IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120016931 


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 a General Officer Memorandum of Reprimand (GOMOR), dated 20 July 2010, be removed from his Army Military Human Resource Record (AMHRR).  

2.  The applicant states:

	a.  he did not commit the acts he is charged with.

	b.  on 20 July 2010, he received a GOMOR for what was described as an adulterous relationship with a subordinate.  Prior to receiving this GOMOR in June 2010, his chain of command explained to him he was not being charged with adultery but he was being charged with an inappropriate relationship with a subordinate that occurred outside of the workplace.  He did not know he was going to receive a GOMOR, let alone a letter charging him with adultery and ending his military career, until the actual letter was given to him.     

	c.  upon receipt of the GOMOR in July 2010, he learned he was being charged with an adulterous relationship.  When he explained that this was not the case, he was told in strong terms by a captain in the U.S. Navy that it was in his best interest to sign the letter as it was prepared or that things "would be much worse."  He reluctantly accepted this punishment and continued to Soldier despite the inaccuracies of the letter.  He admits that he exchanged emails outside the workplace and went to dinner with a Department of Defense civilian who was in his supervisory chain, but adultery absolutely did not occur and is an unjust and completely erroneous charge.  The other party in this case and he were going through divorces and formed a friendship through discussing similar life experiences; however, sexual relations or adultery were absolutely never part of this friendship.

	d.  there was never an investigation into the allegations made against him.  The other party involved was not allowed to make an official statement, nor was she interviewed.  None of his peers or supervisors were interviewed.  There was no evidence, admittance on his part or any other mention that a sexual relationship of any kind existed between the other party and himself.

	e.  the other party involved attempted on more than one occasion to make an appointment with the commander imposing the punishment to explain to him that adultery did not occur in this case and that the charges against him were not true.  The commander did not accept her request to see him and refused to speak with her or listen to what she had to say.

	f.  at the time the GOMOR was issued, both the other party involved and he were married to others, legally separated with divorces pending.  While they were not engaged in a dating relationship at that time, months after both of them were legally divorced and were no longer in the same command structure, they did begin a romantic relationship with each other that continues to this day.  Prior to engaging in a friendship with the other party, he was her supervisor, but was not her rating official and he was already identified to move to a new division outside of her command structure.       

	g.  he attempted on several occasions to gather the information that was used to charge him with adultery.  He knew that this charge was not true and wanted to see how his chain of command had arrived at charging him with adultery with a subordinate.  Numerous requests to his chain of command were unsuccessful as he was given conflicting stories as to the whereabouts of the information that was used to charge him.  In May 2012, after consulting with a military lawyer about the unjust and untrue nature of this GOMOR, he filed a Freedom of Information Act (FOIA) request to determine where the documents were and to request a copy of all information pertaining to his letter of reprimand be given to him.  He received a favorable response to the FOIA request and finally received a packet of email correspondence and other information via email on 14 June 2012. 

	h.  the information he received was a string of emails between the other party involved and himself that were exchanged on their personal email accounts outside the workplace.  These emails were obtained by the ex-husband of the other party involved, through illegal and unauthorized access to her personal email account.  Her ex-husband stole these emails and sent them to their chain of command.  

	i.  he noticed numerous inaccuracies, misrepresentations, and flat-out fabrications in these emails that were submitted by the ex-husband to his chain of command.  It became apparent very quickly that the ex-husband altered these emails and made numerous other accusations in his statements to the applicant's chain of command.

	j   he was not given the opportunity to view the stolen emails that were used to charge him nor was he given a copy of these emails.  His chain of command took these emails, which included accusations by the ex-husband of a relationship, favoritism, unfair bonuses, and unfair evaluations, accepted them for fact, and charged him without letting him see the emails or even asking him if the emails were accurate or true.  He was charged with adultery in the GOMOR, a charge which is not true, which did not occur, which he never admitted to, and a charge which he felt he was coerced into signing by his chain of command at the time.  No evidence exists of any bonuses, favoritism, unfair evaluations or any of the other accusations in the letter from the ex-husband to his chain of command.  None of these accusations ever happened.

	k.  the emails that the ex-husband sent to his chain of command are not the emails that were exchanged between the other party involved and himself.  The actual emails were less in number and did not include some of the language.  He and the other party involved carefully reviewed these emails and both agree that these emails, while redundant and duplicated, are embellished and fabricated to include many portions that neither of them composed.  Despite the addition of added language in the stolen emails he received from the FOIA request, no mention of sexual relations or a relationship of a sexual nature was mentioned leading him to continue to question how his chain of command assumed adultery occurred between himself and the other party involved and proceeded in charging him with adultery in a GOMOR.         

	l.  the adultery allegation in the GOMOR is untrue and unjust.  He did not engage in an adulterous relationship.  He admits that he should not have engaged in a friendship with someone subordinate to him in his supervisory chain and for that lapse in judgment he is truly remorseful.  His actions of emailing a co-worker and having a friendship outside of the workplace with this co-worker were admittedly improper.  At no time did his actions disrupt the integrity or discipline within his unit.  The Director of Intelligence, a Navy captain and his direct supervisor at the time, indicated that his actions did not harm the good order and discipline of the unit and composed a letter of support.
	m.  he believes the punishment he received, which in essence is the end of any forward advancement for the duration of his military career, was unjust, was unfounded, was based on false and inaccurate information and accusations, and was extremely harsh for what factually occurred.  When he had two Navy captains explaining to him that things "would be much worse" if he did not sign, he decided the best course to take was to not rebut the charge and quietly sign the paperwork and reluctantly accept this punishment.  Never having been in any kind of disciplinary trouble in his 17+ year military career, he was scared of what "much worse" meant and was not fully aware of the ramifications this false accusation would have on his career in the Army.      

	n.  his request to transfer the GOMOR to his restricted portion of his AMHRR was denied by the Department of the Army Suitability Evaluation Board (DASEB) in part because he did not receive concurrence from the issuing authority that the letter had served its purpose and was in the best interest of the Army to transfer the letter to the restricted portion of his file.  Also in part because not enough time had passed to show that the alleged misconduct was not a pattern of behavior.  During the time of his request to the DASEB, he had not received or read any of the emails that were stolen from the other party's email account and was not aware of the accusations that had been made against him in the emails that were sent to this chain of command.

	o.  he respectfully requests the GOMOR be removed from his AMHRR as factually inaccurate, untrue and unjust.  He believes that he has shown over his 17+ year career in the military that this is in no way a pattern of behavior for him.  He has shown year after year loyal and hard work to the military and service to the United States of America.  Most recently, he earned two top-block Officer Evaluation Reports (OERs) over the past two years and earned the ranking of number one officer among his peers in these reviews.

	p.  he respectfully requests this board to ask for an investigation into the illegal entry of the other party's personal email account and the subsequent theft of her and his personal property (in the form of email correspondence), which was stolen from personal email accounts, altered and forwarded to their chain of command for the purpose of damaging her and his character and career.  This information was stolen, misused and misrepresented from personal and private email accounts by a current active duty U.S. Air Force service member (ex-husband).      

3.  The applicant provides six enclosures outlined in his statement. 



CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army, the applicant was appointed a second lieutenant on 16 August 1999 and he entered active duty.  He was promoted to major on 1 March 2009.   

2.  On 20 July 2010, he received a GOMOR for engaging in an adulterous relationship with a civilian in his work section between April 2010 and June 2010.  On 30 August 2010, the commanding general directed the GOMOR be filed permanently in the applicant's AMHRR.

3.  In response to the GOMOR, on 9 August 2010, he stated his actions as a supervisor in an inappropriate supervisor-employee relationship were wrong, their long-term separations from their spouses do not excuse his lapse of personal judgment, and the decision to engage in this relationship was still wrong.  He did not state he was not guilty of the misconduct which served as a basis for the GOMOR.

4.  In August 2011, he submitted a request to the DASEB to transfer the GOMOR from his performance portion of his AMHRR to the restricted portion of his AMHRR.  He provided three letters of support and his recent OER.  

5.  On 1 December 2011, the DASEB denied his request to transfer the GOMOR to the restricted portion of his AMHRR and cited:

* the overall merits of the case did not warrant relief
* the DASEB did not see consistency over an extended period of time to show he has overcome the misconduct
* the applicant did not provide evidence to show the imposing authority supported his request based on intent served
* the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice 

6.  A review of the performance section of his AMHRR on the integrated Personnel Electronic Records Management System revealed a copy of the GOMOR in question.



7.  He provided the email correspondence he received under his FOIA request.

8.  He provided a statement, dated 28 August 2012, from the other party involved.  She attests:

* that no adulterous/sexual relationship existed between her and the applicant
* the charge of adultery is simply not true and based on an incorrect assumption
* on at least two occasions during the time when the applicant was in the process of being charged by his chain of command she attempted to make an appointment with the commander and her attempts were denied
* the emails that were exchanged between the applicant and her were taken from her personal email account by her ex-husband without her knowledge or permission
* the emails that were sent as part of the applicant's FOIA request were definitely not the emails they exchanged
* these emails were embellishments of their original emails

9.  He provided a statement, dated 28 August 2012, from the former Executive Assistant to the Commander, Joint Analysis Center.  He attests to the best of his knowledge, on or about June 2010 the other party on more than one occasion attempted to schedule an appointment with the Commander.  At that time, an inquiry was underway concerning her and the applicant; for that reason, she was not scheduled to meet with the Commander.   

10.  He provided two OERs for the periods 13 December 2009 through 
12 December 2010 and 13 December 2010 through 12 December 2011, which show his performance and potential for promotion were assessed as "Outstanding Performance, Must Promote" and "Best Qualified," and he was rated "Above Center of Mass."

11.  Army Regulation 600-8-104 (Army Military Human Resources Record Management), formerly known as "Military Personnel Information Management/
Records," prescribes the policies governing the AMHRR, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states, in part, that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records.



12.  Table 2-1 of Army Regulation 600-8-104 states administrative letters of reprimand and OERs will be filed in the performance section.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a major, received a GOMOR for engaging in an adulterous relationship with a civilian subordinate.  

2.  He contends the GOMOR should be removed from his AMHRR because he did not commit the acts he was charged with and the GOMOR is factually inaccurate, untrue and unjust.  However, notwithstanding the statement from the other party involved attesting that no adulterous/sexual relationship existed between her and him, in his written response to the GOMOR, he stated that "the decision to engage in this relationship was still wrong."  Since he did not state he was not guilty of the misconduct which served as a basis for the GOMOR, it is a reasonable inference that he was acknowledging that he had engaged in an adulterous relationship.    

3.  The governing regulation states administrative letters of reprimand will be filed in the performance portion of the AMHRR.   

4.  There is no evidence that the GOMOR was improperly imposed.  The 
GOMOR was properly filed in the performance section of the applicant’s AMHRR.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20120016931





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ABCMR Record of Proceedings (cont)                                         AR20120016931



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