BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130007867


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 defers to counsel regarding his requests and statements.

2.  The applicant provides counsel's Memorandum of Law in Support and twelve enclosures as listed in item 17 (Remarks) on his undated DD Form 149 (Application for Correction of Military Records).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* removal from the applicant's record of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 20 October 2011
* removal from the applicant's record of the General Officer Memorandum of Reprimand (GOMOR), dated 20 September 2011
* removal from the applicant's record of the Memorandum of Intent to Initiate Termination of Career Management Field (CMF) 18 status and removal of the Special Forces Tab, dated 20 September 2011
* retirement at the highest pay grade for which the applicant would be eligible absent the aforementioned documents
* reimbursement of all pay and allowances withheld from the time of the applicant's retirement, to the present, as a result of the punishments he received


2.  Counsel states:

	a.  The applicant was selected for a lieutenant colonel (O-5) designated position as Joint Prisoner of War (POW)/Missing in Action (MIA) Accounting Command (JPAC), Detachment 2 Commander in Hanoi, Vietnam.

	b.  He was selected for the position over several other 1st Special Forces Group (Airborne) peers and numerous Regular Army officers as a non-promotable major and was promoted to O-5 on 1 October 2008.

	c.  The applicant's service as an O-5 was exceptional as demonstrated by his Officer Evaluation Reports and awards.

	d.  His exceptional service was further evidenced by Ambassador Michael W. Michalak's personal request to have the applicant's command extended for a third year in Vietnam.

	e.  Because of the Army's policy preventing the extension, the applicant was relocated to the United States in November 2010.

	f.  He subsequently requested a transfer to Fort Lewis, Washington in order to seek custody of his minor child and he was assigned to 1st Special Forces Group (Airborne).

	g.  In retaliation for the applicant's pursuit of custody, his wife made an allegation of marital infidelity occurring more than 10 years earlier.

	h.  Apart from his wife's allegation, which was unrelated to his service as an     O-5, the applicant's service was unblemished.

	i.  The misconduct that resulted in the nonjudicial punishment (NJP) and the GOMOR the applicant received in September 2011 were based on allegations that a sergeant first class (E-7) made against him in April 2011.

	j.  An informal command investigation was conducted and as a result, the applicant accepted NJP for adultery and for an inappropriate relationship, and he received a GOMOR.

	k.  In making his decision, the investigating officer (IO) relied solely on the allegation of the E-7 as the investigation provides no additional third-party evidence that supports the applicant was having an inappropriate relationship with the wife of the E-7.


	l.  The IO did not state that the evidence supported that a sexual relationship existed between the applicant and the spouse of the E-7.

	m.  While both the NJP and the GOMOR were administered while the applicant was an O-5, the punishment was for conduct that occurred in 2001.

	n.  As a result of family difficulties, the applicant submitted a request to retire on 30 June 2012.

	o.  The applicant's case went before the Army Grade Determination Review Board (AGDRB) and they recommended he receive retirement in the rank of major, due to "doubt" of his behavior dating back to 2001.

	p.  The applicant's record is in error because he received NJP based on allegations that were unsupported by law and fact.

	q.  Retiring the applicant as a major was in error because the board based its decision on allegation of facts that took place when he was a captain.

	r.  Retiring the applicant as a major was unjust given his exceptional service as an O-5 and his compassionate circumstances.

	s.  Retiring the applicant as a major would cause undue hardship on his family.

	t.  The NJP findings are contrary to law because although the evidence did not establish a sexual relationship or a romantic relationship, the conduct was found to be in violation of Article 133.

	u.  The conduct between the applicant and the wife of the E-7 was consistent with the couples' long-standing friendship and continuing that conduct after the couples had separated from their spouses is not easily recognizable as criminal and does not amount to a violation of Article 133.

	v.  Apart from the statement made by the E-7 that while in the basement of his home the applicant admitted to ongoing affairs with his wife from 2001 until present, or that the applicant had a sexual relationship with the wife of the E-7 from January 2011 until April 2011, there is no evidence that such events occurred.

	w.  By the E-7's own admission, that the statements were made while he was brandishing a weapon, such circumstances render the statement, even if made involuntarily, inappropriate as evidence.
	x.  Without a continuous sexual relationship between the applicant and the wife of the E-7, the general officer cannot impose a GOMOR for conduct that occurred in 2001.

	y.  The applicant's conduct occurred while he was serving under a general officer different from the general officer that issued the GOMOR.

	z.  The GOMOR specifically seeks to punish the applicant for sleeping with prostitutes while in Thailand in 2001 and sleeping with the wife of an E-7 in 2001.

	aa.  Since 2001, there has been no additional allegations of the applicant sleeping with prostitutes and the only additional allegation of adultery or sleeping with a subordinate’s wife arises solely from the E-7.

	ab.  A continuous sexual relationship between the applicant and the wife of the E-7 is an impossibility because they were not in the same physical location during the 10-year period from 2001 through 2011.

	ac.  Allowing the GOMOR to remain in the applicant's record would be unjust and would provide a precedent for future cases to allow previous conduct that surpassed the statute of limitations for the NJP and court-martial to be punished through a GOMOR.

	ad.  Given that the revocation of the applicant's Special Forces Tab and CMF 18 status were based on his erroneously-imposed GOMOR and NJP, the Special Forces Tab and CMF 18 status were erroneously revoked and should be reinstated.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant accepted an appointment in the U.S. Army Reserve (USAR) on 11 May 1990, in the rank of second lieutenant.  Effective upon his appointment, he entered extended active duty.

2.  He was promoted to first lieutenant on 22 January 1993 and promoted to captain on 1 February 1995.

3.  Permanent Orders 308-45 were published on 4 November 1997 awarding the applicant the Special Forces Tab.

4.  The applicant accepted an appointment in the Regular Army (Special Forces) on 1 October 2002, in the rank of major (O-4).  He was promoted to O-5 on 1 October 2008 and was assigned as the JPAC, Detachment 2 Commander, Hanoi, Vietnam.

5.  In a letter to the Commander, U.S. Army Human Resources Command (HRC), dated 12 May 2010, the Ambassador to Vietnam, requested support for an endorsement to extend the applicant in his position as the JPAC, Detachment 2 Commander, Hanoi, Vietnam, for 1 year.  

6.  The applicant provides copies of his Officer Evaluation Reports (OERs) for the periods 1 June 2008 through 31 May 2009 and 30 January 2010 through 1 November 2010 showing that he was an outstanding performer and rated above center of mass.

7.  The available evidence shows that the request for extension as the JPAC, Detachment 2 Commander, Hanoi, Vietnam, was denied.  The evidence shows that after he completed Joint and Combined Warfighting School, JPME-II-11-1 on 25 March 2011, he was assigned to 1st Special Forces Group (Airborne), Joint Base Lewis-McChord, Washington.

8.  An Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation was completed on 13 August 2011, due to allegations made against the applicant by an E-7.  The E-7 alleged that the applicant had an inappropriate sexual relationship with his spouse.  The IO found that a preponderance of evidence supported the allegation.

9.  According to the IO, from 30 May 1998 through 17 January 2001 the applicant was assigned as a Team Leader in B Company, 3rd Battalion, 1st Special Forces Group (Airborne), where the E-7 was assigned.  Around January 2000, the applicant's spouse and the spouse of the E-7 were introduced to one another at a team party.  In 2001, enroute to JCET in Sri Lanka, the applicant and the E-7 engaged in sexual relations with two prostitutes in Thailand.  Between December 2010 and January 2011, the applicant and his spouse spent several nights at the home of the E-7 and his spouse while he was deployed.  After the applicant left for Virginia for a permanent change of station, the wife of the E-7 sent the applicant a text message saying "I miss you."  

10.  The investigation revealed that on 17 April 2011 the E-7 received a Facebook message from the applicant's spouse telling him that his spouse, she, and the applicant had two "threesomes" while he was deployed to Bosnia sometime between 2000 and 2001.  The applicant's spouse claimed that one took place at the E-7's residence and the other took place at the applicant's residence.

11.  The IO stated that on 26 April 2011, the applicant and the spouse of the E-7 were having dinner at a local teriyaki restaurant.  Sometime during the dinner they decided to drive over to the E-7's residence.  They drove to the house in separate cars.  The applicant alleged that the E-7 pulled out a gun and pointed it at his head.  The E-7 alleged he un-holstered his pistol and showed it to the applicant.  He claimed that he never pointed the weapon at the applicant.  He stated he confronted the applicant about how long he had been having a sexual relationship with his spouse and the applicant replied since 2001.

12.  According to the E-7, on 19 July 2011, he received a text message from the applicant's spouse asking him what he was doing and telling him that he was "messing with her financial security."

13.  On 28 July 2011, the spouse of the E-7 provided the IO with a sworn statement contending that she and the applicant were friends who do things together (dinner, movies, and children are playmates).  In a separate interview, the spouse of the E-7 stated she had been storing the applicant's truck at her house since January 2011.  She stated that her son and the applicant's daughter were not really playmates as her son was 13 years old and the applicant's daughter was only 3 years old.  She stated that she and the applicant would go on dates to dinner, the movies, would take their kids bowling, and would spend time at the gym together.  She stated it was not uncommon for spouses of "ODA" members to go out to dinner or spend time with other members of the "ODA" outside the presence of the other people's spouses.  The IO found the following: 

	a.  The applicant and the spouse of the E-7 had an inappropriate sexual relationship "threesome" with the applicant's spouse in the past and continued to have at a minimum, an inappropriate relationship as friends.

	b.  Even in the absence of a physical component to the relationship between the applicant and the spouse of the E-7, it was inappropriate for a married officer to be going on dates with the married spouse of one of his subordinates.

	c.  The applicant admitted to the E-7 that he had been having sex with his spouse since 2001, which was verified by another E-7.

	d.  The applicant and the spouse of the E-7 continued to see each other privately even after the E-7 confronted the applicant about their relationship, which demonstrated an immense lapse in judgment on the applicant's part.

	e.  The statements made by the spouse of the E-7 were of a questionable veracity because she was going through a divorce, which was a motive to minimize her extramarital affairs.

	f.  At several points during the interview, the spouse of the E-7 contradicted herself and made statements which contradicted other witnesses.

	g.  During both of her interviews, the spouse of the E-7 described a very close relationship with the applicant and she described interactions that were more common for couples to participate in compared to completely platonic friends.

	h.  The applicant's spouse had a stronger motive to fabricate than any of the other witnesses, because she stood to collect a substantial portion of his retirement and a substantiated allegation would result in a resignation or dismissal, which would be the full loss of retirement benefits.  

	i.  The applicant's spouse's statements were contradicted by several other witnesses and some simply defied common sense, specifically when she stated that she only told the E-7 that his spouse, she, and the applicant had a threesome to hurt her estranged husband.

	j.  The E-7 had no motive to fabricate his story as he was proven to be extremely forthright even with regard to the most embarrassing parts of his past.

	k.  There was not enough evidence to confirm that the E-7 placed a gun to the head of the applicant.

14.  The IO stated that by a preponderance of the evidence, the applicant violated:

* Article 134 – Adultery 
* Article 134 – Conduct Prejudicial to Good Order and Discipline
* Article 133 – Conduct Unbecoming an Officer and a Gentleman
* Article 120 – Indecent Acts

15.  The IO found that the applicant and the E-7 engaged in sexual relations with two prostitutes in Thailand and, while this conduct violates several parts of the UCMJ, these acts occurred beyond the statute of limitations.

16.  The IO recommended the revocation of his Special Forces Tab and NJP with the imposition of disciplinary action against the applicant.

17.  On 20 September 2011, the applicant was issued by his Acting Commander a Memorandum of Intent to Initiate Termination of CMF 18 Status and Removal of Special Forces Tab.  He was told that his conduct as a Special Forces Soldier reflected a deficiency in professional judgment, and the nature of this problem calls into question his ability to operate as a representative of the United States, the United States Army, and the Special Forces Regiment.  He was told that his poor judgment and misconduct demonstrated an inability to adhere to personal or professional standards.  He was told that the reason for the proposed actions was the result of his inappropriate sexual relationship "threesome" in the past and his current inappropriate relationship as friends with the spouse of a subordinate.  He was told that any matters he wished to submit for consideration must be submitted within 7 duty days of the date he received notification.

18.  On 20 September 2011, the applicant received a GOMOR for engaging in sexual relations with two prostitutes while in Thailand on a training mission in 2001.  The commanding general (CG) stated that the applicant admitted to maintaining a sexual relationship with his former Soldier's wife from 2001 until the present.  In the GOMOR, the applicant was told he was being reprimanded for reprehensible conduct and that his actions were clearly prejudicial to good order and discipline and of a nature to bring discredit on the Armed Services.  He was told he had discredited himself, the United States Army Special Forces Command, and the United States Army Officer Corps.  He was told he caused the command to question his integrity and loyalty to his subordinates and the Special Forces Regiment and that his actions represented a serious departure from the high standards expected of a commissioned officer of the command.  

19.  In the GOMOR, the applicant was told his behavior could not and would not be tolerated and it forced the CG to seriously consider his ability to lead Soldiers and his suitability for continued service as a commissioned officer in the United States Army.  The applicant was told that the reprimand was administrative in nature and was not imposed as punishment under the UCMJ.  He was told to acknowledge the GOMOR in writing and that he may submit a written rebuttal, including any other documents or statements he would like to be considered within 7 days.  The CG stated he had not made a determination regarding the filing of the reprimand and he would carefully consider any matter the applicant submitted in rebuttal before making the final decision.

20.  On 21 September 2011, the applicant acknowledged receipt of the GOMOR and he elected to submit matters on his behalf.

21.  In a rebuttal to the GOMOR, dated 6 October 2011, the applicant accepted responsibility for the consequences of his inappropriate sexual behavior "a decade ago," his "recent" improper relationship with a woman other than his wife, and his disloyalty to a Special Forces teammate.  He stated he drank heavily during his assignment to the Special Forces team resulting in behavior in 2001 that was unbecoming and out of character.  He stated that in 2002 he was diagnosed with cancer, underwent surgery, and subsequently made a number of marked changes in his life.  He stated when the E-7 asked him about the veracity of the Facebook allegation and, specifically, when it occurred, he responded "2001," meaning that the incident occurred in 2001.  He stated he attempted to correct the E-7, but he was extremely agitated, pointing a pistol at him and telling him to shut up and listen.  

22.  In his rebuttal, the applicant stated he was at the lowest point in his life, his marriage of 14 years was nearly over, and he was in the legal fight of his life for custody of his children, which had put him deeply in debt and required him to prematurely end his military career.  He stated he was faced with the destruction of his professional reputation as he leaves the military even though for the overwhelming majority of his Special Forces career his service was exemplary.  The applicant stated marital infidelity is clearly contradictory to Army values and he was making no excuse or justification for it.  He stated that it was because he was accepting responsibility for his actions that he went to the E-7 to apologize man-to-man, but despite his best intentions, the meeting and his actions that precipitated it did nothing but harm to his personal and family relationships and professional reputations.  The applicant asked the CG to consider filing the GOMOR in his local personnel file.  He asked the CG to consider his otherwise commendable service as a Soldier and an officer when considering his indiscretions.

23.  On 20 October 2011, the CG directed that the GOMOR be filed in the applicant's Army Military Human Resources Record (AMHRR), formerly known as his Official Military Personnel File (OMPF).

24.  On 20 October 2011, the applicant accepted NJP for engaging in an inappropriate relationship on divers occasions with the spouse of an E-7 and for having sexual intercourse on divers occasions with the spouse of an E-7 between January 2011 and April 2011.  The DA Form 2627 shows that after being informed of his rights, the applicant elected a closed hearing.  He elected to submit matters in defense, extenuating and/or mitigation.  He elected not to demand trial by court-martial.  In a closed hearing, having considered all matters presented, the CG found the applicant guilty of all specifications.  The CG directed that the DA Form 2627 be filed in the performance section of the applicant's OMPF.  The applicant elected to appeal the CG's decision and to submit additional matters.

25.  A review of the available records fails to show the DA Form 2627 filed therein.  Also absent from the available records is the appeal to the NJP that he elected to submit.

26.  On 4 November 2011, Orders 308-02 were published revoking Permanent Orders 308-45, dated 4 November 1997 (the orders awarding him the Special Forces Tab).

27.  On 30 June 2012, the applicant retired.  He completed 21 years, 5 months, and 9 days of net active service this period.

28.  The AGDRB reviewed the applicant's records for appropriate placement on the retired list.  The AGDRB determined that the highest grade he satisfactorily held was O-4.  On 1 July 2012, he was placed on the retired list in pay grade       O-4.

29.  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 interests 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 AMHRR, 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.

30.  Army Regulation 600-8-22 (Military Awards) states the Special Forces Tab may be revoked by the awarding authority (Commander, U.S. Army John F. Kennedy Special Warfare Center) if the recipient has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier, as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School.


31.  Title 10, U.S. Code, Section 1370 (Commissioned officers:  general rule; exceptions), provides the rules for retirement in the highest grade held satisfactorily and states that unless entitled to a higher retired grade under some other provision of law, a commissioned officer of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months.

32.  Army Regulation 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  Chapter 4 (Officer Personnel Grade Determinations), paragraph 4-1 (General), states that all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to the Assistant Secretary of the Army (Manpower and Reserve Affairs) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF.  This document provides examples of such findings or conclusions which include, but are not limited to, a memorandum of reprimand; NJP under the UCMJ, Article 15; court-martial or civilian conviction.  Even if the information described above is not required to be filed in the officer's OMPF, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to determination of retired grade.

33.  Paragraph 2-6 (Service in Lower Grade) of Army Regulation 15-80 states if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2-5 applies.  Paragraph 2-5 (Unsatisfactory Service) of this Army regulation states that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

DISCUSSION AND CONCLUSIONS:

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


2.  The available evidence does not substantiate counsel's contention that the IO relied solely on the allegation of the E-7.  The available evidence shows that the IO also relied on statements provided by other individuals and what he believed to be contradictory statements provided by the applicant's spouse and the spouse of the E-7.

3.  Contrary to counsel's contention, the IO did find that the applicant and the spouse of the E-7 had an inappropriate sexual relationship "threesome" with the applicant's spouse in the past and continued to have at a minimum, an inappropriate relationship as friends.  The IO found that a preponderance of evidence supported the allegations of an inappropriate sexual relationship.

4.  The available evidence shows that the applicant received a GOMOR as a result of his conduct from 2001 until at the very least April 2011.  In his rebuttal to the GOMOR he admitted to his marital infidelity.

5.  Counsel's contentions regarding what he does not believe amounts to a violation of Article 133 are irrelevant.  That determination was appropriately made by the IO and the imposing CG agreed.

6.  Although the record of NJP is not currently filed in the applicant's official record, he submitted a copy showing that he elected not to stand trial by court-martial.  If the allegations made against him were false and/or untrue he was provided the opportunity to clear his name at a court-martial.

7.  The investigation was conducted as a result of allegations made against the applicant for having a sexual relationship with the wife of an E-7.  During that investigation, it was discovered that he also had sex with a prostitute while he was in Thailand in 2001.  This information was properly included in the GOMOR as it shows a pattern of conduct unbecoming of an officer and a gentleman.

8.  According to the applicable regulation, the Special Forces Tab may be revoked by the awarding authority if the recipient has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier, as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School.  His Special Forces Tab was properly revoked by the awarding authority.

9.  Neither the applicant nor his counsel has shown error or injustice in the actions taken by the Army in his case.  He was placed on the retired list in the grade he satisfactorily held.  His records show his service in pay grade O-5 was not considered to be satisfactory.

10.  In view of the foregoing, the requests made by counsel on behalf of the applicant 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.


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ABCMR Record of Proceedings (cont)                                         AR20130007867



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