personnel Electronic Records Management System (iPERMS) revealed that the GOMOR and allied documents were filed on the performance portion of the applicant's AMHRR.

18.  He was promoted to SFC on 1 April 2011.  

19.  He was released from active duty on 18 June 2011 and was transferred to his Reserve unit on the following day.  

20.  On 20 October 2011, the DASEB denied the applicant's request for removal or transfer of his GOMOR, dated 9 December 2010.  

21.  He received an annual NCOER for the period ending 30 October 2011 which shows he was rated as a Senior DS.  He received a "Yes" rating for all the Army values.  The rating official evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Among The Best."  The SR evaluated the applicant's overall performance as "Successful/Block-2" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior/Block-1.  The SR gave all positive bullet comments including a recommendation for promotion to First Sergeant.

22.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 3 covers unfavorable information in official personnel files.  

   a.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  
   
b.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, 
may be filed in the AMHRR maintained by the U.S. Army Human Resources Command, the Army Reserve Personnel Command, or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the AMHRR will be filed on the performance portion (P-portion).  The direction for filing in the AMHRR will be contained in an endorsement or addendum to the letter.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR on 9 December 2010 for engaging in inappropriate relationships with three different women, and for adultery in violation of Article 134, UCMJ.  

2.  The evidence of record shows the GOMOR and allied documents were properly filed on the performance fiche of the applicant's AMHRR in accordance with applicable regulations.

3.  The evidence of record shows he was promoted to SFC on 1 April 2011.

4.  Counsel contends the allegations in the GOMOR were unfair, untrue, and unjust.  However, the evidence of record shows the applicant underwent a 15-6 investigation in which the IO determined the applicant committed adultery and had inappropriate relationships with two other women.  The 15-6 investigation was properly reviewed by an Attorney-Advisor who further determined that the evidence supported the findings that the applicant engaged in an inappropriate relationship with a married woman and three other females.  Therefore, the evidence of record does not support counsel's claims that the 15-6 investigation was fatally flawed.  

5.  Counsel contends that the DASEB's failure to consider the applicant's evidence was also unfair and unjust.  However, there is no evidence that the DASEB did not consider all the evidence presented to the board and the record does not support his claims.
6.  The applicant's service record is void of evidence which shows he was the victim of a deceptive scheme by an abusive husband, Mr. J.V.

7.  The evidence of record shows the applicant received a GOMOR for misconduct and that it was filed in his OMPF.  He acknowledged he had read and understood the unfavorable information presented against him and submitted a statement in rebuttal.  Subsequently, the GOMOR was referred by a general officer for filing in the performance section of the applicant’s OMPF.

8.  The Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  As required by the applicable regulation, the GOMOR is properly filed in the performance section of his OMPF. There does not appear to be an error or an injustice.  The GOMOR is an important document that must serve to protect the integrity of the promotion system.  Removing or transferring this document would give him an unwarranted and unfair advantage over others who have served faithfully and without the blemish of a GOMOR.

9.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of the applicant’s OMPF.  There is no evidence of any violation of any of the applicant’s rights.   He has provided insufficient evidence or argument to form a basis of removing it or transferring it to the restricted portion of his 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 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)                                         AR20120004219





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ABCMR Record of Proceedings (cont)                                         AR20120004219



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