IN THE CASE OF:	  

		BOARD DATE:  6 September 2012

		DOCKET NUMBER:  AR20120007077 


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 removal of a general officer memorandum of reprimand (GOMOR), dated 21 September 2005, from the restricted section of his official military personnel file (OMPF).  

2.  The applicant states the evidence shows he never committed the alleged act of misconduct toward any Soldier during his 26 years of outstanding military and community service.

	a.  The GOMOR was based on a perception of an improper relationship with a female Soldier within the battalion.  This did not occur, there was no relationship and the GOMOR was successfully appealed and placed in the restricted section of his OMPF.

	b.  Based on the alleged date, Sergeant (SGT) G_____n attended the Command and Staff meeting and immediately departed for her alternate place of duty.   She was not in the battalion's area.  She provided a memorandum for record (MFR) declaring that the allegation never occurred. 

	c.  He was scheduled to depart for Camp Doha in May 2005.  There was an off-post requirement to obtain primary and secondary drivers to drive off-post.  Captain (CPT) T____g requested she be allowed to escort him to Camp Doha.  SGT G_____n was present and also requested from CPT T____g if she could accomplany us to Camp Doha.  CPT T____g gave the authorization provided SGT G_____n received permission from her unit.  CPT T____g coordinated and received approval.
	d.  On his departure date, CPT T____g was no longer available due to a work conflict.  SGT W________n was assigned as a driver; however, he had concerns about him being assigned because he had recently received nonjudicial punishment (NJP) for unauthorized use of a government vehicle.  Since SGT G_____n already had authorization from CPT T____g with her unit's concurrence, Headquarters and Headquarters Company allowed both SGT's to accompany him to Camp Doha.  

	e.  He did not have the authority to assign SGT G_____n to become the driver.

	f.  The investigating officer should have been disqualified because all statements were made by enlisted Soldiers (with the exception of the noncommissioned officer involved in the allegations) assigned to the operations section.  The investigating officer at the time of the investigation was also the officer in charge of the operations section and was not senior to him in rank.

	g.  His gaining command never received notice of the investigation or the intent of the previous command to impose a reprimand.

	h.  He filed his rebuttal and never received notice of the final disposition of the GOMOR.  

	i.  He has continued to excel in his career to include an early promotion to lieutenant colonel in 2006.  This rebuttal provides clear and consistent evidence that the allegations were false and unjust.

3.  The applicant provides:

* An MFR from SGT G_____n, dated 29 September 2005
* an MFR from CPT Z_________l, dated 22 September 2006
* Lieutenant (LT)  B____m's memorandum, dated 13 September 2004
* an MFR from CPT T____g, dated 25 September 2005
* his Officer Evaluation Report (OER) for the period June 2004 to June 2005

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 21 October 1989.  He completed 4 years, 6 months, and 3 days of previous enlisted service.

3.  On 27 June 2001, he was promoted to major.

4.  On 21 September 2005, he received a GOMOR for his conduct from April 2005 to June 2005 when he engaged in an inappropriate relationship with a female U.S. Army specialist while deployed in Kuwait.  

	a.  He was observed chasing a junior enlisted female Soldier around a battalion conference room and patting her hand.  

	b.  When he redeployed to the United States he arranged to have the same junior enlisted female Soldier assigned to a detail to escort him to Camp Doha even though her presence was not necessary and another Soldier had already been assigned to the detail.  

	c.  His actions created the perception of an improper relationship and caused Soldiers to engage in gossip about an improper relationship between this Soldier and him.

	d.  His actions demonstrated a lack of judgment and discipline and compromised his position as an officer and leader of Soldiers.  As an officer, he had a responsibility to exercise mature judgment and to set a proper example for subordinates.  By engaging in this behavior, he failed in his responsibility.

5.  He submitted a rebuttal to the GOMOR.  

	a.  He submitted an MFR from CPT Z_________l, dated 22 September 2006, that spoke to the timeline for the weekly scheduled battalion command and staff meeting.  The timeline of the meeting would indicate that at the time he allegedly chased the female Soldier around a room the area would have been full of witnesses.  However, according to the investigator, only one person gave a statement about this alleged occurrence.
	b.  He submitted an MFR from CPT T____g, dated 25 September 2005.  She stated she had given SGT G_____n permission to accompany the applicant to Camp Doha for his departure from country.  Her permission was given with the caveat that SGT G_____n obtain permission from her unit.  CPT T____g had informally planned to accompany the applicant to Camp Doha to bid farewell also; however, she was unable to actually go due to work conflicts.  She did not rescind her permission for SGT G_____n to go to Camp Doha.

	c.  He submitted an MFR from SGT G_____n, dated 29 September 2005, the Soldier he allegedly chased.  She declared that he never chased her, and that at the time the alleged chasing would have taken place, she was at her place of duty.  She stated she was aware of the rumors about the applicant and herself, but chose to ignore them because they were not true and petty in nature.  She never mentioned these rumors to the applicant or CPT T____g because of the operations tempo and she didn't think it worth bringing it up.

	d.  On the date of his departure, SGT W________n was assigned as a driver; however, he did not trust him due to him recently receiving NJP.  He was told that because of the time frame no one was available.  However, since SGT G_____n already had permission to go to Camp Doha she drove.  He did not plan for SGT G_____n  to go with him to Camp Doha without CPT T____g. 

	e.  He was not aware that there was gossip, nor was he told that there was gossip.  SGT G_____n never told him or CPT T____g of rumors she was aware of because she thought they were petty in nature.

6.  He received an annual OER for the period 12 June 2004 to 11 June 2005.  His performance was rated "outstanding performance, must promote" by his rater and his promotion potential to the next higher grade was rated "best qualified" by his senior rater.  

7.  On 5 October 2005, after careful consideration of the information on the applicant, the group commander recommended the GOMOR be filed in his OMPF.  He stated there were too many indicators of an inappropriate relationship present.  The applicant's conduct towards SGT G_____n was prejudicial to good order and discipline.  He also stated "This officer should not be leading Soldiers in the future."

8.  On 5 October 2005, after considering his rebuttal and the recommendations of his chain of command, the imposing authority directed the GOMOR be filed in the applicant's OMPF.

9.  On 10 March 2006, he petitioned the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR from his record.

10.  On 18 March 2006, DASEB partially approved his request by transferring the GOMOR to the restricted file of his OMPF.

	a.  DASEB determined that there were two investigations.  The first investigation was not used as the basis for the GOMOR.  The second investigation was conducted by an officer senior to the applicant, reviewed for legal sufficiency, and had two of its findings used to form the basis for the GOMOR.

	b.  He provided the same statements from CPT Z_________l, CPT T____g, and SGT G_____n that he had submitted in rebuttal of his GOMOR.  DASEB determined the evidence was not of a clear and compelling nature sufficient to justify removal of the GOMOR.

	c.  The Chief, Army Reserve, recommended that his request to remove the GOMOR be denied.

	d.  DASEB opined that while there was insufficient evidence to support removal of the GOMOR, there was also a paucity of evidence sufficient to have justified the filing of the GOMOR in the applicant's performance file.  DASEB found the GOMOR would have been more appropriately filed in his restricted file rather than the performance file.  DASEB recommended transfer of the GOMOR to his restricted file.

11.  On 25 May 2006, he was promoted to lieutenant colonel.

12.  On his OER's from 11 June 2007 to 13 September 2010 his performance was rated "outstanding performance, must promote" by his rater and his promotion potential to the next higher grade was rated "best qualified" by his senior rater.

13.  He received a relief for cause OER for the period 14 September 2010 to 
24 February 2011.  

	a.  His rater, a brigadier general, lost confidence in his ability to display sound judgment, lead Soldiers, and care for the civilian and family members under his command.  He displayed a lack of judgment when he made unwanted advances to a junior female officer in his command.  His performance was erratic and unreliable, lacking the self control and emotional attributes expected of a field grade officer in dealing with Soldiers and his senior commander.  
	b.  His performance was rated "unsatisfactory performance, do not promote" by his rater and his promotion potential to the next higher grade was rated "do not promote" by his senior rater, a major general.  

	c.  The senior rater stated the applicant did not display good judgment during the rating period and his actions disrupted the good order and discipline in the command.

14.  On 3 October 2011, he received a second GOMOR.  This GOMOR was for sexual harassing a female captain.  He engaged in a pattern of systemic and recurring harassment of the captain during the months of February and March 2011.  His continuing harassing behavior, despite her requests to cease and desist, resulted in her filing a complaint of harassment with civilian authorities and obtain both civilian and military protective orders.  His behavior created an intimidating and hostile working environment for the captain.  His behavior was inappropriate, unprofessional, and detrimental to a healthy command climate.

15.  A memorandum, dated 23 November 2011, from Headquarters, 99th Regional Support Command, Fort Dix, NJ, notified him a Department of the Army Reserve Components Mandatory Selection Board selected him for promotion to colonel, pending Senate confirmation.

16.  Army Regulation 600-37 (Unfavorable Information) paragraph 3-4 d. Circumstances affecting the imposition or processing of administrative letters of reprimand.

	a.  When a Soldier leaves the chain of command or supervision after a commander or supervisor has announced the intent to impose a reprimand, but before the reprimand has been imposed, the action may be processed to completion by the losing command.

	b.  When the reprimanding official leaves the chain of command or supervision after stating in writing the intent to impose a reprimand, his or her successor may complete appropriate action on the reprimand. In such cases, the successor should be familiar with relevant information about the proposed reprimand.

	c.  When a former commander or supervisor discovers misconduct warranting a reprimand, an admonition, or censure, he or she may—

		(1)  Send pertinent information to the individual’s current commander for action.

		(2)  Personally initiate and process a letter of reprimand, admonition, or censure as if the former command or supervisory relationship continued.  In such cases, further review (if needed) will be accomplished in the recipient’s current chain of command.  Officials should consider the timeliness and relevance of the adverse information before taking administrative action at the later date.

17.  Army Regulation 600-37:

* authorizes placement of unfavorable information about Army members in individual official personnel files
* ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files
* ensures that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files

18.  This regulation also states:

	a.  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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

	b.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.  Such 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.  He contends the investigating officer should have been disqualified.  DASEB determined there were two investigations.  The first investigation was not used as the basis for the GOMOR.  The second investigation was conducted by an officer senior to the applicant, reviewed for legal sufficiency, and had two of its findings used to form the basis for the GOMOR.

2.  He contends his current chain of command at the time did not receive notice of the investigation or the intent of the previous command to impose a reprimand. The regulation states a former commander may personally initiate and process a letter of reprimand, admonition, or censure as if the former command or supervisory relationship continued.  However, further review will be accomplished in the recipient’s current chain of command only if needed.  Such an additional review was not required.

3.  He contends he was never notified of the final disposition of the GOMOR.  His mailing address appears the same on all the GOMOR related documents.  Therefore, it is unknown why he would not have received notification of the final disposition of the GOMOR.

4.  He contends the GOMOR was based on a perception of an improper relationship with a female Soldier within the battalion.  This did not occur, there was no relationship and the GOMOR was successfully appealed and placed in restricted section of his OMPF.

5.  The DASEB determined his evidence submitted was not of a clear and compelling nature sufficient to justify the removal of his GOMOR.  However, they determined it would be appropriate to move the GOMOR to his restricted file.  

6.  In his application to the ABCMR he has submitted the same evidence and statements he submitted in rebuttal to the GOMOR and to the DASEB.  The GOMOR was based on an appearance of an improper relationship.  Such a perception is solely in the eyes of the beholder.  The level of evidence required to affirm an appearance or perception of impropriety is much lower than that required to affirm an actual improper relationship.  Notwithstanding the finding of the DASEB, this Board finds that there was sufficient evidence to support the filing of this GOMOR in the performance section of his OMPF.  

7.  He has not provided clear and convincing evidence the GOMOR was not true or is unjust or that the presumption of regularity should not be applied or that the intended purpose of the GOMOR has been served.  Therefore, there is an insufficient basis to remove the GOMOR from his OMPF.  However, since the DASEB has already transferred it to the restricted section of his OMPF, this Board will not reverse the decision of the DASEB.

8.  He has since received a relief for cause OER and a second GOMOR for the sexual harassment of a female officer.  His actions again demonstrated his lack of judgment and discipline and compromised his position as an officer and leader of Soldiers.

9.  In view of the above, a pattern of his lack of judgment and discipline is shown when dealing with female Soldiers.  This pattern has seriously undermined his potential for positions of leadership and his credibility with his leaders and subordinates.  Therefore, there is an insufficient basis to remove his GOMOR from the restricted section 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)                                         AR20120007077



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ABCMR Record of Proceedings (cont)                                         AR20120007077



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