IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120005301 


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 that a General Officer Memorandum of Reprimand (GOMOR) be removed from the performance portion of her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) or placed in the restricted portion of her AMHRR.

2.  The applicant states that she received a GOMOR for being in an inappropriate relationship with a married junior enlisted Soldier.  The applicant continues at that time she lost her grandmother, with whom she had a very close relationship.  As a result, she was slightly depressed and not thinking clearly when making certain decisions, such as fraternizing with a junior enlisted Soldier.  She accepts full responsibility for her actions.

3.  The applicant states due to the GOMOR in her AMHRR she has been denied promotion to the rank of captain twice, which resulted in her being involuntarily separated from active duty.  Pictures of her inappropriate behavior and emails suggested that there was a relationship between her and the junior enlisted Soldier, but to her defense, she states that there was no relationship involved.

4.  She petitioned the Department of the Army Suitability Evaluation Board (DASEB) requesting the GOMOR be removed from her AMHRR and or transferred to the restricted portion of her AMHRR.  However, the petition was 



denied.  In the interim she joined the U.S. Army Reserve (USAR) in November 2011, and she was assigned to Tripler Army Medical Center, HI.  She contends for the last four years, she has continued not to give up on her dreams of serving her country and has stayed strong and positive through the whole ordeal.

5.  The applicant further contends that she has learned a lesson from her lack of judgment and has not been afraid to share the experience with others.  She believes the continuation of the GOMOR in the performance portion of her AMHRR is unjust because she is a different person now versus four years ago.

6.  The applicant provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Army Regulation (AR) 15-6 investigation, dated 7 May 2008, with exhibits A through Y 
* the GOMOR, dated 26 September 2008 and allied documents
* a DASEB response and allied documents, dated 1 September 2009
* a DASEB decision, dated 6 April 2010
* three Officer Evaluation Reports (OER's) for the periods 4 May 
2009 through 18 December 2009, 19 December 2009 through 
18 December 2010, and 19 December 2010 through 13 July 2011
* two Army Commendation Medal (ARCOM) certificates

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve Commissioned Officer of the Army at the rank of second lieutenant, Nurse Corps, on 21 December 2005.  On 1 July 2006, she entered active duty.  She was assigned for duty as a medical surgical registered nurse at Walter Reed Army Medical Center (WRAMC), Washington, DC.

2.  On 7 May 2008, an Investigating Officer (IO) completed an AR 15-6 investigation.  The investigation centered on an inappropriate relationship between the applicant and a married junior enlisted Soldier.  

3.  The IO found that there was sufficient evidence to conclude that the applicant and the junior enlisted Soldier did violate AR 600-20 (Army Command Policy), Chapter 4, paragraph 14c(2), which addresses "Dating, shared living 





accommodations other than those directed by operational requirements, and intimate or sexual relationships between officers and enlisted personnel."  The IO noted that the photographic evidence in exhibits J, K, L, and M clearly showed inappropriate and intimate physical contact between the applicant and the junior enlisted Soldier.   

4.  The IO further noted that the nature of the physical contact in the photographs was outside what would be considered appropriate social contact and was intimate in nature.  Additionally, the text in the exhibit H demonstrated a relationship outside of a purely professional context did exist.  The IO concluded there was evidence of a sexual relationship existing between the applicant and the junior enlisted Soldier.  Sworn statements from all witnesses state they did not know or did not believe that a relationship existed between the applicant and the junior enlisted Soldier.  Interviews with both the applicant's and junior enlisted Soldier's supervisors indicated that this had little to no impact on unit morale or cohesion.  

5.  The IO recommended that nonjudicial punishment be administered.  The IO further recommended that both parties receive a minimal adverse action of an official reprimand and that a maximum penalty consideration should be no higher than a general officer’s Article 15.

6.  On 26 September 2008, the applicant was reprimanded via GOMOR from the Commanding General (CG), North Atlantic Regional Medical Command and Walter Reed Army Medical Center (WRAMC), Washington, DC.  The GOMOR was based on evidence from the AR 15-6 investigation that she had engaged in an inappropriate relationship with a married junior enlisted Soldier with whom she worked. 

7.  The CG stated the evidence showed:

* she had an inappropriate relationship with a junior enlisted Soldier
* she appeared in photographs with the junior enlisted Soldier that depicted an intimate physical relationship
* she appeared in photographs with other enlisted Soldiers at her residence and the residence of another enlisted Soldier
* text messages from internet social network pages belonging to her and the junior enlisted Soldier demonstrating that a relationship existed outside of a purely professional context




8.  The CG further stated, "Your actions are unacceptable and fall below what I expect of an officer in the United States Army.  As an officer, you are expected to conduct yourself with the highest standards of ethics and professionalism and to set a positive example for your fellow officers and subordinates.  By fraternizing with a married junior enlisted Soldier, you clearly failed to meet those standards you are expected to uphold.  Your actions cast doubt on your fitness to continue to serve in positions of responsibility and leadership in the United States Army."

9.  On 30 September 2008, the applicant acknowledged receipt of the GOMOR and elected not to submit a statement in her own behalf.  

10.  On 5 November 2008, the CG directed the GOMOR be filed in the applicant's AMHRR.

11.  On 1 September 2009, the applicant petitioned the DASEB to transfer the GOMOR to the restricted portion of her AMHRR.  She submitted character statements of support from her former supervisors attesting to her character and outstanding duty performance, and recommending that the GOMOR be transferred to the restricted portion of her AMHRR.  In addition, she provided an OER for the period 17 June 2008 through 3 May 2009, showing she received ratings of "Outstanding Performance, Must Promote," from the rater, and a rating of "Best Qualified," from the senior rater.  All of the rating officials recommended her for immediate promotion to the next higher grade.

12.  On 27 October 2009, the DASEB returned her request without action.  An official of the DASEB stated a review of her AMHRR showed that she initiated the request before one year had elapsed.  The applicant was informed to resubmit her request after she received another OER evaluation report showing consistent, solid duty performance over a sustained period or when there was other substantial evidence that supported transfer of the GOMOR in question.

13.  On 7 January 2010, she petitioned the DASEB to transfer the GOMOR from her performance portion to her restricted portion of her AMHRR.  On 1 April 2010, the DASEB denied her request based upon the GOMOR's intended purpose not having been served.

14.  The appellant submitted three OER's for the periods:

* 4 May 2009 through 18 December 2009
* 19 December 2009 through 18 December 2010
* 19 December 2010 through 13 July 2011

15.  The reports show that she received ratings of "Outstanding Performance, Must Promote" from the raters, and rating of "Best Qualified" from the senior raters.  All of the rating officials recommended her for immediate promotion to the next higher grade.

16.  The applicant provided two ARCOM Certificates showing she was awarded the ARCOM for meritorious service during the periods 23 October 2006 through 2 May 2009 and 10 September 2009 through 31 July 2011.

17.  There is no record of other derogatory information in the applicant's military service records.

18.  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 reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

19.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance portion of the AMHRR.  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 AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

20.  Only memorandum of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted portion of the AMHRR.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  The above documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would 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.






DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that the GOMOR be transferred to the restricted portion of her AMHRR was carefully considered.  The GOMOR was given based on her inappropriate relationship with a married junior enlisted Soldier.  The CG, North Atlantic Regional Medical Command and WRAMC noted the applicant's actions cast doubt on her fitness to continue to serve in positions of responsibility and leadership in the United States Army.

2.  The applicant provided several commendable OER's from active duty and the USAR from June 2008 to July 2011.  She further provided character letters from two former supervisors and two ARCOM Certificates.  However, in this case good performance and achievements alone are insufficient to mitigate her indiscipline in the Army and are not a sufficient basis for transferring a GOMOR from the performance portion to the restricted portion of her AMHRR.

3.  By regulation, in order to support removal of a document properly filed in the AMHRR there must be clear and convincing evidence presented that shows that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  

4.  Presumably the CG made her decision to file the GOMOR in the applicant's AMHRR only after careful consideration of all the factors presented by the IO and evidence of record shows the applicant elected not to rebut GOMOR.  It appears the CG made an appropriate decision to file the GOMOR in the applicant's AMHRR.  Further, this document was properly processed and filed in the performance portion of her AMHRR in accordance with the applicable regulation.

5.  In view of the facts of this case, there is insufficient evidence to satisfy the regulatory burden of proof necessary to support transferring the GOMOR from the performance portion to the restricted portion of the applicant's AMHRR or removal of the document.  As a result, there is insufficient basis for granting the 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)                                         AR20120005301





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ABCMR Record of Proceedings (cont)                                         AR20120005301



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