IN THE CASE OF:	  

		BOARD DATE:	    31 December 2013

		DOCKET NUMBER:  AR20130015543 


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 a General Officer Memorandum of Reprimand (GOMOR) be removed from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) or transferred to the restricted section of his AMHRR.

2.  The applicant states there are two alleged bases for the reprimand:

* he allowed criminal misconduct to occur in his home 
* he failed to supervise the internet activity of his dependents   

3.  A Board of Inquiry was convened to determine whether the conduct alleged in the GOMOR occurred.  The board found the alleged derogatory activity resulting in the GOMOR was not supported by a preponderance of evidence.  The board recommended the applicant's retention in the service and stated it could not find conscious misconduct or moral or professional dereliction.  

4.  The board's findings are supported by German State Prosecutor and U.S. Army Criminal Investigation Command (CID) investigations as set forth in his appeal.  The investigations did not find any evidence that anyone in his home engaged in any criminal misconduct, nor did they find any viewable child pornography.




5.  The applicant provides:

* an English translation of a document prepared by the State Office of Criminal Investigation Niedersachsen, dated 23 March 2009
* memorandum, dated 18 March 2010, Subject: Forensic Examination Report
* GOMOR and allied documents 
* three DA Forms 67-9 (Officer Evaluation Report)
* Department of the Army Suitability Evaluation Board (DASEB) Appeal, dated 5 April 2012
* Board of Inquiry Proceedings, dated 27 March 2013

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve officer on 1 December 2000 in the rank and grade of first lieutenant (1LT).  He was promoted to major (MAJ) on 1 May 2009.  He is currently serving on active duty.  

2.  In June 2007, he was assigned to the U.S. Army Medical Department Activity (MEDDAC), Heidelberg, Germany, as the Laboratory Manager. 

3.  On 18 March 2010, a CID Forensic Examination Report concluded four extremely small web banners containing suspected child pornography were recovered from a hard drive.  Further searches for known child pornography terms had been conducted and it was speculated that suspected child pornography was subsequently downloaded, which could not be confirmed due to the inoperable state of an external hard drive.  

4.  An English translation of a document prepared by the State Office of Criminal Investigation Niedersachsen, dated 23 March 2010, shows the applicant was investigated for dissemination, purchase, and possession of child pornographic publications.  There was no evidence the applicant was involved or engaged in any criminal misconduct.

5.  On 25 August 2010, the Acting Commanding General (CG), V Corps, issued the applicant a GOMOR for allowing criminal misconduct to occur in his home and for failing to supervise the internet activity of dependents living in his home.  The Acting CG stated a criminal investigation determined that an Internet Protocol (IP) address registered to the applicant's computer was the source of searches for child pornography.  The CID also seized his son's thumb drive with several images of child pornography, and an image of child pornography embedded within nearly 250 images of pornographic anime.  A sketchpad with graphic child pornographic sketches of Japanese anime drawn by his son was also discovered.

6.  On 26 August 2010, the applicant acknowledged receipt of the GOMOR and elected to submit matters in rebuttal wherein he indicated that on the advice of counsel he could not comment on any allegations made against him during the ongoing investigation.  His attorney spoke in his behalf, stating there was no evidence the applicant searched for or downloaded child pornography.  He did not know the shared computer in his home was being used to search for and possibly download child pornography.  The investigation did find several images of child pornography on items belonging to the applicant's 22 year old son.  

7.  On 22 October 2010, the Acting CG, V Corps, directed the GOMOR be filed in the applicant's AMHRR.

8.  On 5 April 2012, the applicant submitted a request to the DASEB for the removal of the GOMOR from his AMHRR or transfer of the GOMOR to the restricted portion of his AMHRR.  He indicated that German State Prosecutors and CID did not find any evidence that anyone in his home engaged in criminal conduct, nor did they find any viewable child pornography.  Since the reprimand was issued, he had taken additional steps to ensure there was not a repeat incident.  He had been more aggressive in checking the computers for inappropriate material.  He purchased a thumb drive designed to alert the user to the possible presence of pornographic images, and he had ensured that Lime Wire (peer-to-peer file-sharing software) was not installed on any computers.  On 7 June 2012, the DASEB denied his request.  The DASEB determined:

* almost 2 years had elapsed since he received the GOMOR
* his personal misconduct was noted in his annual Officer Evaluation Report (OER)
* his records did not show he attended any schools or received any awards since the GOMOR
* he only received one OER since receipt of the GOMOR
* he was not in the primary zone for consideration for promotion
* insufficient time had elapsed for him to demonstrate a solid performance over a sustained period of time
* no evidence showed he had been disadvantaged or deprived of any rights or privileges
* it was premature to transfer the GOMOR without evidence of a compelling nature to show the GOMOR's intent had been served

9.  On 27 March 2013, a Board of Inquiry was convened to determine whether the applicant should be retained on active duty because of misconduct, moral, or professional dereliction.  The board found that the substantiated derogatory activity in a GOMOR, dated 25 August 2010, and a referred OER for the period 16 June 2010 through 29 January 2011 was not supported by a preponderance of the evidence.  Conduct unbecoming an officer as indicated by the GOMOR and referred OER was not supported by a preponderance of the evidence.  The board recommended he be retained in the service.  On 13 June 2013, the CG of Fort Hood, TX, approved the recommendation to retain the applicant in the U.S. Army.

10.  The applicant provided two OER's for the periods 30 January 2011 through 29 January 2012 and 30 January 2012 through 29 January 2013.  Each shows ratings of "Outstanding Performance, Must Promote" and "Best Qualified."

11.  Army Regulation 600-37 (Unfavorable Information) provides, in pertinent part, 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.

12.  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 portion of the AMHRR.  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.

13.  Only memorandum of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted portion of the AMHRR.  The above 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the 25 August 2010 GOMOR should be removed or transferred to the restricted section on his AMHRR.  He contends that the Board of Inquiry determined the GOMOR was not supported by a preponderance of the evidence.

2. The CG made his decision to file the GOMOR in the applicant's AMHRR only after careful consideration of all the evidence presented by the CID Forensic Examination Report and the State Office of Criminal Investigation Niedersachsen.  It appears the CG made an appropriate decision to file the GOMOR in the applicant's AMHRR.  The applicant received the GOMOR for allowing criminal misconduct to occur in his home and for failing to supervise the internet activity of dependents living in his home.  There is no evidentiary basis for questioning the CG's decision. 

3.  The governing regulation authorizes the transfer of a GOMOR from the performance to the restricted portion of the AMHRR when it can be determined that the document has served its intended purpose.  The evidence of record in this case shows the applicant has accepted responsibility for the activity in his home and for failing to supervise the internet activity of dependents living in his home.  A Board of Inquiry recommended he be retained on active duty, he has received solid OERs categorizing him as the best qualified, and he has responded positively to the GOMOR, as evidenced by his continued outstanding performance.

4.  The applicant's overall service since the issuance of the GOMOR indicates that he has performed his duties in an outstanding manner and has continued value to the Army.  Therefore, it is concluded that the GOMOR in question has served its intended purpose.  Thus, it would be appropriate to transfer the GOMOR to the restricted portion of the applicant's AMHRR at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the 25 August 2010 General Officer Memorandum of Reprimand and all related documents from the performance portion to the restricted portion of his AMHRR.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the General Officer Memorandum of Reprimand from the AMHRR.




      _______ _ 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)                                         AR20130015543



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ABCMR Record of Proceedings (cont)                                         AR20130015543



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