IN THE CASE OF:	  

		BOARD DATE:  20 September 2012

		DOCKET NUMBER:  AR20120006481 


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, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* removal of the general officer memorandum of reprimand (GOMOR), dated 7 May 2009, from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF))
* in the alterative, transfer of the GOMOR to the restricted section of his AMHRR
* the applicant's promotion to captain (CPT)
* the applicant's reinstatement on active duty
* a personal appearance

2.  Counsel states:

* the allegations which served as the basis of the GOMOR were untrue and unjust; they were asserted by untrustworthy sources
* several of the Soldiers interviewed had a personal vendetta against the applicant due to his no-nonsense leadership style
* although the applicant admitted that some of his actions may have carried an appearance of impropriety, he denies that the allegations of inappropriate conduct were true
* the applicant was never afforded the opportunity to review the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation; he was denied due process
* it is in the best interest of the Army to remove this GOMOR as it also has served its purpose
* it has been over 33 months since the applicant received the GOMOR, during which his performance has been stellar and outstanding
* the applicant has demonstrated commitment and loyalty through his excellent performance, deployment, and recommendation for award of the Bronze Star Medal
* the applicant has been passed over for promotion twice and discharged from the Regular Army as a result of this injustice
* the findings of the Army Regulation 15-6 investigation are inconsistent with the applicant's character and performance as a former noncommissioned officer (NCO), commissioned officer, and Soldier
* the applicant is an outstanding officer and he deserves to have the GOMOR removed

3.  Counsel provides:

* contested GOMOR and filing instructions
* Department of the Army Suitability Board (DASEB) denial decision
* multiple officer evaluation reports
* multiple letters of support and/or character reference letters from officers and NCO's
* email exchange
* Officer Record Brief
* multiple award certificates
* Investigating Officer's (IO) findings and recommendations

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 July 1993 and he held military occupational specialty 25M (Multimedia Illustrator).  He was honorably discharged on 24 December 2001 after having completed 8 years, 4 months, and 14 days of active service.

2.  He again enlisted in the Regular Army on 31 January 2007.  He attended and successfully completed the 14-week Officer Candidate Course and he was honorably discharged on 16 May 2007 to accept a commission as an officer of the Army.

3.  He was appointed as a Regular Army commissioned officer, Transportation Corps, and he executed an oath of office on 17 May 2007.  He successfully completed the Transportation Basic Officer Leader Course and he was promoted to first lieutenant on 17 November 2008.

4.  On 21 February 2009 while the applicant was deployed as an augmenter to the 503rd Maintenance Company as a platoon leader in Iraq, an IO was appointed to identify facts and make findings and recommendations with regard to allegations of inappropriate conduct initiated by the applicant against junior enlisted females in his platoon.  Specifically:

* did the applicant inappropriately touch Private C____ J. M____'s hair
* did the applicant attempt to engage in an inappropriate relationship with Private First Class D____ D____
* did the applicant or his agent conduct illegal searches of Private B____ and Private First Class D____'s living quarters
* has the applicant acted inappropriately toward any other female Soldiers in the platoon

5.  After considering the facts, the IO found:

* there was no conclusive evidence the applicant touched Private M____'s hair, although she and other female privates had been to his quarters on more than one occasion
* the applicant had been counseled as a result of the perception and concern
* the applicant and Private First Class D____ were both open to the establishment of a relationship, mediated through another Soldier, but did not progress since he was a married Soldier
* the applicant directed an illegal search of two female privates’ living quarters while the females were asleep and with no probable cause
* the applicant acted inappropriately towards Private First Class D____ during his attempt to get to know her personally
* the applicant communicated inappropriately with Private B____ during an email; the email was both unprofessional and unbecoming an officer
* there was no evidence the applicant made comments about Private B____'s and Private M____'s breasts

6.  The IO recommended the applicant be considered for a GOMOR, Article 15, a show-cause board, and relief from his duties as a platoon leader.  She also recommended training on fraternization and on inappropriate relationships for the battalion.

7.  On 28 March 2009, a brigade judge advocate of the 10th Sustainment Brigade reviewed the investigation concerning the allegations and found it legally sufficient, complete with no material error, supported, and consistent.

8.  On 30 March and 1 April 2009, the applicant's immediate, intermediate, and senior commanders recommended that the applicant be reprimanded, relieved, and ordered to a show-cause board.

9.  On 7 May 2009, at Joint Base Balad, Iraq, the Commanding General (CG), 3rd Sustainment Command, issued the applicant a GOMOR for his misconduct.  The GOMOR stated that between 14 September 2008 and 19 February 2009, he conducted himself in a manner unbecoming an officer and a gentleman with several junior female Soldiers in his unit.  Specifically, he sent sexually explicit email to one Soldier, made sexually suggestive comments to two Soldiers, and attempted to establish an inappropriate relationship with a fourth Soldier.  Additionally, he maltreated two junior enlisted female Soldiers by subjecting them to searches of their living quarters without authorization.  His blatant disregard for professional military standards and the law was appalling.  His actions brought discredit upon him, the officer corps, and his command.  The reprimand was an administrative action, not punishment under the Uniform Code of Military Justice.

10.  The applicant acknowledged receipt and submitted a rebuttal wherein:

* he apologized for his conduct and admitted his lapse of judgment had caused his leadership to divert their attention from the war to address this issue
* he recognized his conduct, although unintentional, was inappropriate in several instances
* he acknowledged he should have known better and realized he should have conducted himself at all times as a commissioned officer in both deed and word
* he had been married for 13 years and elected to inform his spouse of this reprimand
* he humbly asked that the GOMOR be filed in the local file and provided multiple letters of support and/or character reference letters

11.  The applicant's intermediate and senior commanders recommended the GOMOR be filed in his AMHRR.  The intermediate commander also stated that on at least one occasion, prior to the formal Army Regulation 15-6 investigation, the applicant was provided the opportunity to reassess and take corrective action on his methods of interaction with females.  Instead, he revised his technique and focused on a bout of transference culminating with an attempt to remain in the continental United States following his leave.
12.  On 27 May 2009, after reviewing the circumstances, supporting documents, alternative measures, and the applicant's rebuttal, the CG directed that the GOMOR be filed in the performance section of the applicant's AMHRR.

13.  On 1 June 2009, the Commander, 10th Sustainment Brigade, relieved the applicant from his duties as a platoon leader.

14.  On 7 September 2010, the applicant petitioned the DASEB for removal of the contested GOMOR from his AMHRR.  However, on 2 December 2010, by unanimous vote, the DASEB determined the overall merits of his case did not warrant removal or transfer of the contested document.  Accordingly, the DASEB denied any relief.

15.  The applicant was twice considered for promotion to CPT but not selected.  Accordingly, in June 2011, he was notified he would be discharged from the Regular Army as required by law and regulation no later than 1 November 2011. 
He acknowledged receipt of the notification.

16.  He was honorably discharged from active duty on 1 November 2011 by reason of non-selection for promotion.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 5 months, and 15 days of creditable active service during this period.

17.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 2 November 2011.

18.  He submitted:

	a.  an OER covering the period 23 October 2007 through 9 May 2008 that shows "Outstanding Performance – Must Promote" and "Best Qualified" ratings;

	b.  an OER covering the period 10 May 2008 through 25 September 2009 that shows "Satisfactory Performance – Promote" and "Fully Qualified" ratings;

	c.  previous NCO evaluation reports showing "Among the Best" and "Superior" ratings;

	d.  multiple award certificates (including multiple awards of the Army Commendation Medal and Army Achievement Medal), certificates and letters of commendation/appreciation/achievement, unsigned/unapproved recommendation for award of the Bronze Star Medal, diplomas, transcripts, and other documents;

	e.  multiple letters of support and/or character reference letters from NCO's and officers whom he knows or served with and attest to his professionalism and character; and

	f.  OER's for the periods 29 May 2010 through 28 February 2011 and 1 March 2011 through 1 November 2011 that both show "Outstanding Performance – Must Promote" and "Best Qualified" ratings.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

20.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, states that once an official document has been properly filed in the AMHRR, 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  Paragraph 7-2b(1) states that unfavorable 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.

21.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Table 2-1 states that administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the AMHRR.

22.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of commissioned officers on the Active Duty List (ADL). 
Chapter 7 provides for special selection boards (SSB).  It states SSB's may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army (HQDA), discovers one or more of the following:

* an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error – this would include officers who missed a regularly scheduled board while on the Temporary Disability Retired List and who have since been placed on the ADL (SSB required)
* the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary)
* the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary)

23.  Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) caused an individual's non-selection by a promotion board, and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends:

* the May 2009 GOMOR should be removed from his AMHHR or transferred to the restricted section
* he should be promoted to CPT
* he should be reinstated to active duty
* he should be granted a personal appearance

2.  A formal investigation conducted by an IO established by the preponderance of evidence, including interviewing the applicant himself, that the applicant, a platoon leader in combat, conducted himself in a manner unbecoming an officer and a gentleman with several junior female Soldiers in his unit.  Specifically, he sent sexually explicit email to one Soldier, made sexually suggestive comments to two Soldiers, and attempted to establish an inappropriate relationship with a fourth Soldier.  Additionally, he maltreated two junior enlisted female Soldiers by subjecting them to searches of their living quarters without authorization.  Accordingly, he was reprimanded.

3.  He was provided with an opportunity to submit a rebuttal and he did so.  In his rebuttal, he not only acknowledged the misconduct and apologized, he also acknowledged that although unintentional, his behavior was inappropriate in several instances and he acknowledged he should have known better and realized he should have conducted himself at all times as a commissioned officer in both deed and word.

4.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his AMHRR.  There is no evidence of an error or an injustice.  The evidence considered by the IO and the GOMOR imposing authority sufficiently established by a preponderance of the evidence the applicant violated the principles of ethical conduct when he conducted himself in a manner unbecoming an officer and a gentleman with several junior female Soldiers in his unit.

5.  Among the purposes of filing unfavorable information is protection not just for the Soldier's interests, but for the Army's as well.  Here, the applicant failed to achieve his command responsibility.  The fact that the DASEB denied him relief or that it has been 33 months since he received the GOMOR does not mean this violation should not go unrecorded in his AMHRR simply because he believes the GOMOR has served its purpose.

6.  His allegations and arguments here can be summarized as simply "rearguing" the same argument he submitted to the DASEB.  He has stated the reasons he disagrees with the judgment and the decisions of the officer who imposed the GOMOR.  He is arguing that the ABCMR should give the various items of evidence a different weight and come up with different conclusions than the officers who were responsible for the actions that took place.  With respect to his arguments:

	a.  The applicant's outstanding performance throughout his enlisted and commissioned officer career and his combat service are noted.  However, the fact that the contested GOMOR is inconsistent with the evaluation reports he previously or later received has no bearing on the contested GOMOR.

	b.  There is no legal or regulatory requirement for the appointing officer or the IO to provide the applicant a copy of the Army Regulation 15-6 investigation.  The fact that he did not get a chance to see it does not imply he was denied due process.  The resultant action – the GOMOR – was an administrative action, not punishment under the Uniform Code of Military Justice.

	c.  His contention that junior female Soldiers were out to get him due to his leadership style is speculative at best.  Whatever the intent, the perception of an inappropriate relationship was there and the applicant knew it, given that the battalion commander had previously counseled him regarding this issue.  The IO believed there was a preponderance of evidence that the applicant committed the misconduct and the junior enlisted females within his platoon had a significant perception of this misconduct.

	d.  His contention that the actions mentioned in the GOMOR are inconsistent with his character is not supported by any evidence.  Given the applicant's years of experience as a Soldier, NCO, and commissioned officer, and given the totality of the combat situation, he was privileged to be placed in a leadership position and trusted with the health, welfare, combat readiness, and lives of his Soldiers.  His behavior indicated he lacked maturity, self-control, and good judgment.  Given the applicant's position and the Army's policy against harassment, the junior female Soldier's testimonies do not appear to be overly vindictive or vengeful.

	e.  The applicant was never recommended for promotion to CPT and as such there is no reason to promote him now.  Additionally, an SSB may be convened to consider or reconsider a commissioned or warrant officer for promotion when HQDA discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error, the board acted contrary to law, the board made a material error, or the board did not have some material information.  The applicant does not meet the criteria for an SSB.

	f.  The applicant was discharged from active duty after he had been twice non-selected for promotion.  This is a statutory and regulatory requirement.  Reinstating him to active duty is contrary to law and regulation and is not supported by any evidence.

	g.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

7.  The key issue here is that the applicant's actions were confirmed by a formal investigation; they were not vague, unspecific, unproven, unfactual, or minor in nature.  He eroded the special trust and confidence awarded to him as an officer and no longer possessed the professionalism or fidelity to be allowed to continue to lead Soldiers.  He was relieved by his brigade commander shortly after being reprimanded.

8.  After a comprehensive review of the evidence in the applicant's AMHRR, the applicant's contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show by clear and convincing evidence that the GOMOR, dated 9 May 2009, contains a material error, inaccuracy, or injustice.  Therefore, he is not entitled to 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 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)                                         AR20120006481



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ABCMR Record of Proceedings (cont)                                         AR20120006481



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