IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20140001056 


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 removal of the following documents from the restricted folder of her Army Military Human Resource Record (AMHRR):

* DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers), dated 12 June 2012 
* memorandum, dated 2 July 2013, issued by Lieutenant General (LTG) WP

2.  The applicant states, in effect:

   a.  She was the respondent in an Army Regulation 15-6 (Procedures for IO and Board of Officers) investigation based on an accusatory statement about events that took place in 2010 and early 2011.  The investigation was completed in June 2012.  Two of the three charges against her were determined to be unfounded.  For the third charge of conduct unbecoming an officer, she received a counseling statement, which was filed in her local file with no intent that it continue beyond her current duty station.
   
   b.  Pursuant to Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-2(a) the inclusion of these documents in her AMHRR is a violation of Army regulations that may improperly influence future decisions about her career.  The great preponderance of evidence shows that inclusion of these documents is an injustice.  Therefore, the documents should be removed from her AMHRR.

   c.  She has served honorably and with distinction for her entire 16-year career.  Though she received counseling for the findings of the original investigation, it was her commander's intent to ensure that she be allowed to continue to serve the U.S. Army with the same skill and dedication she has shown throughout her career.
   
   d.  Filing the investigation findings in her restricted folder without proper notification is a violation of Army regulations that creates a potentially career-ending situation for her and contradicts the intent of her commanders and the determinations of both general officers and military attorneys.
   
   e.  Because her entire record will be reviewed during every board she will appear before in the future, filing the findings in her restricted folder has no mediating effect.  Additionally, in light of the upcoming Officer Separation Board, the results could be career-ending in the near future.  This means the documents serve a second, double punishment and is analogous to an increase in nonjudicial punishment.  It also represents punishment for two allegations that were unfounded.
   
   f.  Since the documents contemplate conduct from more than 2 years ago, imposing additional punishment is unjust.  Finally, the punishment is based solely on a slanderous, anonymous letter and has not been tailored to the offense.  In summation, filing the documents in her restricted folder directly violates or contradicts the explicit intent of her commanders.  It clearly offends traditional principles of fair play and substantial justice.  The great weight of the evidence proves that this action is a grave and significant injustice.

3.  The applicant provides two memoranda, DA Form 1574, two letters of support, a DA Form 1059 (Civilian Institution Academic Evaluation Report), ten DA Forms 67-9 (OER), DA Form 4037 (Officer Record Brief), and Military Personnel Message Number 13-357.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army Acquisition Corps commissioned officer who currently holds the rank/grade of major (MAJ)/O-4.    

2.  On 8 May 2012, the Garrison Commander, Fort Belvoir, VA, appointed an Army Regulation 15-6 IO to investigate allegations that:

* the applicant and MAJ JD had an adulterous relationship 
* the applicant and MAJ JD violated Article 133, Uniform Code of Military Justice (UCMJ), conduct unbecoming an officer and gentleman
* the applicant and MAJ JD committed travel fraud

3.  The IO subsequently completed his investigation.  The DA Form 1574, section IV (Findings) shows the IO found, in part, that:

   a.  The evidence was insufficient to support that MAJ JD and the applicant had an adulterous relationship.  Although the evidence was sufficient to support two of the three elements described as adultery, there was not sufficient evidence to validate that the accused wrongfully had sexual intercourse with a certain person.
   
   	(1)  The evidence substantiated the accused or the other person was married to someone else.  MAJ JD and the applicant were both still married although exhibits indicated both were pursuing divorces. 
   
   	(2)  Based on evidence provided, it was more likely than not the relationship substantiated that the conduct of the applicant and MAJ JD was prejudicial to good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces.
   
      (3)  Several co-workers reported the relationship was not detrimental to the organization but was deemed inappropriate by one co-worker.  Both the applicant and MAJ JD expressed remorse and decided to end the relationship.

	b.  The evidence was sufficient to believe the applicant and MAJ JD violated Article 133, UCMJ - conduct unbecoming an officer and a gentleman.  The evidence substantiated the applicant and MAJ JD did or omitted to do certain acts that constituted conduct unbecoming an officer and a gentleman.

		(1)  The applicant's spouse stated he caught his spouse in their home with MAJ JD and he also stated MAJ JD went to Michigan to meet the applicant in January 2011.

		(2)  Their ability to meet outside of work and home was supported by their travel schedules and the statement that they met in Michigan was supported by the exhibits.  Subsequent statements and exhibits supported both officers were married, aware the other was married, and that their relationship was perceived as inappropriate.

	c.  The evidence was insufficient to believe the applicant and MAJ JD committed travel fraud.  The exhibits include 11 instances where their travel schedules overlapped, with four of the dates over weekends.  Their schedules provided opportunities to facilitate a relationship; however, there was no evidence their government official travel itineraries were changed in order to facilitate their relationship.

4.  The IO recommended disciplinary or administrative action as deemed appropriate by each officer's chain of command.  The Army Regulation 15-6 findings and recommendations were approved by the approving authority on 12 June 2012.

5.  The applicant stated she was counseled by her commander and the counseling was filed in her local file.  Her AMHRR is void of any counseling, disciplinary, or other administrative actions taken by her chain of command as a result of the Army Regulation 15-6 findings that she and MAJ JD did or omitted to do certain acts that constituted conduct unbecoming an officer and a gentleman.

6.  By memorandum, dated 2 July 2013, LTG WP forwarded the DA Form 1574 to the Office of the Deputy Chief of Staff, G-1.  LTG WP stated that as the Director, Acquisition Career Management he was requesting the DA Form 1574 be placed in the restricted folder of two Army acquisition officers, the applicant's and MAJ JD's AMHRR, in accordance with Army Regulation 600-8-104 (AMHRR Management).  This memorandum and the Army Regulation 15-6 investigation are filed in the restricted folder of the applicant's AMHRR.

7.  In July 2013, she received an Annual OER covering the rating period 16 May 2012 to 15 May 2013 while serving as the Assistant Product Manager, Joint Program Executive Office for Chemical and Biological Defense, Fort Belvoir, VA.  Her rater was LTC CL and her senior rater was COL JC.  She received an "outstanding performance, must promote" from her rater and a "best qualified" rating from her senior rater.  There is no mention of the investigation or its findings.

8.  The applicant provided letters of support from:

   a.  Mr. KB, Director, Operations Joint Project Manager Guardian, dated                 11 December 2013, wherein he stated he felt the applicant's leadership, integrity, and character had been blemished by anonymous hearsay that was completely unfounded.  He further stated that over the course of his 37-year career as an Army officer, contractor, and government civilian, he would rank the applicant in the top 5 percent of the hundreds of officers he had served with.

   b.  Mr. KF, Chief of Staff, Program Executive Office Soldier, dated 7 January 2014, wherein he stated he had worked with the applicant over the past 
12 months and felt the applicant should continue to serve in the Army in the most demanding assignments.  Having worked in the Army for more than 30 years, as an enlisted National Guardsman, as an active duty commissioned officer for        20 years, and currently as an Army civil servant in the grade of GS15, he considered the applicant to be one of the finest officers he had ever served with.
   
   c.  He further stated the applicant was the target of a controlling, abusive ex-spouse who set out to destroy her career through unfounded accusations resulting in a formal investigation and follow-on anonymous letters to senior Army leaders which resulted in additional investigations.  By directing the placement of the report in her AMHRR, a senior staff officer overrode the punishment emplaced by the chain of command which was sanctioned by the Staff Judge Advocate and approved by the Garrison Commander.  Removal of the information is required to correct the travesty of command influence and endorsement of spousal abuse.

9.  The applicant provides ABCMR Docket Number AR2005007123, dated 6 December 2005, wherein the applicant, a junior captain (CPT), requested the removal of 117 pages of information, to include an Army Regulation 15-6 investigation from the restricted folder of his AMHRR as he had been denied due process.  

	a.  In January 2000, an Army Regulation 15-6 investigation was conducted into the climate and state of discipline into the applicant's unit.  The Army Regulation 15-6 investigation contained several findings and recommendations regarding a myriad of command climate issues and specific acts of indiscipline in the unit.  That applicant was cited by name in three of the findings.  In May 2000, that applicant received a General Officer Memorandum of Reprimand (GOMOR) for failing to properly supervise his subordinate Soldiers during a 2-month period.  The issuing commander directed the filing of the GOMOR in his local file.  

	b.  Subsequently, a team was appointed to review the concerns and other factors suggested by the Army Regulation 15-6 investigation and to take appropriate corrective actions.  The review was completed and the November 2000 report stated the crimes and abuses outlined in the Army Regulation 15-6 investigation were the result of failures in leadership in the applicant's company.  It further stated that appropriate action had been taken against the responsible leaders; however, a review of any favorable actions these leaders received since the investigation was recommended.  The Department of the Army Suitability Evaluation Board subsequently conducted a review into any favorable actions the various leaders had received since the Army Regulation 15-6 investigation.

	c.  As a result, of the two additional reviews, 117 pages of documents, to include the Army Regulation 15-6 investigation and GOMOR, were filed in the restricted folder of that applicant's AMHRR.
	d.  The Board determined that applicant had not been denied due process but questions were raised as to the filing of all the documents in his AMHRR.  The Board determined that although that applicant had leadership lapses during a short period of time, his overall performance indicated he was a top performer and it was in the best interests of the Army to remove the documents in question.
 
10.  Army Regulation 600-8-104 prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Paragraph 1-6 states, in part, the AMHRR is an administrative record as well as the official permanent record of military service.  The purpose is to preserve permanent documents pertaining to enlistment, appointments, training, performance, awards, disciplinary actions, and any other personnel actions.  Table B-1 (Authorized Documents) states a DA Form 1574 will be filed in the restricted folder of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the memorandum and Army Regulation 15-6 investigation should be removed from the restricted folder of her AMHRR because the filing of these documents by LTG WP contradicts the imposing commander's intention, is an injustice because she was not notified of the filing, and constitutes double punishment.

2.  The evidence of record confirms an Army Regulation 15-6 investigation was conducted in 2012 to determine if the applicant had an adulterous relationship with another field-grade officer, if she committed conduct unbecoming an officer and gentleman, and if she committed travel fraud.  She was found to have committed conduct unbecoming an officer by engaging in an inappropriate relationship.  The findings and recommendations were approved by the appropriate authority on 12 June 2012.  The applicant stated she was made aware of the findings of the investigation at the time, she was counseled by her immediate commander as a result, and her commander directed the counseling be filed in her local file only.

3.  Notwithstanding her contention that the filing of the DA Form 1574 contradicts the imposing commander's intention, the filing of a DA Form 1574 is directed by governing regulations and, unlike an Article 15 or GOMOR, its filing is not the decision of a commander.  

4.  It appears that in 2013 when, according to the applicant, LTG WP received allegations that the applicant was involved in an adulterous relationship and committed travel fraud, LTG WP found these allegations had previously been investigated.  However, it also appears he found the Army Regulation 15-6 investigation was not properly filed as required by regulatory guidance.  Therefore, in accordance with the governing regulation, he forwarded it for filing in the restricted folder of the applicant's AMHRR.  This action did not require notification to the applicant, was not an injustice, and did not constitute double punishment.  The Army Regulation15-6 investigation (DA Form 1574) is currently properly filed in the restricted folder of her AMHRR.

5.  The applicant states a case previously considered by the ABCMR directed the removal of documents to include an Army Regulation 15-6 investigation from an applicant's AMHRR.  However, the circumstances of the case were different as the case involved a junior CPT, not a field grade officer, and the Army Regulation 15-6 investigation was conducted into the climate and state of the unit and not on specific allegations of wrongdoing by the CPT himself.  It was determined the CPT had a lapse of judgment for a period of 2 months; he was not found to have engaged in misconduct conducted of over an extended period of time.

6.  In addition, the Army Regulation 15-6 investigation in the previous case was not filed as a stand-alone document; rather it was part of 117 pages of documents to include a GOMOR that had been directed for filing in the applicant's local file only.  Furthermore, the case was considered 9 years ago when the Army was extremely short of officers and in the midst of two ongoing wars.  The Army in 2014 is a different Army than it was in 2005; the Army and society's tolerance today for misconduct by senior military officers is not the same as it may have previously been.

7.  In view of the foregoing, she is not entitled to the removal of the Army Regulation 15-6 investigation from the restricted folder of her AMHRR.

8.  However, the governing regulation does not require the memorandum forwarding the DA Form 1574 to be filed in the AMHRR.  Therefore, it would be appropriate to remove the memorandum from her AMHRR.

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 removing the memorandum, dated 2 July 2013, from the restricted folder of her 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 removal of the DA Form 1574 from the restricted folder of her 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)                                         AR20140001056



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ABCMR Record of Proceedings (cont)                                         AR20140001056



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