IN THE CASE OF:	   

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130008467 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect:

	a.  removal of all references to an Army Grade Determination Review Board (AGDRB) and reduction to lieutenant colonel/O-5 for retirement purposes from the applicant's Army Military Human Resource Record (AMHRR);

	b.  the applicant's retired grade be changed to colonel/O-6;

	c.  removal of a general officer memorandum of reprimand (GOMOR), dated 14 June 2012, from his AMHRR;

	d.  removal of all references to the GOMOR and underlying investigations from his AMHRR; and

	e.  removal of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 25 May 2012 through 4 November 2012 from his AMHRR.





2.  Counsel states:

	a.  the imposition of a GOMOR and referred OER for the alleged conduct was an abuse of discretion, arbitrary and capricious, and not in accordance with law or regulation.  The contested documents describe actions that are constitutionally protected under the applicant's First Amendment right to privacy.    

	b.  the AGDRB abused its discretion, was arbitrary and capricious, and violated law and regulation by retiring the applicant in the grade of lieutenant colonel/O-5.

	c.  in November 2012, the applicant was notified of a pending action before the AGDRB scheduled for December 2012.  The notification stated the AGDRB action was based on a GOMOR, dated 14 June 2012.  On 13 December 2012, the AGDRB retired the applicant in the rank of lieutenant colonel/O-5.  

	d.  following the imposition of the GOMOR, the applicant also received the referred OER.    

	e.  under paragraph 2-4 of Army Regulation 15-80 (AGDRB and Grade Determinations), grade determinations are based on the Soldier's overall service in the grade in question.  Considerations include medical conditions, length of time in grade, active duty service obligations, performance levels reflected in evaluation report, the nature and severity of the alleged misconduct, and the grade at which the alleged misconduct was committed.  Paragraph 2-5 of this regulation states one specific act of misconduct may or may not form the basis for a finding that overall service in a particular grade was unsatisfactory.

	f.  two points are critical to the issue of reinstatement in the grade of colonel/O-6.  First, his rater provided a letter stating his conviction that the applicant served satisfactorily in the grade of O-6.  His opinion is also memorialized in the OER for the period 29 October 2011 through 24 May 2012.  Both the rater and senior rater signed the OER with full awareness of the circumstance that happened on 20 May 2012 underlying the 14 June 2012 reprimand.  Second, his alleged misconduct, as a matter of law, was not a violation of any regulation or statute.  Both reinstatement and removal of the GOMOR from the applicant's AMHRR are warranted.

	g.  the applicant's rater rated him for the 7 months he was deployed to Afghanistan, including the period covering the incidents alleged in the 14 June 2012 reprimand.  His rater specifically noted that the applicant's engineering background was instrumental to decision-making involving over 4 billion dollars worth of construction projects in Afghanistan.  Notwithstanding the allegations in the reprimand, the applicant was rated favorably and given an outstanding performance evaluation.  His rater noted the applicant created millions of dollars in savings through keen analysis and long-range planning.  His rater took the extra step of noting that if the applicant retires, he should be recalled to active duty in the rank of colonel to lead the Directorate of Training and Leader Development at the U.S. Army Engineer School.  The senior rater agreed with the rater's assessment.

	h.  as a matter of law, the applicant's alleged misconduct described in the 
14 June 2012 reprimand did not constitute a criminal solicitation under Article 134, Uniform Code of Military Justice (UCMJ), did not violate General Order Number 1A – II Marine Expeditionary Force (MEF) (Forward), and did not violate General Order Number 1 – North Atlantic Treaty Organization (NATO) Training Mission – Afghanistan and Combined Security Transition Command – Afghanistan (NTM-A/CSTC-A).

	i.  three sentences of the reprimand allege a solicitation offense.  The term solicitation has a specific legal meaning under Article 134, UCMJ.  A brief discussion of the law of solicitation is necessary here.  Counsel's firm represented an Air Force service member in one of the most recent solicitation cases at the Court of Appeals for the Armed Forces.  In this case, the military's highest court held that the offense of solicitation requires that the accused solicit or advise a certain person to commit a certain offense under the UCMJ.  In other words, a Soldier cannot be guilty of the offense of solicitation where the person solicited is not being asked to knowingly commit an offense under the UCMJ.  In this case, it is an impossibility to conclude, as the reprimand did, that the applicant committed any unlawful acts of solicitation that would have resulted in the applicant or any other individual committing an offense under the UCMJ.       

	j.  likewise, the suggestion that the applicant violated General Order 1A is another legal and factual impossibility.  Paragraph 4 of this order states very clearly that the order is only applicable to U.S. military personnel assigned to 
II MEF Forward.  As shown by the applicant's OER, he clearly was not assigned to II MEF Forward.  He was not even assigned to Camp Leatherneck.  He was the Deputy Director for the Engineer Directorate for the NATO Training Mission – Afghanistan/Combined Transition Command – Afghanistan Headquarters.  The reprimand is incorrect and unjust in that respect. 

	k.  the NTM-A/CSTC-A General Order Number 1 regarding pornography and sexually explicit material stated "Pornography and Sexually Explicit Material.  Introduction, purchase, sale, creation, possession, transfer, distribution, sharing, uploading or downloading from or to the internet or via 'chat rooms' or peer-to-peer services, viewing, or display of any type of pornographic or sexually explicit photograph, video, recording, movie, drawing, book, magazine, or other image or depiction is prohibited.  This prohibition does not apply to: AFN broadcasts, movies and programs shown on materials pre-approved for distribution in Afghanistan through AAFES [Army and Air Force Exchange Service] or MWR [Morale, Welfare, and Recreation] outlets or at military authorized or sponsored bazaars."

	l.  in short, nothing in General Order Number 1 prohibits a Solder from transferring for personal use a personal photograph by electronic mail to a private email address using a private computer system.  There is no evidence or accusation that the applicant transmitted any images for public or mass consumption.  The regulation, for instance, would not preclude a husband from sending his wife a photograph of himself that could be construed as sexually explicit.  The purpose of the regulation is plainly to prohibit the public dissemination of sexually explicit materials.  The regulation specifically precludes the use of the internet, which implies public dissemination, chat rooms, and peer-to-peer services.  If the command had intended to prohibit the sharing of sexually explicit personal photographs between two private consenting adults by private electronic mail, the regulation could have very easily, like it did with chat rooms and peer-to-peer services, listed electronic mail as a prohibited medium for transfer of personal images.

	m.  the unvarnished reality is that the applicant's alleged conduct did not, as a matter of fact or law, violate any regulation or statute.  That reality coupled with the recommendation of his rater and the OER covering the period 29 October 2011 through 24 May 2012 demonstrates that applicant served satisfactorily in the grade of O-6.  Further, the imposition of the GOMOR and a referred OER was an abuse of discretion, arbitrary and capricious, and not in accordance with the law and the applicant's constitutional rights. 

3.  Counsel provides eight enclosures outlined on page 6 of his brief.

CONSIDERATION OF EVIDENCE:

1.  After graduating from the U.S. Military Academy, the applicant was appointed as a second lieutenant in the Regular Army on 27 May 1987 in the Corps of Engineers.  He was promoted to colonel on 1 May 2009.  He served in Afghanistan from 27 October 2011 to 26 May 2012.  

2.  The applicant’s records on the integrated Personnel Electronic Records Management System (iPERMS) contains Intermediate Temporary Change of Station (I-TCS) orders dated 12 October 2011 for deployment to Afghanistan for a period of 365 days.  His OERs indicate he arrived in Afghanistan on 29 October 2011.  The orders indicated that a weapon (9mm) was required.

3.  He provides a DA Form 67-9 covering the period 29 October 2011 through 
24 May 2012 which shows the applicant was rated "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater.  The OER indicated his duty assignment was Kabul, Afghanistan.

4.  iPERMS contain a U.S. Marine Corps – Report of Investigation, dated 29 May 2012, wherein he was the subject of an operation targeting personnel living and/or operating aboard Camp Leatherneck, Afghanistan involved in pandering and prostitution.

5.  On 14 June 2012, he received a GOMOR for:

* soliciting other persons to engage in lewd sexual activities via an internet website and through email exchanges between 11 May 2012 and 20 May 2012 while deployed to Afghanistan in support of Operation Enduring Freedom
* seeking out sexual partners who were deployed to Afghanistan with him, despite being married
* during email conversations he requested a "body pic" and emailed a picture of his naked buttocks to a potential sexual partner
* arranging to meet another man, who was a complete stranger, to engage in sexual acts

6.  He was given 7 days to respond to the GOMOR.  He provided a response with supporting documents.  On 10 July 2012, the commanding general directed permanently filing the GOMOR in the applicant's AMHRR.  The commanding general also directed filing the enclosures with the reprimand as appropriate.  The applicant was subsequently returned from Afghanistan earlier than his I-TCS orders originally directed.

7.  The contested OER and the applicant’s response are not currently filed in the applicant’s iPERMS file.  The contested OER is a 5-month retirement OER covering the period 25 May 2012 through 4 November 2012 for duties as the Training and Doctrine Command Capability Manager Geospatial for Headquarters Company, U.S. Army Maneuver Support Center of Excellence at Fort Leonard Wood.  Part IId (This is a referred report, Do you wish to make comments?) of the OER is marked and further shows an X in the "Yes" block.  

8.  In Part IV (Performance Evaluation – Professionalism), the rater placed an "X" in the "No" block for Integrity and Duty.
9.  He was rated "Unsatisfactory Performance, Do Not Promote" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by his rater.  His rater stated, "[Applicant] returned from a voluntary deployment to Afghanistan and began preparations for his scheduled retirement.  Upon his return, he debriefed members of TCM Geospatial's terrain lab on his first hand experiences regarding the challenges and successes of using various terrain data sources in theater.  This feedback was critical to efforts to shape the DOTMLPF [Doctrine, Organization, Training, Materiel, Leadership and Education, Personnel, and Facilities] elements of geospatial information service in the Army.  However, a criminal investigation found he participated in misconduct while deployed, overshadowing his duty performance during this rating period.  The resulting General Officer Memorandum of Reprimand constitutes an indelible blemish on a career by a long serving officer."  

10.  He was rated "Do Not Promote" in part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) by his senior rater.  "BELOW CENTER OF MASS – RETAIN" was entered in part VIIb (Potential Compared with Officers Senior Rated in Same Grade) by his senior rater.  His senior rater stated, "During this rating period [Applicant] received a General Officer Memorandum of Reprimand for violating U.S. Forces Afghanistan General Order Number 1.  The memorandum states that [Applicant] was arrested for using the internet to solicit sex with a contractor and for attempting to link up with his sexual partner while visiting Camp Leatherneck.  Do not mobilize upon retirement."

11.  In October 2012, he submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR and allied documents from his records.  

12.  On 15 November 2012, the DASEB denied his request and cited the overall merits of the case did not warrant the requested relief.

13.  He provides a memorandum, dated 13 December 2012, from the Acting Deputy Assistant Secretary of the Army (Review Boards), Office of the Assistant Secretary, Manpower and Reserve Affairs (M&RA), which states:

* the AGDRB reviewed a request for a grade determination submitted by the Senior Leader Development on the applicant
* he directs the applicant be placed on the retired list in the grade of O-5 (lieutenant colonel)

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired in the rank of colonel on 31 December 2012.
15.  He provides an undated letter from his rater (for the OER covering the period 29 October 2011 through 24 May 2012) who attests the applicant's service as a colonel in the Army was honorable.

16.  A review of the applicant's AMHRR on the iPERMS revealed a copy of the:

* GOMOR in question
* Acting Deputy Assistant Secretary of the Army's memorandum, dated 
      13 December 2012
* U.S. Marine Corps Report of Investigation, dated 29 May 2012   

17.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states a commissioned officer must serve on active duty three years in grade to retire in rank above major and below lieutenant general.  All retirements, except for disability separations, involving commissioned and warrant 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 Assistant Secretary of the Army (M&RA) in accordance with Army Regulation 15-80, for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer’s official military personnel file.  Examples of such findings or conclusions include, but are not limited to, a memorandum of reprimand; nonjudicial punishment under Article 15; UCMJ, court-martial, or civilian conviction.  Even if the information described above is not required to be filed in the officer’s official military personnel file, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to determination of retired grade.

18.  Army Regulation 15-80 states in:

	a.  Paragraph 2-3 - most grade determinations do not require action by the AGDRB or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and this regulation.  For example, under Title 10, U.S. Code, section 1370, an officer will normally retire at the highest grade served, unless service at that grade is deemed unsatisfactory.  
	
	b.  Paragraph 2-5 - that service in the highest 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.

	c.  Paragraph 4-1 - an officer is not automatically entitled to retire in the highest grade served on active duty.  Instead, an officer is retired in the highest grade served on active duty satisfactorily.  

19.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It states the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.  The regulation states the following documents are required for filing in iPERMS: 

* letters of reprimand, censure, admonition
* OERs  
* case files for approved separations (include elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service) and all allied documents will be filed in the service section of the AMHRR
* investigation reports (authenticated extract of completed investigation report resulting in elimination/discipline) 

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request to remove all references to an AGDRB and reduction to lieutenant colonel/O-5 for retirement purposes was noted.  However, there is no evidence which shows the reference to an AGDRB and his reduction to O-5 for retirement purposes in the Acting Deputy Assistant Secretary of the Army's memorandum was erroneous.  The memorandum and associated documents are properly filed in the applicant's AMHRR in accordance with the governing regulation.

2.  Counsel requests the applicant be placed on the retired list as a colonel/O-6.  He points out:

	a.  the governing regulation states one specific act of misconduct may or may not form the basis for a finding that overall service in a particular grade was unsatisfactory. 

	b.  the applicant's rater provided a letter stating his conviction that the applicant served satisfactorily in the grade of O-6.

	c.  the applicant's misconduct, as a matter of law, was not a violation of any regulation or statute.

3.  Evidence of record shows the applicant was promoted to colonel in May 2009 and he received a GOMOR in 2012 for: 

* soliciting other persons to engage in lewd sexual activities via internet website and through email exchanges between 11 May 2012 and 20 May 2012 while deployed to Afghanistan in support of Operation Enduring Freedom
* seeking out sexual partners who were deployed to Afghanistan with him, despite being married
* during email conversations he requested a "body pic" and emailed a picture of his naked buttocks to a potential sexual partner
* arranging to meet another man, who was a complete stranger, to engage in sexual acts

4.  The applicant claims that the GOMOR is improper.  He infers that because the GOMOR uses the term “solicitation” the GOMOR is under a military justice analysis.  The applicant states he was not engaged in asking another individual to commit a violation of the UCMJ.  He refers to U.S. v. Sutton, 68 M.J 455 (C.A.A.F. 2010) where the Court determined that an individual cannot be guilty of solicitation where the individual being solicited is not being asked to knowingly commit an offense under the UCMJ.

5.  The GOMOR stated it was being imposed as an administrative measure and not as punishment under Article 15, UCMJ.  Army Regulation 600-37, paragraph 3-4e states that reprimands imposed as nonjudicial punishment are governed by Army Regulation 27-10, chapter 3.

6.  Army Regulation 27-10 (Legal Services), effective 3 October 2011, at paragraph 3-3 (Relationship of nonjudicial punishment to nonpunitive measures (para 1g, part V, MCM, 2008)) states:

General.  Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Included among nonpunitive measures are denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training (see AR 600–20), bar to reenlistment, and military occupational specialty (MOS) reclassification.  Certain commanders may administratively reduce enlisted personnel for inefficiency and other reasons.  This authority exists apart from any authority to punish misconduct under UCMJ, Artcle 15. These two separate and distinct kinds of authority should not be confused.

Commanding officers have authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment.  Per regulations, this GOMOR was not punitive.  This GOMOR could be considered a tool to teach proper standards of conduct and performance.  While the commanding general used the word “solicitation” in the GOMOR, it was used as a descriptive term for the applicant’s actions.  The word was not used as a charge under the UCMJ. 

7.  Despite achieving the rank of COL and graduating from the U.S. Military Academy, the applicant displayed difficulty in adjusting to disciplined military life in a deployed environment.  Afghanistan was an imminent danger location at the time period in question.  His commander determined that the applicant’s behavior required remediation.  His commander chose a tool for teaching the applicant proper standards of conduct and performance.  The applicant’s commander pointed out to him that his conduct took place in a deployed environment, and was a gross departure from that expected of an officer and a gentleman.  Additionally, the commanding general informed the applicant that his activities had the potential to place him in a compromising position that could have been used by others to force him to reveal classified or compromising information.  Additionally, his commander informed him that his activities violated General Order No. 1A II MEF (FWD).  

8.  The applicant claims that his activity did not violate General Order (GO) No. 1 NTM and GO No. 1A II MEF(FWD).  However, GO No. 1 NTM states:
   
“Persons whose sexual behavior adversely impacts unit cohesion, morale, or good order and discipline, jeopardizes unit readiness or mission accomplishment, or is of a nature to bring discredit upon the Armed Forces, may be punished as provided in Paragraph 4.”

GO 1A MEF (FWD) states in part:

Individuals will not engage in-any sexual act or sexual contact with another individual, regardless of military or civilian status, or marital status, while deployed in the II MEF (FWD) AO.  Sexual acts, sexual contact and sexual relations in a deployed environment negatively impact mission accomplishment, mission readiness, and manpower (e.g., sexually transmitted diseases and pregnancy take individuals away from their forward duties).  Consequently, losing any individual due to illness, disease, pregnancy, or misconduct erodes mission readiness.

9.  The applicant placed two advertisements for sexual encounters on a website that was available to the world, including Marine Corps CID.  The location (Camp Leatherneck) of the requested sexual activity was displayed in the advertisement.  The month of his stay and the amount of days he would be present on Camp Leatherneck were also included in the advertisement.  The applicant listed some of his preferred sexual activities.  Camp Leatherneck was a military (Marine Corps) installation located in an imminent danger location (Afghanistan) during a time of armed conflict.  As such, the orders, to include security concerns, of the U.S. Marine Corps should be respected by visiting Army colonels.  The commanding general informed applicant on this point.  
   
10.  The applicant was an Army colonel who was arranging for numerous sexual encounters on a public website to take place on an installation where a Marine Corps General Order prohibited such activity.  Furthermore, his activities in arranging sexual encounters with anonymous individuals on a public website could jeopardize unit readiness, security and/or mission accomplishment.  
   
11.  The applicant claims that GO 1A MEF (FWD) was inapplicable to him because he was not assigned to II MEF (FWD).  The GOMOR, as a teaching tool, informed him that the Marine Corps had a GO prohibiting the activity he engaged in.  While not spelled out specifically in the GOMOR, an Army colonel engaging in activities the Marine Corps seeks to limit, on a Marine Corps installation, could cause the Marine Corps problems with good order and discipline on that installation.  These problems could be exacerbated given the applicant’s rank (colonel).  The commanding general informed the applicant on this point.
   
12.  Statutory and regulatory guidance is that service in a grade will not be considered to have been satisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.  There is insufficient evidence that would warrant overturning the decision of the AGDRB.  The applicant was provided notice of the AGDRB, the evidence to be considered, an opportunity to respond, and his response was considered by the AGDRB.  The OER in question was not in the file considered by the AGDRB.  His record revealed he was returned prematurely from a 


deployed assignment.  He was provided a GOMOR for violating military standards in a deployed location.  His behavior violated military standards defined in GOs by both the Army and Marine Corps.  His departure from military standards took place on an installation in an imminent danger location.  While the applicant eventually, to his disappointment, met a Marine CID investigator the outcome could have been far worse if he in fact was communicating with an enemy operative.  When providing information on his movements in Afghanistan, the applicant had absolutely no idea whom he was providing this information to.   

13.  Counsel contends the imposition of a GOMOR and referred OER for the alleged conduct was an abuse of discretion, arbitrary and capricious, and not in accordance with law or regulation.  

14.  There is no evidence that the GOMOR was improperly imposed.  Regulatory protections were adhered to.   

15.  Because the contest OER has not been included in applicant’s iPERMS file the ABCMR declines to address it at this time.  

16.  The GOMOR and Report of Investigation are properly filed in his AMHRR in accordance with the governing regulation.

17.  In view of the foregoing, there is an insufficient basis for granting the 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)                                         AR20130008467





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008467



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1