BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130019847 


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 the following documents from his Army Military Human Resource Record (AMHRR):   

* a General Officer Memorandum of Reprimand (GOMOR), dated 4 December 2009
* a Relief for Cause Officer Evaluation Report (OER), for the rating period 1 July 2008 through 2 January 2010 (hereafter referred to as the contested OER)

2.  The applicant states:

	a.  The GOMOR and contested OER should be removed from his AMHRR because the documents are untrue and unjust.  The GOMOR was issued prior to completion of the criminal investigation by the U.S. Army Criminal Investigation Command (hereafter referred to as CID, there was no Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation into the alleged misconduct, and the evidence obtained during his show cause board shows the alleged misconduct was unsubstantiated.  The contested OER was based on the GOMOR.  

	b.  He was passed over for promotion to the rank/grade of lieutenant colonel (LTC)/O-5 because the above documents are in his AMHRR and he has been given a mandatory retirement date (MRD) of 30 June 2014.

	c.  On 6 December 2009, he was issued the GOMOR by Lieutenant General (LTG) DB, now retired and at the time a major general (MG), wherein it stated:

		(1)  Between 4 and 7 January 2009, in Las Vegas, NV, you engaged in an adulterous sexual relationship with a woman not your wife whom you knew at the time to be married to a deployed U.S. Army warrant officer (WO).  You arranged for this meeting with the married woman in Las Vegas.  While there, you engaged in deviant sexual conduct with her on numerous occasions, ultimately leading to the allegations of rape against you.  These actions demonstrate exceedingly poor judgment, lack of moral character, and your vulnerability to subversive activity as a field-grade officer.

		(2)  Moreover, on 24 September 2009, while at JSS Doura [Iraq] you interfered with a lawful health and welfare inspection by refusing to permit the search of the living quarters of your team members and interpreters, some of whom possessed controlled substances.

		(3)  On 13 November 2009, after you were suspended from your duties, you were issued a written order by your brigade commander to have no more than incidental contact with your National Police Transition Team (NPTT) members, which you violated.  Your contact has been unprofessional and detrimental to the unit's mission.

	d.  He subsequently submitted a rebuttal to the GOMOR and on 1 January 2010, LTG DB directed the filing of the GOMOR and supporting documents in his AMHRR.  On 2 January 2010, he received the contested OER and, on 9 March 2010, he received an initiation of elimination memorandum.  On 9 March 2010, he passed a polygraph administered by CID supporting his position.  On 27 July 2010, CID completed the criminal case against him; he was untitled and the case was unfounded.  His accuser was subsequently titled with false swearing.

	e.  In May 2011, he appeared before a show cause board.  After 2 days of testimony and evidence, the board recommended retention without reassignment.  

	f.  In 2013, the applicant filed an appeal of the GOMOR with the Department of the Army Suitability Evaluation Board (DASEB) and an appeal of the contested OER with the U.S. Army Human Resources Command (HRC).  On 23 May 2013, the DASEB denied him relief and he was subsequently referred to the Army Board for Correction of Military Records (ABCMR).


	g.  Adultery was one of the alleged instances of misconduct the GOMOR cited.  However, he was wrongly accused of sexual assault and adultery by a married woman.  At the time the GOMOR was issued, the criminal investigation by CID was ongoing; however, CID does not investigate adultery.  After he passed the polygraph test, CID terminated the investigation as he proved the woman lied.  

	h.  The basis for adultery was the woman's false sworn statements and a forged email that was not provided to him until 20 May 2011 at the show cause board.  The date she supposedly responded to his email mentioning her "hubby" was 10 months after she falsely accused him of rape and the facts in the email are skewed.  

	i.  Interfering with a lawful health and welfare inspection was the second instance of misconduct the GOMOR cited.  However, it was not a health and welfare inspection, it was a search for controlled substances.  In September 2009, members of the North Carolina Army National Guard (NCARNG) were found to have controlled substances in their possession.  He was told the company commander, Captain (CPT) RS, intended to search his team members' and interpreters' living quarters.  

		(1)  CPT RS's sworn statement shows he did not conduct a lawful health and welfare inspection; he conducted a search.  CPT RS claimed he said "they are going to have to bring dogs to search his guys' rooms."  At the show cause board, he stated the decision was made above his level not to conduct a search of his team's quarters.  CPT RS also testified he did not ask him (the applicant) to search the living quarters but he had announced his intention to do so.

		(2)  After reviewing the CID Report of Investigation (ROI), the acting brigade commander recommended no action be taken against him.  He stated that although the applicant should have been more cooperative and supportive of CPT RS, the evidence was lacking to support charge of obstruction of justice.

		(3)  Army Regulation 600-20 (Army Command Policy) stated commanders are responsible for the health, safety, and military readiness of their units.  The health and welfare inspection is an effective tool to use in meeting this requirement.  Only a commander may order a health and welfare inspection and the areas inspected must belong to a commander's unit.  The living quarters of his NPTT did not belong to CPT RS's company, nor was his team subordinate to his company.

		(4)  As the team leader, he was entrusted with all aspects of his team.  During the evening in question, he had no reason to believe his Soldiers were using, or in possession of, controlled substances, and therefore he had no reason to search their living quarters.  As a field grade officer, he was not subservient to CPT RS.  He was never formally told CPT RS was the JSS commander and he did not interfere with CPT RS's search of CPT RS Soldiers' living quarters.  

		(5)  On the evening the controlled substances were discovered, he was never ordered to conduct a search of his team's living quarters by the battalion commander, LTC MD.  Had he been ordered to do so by LTC MD, he would have done so.  Upon being notified of possible interpreter involvement, his intelligence officer took it upon himself to search the interpreters' living quarters.

	j.  Violation of the no-contact order was the third instance of misconduct the GOMOR cited; however, he did not violate the order.

		(1)  On 16 November 2009, LTC DA issued him a written no-contact order from the brigade commander, COL GL, that was dated 13 November 2009.  The order prohibited him from contacting members of the NPTT with the exception of incidental contact.  Major (MAJ) RK, the unit judge advocate, advised him that meant social contact and he was not to have substantive contact regarding the team's official duties or any ongoing CID case.

		(2)  Stating he violated the no-contact order was based on a sworn statement from his team member, Staff Sergeant (SSG) LC, that they discussed the team's rating scheme on 13 November 2009, before he received the written order from LTC DA.  MSG NM said they exchanged passing pleasantries and CPT CH stated he heard him and MSG NM talking about television shows.

		(3)  CPT RM claimed he heard of the no-contact order from MSG MN on 15 November 2009.  This is impossible since he (the applicant) didn’t receive the no-contact order until 16 November 2009 and MSG MN learned of it from him after that date (emphasis added).

		(4)  In two memoranda from LTC MD, the formal requests to relieve him (the applicant), LTC MD stated on 13 November 2009 that he (the applicant) was removed from JSS Doura and received a no-contact order; however, sworn statements stated he had not adhered to the order.  During the show cause board, LTC MD was asked if he knew personally if he had violated the no-contact order and stated he only knew what he had been told.

	k.  As a result of the GOMOR and his already strained relationship with LTC MD, he was relieved as the team leader of the NPTT and he received the contested OER.
		(1)  The contested OER had several unsubstantiated claims.  His rater, COL GL, wrote that he had performed in an unsatisfactory manner during the rating period and his poor judgment led to his relief for cause as the NPTT team chief.

		(2)  Although COL GL was his rater, it was LTC MD who requested his relief for cause.  During sworn testimony [during the show cause board], LTC MD was asked if he had been aware of misconduct wouldn't it have been in the 1 December 2009 memorandum.  LTC MD stated he didn't write it down each time he talked to him (the applicant) about something and the memorandum was written from memory.  

		(3)  Administrative data on the contested OER is incorrect.  The date he was removed from his position until his relief for cause was not annotated as non-rated time per Army Regulation 635-3 (Evaluation Reporting System), paragraph 3-45b.  The OER also stated he received a GOMOR for having an adulterous relationship.  He has gone above and beyond proving he did not know his accuser was married.

		(4)  Army Regulation 600-20, paragraph 2-3 states commanders will ensure all members of their command receive timely performance counseling.  Effective performance counseling…helps to ensure they are prepared to carry out their duties efficiently and accomplish the mission.  However, he was never counseled.  He did not receive initial, quarterly, or performance counseling and he believed his performance was at least to standard.  LTC MD later stated, in hindsight, he would have initially counseled all of the Federal Police Transition Team (FPTT) members as well; however, he did not get around to it.

		(5)  Army Regulation 623-3 also states counseling will be conducted on an as-needed basis for all ranks above CPT.  If his performance was as poor as portrayed, he would have fallen into this category; however, he was never counseled.

	l.  With respect to removing the GOMOR from his AMHRR, Army Regulation 600-37 (Unfavorable Information) places the burden of proof on the recipient to provide evidence of a clear and convincing nature that the document is untrue or unjust.  He has met the burden as the show cause board found the evidence did not substantiate any of the misconduct listed in the GOMOR.  He is providing letters of support from two of the show cause board members which supports his contention.  Additionally, LTG DB, the GOMOR imposing authority, supports the removal of the GOMOR from his AMHRR.

3.  The applicant provides 18 memoranda dated between 13 November 2009 and 19 September 2013; a letter, the contested OER, five DA Forms 2823 (Sworn Statement), 12 pages titled Sworn Statement, his Officer Record Brief, three statements of support, and a compact disc (CD) titled Show Cause Board Audio CD.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a U.S. Army Reserve second lieutenant Military Police (MP) Corps officer and he executed an oath of office on 17 December 1994.  He served in staff and leadership positions and he was promoted to the rank/grade of MAJ/O-4 in the Regular Army on 1 September 2005.

2.  On or about 23 January 2009, he was assigned as Team Chief, NPTT, 30th Heavy Brigade Combat Team (HBCT), 1st Cavalry Division, Iraq. 

3.  On 28 January 2009, CID, Fort Lewis, WA, was notified by CID, Fort Drum, NY, that they received allegations the applicant committed rape and forced sodomy of an adult female while in Las Vegas, NV, in January 2009.  The female in question, Mrs. SW, was the spouse of an Army WO.

4.  The CID ROI, dated 27 May 2009, stated, in part:

	a.  The preliminary investigation disclosed that Mrs. SW and the applicant, who had dated in 2004, both traveled to Las Vegas to meet up with each other.  On 6 January 2009, after consuming large amounts of alcohol, Mrs. SW was escorted back to her hotel room by the applicant.  Once in the room, he forced her to perform various sexual acts without her will and without her consent.  She stated she said no the entire time and she was unable to resist due to a combination of her high level of intoxication and the applicant's size and strength. 

	b.  After reporting her rape to the CID, Fort Drum, she agreed to send the applicant a text message and subsequently sent a text to him that stated "I'm really upset about Vegas, why did you treat me like that, you really hurt me."  A response was received from the applicant that stated "I didn't mean to hurt you.  I guess we're just two very different people."  At the instruction of the CID agent, she sent him a text that stated "Didn't you hear me say no."  The applicant responded with a text message that stated "Are you crazy?  I wasn't trying to hurt you.  I guess you're going to believe what you believe."

	c.  On 11 February 2009, the applicant was advised of his legal rights which he waived.  He provided a verbal statement to CID wherein he stated, in part:
		(1)  He met Mrs. SW online in 2000 or 2001 and he had spoken to her on and off since then.  He described her as a "freak" who spoke promiscuously with him online.  It had been some time since he had communicated with her when they agreed to meet in Las Vegas.  He stated he arranged/paid for the hotel and she arranged/paid for her travel.  He had not had a previous sexual relationship with her and had not previously met her in person.

		(2)  He stated she got upset with him when he gambled for 27 hours straight.  Another time, he was sleeping and she kept trying to wake him to have sexual intercourse.  He did not want to do so as he was becoming bored with her but she kept insisting and he eventually gave in.  When asked to explain the specific sexual acts that occurred that weekend, the applicant did not want to elaborate.

	d.  The CID agent added the applicant terminated the interview by requesting legal counsel.  During the interview, he repeatedly stated he did not rape her; however, he seemed to be very nervous and his concern seemed to be focused on the offense of sodomy.

	e.  On 16 March 2009, CW2 RW, Mrs. SW's spouse, at the time serving in Iraq, submitted a sworn statement to CID wherein he stated his spouse had informed him that she was raped in Las Vega by the applicant.  He further stated his spouse had a previous relationship with the applicant.

	f.  On 24 March 2009, CID contacted Mrs. SW and she stated she was having nightmares and was receiving treatment from Behavioral Health (BH), Fort Drum, NY.  This was later confirmed by a lieutenant with BH, Fort Drum.  Mrs. SW further stated she was upset and felt she was being re-victimized due to the progression of CID's investigation.  Subsequent attempts to contact Mrs. SW were met with no success.

5.  The applicant provides a:

	a.  Memorandum, dated 13 November 2009, subject:  No Contact Order, issued by the 30th BCT Brigade Commander COL GL, wherein COL GL stated that on 30 September 2009 he temporarily suspended the applicant from his assigned duties with the NPTT.  Effective immediately, the applicant was to have no contact with the current members of the NPTT, other than incidental contact.  He further stated the order was in effect until further notice pending completion of an investigation being conducted by CID.

	b.  Memorandum to MG DB, dated 27 November 2009, subject: Recommendation - [The Applicant] - Allegation of Obstruction of Justice, issued by the 30th HBCT Brigade Commander, COL GT.  COL GT stated he reviewed CID's investigation and recommended no action be taken against the applicant based solely on his conduct on or about 24 September 2009 at JSS Doura.  Although the applicant should have been more cooperative and supportive of CPT RS, the evidence was lacking to support a charge of obstruction of justice or disrespect to a superior commissioned officer. 

	c.  Memorandum for the Commander, 30th HBCT, dated 1 December 2009, subject:  Formal Request to Relief [The Applicant], issued by the 1st Battalion, 252nd Armor Regiment, Commander, LTC MD, wherein LTC MD stated, in part:

		(1)  He formally requested the applicant be relieved from his duties as Team Chief, NPTT.  The action would ensure the applicant could no longer influence or undermine the team [in Iraq] or once they returned to Fort Riley, KS.  On numerous occasions the applicant stated they couldn't provide any more assistance to the Iraqi Federal Police (FP) because they no longer wanted or needed their help.

		(2)  His negative attitude and abrasive demeanor was passed on to select members of his team and made life at JSS Doura extremely difficult for CPT RS and the Soldiers of "TM Anvil" to accomplish their mission.  Although the Iraqi FP Brigade Commander, BG K, was not as Coalition Force friendly as some Iraqi generals, he was still approachable.  However, the applicant was perfectly content to sit in his room and undermine LTC MD's battalion every time they tried to conduct operations with their Iraqi counterparts.

		(3)  The applicant refused to support the FPTT Joint Operations Center and stated it was not in his team's mission statement of advising, coaching, teaching, and mentoring.  He refused to adhere to the uniform and weapons clearing policy until personally directed to do so by LTC MD.

		(4)  The applicant insisted the Iraqi FP did not work between 1100 and 1400 daily so he elected to use that time to conduct 4-hour physical fitness training (PT) sessions.  He refused to attend or send a representative to weekly Anvil briefings until personally directed to do so by LTC MD and refused to conduct joint routine meetings and resupply missions with TM Anvil.  He ordered augmentees from TM Anvil to perform preventive maintenance checks and services for FPTT vehicles while his organic team remained in their containerized housing units.

		(5)  On 13 November 2009, the applicant was removed from JSS Doura and received a no-contact order to have no contact with NPTT members.  Attached sworn statements stated he had not adhered to that order.
6.  On 4 December 2009, the applicant received a GOMOR issued by MG DB, Commander, Headquarters, 1st Cavalry Division and Multi-National Division -Bagdad, Iraq.  The GOMOR stated:

	a.  The applicant was being reprimanded for, between 4 and 7 January 2009, at Las Vegas, NV, engaging in an adulterous sexual relationship with a woman whom he knew to be married to a deployed Army WO.  While there, he engaged in deviant sexual conduct with her on numerous occasions, ultimately leading to allegations of rape against him.  Those actions demonstrated exceedingly poor judgment, lack of moral character, and his vulnerability to subversive activity as a field-grade officer. 

	b.  Moreover, on 24 September 2009, he interfered in a lawful health and welfare inspection by refusing to permit the search of his team and interpreters' living quarters, some of whom possessed controlled substances.  On 13 November 2009, after being suspended from his duties, he received a no contact order with members of the NPTT which he subsequently violated.  His conduct had been unprofessional and detrimental to the unit's mission.

	c.  As an officer, he had a duty to act responsibly in every situation, to do what was right, and to set a positive example for others.  He had completely failed in those responsibilities and discredited himself and the U.S. Army.  He (MG DB) seriously questioned his judgment and potential for further military service.  His actions had embarrassed and disappointed his chain of command.  MG DB stated he was imposing the reprimand as an administrative measure under Army Regulation 600-37 and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ).

7.  The applicant subsequently acknowledged receipt of the GOMOR and on 12 December 2009, he submitted a rebuttal.  In his rebuttal, the applicant stated, in part:

	a.  He was deeply sorry for the actions that formed the basis of the GOMOR.  Though he did not knowingly commit adultery intentionally, interfere with a health and welfare inspection, or purposefully violate the no-contact order, he had been careless with both words and actions and had engaged in extremely poor judgment that led him (MG DB) to believe he had committed the offenses (emphasis added).

	b.  He openly admitted he did engage in a sexual relationship with a female in Las Vegas whom he originally met on the Internet.  He did not know, and she never disclosed, she was married and he did not pay for her travel to or from Las Vegas where they spent a consensual weekend.  He had been a level-headed and conscientious Army officer for almost 2 decades, he was ashamed of the sexual encounter, and this was not his normal behavior.  He was deeply sorry for the pain it caused both the U.S. Army and the woman's spouse.

	c.  On 24 September 2009, he inappropriately commented on the authority of persons other than the company commander to order a health and welfare inspection of his NPTT members and interpreters.  The comment was construed as a purposeful attempt to interfere with the inspection but he in no way refused to allow an inspection of his team's living quarters. 

	d.  He had no reason to believe his team members or interpreters possessed any illegal contraband and he should have immediately ordered an inspection; instead, he became defensive.  He later learned an inspection revealed three or four pills a team member identified as Viagra as well as some sort of tobacco an interpreter identified as "hookah" tobacco.  Because he did not order the inspection, they were instructed to throw away the items by an officer who did not suspect they were contraband.  He learned a tremendous lesson from this. 

	e.  On 13 November 2009, he received an order to have no more than incidental contact with his NPTT team members (emphasis added).  He sought immediate legal guidance regarding what was incidental contact.  He was assured that if his communications were in no way related to official duties or the on-going investigation the contact would be incidental.  He admitted to having engaged in small talk with his team members; however, he did not speak to them about their duties or the investigation.  He apologizes for any appearance that he did not follow the order as it was issued to him and requested the GOMOR be filed locally in his military personnel file. 

8.  His immediate and senior commanders subsequently recommended denial of the applicant's request for the GOMOR to be filed locally in his military personnel file.

9.  On 1 January 2010, 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 DB directed the GOMOR be filed in the applicant’s AMHRR.

10.  In January 2010, the applicant received the contested OER, a relief for cause OER, which covered 12 months of rated time from 1 July 2008 through 2 January 2010 for his duties while serving as the Team Chief, NPTT.  His rater was COL GL and his senior rater was MG DB.  The OER shows he had nonrated time for codes E (leave 30 or more days) and S (student at military or civilian school).  The OER shows the following entries:
	a.  In Part IVa (Performance Evaluation - Professionalism – Army Values), the rater placed an "X" in the "No" block for all seven values.

	b.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered comments in Part Vb as follows, in part:

[Applicant] performed in an unsatisfactory manner during the rating period.  His poor judgment led to his relief for cause from his assignment as transition chief for the Iraqi FP Brigade.  The Iraqi FP Brigade holds the strategic East Rashid area of Baghdad and his team was charged with this important partnership.  Although he had the talent and experience to do more, he instead chose to create obstacles, causing unrest among his team members and a strenuous relationship with his chain of command.  Furthermore, he received a GOMOR for having an adulterous relationship and undermining the command.  

	c.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" block and entered the following comments, in part:

[Applicant] was relieved for cause of his duties.  The commander of the 30th HBCT lost confidence in his fitness to lead his team in combat.  He demonstrated appropriate tactical knowledge as an MP officer and had the capability to assist his Iraqi partners.  He has no potential for schooling, command, or promotion.  The rater directed the relief for cause. 

11.  On 17 February 2010, the applicant was assigned to Headquarters, DA, Office of the Deputy Chief of Staff, G-3/5/7. 

12.  On 13 May 2010, the applicant underwent a polygraph examination at Fort George G Meade, MD.  During the polygraph, he stated Mrs. SW had requested sodomy from him and she initiated all sexual contact on the date in question.  An analysis of the polygraph test revealed there were insufficient criteria present to form a conclusive decision regarding the truthfulness of the applicant.

13.  On 27 March 2010, the applicant underwent a second polygraph examination at Fort Belvoir, VA.  During the polygraph, he made no comments or statements contrary to those previously provided.  An analysis of the polygrams collected determined he was not being deceptive when answering the relevant questions regarding rape and sodomy (emphasis added).  In addition, an additional testing was requested by the applicant and his legal counsel regarding the allegation of adultery.  An analysis conducted of the subsequent polygrams collected determined he was being deceptive when answering the relevant questions regarding the allegation of adultery (emphasis added).

14.  The applicant provides a memorandum, dated 27 July 2010, issued by CID, Fort Lewis, wherein it stated further investigation determined the applicant did not commit the offenses or rape and forced sodomy as initially reported.  Additionally, Mrs. SW committed the offense of false statement when she provided continual inconsistent and false information pertaining to her allegations of rape and forced sodomy.  All other offenses associated with the investigation (including the adultery charge), did not fall within the normal investigative purview of CID and had been referred to the commander for action deemed appropriate (emphasis added).

15.  From 19 to 20 May 2011, a board of inquiry (BOI), or show cause board, was held at Fort McNair, DC, to determine whether the applicant should be discharged because of misconduct.  The board determined there was not sufficient evidence to substantiate the alleged derogatory activity of adultery, obstruction of justice, disobeying a no-contact order, or of conduct unbecoming of an officer as indicated in the 4 December 2011 GOMOR.  The BOI recommended he be retained in the Army and the approving authority concurred with the recommendation. 

16.  On 23 May 2013, the DASEB denied his request to remove the GOMOR from his AMHRR and determined that:

	a.  The evidence presented did not establish the GOMOR was untrue of unjust.  In addition, the BOI had determined the applicant should be retained on active duty, not because he was "exonerated" as he claimed, but because the allegations of misconduct were unsubstantiated by the preponderance of evidence. 

	b.  Although the GOMOR imposing authority wrote a statement supporting the removal of the GOMOR, the governing regulation stated the imposing authority may request the revision, alteration, or removal if later investigations determined it was untrue or unjust (emphasis added).  The basis for such determination must be provided in sufficient detail so as to justify the request.  No evidence from a new investigation was provided.

17.  The applicant provides letters of support, dated as follows:

	a.  21 December 2011, wherein COL WW recommended the GOMOR and contested OER be expunged from the applicant's AMHRR.  He stated he was a member of the BOI and the board voted unanimously that the evidence did not substantiate the allegations of adultery, obstruction of justice, disobeying an order, or conduct unbecoming an officer.  He voted to retain the applicant on active duty and the board's findings contradict the derogatory information in the GOMOR and OER.

	b.  28 February 2013, wherein LTG DB, the GOMOR imposing authority, recommended the GOMOR be removed from the applicant's AMHRR.  He stated he understood a show-cause board exonerated the applicant of the alleged misconduct that was the subject of the reprimand (emphasis added).  His service after receiving the reprimand included outstanding efforts in his assigned jobs.  He committed to overcoming his mistake and had continued to serve admirably in tough assignments.

	c.  13 March 2013, wherein COL MO, Retrograde Division Chief, DA, G-4, recommended the GOMOR and contested OER be removed from the applicant's AMHRR as a result of the BOI findings that determined the evidence did not substantiate the allegations in the GOMOR and OER. 

18.  Army Regulation 600-37 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.  

	a.  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.

	b.  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 folder.  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.  

19.  Army Regulation 600-8-104 (AMHHR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance folder of the AMHRR unless directed otherwise by an appropriate authority (DASEB or ABCMR). 

20.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-39 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	c.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR should be removed from his AMHRR because it was issued prior to the completion of the CID criminal investigation, there was never a 15-6 investigation into the alleged misconduct, and evidence obtained during his BOI showed the alleged misconduct was unsubstantiated.  The contested OER should be removed because it was based on the GOMOR.

2.  The evidence of record confirms the applicant received a GOMOR on 4 December 2009 for engaging in an adulterous sexual relationship with a married woman, interfering with a lawful health and welfare inspection, and violating a no contact order.  The GOMOR was issued as an administrative measure and not as punishment under the provisions of Article 15, UCMJ, after MG DB received a CID report about the adulterous relationship and negative reports from senior commanders about the applicant's misconduct.  

3.  Governing regulations do not require a 15-6 investigation be conducted or a CID criminal investigation be completed prior to the issuance of a GOMOR.  The applicant was afforded the opportunity to review the evidence against him and to submit matters in his own behalf prior to a final filing decision.  His response was received and considered.  Subsequently, the GOMOR was referred for filing in his AMHRR.

4.  Notwithstanding the applicant's contention that the BOI obtained evidence that showed the alleged misconduct was unsubstantiated, the BOI only determined there was not sufficient evidence to substantiate the misconduct of adultery, obstruction of justice, disobeying a no-contact order, or conduct unbecoming of an officer.  

5.  In addition, although CID polygraph examinations determined he was not being deceptive when answering the relevant questions regarding rape and sodomy, they did determine he was being deceptive when answering the relevant questions regarding adultery.

6.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his AMHRR.  There is no evidence of an error or an injustice.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

8.  With respect to the contested OER, 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 applicant contends the OER should be removed because it was based on the GOMOR; however, this contention does not have merit.  The contested OER appears to be correct and appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and moral qualities during the period in question. 


10.  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.

11.  The applicant did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the OER 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 

________  ________  ________  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)                                         AR20130019847





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ABCMR Record of Proceedings (cont)                                         AR20130019847



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