BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140002013 


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, in effect, reversal of the Army Grade Determination Review Board (AGDRB) decision to place him on the Retired List in the rank of captain (CPT)/O-3E.

2.  The applicant states that following his request to retire in 2013 the AGDRB determined his service in the rank of CPT was not satisfactory.  He did receive a General Officer Memorandum of Reprimand (GOMOR) while serving as a company commander in 2011; however, he was not relieved from command and received exceptional Officer Evaluation Reports (OER) during his service in the rank of CPT.  He feels the AGDRB’s decision was grossly unjust and mischaracterizes his 24 years of service in the Army.  He has determined the “ABCMR” did not assess, evaluate, or consider the supporting documentation that was provided to the board supporting his request to retire in the rank/grade of CPT/O-3E.

3.  The applicant provides:

* self-authored statement, dated 22 November 2013
* eight OERs coving the rating periods occurring from 8 July 2005 to 5 April 2013
* seven memoranda of support
* Officer Record Brief (ORB)
* AGDRB decision, dated 28 May 2013


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 January 1992, held military occupational specialties 91W (Health Care Specialist) and 18D (Special Forces Medical Sergeant), and attained the rank/grade of sergeant first class/E-7.  He was honorably discharged, on 13 June 2002, to accept a commission and was subsequently appointed as a reserve commissioned officer on 14 June 2002 and entered active duty.

2.  The Fiscal Year 2010 (FY10) Major (MAJ) Army Medical Department (AMEDD) Specialty Corps (SP) Promotion Selection Board, which convened on 13 April 2010, recommended him for promotion to MAJ.

3.  His record contains an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigating Officer’s (IO) Report for Sexual Harassment Complaint, dated 2 May 2011, wherein the IO stated:

	a.  On 30 March 2011, CPT LJ (47th Combat Support Hospital (CSH), S-6) submitted a sexual harassment complaint against the applicant (Company Commander, A Company, 47th CSH).  The complaint was that the applicant used inappropriate comments that were offensive and sexual in nature.  CPT LJ did speak to the applicant about his inappropriate language prior to submitting the complaint.  MAJ KH (Executive Officer (XO), 47th CSH), also spoke to the applicant about his language per CPT LJ’s request.  On 7 April 2011, during the investigation, CPT AC (Company Commander, B Company, 47th CSH), went to Military Police Investigators (MPI) and gave a sworn statement stating the applicant had shown him an inappropriate text message and that he witnessed the applicant make inappropriate comments.  The message was from CPT ES (47th CSH, Property Book Officer).  MPI obtained a sworn statement from CPT ES and pictures of the text messages the applicant sent.  The investigation covers the period 7 April 2011 to 2 May 2011.  

	b.  The IO found:

		(1)  CPT LJ and the applicant’s sworn statements contradict one another.  However, CPT LJ’s statement shows validity when compared to the sworn statements of CPT ZR (47th CSH, S-1) and MAJ KH.  However, the applicant’s statement shows validity when compared to the statement of First Sergeant (1SG) CL (Company A, 47th CSH, 1SG) and comments made by the former 47th CSH Equal Opportunity representative Staff Sergeant (SSG) HB, who spoke to the IO on the telephone but was not available to make a sworn statement.

		(2)  Some leaders acted and reported incidents of alleged sexual harassment in accordance with Army Regulation 600-20 (Command Policy) and other leaders did not act.

		(3)  The applicant used inappropriate comments and language that met the definition of sexual harassment as defined in Army Regulation 600-20, paragraph 7-4a(3) and 7-4b.

		(4)  The applicant made inappropriate comments and used inappropriate language that is a category of sexual harassment as defined by Army Regulation 600-20, paragraph 7-5a, specifically, sexually explicit profanity.

		(5)  The applicant made inappropriate comments and used inappropriate language that is a category of sexual harassment as defined by Army Regulation 600-20, paragraph 7-6b., hostile environment.

		(6)  The applicant’s comments were said jokingly or out of frustration.

		(7)  The applicant sent text messages to CPT ES that contained sexually explicit profanity.

		(8)  The applicant was deceitful when questioned about the text messages he sent to CPT ES.

		(9)  The applicant engaged in sexual harassment by using sexually explicit profanity among his peers and created a hostile and offensive work environment.

		(10)  The applicant violated the 47th CSH policy and his own policy on sexual harassment and the prevention of sexual harassment.  Through the course of this investigation, the allegations that the applicant engaged in sexual harassment is substantiated based on the "preponderance of evidence" standard and the above findings in accordance with Army Regulation 600-20, appendix D.

	c.  The IO made two recommendations which pertained specifically to the applicant.

		(1)  The applicant should take a communication class regarding what is and is not appropriate to say around others.

		(2)  The applicant should receive a GOMOR to be placed in his local file.


4.  His OER for the rating period 2 September 2010 to 15 June 2011 is a referred report.  His rater checked a "NO" for the Army Value "Respect" indicating the applicant did not promote dignity, consideration, fairness or the Equal Opportunity program.  His rater stated "The negative comment on the front of the OER is a result of a substantiated EO complaint raised by one of his peers.  His rater checked the box "Outstanding Performance, Must Promote" and his senior rater checked the box "Best Qualified."  He submitted/attached comments to his referred report, dated 11 September 2011, wherein he stated, in effect, despite the negative comments his rating chain rendered him an outstanding OER.

5.  His record contains a GOMOR, dated 23 June 2011, which stated:

	a.  An investigation revealed the applicant made various inappropriate, offensive, and sexually explicit comments to Soldiers within his command.  Specifically, Major General (MG) LM, Commanding, found:

		(1)  Around early January 2011, the applicant sent a text to CPT ES (47th CSH, Property Book Officer), a female officer in his brigade, stating "[sexually explicit comment]."

		(2)  Instead of showing remorse for this remarkably unprofessional action, the applicant bragged about his actions.  In early March 2011, the applicant showed the text message to at least two fellow male officers, laughed about the message, and stated, "Look at this, I blasted her," or words to that effect.

		(3)  In recent brigade command and staff meetings, the applicant made demeaning and inappropriate comments regarding female Soldiers who might become pregnant before or during the brigade’s upcoming deployment.  MG LM found the applicant stated words to the following effect:  (1) That such female Soldiers were engaging in "recreational procreation," (2) that "maybe we should put 'depo' [birth control] in the water" to prevent such Soldiers from becoming pregnant, and/or (3) that "we should tie their tubes" to keep such Soldiers from getting pregnant while deployed.

		(4)  Around mid-March 2011, while in the Property Book Office with several Soldiers and fellow officers, the applicant asked, "[sexually explicit comment]."  A female enlisted Soldier responded that his comment was inappropriate and that he needed to "stop it."  However, instead of stopping, the applicant responded by poking his finger into CPT ES’s chest, and asking her, "It’s funny, isn't it?"  This is the same CPT ES to whom the applicant sent the inappropriate text message.

		(5)  Around 24 March 2011, at a company training event with several Soldiers within earshot, the applicant stated to Sergeant First Class (SFC) Mxxxxxxx, "[sexually explicit comment]" or words to that effect.

		(6)  Around 1 April 2011, in the presence of another CPT and while on duty in his unit area, the applicant stated to CPT ES, "The only way you are going to be in Special Forces is to [explicit comment.]"

	b.  The applicant’s multiple incidences of inappropriate, derogatory, and lewd language demonstrate systemic errors in judgment.  The applicant knowingly and continuously chooses to violate well-established military standards regarding sexual harassment.  The applicant made a mockery of his own command policy memorandum prohibiting the very conduct he displayed.  His actions demonstrated poor judgment, an utter disregard for military standards, and his behavior would be toxic to any command.

	c.  The applicant was reprimanded for his unprofessional and morally contemptible conduct.  As a commissioned officer in the U.S. Army, particularly one that the Army has entrusted to command Soldiers, the applicant was expected to be the role model and adhere to the highest standards of professional and personal conduct.  The applicant chose, on multiple occasions, to violate these standards.  The applicant caused MG LM to question his maturity, judgment, and leadership abilities.  MG LM found the applicant’s actions brought discredit upon the applicant, his command, and the U.S. Army.

	d.  MG LM informed the applicant that the GOMOR was an administrative action and not a punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), but that the GOMOR would still have significant consequences for his career.  MG LM also stated he was considering whether or not to file the GOMOR in the performance folder of his Official Military Personnel Folder (OMPF).  

6.  The applicant responded to the GOMOR on 21 July 2011.  He stated, in effect, he was remorseful for his actions and offered his apology to those he had offended.  He stated he never intended to cause harm through his statements and actions.  During the investigation he had time to speak with friends and peers, and examine his behavior.  He realized he used poor judgment.  He stated he felt he had maintained his integrity because he had not been relieved of command and would endeavor to win back the trust and confidence of those around him.  He outlined his past accomplishments and requested that the GOMOR not be filed in his OMPF.

7.  Despite the recommendation for COL SA (Commander, 47th CSH) that the GOMOR be filed locally, MG LM filed the GOMOR in the applicant’s OMPF.

8.  His record contains a memorandum issued by the U.S. Army Human Resources Command (HRC), on 29 September 2011, entitled, "Delay of Promotion and Referral to a Promotion Review Board (PRB)."  This memorandum stated:

	a.  He received a referred OER and a GOMOR after the FY10 MAJ AMEDD SP Promotion Selection Board convened on 13 April 2010, which recommended him for promotion to MAJ.  Title 10, U.S. Code (USC), section 624(d)(2) and Army Regulation 600-8-29 (Officer Promotions), chapter 8, state the appointment of an officer may be delayed in any case in which there is cause to believe that an officer is mentally, physically, morally, or professionally unqualified to perform the duties in the grade for which they were selected for promotion.

	b.  His records would be referred to a PRB.  The PRB would make a recommendation to the Secretary of the Army that the applicant either be retained on the promotion list, be removed from the promotion list, or show cause for retention on active duty.  The applicant acknowledged receipt of the notification on 29 September 2011 and indicated he intended to submit a rebuttal.

9.  The applicant submitted his rebuttal to the PRB, on 12 October 2011.  His rebuttal outlined his 21 years of service in the Army, his education, deployments, accomplishments, and his remorse of the actions which resulted in the referred OER and GOMOR.  He stated that, nevertheless, he felt he was mentally, physically, morally, and professionally qualified to perform the duties of the rank of MAJ.  He indicated he had attached his previous OERs which were all outstanding, and several letters of support/recommendation which all essentially indicated that the recommender thought he should be promoted to MAJ despite the incident which led to the referred OER and GOMOR.

10.  On 25 January 2012, the PRB recommended the applicant’s name be removed from the FY10 MAJ AMEDD SP Promotion List.

11.  On 12 June 2012, the Secretary of the Army directed the applicant's removal from the promotion list.




12.  On 13 June 2012, HRC informed the applicant his name had been removed from the FY10 promotion list and that, while he was eligible for future promotion boards, if he was not selected for promotion by the next promotion board for which he was eligible, he would be considered a two-time failure for selection for promotion.

13.  The applicant submitted a voluntary request for retirement on an unknown date.

14.  His record contains a memorandum, dated 28 May 2013, which states the AGDRB reviewed his voluntary retirement request and the request for a grade determination submitted by HRC.  The AGDRB directed that the applicant be placed on the retired list in the rank/grade of first lieutenant (1LT)/O-2 if his retirement was approved.

15.  Orders Number 156-0019, issued by Directorate of Human Resources, Military Personnel Division, Joint Base Lewis-McChord, WA, on 5 June 2013 show he was placed on the retired list in the rank/grade of 1LT/O-2, on 
1 December 2013.

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 30 November 2013.  His rank/grade was shown as CPT/O-3.

17.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.

	a.  Paragraph 2-4 (Grade Determination Considerations) states a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay.  Although a lower grade determination may affect an individual adversely, it is not punitive.  The AGDRB will consider each case on its own merits.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following:

		(1)  medical reasons, which may have been a contributing or decisive factor in a reduction in rank/grade, misconduct, or substandard performance;

		(2)  nature and severity of misconduct, if any.  Although the punishment an individual has received may be one factor in determining the seriousness of 

misconduct, the amount of punishment will not be considered in determining whether "the individual has been punished enough."  Grade determinations are not considered punitive, and the standard for rank/grade determinations is the "highest grade satisfactorily served," not whether the individual has been sufficiently punished; and

		(3)  the rank/grade in which the misconduct was committed.

	b.  Paragraph 2-5 (Unsatisfactory Service) states service in the highest rank/grade or an intermediate rank/grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the rank/grade in question was unsatisfactory.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that rank/grade was unsatisfactory, regardless of the period of time served in the rank/grade.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had a referred OER and a GOMOR for engaging in sexual harassment by using sexually explicit profanity among his peers and creating a hostile and offensive work environment, violating the command policy on sexual harassment, and violating his own policy on sexual harassment.  The GOMOR, as a stand-alone document, clearly illustrates his misconduct and poor judgment.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature as to bring discredit in the Army or is prejudicial to good order and discipline.  The applicant was a commissioned officer and a company commander upon whom the Secretary of the Army had reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  Here, the applicant violated that trust.

2.  He provides no evidence to show he was prevented from presenting matters to the AGDRB, that the AGDRB failed to fairly consider all the evidence he presented, or that the AGDRB erred in its decision.  The fact that he does not like or agree with decision does not constitute an error or injustice.

3.  The Army has a zero tolerance policy with respect to sexual harassment.  As such, given the gravity of the offenses committed that resulted in the issuance of his GOMOR and referred OER, it would be inappropriate to retire him in the rank of CPT.  Grade determinations are not considered punitive and the standard for rank/grade determinations is the "highest grade satisfactorily served."


4.  In view of the foregoing, there is no error or injustice in the actions of the AGDRB or any compelling evidence which warrants 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)                                         AR20140002013





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ABCMR Record of Proceedings (cont)                                         AR20140002013



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