IN THE CASE OF:	  

		BOARD DATE:	    28 May 2013

		DOCKET NUMBER:  AR20120014559 


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, in effect:

* modification of a General Officer Memorandum of Reprimand (GOMOR)
* transfer of the GOMOR to the restricted portion of his Army Military Human Resource Record (AMHRR) (previously known as official military personnel file); and 
* as a result of either correction above, promotion consideration by a Special Selection Board (SSB)

2.  The applicant states the basis for this request is a recent recommendation/ decision by the U.S. District Court, Western District of Michigan Southern Division; the results of the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers); and the accuser's recanted statement.  He adds:

* he believes he was given the GOMOR for making an Inspector General (IG) complaint against a staff member
* the GOMOR was based on fabricated information
* the two witnesses named by the accuser both indicated they had no knowledge of inappropriate activities by the applicant and the accuser
* the GOMOR should be modified to remove all sexual references as recommended by the court

3.  The applicant provides the documents as listed on his application.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Michigan Army National Guard (MIARNG) and executed an oath of office on 14 February 2000.

2.  He served in a variety of assignments and he was promoted to captain (CPT) in the MIARNG on 23 March 2004.  He entered active duty on 2 February 2004 and served in Germany and Bosnia.  He was assigned to Headquarters and Headquarters Company, 38th Infantry. 

3.  The specific facts and circumstances leading to the incident in question are not contained in the applicant's AMHRR.  However, it appears that on 22 November 2005 an informal AR 15-6 investigation was initiated into the applicant's alleged relationship with a female noncommissioned officer (NCO) from another nation.  The informal 15-6 investigation found/recommended:

* there was insufficient evidence to find that the applicant had an adulterous, sexual or otherwise inappropriate relationship with a lower ranking female Soldier
* there was insufficient evidence to find that the applicant engaged in acts unbecoming an officer and gentleman with respect to the female NCO
* specifically, there was no evidence that he caused or influenced the female NCO to retract allegations of an improper relationship that she apparently made to the Inspector General (IG)
* no punitive or administrative action be taken against or regarding the applicant

5.  The IG report of investigation was not available for review.  The statement made by the female NCO to the IG was not available for review, nor was her subsequent recanted statement.

6.  On 10 September 2006, the applicant was issued a GOMOR by the Commanding General (CG), 88th Regional Readiness Command, Fort Snelling, MN.  He was reprimanded for:

* engaging in a long-term adulterous and inappropriate sexual relationship with a Soldier of lesser rank who was a member of Austria's armed forces
* making false statements about his marital status that induced the lower ranking Soldier to engage in sexual relations with him
* while married to another woman, he provided the lower-ranking Soldier with an engagement ring and made representations to others that she was his fiancée
* inflicting severe anxiety, pain, and depression on the lower-ranking Soldier through his long-term deception for selfish physical gratification 

7.  The GOMOR shows it was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  The applicant was advised that he had the right to submit a written rebuttal within 14 days of receipt of the GOMOR.

8.  The applicant acknowledged receipt of the GOMOR and provided a rebuttal.  In his rebuttal, the applicant indicated:

* he sincerely regretted any compromise of faith to his unit, family, or the Army
* he apologized for any actions (actual or perceived) that may have undermined the positive image of the Army
* it was his intention to talk to the lower-ranking Soldier as her friend and confidante and he believed that the confusion was a language issue
* she told him about her relationship problems and he gave her his opinions
* she used his email account to correspond with friends and family because she did not have an account
* he did not know he was not allowed to interact with NCOs of other nations
* he believed the matter was closed when the female NCO retracted her statements (however, a copy of this retraction is not included in the applicant's AMHRR and he did not submit a copy of this document with his application)

9.  On 18 January 2007, the GOMOR imposing authority reviewed the applicant's rebuttal and considered the circumstances of the case.  He directed that the GOMOR be filed in the applicant's AMHRR.

10.  On 11 June 2008, after careful consideration, the Department of the Army Suitability and Evaluation Board (DASEB) denied the applicant's request to remove the GOMOR from his AMHRR.  

11.  The applicant previously appealed to the ABCMR five times for removal of the GOMOR from his AMHRR between 17 July 2008 and 7 September 2011.  His requests were:

* twice denied by the ABCMR on 17 November 2008 and 28 April 2009
* administratively closed by the Board staff on three separate occasions on 27 February 2009, 4 November 2009, and 21 September 2011

12.  The applicant now provides a U.S. District Court, Western District of Michigan, Southern Division Court Order, dated 12 July 2012, prepared in response to his appeal of the previous ABCMR decisions.  It shows this court found no basis for affording the applicant relief and upheld the decision(s) made by the ABCMR.  This court also noted that the applicant had not appealed to the ABCMR for modification of the GOMOR.

13.  The applicant's AMHRR does not independently include a copy of the contested GOMOR.  However, it is included in each of the ABCMR previous consideration documents.

14.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It states that once placed in the AMHRR, a document becomes a permanent part of that file.  The document will not be removed from the AMHRR or moved to another part of the AMHRR unless directed by competent authority.

15.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to (1) authorize placement of unfavorable information about Army members in individual official personnel files; (2) ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and (3) ensure 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.  It establishes the DASEB to hear appeals for removal of documents.

16.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Paragraph 2-3a states unless otherwise provided by another directive, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board. Therefore, the appointing authority may take action less favorable than that recommended with regard to a respondent or other individual, unless the specific directive under which the investigation or board is appointed provides otherwise. The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the investigation or board.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR should be modified to remove all sexual references because of the findings of the AR 15-6 investigation, the accuser's recanted statement, and the U.S. District Court's Order suggestive recommendation to request the ABCMR consider this action.

2.  The U.S. District Court Order that the applicant now provides confirms this court upheld the five decisions made by the ABCMR in the applicant's previous appeals.  This court's observation that the applicant never submitted a request to modify the GOMOR is noted.  However, notwithstanding the findings of the 
AR 15-6 investigation, the GOMOR imposing authority disagreed and took action as he saw fit, as was his prerogative per AR 15-6, paragraph 2-3a.

3.  The imposing commander was also aware of the accuser's recantation and exercised his discretion to issue the GOMOR based upon his own consideration of the evidence.  Accordingly, it would be imprudent to substitute the judgment of the ABCMR for that of the commanding general.  Therefore, the applicant's request to modify the GOMOR or to transfer it to the restricted section of his AMHRR is denied.

4.  The evidence of record confirms the applicant's GOMOR was properly imposed as an administrative measure and it was properly filed in his AMHRR as directed by the commanding general who imposed the GOMOR.

5.  Finally, since there is no reason to modify or transfer the GOMOR, there is no material error in his records and, as such, there is no reason to entitle him to an SSB.

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)                                         AR20120014559





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ABCMR Record of Proceedings (cont)                                         AR20120014559



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