IN THE CASE OF:	  

		BOARD DATE:	    26 November 2013

		DOCKET NUMBER:  AR20130016368 


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 the:

   a.  transfer of a General Officer Memorandum of Reprimand (GOMOR) from the performance section of his Army Military Human Resource Record (AMHRR) to the restricted section; and

   b.  appropriate redaction/removal of his referred DA Form 1059 (Service School Academic Evaluation Report (AER)), covering the rated period from 28 October 2007 through 6 February 2008, hereafter referred to as the contested AER.

2.  The applicant states:

	a.  He was issued a GOMOR in 2008 by the Commander (CDR), Military District of Washington (MDW) for having an inappropriate and adulterous relationship with a fellow student while attending the Judge Advocate Officer Basic Course (JAOBC).  He has accepted responsibility for his actions from the beginning and he has worked hard in the 5 and 1/2 years since to overcome this deficiency.  He appealed to the Department of the Army Suitability Evaluation Board (DASEB) in January 2013 to move the GOMOR to the restricted section of his AMHRR, under the provision of Army Regulation 600-37 (Unfavorable Action), paragraph7-2(b) on the basis that the GOMOR had served its intended purpose and transfer of the GOMOR was in the best interest of the Army.  The appeal was denied and he believes the denial was unjust.

	b.  As an initial matter, he needs to clarify two things about the reprimand; namely, the leadership position he held at the time of the incident and his remark concerning the Judge Advocate General (JAG) Corps.  During JAOBC, he was a squad leader and then First Lieutenant (1LT) Bxxxxxxx (now Captain (CPT) Jxxxxxxx, his current spouse), was a member of his squad.  As a former infantry Soldier and military intelligence (MI) platoon leader, he certainly understood the influence and authority he held in that position.  He acknowledges that he understands a leader should not be involved in a personal relationship with someone under their authority, regardless of marital status.  He knew that and he failed to uphold the standard.

	c.  However, he treated 1LT Bxxxxxxx no differently than any other member of his squad.  She gained no professional benefit or favor from their personal relationship and he exerted no undue influence over her.  No member of the squad was aware of their relationship.  He knows this does not excuse his conduct, but there was little impact on the squad.

	d.  He does not have a cavalier attitude about his misconduct, the affair, or their consequences.  He understands that appearing as it does in the vacuum of the GOMOR, his statement that “the JAG Corps tends to brush these things under the rug” could create that perception.  The circumstances at the time placed it in context and are relevant to its meaning.  During January 2008, he was emotionally distraught.  He recognizes that he placed himself in that position but, regardless of the cause, he was deeply concerned about the effects of his actions on 1LT Bxxxxxxx, his children, and his then spouse.  Although his marriage was over, and it had been ending for quite some time, he felt tremendous guilt at the emotional blow he dealt his spouse (now his ex-spouse).  He also feared that the circumstances of his actions would render his newfound love fleeting.  He knew he was violating the moral, ethical, and legal codes of the officer corps.

	e.  His statement was reckless and inappropriate but he had just admitted the affair to his spouse.  Her shock and grief quickly turned to anger and she demanded he relinquish his parental rights of his children.  During several
one-way conversations that month she told him what a horrible person he was and began to wield her knowledge of his misconduct like a cudgel over his head.  Exasperated to the point of recklessness he did make a statement to that effect to her.  That is likely why she reported his misconduct to his chain of command but it does not accurately state his belief about the JAG Corps.  The GOMOR stated he made this statement after his misconduct was reported but the investigation clearly showed the comment came before the report.

	f.  He knew in January 2008 that he could no longer stay married to his spouse and he made significant efforts to ensure she had adequate resources to care for herself and his children.  He told her she was eligible to receive legal counseling at Fort Leonard Wood, MO, and voluntarily took on their marital debt which left her debt-free.  He continued to deposit his military pay into their joint checking account for 5 months after she filed for divorce and for 4 months after she found new employment.  He lived on a bare-bones budget and only once diverted his pay into a personal account when it became clear she was abusing her access to the funds.  He did not, and does not, want his children to pay for the end of his marriage and the decisions he made. 

	g.  He left JAOBC with his personal and professional life in shambles but he resolved to do everything he could to put his life in order and overcome his deficiency.  His objective is and has been to "bury the bad paper with good."  He believes his performance as a JA has lived up to that resolve.  He delivered a strong performance in every position and task he has been given.  He has always been a team player and never sought to elevate himself at the expense of someone else.  He prefers instead to let his hard work and his work product speak for itself.  His ratings have consistently shown his strength as a JA and his potential for future advancement.

	h.  His ability to forthrightly advise commanders was fairly called into question by his action.  Yet, in the more than 5 years since the GOMOR, his leaders have never hesitated to place him in positions of greater responsibility.  Most of his senior raters knew about the GOMOR when they were supervising him and his current staff judge advocate (SJA) is his strongest supporter in his efforts to resolve this situation.  His assignment history shows the trust and confidence placed in him by the SJAs with whom he has served.

	i.  Since receiving the GOMOR, he has served as the Special Assistant U.S. Attorney for Fort Stewart, GA, and Hunter Army Airfield, GA, where he was given total authority to resolve, as he saw fit, cases of civilian criminal misconduct that occurred on Post.  He was the lead counsel for a Soldier-on-Soldier double-murder case; a potentially capital case.  He presented the case to the Article 32 officer, who was a sitting military judge and is now Chief, Army Trial Judiciary.  Despite being his first Article 32 investigation, he managed the case through the Article 32 process and received a recommendation to refer the case as a capital offense.

	j.  At Fort Leonard Wood, MO, he taught criminal procedures to countless military police (MP) investigators, U.S. Army Criminal Investigation Command (CID) special agents, MP and advanced individual training Soldiers at the U.S. Army MP School.  As the Chief, Administrative and Civil Law Division, Fort Leonard Wood, MO, he advised on numerous investigations of misconduct including cases similar to his own, all while supervising and leading a team of three officers, four civilian attorneys, and one civilian paralegal.  He has twice been appointed as a part-time military magistrate, during which he had the authority to review and grant search and seizure authorizations and conduct pre-trial confinement reviews.  Additionally, he was appointed as the Article 32 investigating officer (IO) for a case involving child sexual abuse and rape spanning more than a decade with multiple now-grown children as victims.

	k.  In his current assignment, he is charged with mentoring and shaping the newest JA's in their initial assignments as legal assistance attorneys.  In 2011, the JAG Corps demonstrated its faith in his abilities by approving JA Continuation Pay for his continued service.  Throughout his service as a JA, his analysis, advice, decisions, and his recommendations to commanders have not once been influenced by his personal misconduct during JAOBC.  Having himself erred, he has a stronger appreciation for the unique role justice plays in our laws.  He understands the importance of accountability but also recognizes that accountability in a vacuum is not justice served.

	l.  He believes the DASEB analysis was misguided and questioned, given his position as a JA, whether it was in the best interest of the Army to move his GOMOR to his restricted section of his AMHRR.  That was a fair question in 2008, but in the more than 5 years since the GOMOR he has been placed in positions of greater responsibility.  The Army demonstrated trust in his abilities and his resolve to overcome this error despite the GOMOR.  After 5 years of consistently high performance and professional success, his ability to forthrightly advise commanders was called into question.  If his error was deemed to be fatal, elimination should have been initiated in 2008 instead of allowing him to proceed as a JA.  After serving in three duty stations, a deployment to Iraq, after supervising 10 attorneys, and honestly advising commanders in hundreds of units across the Army, this question seems to have been answered.

	m.  He has served in the Army for almost 13 years.  He made some horrible decisions during 1 month while dealing with a personal crisis.  Lost in the fog of his emotional turbulence was his professional obligation to uphold the values and standards of the Army, Officer Corps, and the JAG Corps.  He owned up to his misconduct, accepted responsibility, and he has done everything in his power to redeem himself both personally and professionally.  He believes his demonstrated performance record bears testimony to why he should be given the opportunity to serve in the Army in positions of greater responsibility.



3.  The applicant provides:

* a DASEB Report of Proceedings, dated 25 April 2013
* a self-authored letter to the DASEB, dated 13 January 2013, with 10 statements of support attached, dated between 6 November 2012 and 22 January 2013
* an Officer Record Brief (ORB), dated 4 October 2012
* seven DA Forms 67-9 (Officer Evaluation Report (OER)), dated between November 2008 and May 2013
* two award certificates, dated 1 April 2009 and 29 March 2011
* GOMOR, dated 14 February 2008, and 49 pages of allied documents

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant executed an oath of office on 10 February 2002 and he was appointed as a U.S. Army Reserve (USAR) MI officer.  He entered active duty on the same date for a period of 3 years.  He was promoted to the rank of CPT on 1 July 2003.  

2.  He was ordered to active duty as a CPT in the Regular Army, JAG Corps, and he entered active duty on 28 October 2008.  He was assigned to The JAG Legal Center and School (TJAGLCS), Charlottesville, VA, for the JAOBC.

3.  On 4 February 2008, the applicant's spouse filed a complaint with the Commandant, TJAGLCS, stating that he was having an affair with 1LT Bxxxxxxx, a fellow student.  On 5 February 2008, an IO was appointed to conduct a commander's inquiry into the allegations presented by his spouse.  The IO subsequently found the applicant had engaged in an adulterous relationship with 1LT Bxxxxxxx.

4.  On 14 February 2008, the applicant received a GOMOR issued by Major General (MG) RJR, CDR, MDW.  The GOMOR stated the applicant was being reprimanded for engaging in an adulterous relationship with a fellow JAOBC student.  Because of his prior enlisted and commissioned service, he was selected for the leadership position of squad leader.  The fellow student was a new officer with no prior military experience.  Most disturbing was his cavalier attitude about his misconduct after it was reported to the command by his spouse.  His statement to his spouse that he was not afraid of getting into trouble as he had been told the "JAG tends to brush things under the rug" was indicative of his complete failure to take responsibility for his actions.  


5.  The reprimand further stated that as an officer and a JA, he was expected to uphold the highest standard of conduct, both personally and professionally.  He failed on both accounts.  He violated his own marital vows, while simultaneously betraying the trust and confidence given him when he was selected to become a member of the JAG Corps.  As a JA, the applicant was expected to uphold the law.  He (MG RJR) questioned whether he could forthrightly advise commanders on legal issues when he was unable to comply with the law himself.  MG RJR stated he was imposing the reprimand as an administrative measure under Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15 of the Uniform Code of Military Justice.

6.  On 19 February 2008, the applicant acknowledged receipt of the GOMOR and submitted a rebuttal.  In his rebuttal, the applicant acknowledged his conduct was wrong and he should have handled his relationship with 1LT Bxxxxxxx in a different manner.  He had a responsibility to his family and the Army to conduct himself honorably and he failed.  He stated he made the statement that the "JAG tends to brush things under the rug" to his spouse before she notified the command of his affair, it came after a heated discussion with his spouse, and it did not reflect his true beliefs about the JAG Corps.  He knew he made a terrible mistake and the affair was the only time he brought disrepute upon himself.  He was profoundly ashamed of his conduct and requested the GOMOR be filed locally in his military personnel file.

7.  His immediate and senior commanders subsequently recommended the GOMOR be filed locally in his military personnel file.

8.  On 6 March 2008, after carefully reviewing the rebuttal submitted by the applicant, the facts and circumstances pertaining to the misconduct, and his chain of command's recommendations, MG RJR directed the GOMOR be filed in the applicant’s AMHRR.

9.  On 6 March 2008, he received the contested AER which covered the rated period from 28 October 2007 through 6 February 2008 while he was a student at JAOBC, TJAGLCS, Charlottesville, VA.  Item 14 (Comments) of the report contained the statements "[The Applicant] maintained an appropriate attitude, good motivation, and willingness to respond to guidance." and "During the course [The Applicant] engaged in an adulterous relationship with a fellow classmate for which he received a GOMOR."  This AER was a referred report; he chose not to submit any comments to the report.

10.  Since receiving the GOMOR, the applicant he received an "Outstanding Performance, Must Promote" and "Best Qualified" rating for his OERs covering the periods:
* 7 February 2008 through 1 October 2008
* 2 October 2008 through 26 May 2009
* 27 May 2009 through 30 April 2010
* 1 May 2010 through 31 December 2010
* 31 December 2010 through 2 July 2011
* 3 July 2011 through 15 May 2012
* 16 May 2012 through 15 May 2013

11.  He was awarded the:

* Army Commendation Medal, for meritorious service at Rock Island Arsenal, Rock Island, IL, from 7 February to 5 June 2009
* Bronze Star Medal, for exceptionally meritorious service while assigned as the trial counsel during Operation Iraqi Freedom (OIF) and New Dawn, from 10 July 2010 to 21 June 2011

12.  On 23 January 2013, he filed an appeal with the DASEB requesting the transfer of his GOMOR to the restricted portion of his AMHRR.

13.  On 25 April 2013, his request to have the GOMOR transferred was denied.  The DASEB Record of Proceedings stated that given the seriousness of his misconduct, along with his rank and duty position at the time of the misconduct, and that because he was a JAG officer, it raised serious concern that it would be in the best interest of the Army at that time to transfer the GOMOR.  Although he acknowledged his misconduct and he received successful OERs since the imposition of the GOMOR, it was premature to transfer the GOMOR without more evidence of a compelling nature to show the GOMOR had served its intended purpose or that it was in the best interest of the Army to transfer it.

14.  The applicant has not provided any evidence or presented any argument as to why the contested AER should be removed from his AMHRR or why portions of the AER should be redacted.

15.  Army Regulation 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, a document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board and the DAESB.  

16.  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.

17.  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.  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.  

18.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, including the DA Form 1059.  

	a.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards, and career managers can make intelligent decisions.

	b.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

19.  Item 14 of the DA Form 1059 states this item is intended to obtain a word picture of each student that will accurately and completely portray academic performance, intellectual qualities, and communication skills and abilities.  The narrative should also discuss broader aspects of the student's potential, leadership capabilities, moral and overall professional qualities.  In particular, comments should be made if the student failed to respond to recommendations for improving academic or personal affairs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GOMOR should be transferred to the restricted portion of his AMHRR and that the DASEB unjustly found it was not in the best interests of the Army to do.

2.  The evidence of record confirms he received a GOMOR for engaging in an adulterous relationship with a fellow junior JAOBC officer.

3.  The applicant, a JAG Corps CPT, was reprimanded for betraying the trust and confidence placed in him.  He failed to uphold the standards of personal and professional conduct that was expected of an Army officer.  His conduct was especially egregious as he was a JA; he was not only expected to uphold the law, he was charged with advising commanders on all aspects of legal and moral situations.  He himself stated he knew he was violating the moral, ethical, and legal codes of the officer corps but did so anyway.

4.  In April 2013, in accordance with governing regulations, the DASEB denied his request to transfer the GOMOR to the restricted folder of his AMHRR and determined it was premature to transfer the GOMOR without more evidence of a compelling nature to show the GOMOR had served its intended purpose or that it was in the best interest of the Army to do so.

5.  The purpose of maintaining the AMHRR is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.  

6.  However, a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  There is no doubt that after his mistake in 2008 the applicant has rebounded in an outstanding manner.  He has taken big leaps towards improving himself both personally and professionally.  He has rebounded since his incident and successfully completed several assignments, received seven best qualified OERs, and he was awarded the Bronze Star Medal for exceptionally meritorious service while deployed in support of OIF.  It has been well over 5 years since he received the GOMOR and the GOMOR appears to have served its intended purpose.
7.  Therefore, in the interest of justice, his GOMOR should be transferred to the restricted section of his AMHRR.

8.  With respect to the contested AER, the governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

9.  The contested AER appears to be correct and appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated academic performance and moral qualities during the period in question.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

10.  The applicant did not provide any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the AER under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, there is insufficient evidence to grant this portion of the requested relief.

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 GOMOR, dated 15 February 2008, and the related DASEB proceedings 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 the redaction/removal of his AER for the rated period from 28 October 2007 through 6 February 2008.




      _______ _   __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)                                         AR20130016368



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ABCMR Record of Proceedings (cont)                                         AR20130016368



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