IN THE CASE OF:	 

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130008947 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a General Officer Memorandum of Reprimand (GOMOR), dated 12 February 2009, from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)).

2.  The applicant states:

	a.  A GOMOR dated 12 February 2009 was permanently filed in his AMHRR.

	b.  He was never allowed to speak with the chain of command who processed the reprimand, no investigation of the allegations was ever made, and the person who made the allegation gave no time period as to when it had occurred.

	c.  Now, as a U.S. Army civilian, it is being used against him in his current position and he is being unfairly and prejudicially treated.

	d.  Attempts are being made to inflict career-ending punishment and to remove him from his current position based solely on unsubstantiated lies told about him over 3 years ago.

	e.  He only found out about this on 26 April 2013, which is why he is filing this request now.

	f.  The statements made in the GOMOR are completely false and not supported by any proof.

	g.  At no time did the investigating officer (IO) question him, any of the personnel who work in the establishment that was referred to in the statements, or any of the people whom the alleged victim and her husband identified as witnesses.

	h.  The U.S. Army Criminal Investigation Command (CID) collected statements only from an E-4 and his spouse after they went to them and offered statements.

	i.  A view of the alleged victim's statement reveals she must have been intoxicated based on the amount she said she drank and her weight.

	j.  In the allegations, at no time is there any reference to when the alleged incident occurred.

	k.  The GOMOR states it happened on 9 October 2008, with no supporting documentation regarding how this date was chosen.

	l.  The chain of command's recommendation for the GOMOR was done with no opportunity for him to provide evidence, supporting documentation, or even conduct a counseling session with anyone.

	m.  His chain of command stated he was intoxicated with absolutely no proof to support this claim.

	n.  He requests that the GOMOR be removed from his AMHRR based on his exemplary performance reflected in his Officer Evaluation Report (OER) and his awards both prior to and after the alleged incident.

	o.  The GOMOR should be removed from his AMHRR based on the documented statements made by General George Casey and President Barrack Obama on his character and honorable service to our country.

3.  The applicant provides:

* OER for the period 30 July 2008 through 29 July 2009
* Defense Meritorious Service Medal Certificate, dated 1 October 2009
* Defense Meritorious Service Medal Citation
* Certificate of Retirement, dated 13 September 2009
* Certificate of Appreciation


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.  With prior enlisted service, the applicant accepted an appointment as a Reserve commissioned officer on 6 May 1989, in the rank of second lieutenant (O-1).  He was ordered to active duty effective 3 January 1990.  He accepted an appointment as an O-1 in the Regular Army (RA) on 30 March 1990. He was promoted through the ranks to lieutenant colonel (O-5) on 1 October 2006.

3.  On 9 October 2008, an airman filed a complaint against the applicant alleging that he assaulted his wife.  On 10 October 2008, the spouse of the airman filed her complaint.  Agent notes show that both the airman and his spouse described in detail the actions taken by the applicant one evening at a nightclub and he was identified by the couple in photographs they were provided.

4.  The applicant received a GOMOR on 12 February 2009.  The GOMOR states:

	a.  On 9 October 2008, he was in a Fantasies Nightclub, heavily intoxicated.

	b.  He approached the spouse of one Airman and propositioned her to have sex with him.

	c.  When he was informed that her husband was sitting behind her, he engaged in small talk with him and another Airman.

	d.  Later, he again approached the Airman's wife and persisted in sexual advances toward the spouse of an enlisted person he had just met.

	e.  During that time, he showed several people his business card, identifying himself as an O-5 in the Army.


	f.  After his behavior continued he was kicked out to the club by the bouncers.

	g.  His actions were unacceptable and much more was expected from an officer in the U.S. Army.

	h.  As an officer, he was expected to uphold the highest moral and ethical standards, and serve as an example in the community.

	i.  He should never act in a manner to bring discredit upon the Army and his behavior had brought discredit upon himself, his agency, and the Army.

	j.  He failed to behave as an officer and a gentlemen, and his conduct was unbecoming thereof.

	k.  He would immediately acknowledge receipt of the reprimand by the enclosed endorsement.

	l.  He had 10 calendar days from receipt of the reprimand to submit matters in writing for consideration, or he may decline to do so.

5.  In the GOMOR, the commanding general (CG) stated he was considering filing the reprimand in the applicant's AMHRR and that enclosed for his review were the documents that served as the basis for his reprimand.

6.  The applicant submitted a rebuttal to the GOMOR denying the accusations.  He stated that at no time did he conduct himself inappropriately or make any of the statements or actions indicated.  He stated:

	a.  He recalled speaking with several people; some he believed were in the military.

	b.  He recalled at least two individuals asking him if he was in the Air Force, both seemed to be drunk and wanted to find out his rank.

	c.  One individual presented his military identification (ID) card and asked to see his ID card.

	e.  After he showed his ID card, they made a big deal out of his rank and the fact that he was in the Army.

	f.  He was asked where he worked, what he was doing in the area, and if he had a business card, which he showed and evidently did not get back.

	g.  He did not speak with the individuals again and he estimated he had three beers during the entire evening.

	h.  It was clear that many individuals in the bar were becoming intoxicated and getting rowdy and he left the bar for the stated reasons.

	i.  If the airman and his wife believed that inappropriate behavior was occurring, they would have had enough sense to immediately report it, call the police, or done something.

	j.  They continued to party at the club and then, 3 days later, they spoke with agents and gave the alleged story.

	k.  He has dedicated over 25 years of his life in service to the Army and this Nation and he asked that his unwavering duty and sacrifice not be overshadowed by the unsupported allegations of one intoxicated individual.

	l.  He needed to use better judgment on where and with whom he spent his social time and he accepted the fact that placing himself in a poor environment was a bad call.

	m.  He sincerely regretted and apologized for the discredit that he caused by allowing himself to be associated with the incident.

	n.  He needed to regroup and strive to uphold the values he had since he enlisted in the Army and he did not believe his actions warrant the severe level of reprimand, which would effectively end his career.

	o.  He understood that he never should have been at the bar.

7.  The applicant requested that the GOMOR not be filed in his AMHRR.

8.  After careful consideration of the facts and circumstances the CG directed that the GOMOR and all enclosures to the action be filed in the applicant's AMHRR.

9.  The applicant retired on 30 September 2009.  He completed 20 years, 4 months, and 6 days of net active service.

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

	a.  once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority; and

	b.  unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part.

DISCUSSION AND CONCLUSIONS:

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

2.  Although the applicant contends that he did not assault the airman's wife and that the incident never happened, agent notes show that the airman and his spouse described in detail the actions of the applicant and they identified him from photographs they were provided.

3.  The burden of proof for successfully removing a GOMOR from the AMHRR is established by Army Regulation 600-37 as "clear and convincing evidence" that the GOMOR is untrue and/or unjust.

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

5.  The applicant was provided an opportunity to submit a rebuttal to the GOMOR which he chose to do.  After consideration of all of the available evidence the CG determined that the GOMOR should be filed in his AMHRR.  His contention that absolutely nothing ever happened and the complaints made against him were false are not substantiated by the available evidence.  He has not provided sufficient evidence to support his request to remove the GOMOR from his AMHRR.

6.  In accordance with the applicable regulation, once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130008947



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ABCMR Record of Proceedings (cont)                                         AR20130008947



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