BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20130000795 


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:

The applicant defers his request and statement to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's Army Military Human Resource Record (AMHRR) by removing a:

* General Officer Memorandum of Reprimand (GOMOR), dated 16 December 2009
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 February 2009 through 20 November 2009 (hereafter referred to as the contested NCOER)

2.  Counsel provides a background of the applicant's service and the circumstances that led to the GOMOR and the relief for cause (RFC) NCOER.  An Army Regulation 15-6 (Procedure for Investigating Officers and Board of Officers) investigation was conducted after it had been alleged the applicant had two separate adulterous affairs with two active duty service members.  However, there was no credible evidence that he committed the alleged offenses and the burden of proof was not met.  He also received an RFC NCOER that contained numerous regulatory irregularities.  Counsel makes the following arguments:

* The evidence in the case was insufficient to meet the burden of proof
* The NCOER contains improper and unjustly prejudicial comments

3.  Counsel provides: 

* the contested GOMOR, rebuttal, and allied documents/filing instructions
* the contested NCOER 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 18 December 2009
* DA Form 1574 (Proceedings by Investigating Officer/Board of Officers) and allied documents/sworn statements
* military protective order
* temporary order of the court
* Marriage certificate
* Extract of Army Regulation 381-20 (The Army Counterintelligence Program) 
* Special Operations Command South - Equal Employment Opportunity Complaint for Harassment and Deformation of Character
* Email exchange
* Listing of texts
* Order for [Applicant] to cease and desist sexual relations with members of the command while divorce is pending
* Release from active duty orders

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.  Having had prior service in the U.S. Army Reserve (USAR) and Army National Guard, the applicant enlisted in the USAR on 3 June 1998.  He served through multiple extensions or reenlistments in a variety of staff or leadership positions.

3.  On 1 December 2008, he was promoted to the rank/grade of master sergeant (MSG)/E-8.  His promotion orders state "The Secretary of the Army has reposed special trust and confidence in the patriotism, valor, fidelity, and professional 

excellence of [Applicant].  In view of these qualities and his demonstrated leadership potential and dedicated service to the U.S. Army, he is therefore promoted to master sergeant."

4.  He entered active duty on 11 December 2006.  He served as an
Anti-Terrorism Force Protection Cell NCO, assigned to Headquarters, Special Operations Command - South, Homestead Air Reserve Base, FL.  

5.  On 6 October 2009, an investigating officer (IO) was appointed to conduct an investigation into alleged improper relationship between the applicant and U.S. Navy Lieutenant (LT) BT and between the applicant and U.S. Army Sergeant First Class (SFC) ARA.

6.  On 17 November 2009, the Chief of Staff, Special Operations Command - South issued the applicant an order to cease and desist sexual relations with members of the command while his divorce is pending.  The Chief of Staff felt the applicant's behavior was degrading the command climate.

7.  On 20 November 2009, the IO, utilizing one-on-one meetings, interviews, sworn statements, and direct questioning, submitted his findings and recommendations.  The IO found:

* LT BT admitted to having an intimate sexual relationship with the applicant several times in September 2009 and that the applicant never informed her he was married
* LT BT admitted under oath to having an improper sexual relationship with the applicant in violation of fraternization policy and conduct unbecoming
* LT BT to be credible, truthful, and accurate
* The applicant had an improper sexual relationship with LT BT based on her admission under oath of having sex with him several times
* The applicant also had an improper relationship with SFC ARA, a person not his wife, over a 3-year period
* The applicant engaged in an improper sexual relationship with SFC ARA while legally married
* SFC ARA had an improper relationship with the applicant during the past 3 years
* SFC ARA was so protective of her sexual relationship with the applicant she may have breached other laws to illegally obtain information
* SFC ARA knew the applicant was married and despite that, she pursued a relationship 

8.  The IO recommended LT BT receive a GOMOR for fraternization and conduct unbecoming an officer and her officer fitness report reflect this incident; LT BT be reassigned and her security clearance be revoked.  He also recommended SFC ARA lose her credentials as an interrogator and counter-intelligence agent, issued a GOMOR, and administratively separated.  Finally, he recommended the applicant be administratively separated with an under other than honorable characterization of service and issued a GOMOR.

9.  On 20 November 2009, the Commanding General (CG), Special Operations Command - South, Homestead Airbase, FL, reprimanded the applicant for his actions.  The GOMOR states that it has been determined that he, a married man, was engaged in a sexual relationship with a female commissioned officer, a person not his wife.  His conduct was prejudicial to the good order and discipline of the U.S. Armed Forces and is a violation of Article 134 of the Uniform Code of Military Justice (UCMJ) for adultery.  Furthermore, it has also been determined that he was also involved in a sexual relationship with an NCO, a person not his wife, for a period of about 3 years.  This conduct was also prejudicial to the good order and discipline of the U.S. Armed Forces and is a violation of Article 134 of the UCMJ for adultery.  His conduct caused the CG to seriously consider whether he was suitable for continued service as a Soldier.

10.  On 20 November 2009, the applicant acknowledged receipt of the GOMOR and submitted a rebuttal on 16 December 2009.  He stated:

* he denies the allegations against him but he had an encounter with LT BT and that at the time of the encounter, he was married
* the encounter consisted of a mentoring relationship whereas she would seek guidance from him as a senior NCO
* he knew she was engaged and about to be married and he had no intentions of having anything but a professional relationship with her
* one time she self-invited herself to his boat despite his reluctance; they drank on the boat and a storm happened that day
* he sought refuge at a cabin to watch a movie and wait out the storm but he passed out
* when he briefly came to, he found LT BT on top of him and he recalls pushing her off; he does not recall having a sexual encounter with her
* the IO report found him not credible but he does not understand the basis of such finding
* he pointed out to LT BT that he was married because she discussed with him her upcoming marriage
* LT BT lied; she was faced with UCMJ action and her wedding plans were in jeopardy; she appears to have deflected the attention off her in exchange for leniency
* as for SFC ARA, she also lied because she used her deception skills to compel LT BT to tell the truth about the nature of her relationship with him
* he had been in the military for 23 years and he had above standard ratings, he served in numerous leadership positions, and he considers himself a dedicated professional

11.  During the month of November 2009, while the GOMOR was unfolding, the applicant received the contested RFC evaluation report that covered 10 months of rated time from 1 February 2009 through 20 November 2009 for his duties as an Anti-Terrorism Force Protection Cell NCO, assigned to Headquarters, Special Operations Command - South.  His rater was Chief Warrant Officer Four WS, the Officer in Charge of the Anti-Terrorism Force Protection Cell; his senior rater was Lieutenant Colonel WBW, the Director of the Joint Training and Exercise Division; and his reviewer was Colonel DS, the J3 Director.  The NCOER shows in:

	a.  Part IVa (Army Values/Attributes/Skills/Actions), the rater checked box "NO" for "Honor" and "Integrity" and inserted the following comment to support his rating: "Soldier was relieved for a pattern of misbehavior that was prejudicial to the good order and discipline of the command."

	b.  Parts IV (Values/NCO Responsibilities) a (Competence), c (Physical Fitness and Military Bearing), d (Leadership), and e (Training), the rater checked box "Excellence" or "Success" and inserted comments in support of each rating.

	c.  Part IVf (Responsibility and Accountability), the rater checked box "Need (Much) Improvement" and inserted the following comment to support his rating: "displayed gross lack of judgment and conduct unbecoming an NCO through a pattern of misbehavior that was prejudicial to good order and discipline."

	d.  Part V (Overall Performance and Potential) a and b show the rater checked box "Marginal" and listed the three positions in which the applicant could best serve the Army.

	e.  Part Vc (Senior Rater - Overall Potential) and d (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility) show the senior rater checked box "Poor" for overall performance and "Poor" for overall potential and inserted the following bullet comments in e (Senior Rater Bullet Comments):

* an outstanding performer who, unfortunately, cannot be relied upon to do the right thing
* despite his competence, Soldier has demonstrated he is constitutionally incapable of adhering to the Army values
* Soldier is unavailable for signature because he retired immediately upon investigation into his pattern of misbehavior

12.  Orders C-12-922410, issued by the U.S. Army Human Resources Command (HRC), dated 11 December 2009, released him from his Active Guard Reserve (AGR) status effective 11 December 2009 and transferred him to the Retired Reserve effective 12 December 2009.

13.  His DD Form 214 for the period ending 18 December 2009 shows he was honorably released from active duty at the completion of required active service.  He was transferred back to his Reserve status.

14.  On 21 December 2009, after careful consideration of the applicant's case and the rebuttal he submitted, the imposing general officer ordered the filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

15.  The contested NCOER was digitally signed by the rater, senior rater, and reviewer on 6 January 2010.  The applicant did not sign.  The contested NCOER is filed in his AMHRR.  There is no indication he petitioned the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR removed.

16.  There is no indication he requested a commander's inquiry in relation to the contested NCOER or appealed this NCOER through HRC to the Enlisted Special Review Board.

17.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the ERS.

	a.  Paragraph 4-7 states an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The results of a commander's inquiry do not constitute an appeal.  They may be used, however, in support of an appeal.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.

	b.  Honor, one of the seven Army values means an NCO lives up to all Army values.  Soldiers make honor a matter of daily living – Soldiers who develop the habit of being honorable and solidify that habit with every value choice they make.  Honor is a matter of carrying out, acting, and living the values of respect, duty, loyalty, selfless service, integrity and personal courage in everything he/she does.

	c.  Integrity, one of the seven Army values, means doing what's right, legally and morally.  Integrity is a quality a Soldier develops by adhering to moral principles.  It requires that the Soldier "do and say" nothing that deceives others. As a Soldier's integrity grows, so does the trust others place in him/her.  The more choices a Soldier makes based on integrity, the more this highly prized value will affect his/her relationships with other Soldiers, family and friends, and, finally, the fundamental acceptance of own self.

18.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

19.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 provides that 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.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

20.  Army Regulation 600-8-104 (AMHR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by an appropriate authority (DASEB or ABCMR). 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the GOMOR:

	a.  The evidence of record shows that an IO found credible evidence the applicant had engaged in a sexual relationship with a female commissioned officer, a person not his wife; as well as a female NCO, also not his wife, in violation of the UCMJ (adultery).  Accordingly, he received a GOMOR.

	b.  He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision.  He did so.  After careful consideration of the applicant's case and his rebuttal, the imposing general officer ordered the GOMOR be filed in the applicant's AMHRR.  As such, the GOMOR is currently filed in the performance section of his AMHRR.

	c.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was a senior NCO, whom the Secretary of the Army had reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  He was in a position of trust and authority.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  Here, the applicant violated that trust.  The GOMOR was correctly filed.  

	d.  The applicant has not proven this GOMOR to be either untrue or unjust or that it has served its purpose.  There is an insufficient evidentiary basis that shows the contested GOMOR has served its intended purpose; therefore, there is also an insufficient reason to transfer the GOMOR to the restricted section of his AMHRR.

2.  With respect to the NCOER: 

	a.  By regulation, in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.  In this case, the applicant did not provide sufficient evidence to warrant the removal of the contested NCOER.  Therefore, there is no basis for granting this portion of the applicant's requested relief.

	b.  By engaging in adulterous sexual relationships, while married and while holding the rank of MSG in a leadership position, the applicant clearly failed to live up to the Army values.  He did not adhere to moral principles as a Soldier and an NCO.  That is why he received "No" for both the "Honor" and "Integrity" values.

	c.  The IO completed his investigation and rendered his findings and recommendations on 20 November 2009.  The through date of the contested NCOER is 20 November 2009.  As the rating official stated and as confirmed by the IO, the applicant displayed gross lack of judgment and conduct unbecoming an NCO through a pattern of misbehavior that was prejudicial to good order and discipline.  That is why he received a "No" rating for the "Responsibility and Accountability" portion.  

	d.  The applicant and his counsel did not provide clear and compelling evidence that shows the ratings in the contested NCOER were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Additionally, there is no evidence in the available records and the applicant/counsel did not provided evidence showing the contested NCOER was inaccurate, unjust, or otherwise flawed.  In view of the foregoing, there is no basis for granting this portion of the applicant's requested relief.

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)                                         AR20130000795



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ABCMR Record of Proceedings (cont)                                         AR20130000795



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