IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120015172 


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 23 January 2009, from his Official Military Personnel File (now known as his Army Military Human Resources Record (AMHRR)).

2.  The applicant states:

* the GOMOR that was placed in his AMHRR is unjust and the allegations are untrue
* the allegations were found unsubstantiated during a show cause board for retention
* he appealed to have the GOMOR removed twice through the Department of the Army Suitability Evaluation Board (DASEB)
* DASEB responded by stating the GOMOR has not served its intended purpose within a 3-year specified timeframe
* DASEB also responded by stating that there is insufficient evidence to merit removal or transfer of the GOMOR
* it has been over 3 years since the imposition of the GOMOR and he believes the GOMOR is the reason for his non-selection for promotion to chief warrant officer three
* he is pending a notification for retirement/separation process for non-selection for promotion
* under Title 10 officers who are twice non-selected for promotion and have over 18 years of active Federal service are retained until they reach retirement eligibility
* unfortunately, he will be approximately 7 months from obtaining the 18 years to continue to serve until retirement

3.  The applicant provides:

* Notification of Board of Inquiry Results, dated 3 May 2012
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Notification of DASEB's Decision, dated 15 February 2012
* DASEB Record of Proceedings, dated 19 January 2012
* Memorandum for Army Review Boards Agency (ARBA), dated 4 November 2011

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army, the applicant accepted an appointment as a Reserve warrant officer one (WO1) on 8 February 2006 and entered active duty that date.  He was promoted to chief warrant officer two (CW2), effective 8 February 2008.

2.  On 25 July 2008, the applicant's commanding officer received the findings and recommendations of a commander's inquiry into the facts and circumstances surrounding the applicant's relationship with Ms. S_________ (a married woman).  The investigating officer (IO) found that the applicant engaged in an inappropriate relationship with Ms. S_________; however, the IO could not find proof that the two engaged in sexual intercourse.  The commander's inquiry revealed that he sent her text messages multiple times a day and at various times of the night ranging from 2200 hours to 0630 hours.  He spent time with her and her children in a hotel room while she was separated from her husband and he sent her emails on numerous occasions which contained the statement "I love you."  The IO recommended:

* the applicant receive a GOMOR for his inappropriate relationship with Ms. S_________
* the GOMOR be placed the applicant's AMHRR
* the command put a no-contact order in place between the applicant and Ms. S_________

3.  On 23 January 2009, the applicant received a GOMOR for developing and maintaining an inappropriate relationship with a married woman from November 2007 to July 2008.  The applicant was told that the reprimand was being imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.  He was instructed to acknowledge receipt of the GOMOR and to reply by memorandum no later than 5 calendar days after receipt.

4.  The applicant acknowledged receipt of the notification.  He submitted a statement in his own behalf wherein he requested that the GOMOR be filed in the restricted portion of AMHRR and stated that:

* if provided the opportunity for honorable service, his chain of command would not be disappointed
* he recognized the full implications of the decision that must be made
* he understood that the GOMOR filed in his AMHRR at that stage would undoubtedly end his career
* the decision to issue him a GOMOR was made as a result of a Commander's Inquiry 
* the decision was based on assumed and erroneous information provided by the husband of Ms. S_________, the woman to whom he was accused of having the inappropriate relationship
* the nature of his interaction with her was always innocent and never with the intent of gaining any profit or personal favors
* many of the alleged phone calls and text messages were done by Ms. S_________'s cousin Ms. R______, who he had been dating since September 2006
* he believed Ms. S_________'s husband got into her email account and altered them to suggest that she was having an affair
* he had been around her children, but never alone, always in the presence of her cousin
* he was wrong in the way he handled his personal life and he accepted full responsibility for his actions

5.  In his statement, the applicant went on to list his Army accomplishments and he requested not to be defined by the mistake he made, but by his past dedicated service and potential for further honorable service.  Along with his statement, he submitted statements from Ms. S_________ and her cousin attesting to the fact that he never had an inappropriate relationship with Ms. S_________ and that it was all made up accusations by Ms. S_________'s husband.

6.  The applicant's chain of command recommended filing the GOMOR in the performance portion of his AMHRR.  His battalion and brigade commanders stated that this was his second offense.  He had received a GOMOR during his last deployment for having an inappropriate relationship with a specialist.  His battalion commander stated that the first GOMOR was filed locally and that the applicant obviously had not learned his lesson.
7.  On 12 February 2009, the commanding general (CG) directed that the GOMOR be filed in the performance portion of his AMHRR.

8.  The applicant submitted an appeal to the DASEB on 4 November 2011, requesting that the GOMOR, dated 23 January 2009, be removed or transferred to the restricted portion of his AMHRR.  The DASEB determined that there was no substantial evidence that the GOMOR had served its intended purpose or was untrue or unjust.  The DASEB determined that the overall merits of the case did not warrant removal or transfer of the contested GOMOR.  

9.  A U.S. Army Human Resources Command's memorandum dated 16 January 2012, directed that the applicant show cause for retention on active duty because of misconduct, moral or professional dereliction of duty.  On 1 March 2012, the CG directed a field Board of Inquiry (BOI).  The BOI was conducted and approved on 19 April 2012.  The board found that the allegation of the applicant having an inappropriate relationship with Ms. S_________ was not supported by a preponderance of the evidence.  The BOI determined that the applicant should be retained on active duty without reassignment and the elimination action was closed.

10.  The applicant requested reconsideration of his appeal to the DASEB on 8 May 2012 and the DASEB denied his appeal on 28 June 2012 stating the following:

* the BOI is limited to making a determination whether to retain (with or without reassignment) or eliminate an officer which is not binding upon the DASEB
* a BOI is an independent administrative process separate from the administration of GOMORs, which is entirely within the discretion and purview of the imposing authority
* a BOI's burden of proof is established by regulation as a "preponderance of the evidence" in making a determination on whether an officer will be retained in the Army
* the burden of proof for successfully removing a GOMOR from the AMHRR is established by Army Regulation 600-37 as "clear and convincing evidence" that the GOMOR is untrue and/or unjust
* the applicant had not provided evidence to refute the Commander's Inquiry's findings, no evidence that the inquiry was flawed or in error
* the applicant had not provided a supporting statement from the imposing authority recommending removal of the GOMOR
* the applicant had not provided any supporting statement from his chain-of-command stating that the GOMOR is either untrue or unjust
* the General Officer Show Cause Authority (GOSCA) cannot change a BOI's recommendation to something less favorable that what the BOI recommends; he/she may only close the case and forward it to HRC
* the GOSCA's forwarding memorandum should not be misinterpreted as an endorsement and/or recommendation
* the GOSCA's memorandum is merely an administrative formality and does not constitute an approval and/or disapproval of the BOI's discretion, contrary to the commander's statement that he approved the BOI's findings and agreed with its recommendation

11.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It 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; and

	b.  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.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  Although the BOI found that the allegation of the applicant having an inappropriate relationship with Ms. S_________ was not supported by a preponderance of the evidence, the IO of the commander's inquiry found that the applicant did engage in an inappropriate relationship with Ms. S_________.  The commander's inquiry revealed that he sent her text messages multiple times a day and at various times of the night ranging from 2200 hours to 0630 hours.  He spent time with her and her children in a hotel room while she was separated from her husband and he sent her emails on numerous occasions which contained the statement "I love you."  There is no corroborating evidence that any of the emails were sent by the cousin.
3.  The commander's inquiry also revealed that it was the second offense for the applicant because had received a GOMOR during a previous deployment for having an inappropriate relationship with a specialist.  His battalion commander stated that the first GOMOR was filed locally.

4.  As previously stated, a BOI is limited to making a determination whether to retain (with or without reassignment) or eliminate an officer.  A BOI is an independent administrative process separate from the administration of GOMORs, which is entirely within the discretion and purview of the imposing authority.  A BOI's burden of proof is established by regulation as a "preponderance of the evidence" in making a determination on whether an officer will be retained in the Army.  The burden of proof for successfully removing a GOMOR from the AMHRR is established by Army Regulation 600-37 as "clear and convincing evidence" that the GOMOR is untrue and/or unjust.

5.  The applicant has failed to show, by clear and convincing evidence, error or injustice in the action taken by the CG to file the GOMOR in his AMHRR.  He has also failed to show the statements in the GOMOR are untrue or unjust.

6.  The fact that 3 years has passed since he received the GOMOR is not a sufficient justification for removing the GOMOR from his AMHRR or transferring it to the restriction portion of his AMHRR.

7.  In accordance with applicable regulation, 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.

8.  The applicant has failed to show error or injustice in the actions taken by the Army in his case.  In view of the foregoing, his request should be denied.

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)                                         AR20120015172



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ABCMR Record of Proceedings (cont)                                         AR20120015172



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