IN THE CASE OF:	  

		BOARD DATE:	    8 August 2013

		DOCKET NUMBER:  AR20120014041 


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 he be advanced on the retired list from major (MAJ) to lieutenant colonel (LTC).  

2.  He states he was just notified the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation was never used back in 2004 during the board hearing.  This AR 15-6 investigation was never finalized or submitted by LTC M.  He would have never received the general officer memorandum of reprimand (GOMOR) in his Army Military Resource Record (AMHRR) without the finding during the 2004 AR 15-6 investigation.  

3.  He provides no additional documents.  

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.  The applicant was born on 3 October 1957.  On 19 May 1979, he was appointed as a Reserve commissioned officer in the rank of second lieutenant.  

3.  He was promoted to captain on 4 June 1986, to MAJ on 3 June 1993, and to LTC on 2 June 2000.

4.  On 7 January 2002, he was ordered to active duty in support of Operations Noble Eagle and Enduring Freedom.  

5.  On 20 July 2003, he was issued a GOMOR from the Commander, U.S. Army 90th Regional Readiness Command (RRC) for attempting to arrange an evening of private socialization with a subordinate female enlisted Soldier on 21 June 2003.  The GOMOR indicated that his persistent attempts to engage in unlawful fraternization constituted sexual harassment and affected the good order and discipline of the 343rd Public Affairs Detachment.  On 23 June 2003, he again contacted the female enlisted Soldier and again asked her to socialize privately with him.  

6.  He was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 23 July 2003.  

7.  On 25 July 2003, he acknowledged receipt of the GOMOR.  He indicated he intended to submit matters in rebuttal to the GOMOR.  A copy of his rebuttal was not in present in his records.  

8.  On 18 October 2003, the imposing authority directed the GOMOR be filed locally along with the applicant's response to the reprimand in his personnel file at the 90th RRC for 18 months.  

9.  On 16 January 2004, the Chief of Staff, Coalition Forces Land Component Command appointed an investigating officer (IO) to conduct an informal investigation into the facts and circumstances surrounding the allegation that the applicant sexually harassed a female enlisted Soldier while at Camp Doha, Kuwait.  The IO found that the female enlisted Soldier's testimony was credible and the applicant behaved in an inappropriate manner.  

10.  On 29 February 2004, the IO completed findings and recommendations of the AR 15-6 investigation.  The IO recommended the AR 15-6 information be forwarded to the applicant's chain of command and that a letter of reprimand be placed in his file.  The IO also recommended the applicant no longer be allowed in theater to film.  If it were determined the applicant was mission essential to the project and if he must continue to film Soldiers for "An Army of One" video, the IO recommended that someone be present.  
11.  On 30 June 2004, he was issued a GOMOR for sexually assaulting and fraternizing with a female enlisted Soldier.  The GOMOR indicated he went to her private quarters and compromised his rank and position when he made unwanted sexual advances toward the Soldier by touching and kissing her neck in a sexual manner.  He further made a comment that suggested that he wanted to meet with her in Washington, DC.  His actions were completely inappropriate and placed the Soldier in a position that caused her to question not only her safety, but also the professionalism and integrity of, and trust she placed in, commissioned officers.  

12.  On 15 July 2004, the applicant submitted a statement in rebuttal to the GOMOR.  He indicated the substantive allegations were false and his brief contact with the Soldier was always professional.  He did tell her if her "Army of One" interview was selected, a group which could include her would meet in Washington and celebrate.  He didn't understand why she made the allegations, but he believed they stemmed from various male Soldiers who saw him with the female Soldier.  In fact, one male Soldier came by when he was visiting her and filming inside her barracks room.  She didn't allow the Soldier to enter the room and rushed the conversation at the door.  She even complained about what had just occurred and stated "he can't take no for an answer."  Her "coarseness" and vulgarity in language while describing her relationship with that Soldier to him, gave the distinct impression that she was having relationship problems.  She even asked him for some advice.  He told her the camera was on and that her conversation would be recorded and she became silent.  When he first met her at the PX, she was bragging to a group of male Soldiers and it was obvious that they were not thrilled about her selection to be in the video.  

13.  He continued that she freely and voluntarily provided him with her address which is not consistent with a woman who feels harassed.  He stated that it was essentially a "he said/she said" scenario, and as such he included character references from civilians and Soldiers who had worked with him in the past, who attested to his character.  He had interviewed hundreds of enlisted Soldiers and had not breached any prohibition against fraternization.  He also indicated that he kept the door to her room open throughout the 15-minute shoot, and that she closed the door after speaking to her male friend.  

14.  Further, he was afraid that his reputation had already been clouded by the allegations; a number of Pentagon staffers and officers knew about the GOMOR before he was even notified.  This calls into question the discretion of the investigation.  He respectfully requested that the allegations be found unsubstantiated, that the reprimand be withdrawn, and in the alternative, that it not be filed in his AMHRR.

15.  On 9 September 2004, the imposing authority directed the GOMOR be filed in his AMHRR.  

16.  He was honorably released from active duty on 1 October 2004.  

17.  On 23 November 2004, the 90th RRC notified the applicant that involuntary separation action was being taken against him under the provisions of Army Regulation 135-175.

18.  On 15 December 2004, the U.S. Army Personnel Command, St. Louis, notified the applicant that the 2004 DA Colonel Reserve Components Selection Board (RCSB) had not selected him for promotion to colonel (COL).

19.  On 9 June 2005, the 90th RRC notified the applicant that a show cause hearing would commence on 15 July 2005 to consider him for administrative separation.

20.  The applicant's board proceedings were not available for review; however, he was recommended for discharge with an under other than honorable conditions discharge.  On 1 August 2005, his senior defense counsel submitted an appeal to the board stating an officer with over 20 years of creditable service, who is pending involuntary administrative separation, retains the option to transfer to the Retired Reserve in lieu of the separation.  The applicant respectfully requested that he be granted that option having tried unsuccessfully to clear his name through board proceedings.  He also argued that a significant legal error occurred at the board – the president's refusal to admit or consider important duty performance evidence, which he rejected as irrelevant.  He agreed that the evidence is irrelevant to the determination of whether the alleged misconduct occurred.  However, it is relevant to the board's determination of whether the misconduct justified separation and the type of discharge recommended.  

21.  On 17 November 2005, the U.S. Army Human Resources Command (HRC)-St. Louis, notified the applicant that the 2005 DA Colonel RCSB had not selected him for promotion to COL.

22.  On 21 December 2005, orders were published by HRC, St. Louis, MO, discharging him from the U.S. Army Reserve (USAR) effective 21 January 2006, under the provisions of AR 135-175 (Separations of Officers) with issuance of an under other than honorable conditions discharge.  


23.  On 2 October 2006, the Army Discharge Review Board determined his characterization of service was too harsh and, based on equity, his overall length and quality of service, unanimously voted to upgrade his discharge to general discharge (GD), under honorable conditions.

24.  On 23 February 2007, the applicant's original USAR discharge was voided and he was issued a new discharge order (D-02-704604) showing he was discharged from the USAR with a GD.

25.  On 13 September 2007, the ABCMR denied the applicant's request that his discharge orders be revoked and he be transferred to the Retired Reserve or the Individual Ready Reserve.

26.  On 28 June 2012, the Army Grade Determination Review Board reviewed the request for a grade determination on the applicant.  The Deputy Assistant Secretary of the Army (Review Boards) directed that when he becomes eligible and applies for retirement, he will be placed on the retired list in the grade of MAJ/O-4.  

27.  Title 10, U.S. Code, section 3964, provides that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the U.S. Army Reserve Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List on behalf of the Secretary for those who have attained 30 years of service.

28.  Army Regulation 135-180 (Army National Guard and Army Reserve - Qualifying Service for Retired Pay Nonregular Service), paragraph 2-11, states service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army’s Ad Hoc Review Board for final determination of the Soldier’s retirement grade if, during the mandatory review of the Soldier’s records by the Retired Activities Directorate, it is determined that revision to a lower grade was expressly for prejudice or cause or there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to LTC on 2 June 2000.  He received two GOMORs, on 20 July 2003 and on 30 June 2004 for  similar misconduct.  His first GOMOR was directed to be filed locally for 18 months and his second GOMOR was directed to be filed in his AMHRR.  Therefore, it is concluded that he did not hold the rank/pay grade of LTC/O-5 satisfactorily.  

2.  By law, retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  

3.  On 28 June 2012, the Deputy Assistant Secretary of the Army (Review Boards) directed that when the applicant becomes eligible and applies for retirement, he will be placed on the retired list in the grade of MAJ/O-4.

4.  Since he did not serve satisfactorily in the rank/pay grade of LTC/O-5 as a result of misconduct, it is concluded he is not eligible to be advanced on the retired list to the highest rank he held of LTC/O-5.  

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)                                         AR20120014041





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ABCMR Record of Proceedings (cont)                                         AR20120014041



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