IN THE CASE OF:	  

		BOARD DATE:	 12 November 2014

		DOCKET NUMBER:  AR20140003169 


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, reconsideration of his earlier request to be advanced on the Retired List from major (MAJ) to lieutenant colonel (LTC).  He also requests to appear before the Board, which is a new issue.

2.  The applicant states:

	a.  The Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was never completed.  Only verbal information was presented.  His side of the events was never told.

	b.  The negative command influence prompted the general officer memorandum of reprimand (GOMOR).

	c.  He continues to support the goals of a great Army 100 percent as evidenced by his continued hands-on inspiring work overseas.  His contractor service during the past 6 years is a testament to his ability to move forward, even in the face of this kind of adversity.  His work in Afghanistan from 2007 to 2013 is saving lives.  His enduring work during Operation Enduring Freedom and Operation Iraqi Freedom helped the worldwide effort in communicating the Army's great message.

3.  The applicant provides:

* a letter from a retired lieutenant general and former ambassador to Afghanistan, dated 11 May 2012
* a letter from the Counselor for Public Affairs, U.S. Embassy Riyadh, Kingdom of Saudi Arabia, dated 13 May 2012
* a letter from his immediate supervisor and rater at the time of the allegation, dated 1 November 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120014041 on 8 August 2013.

2.  The applicant provided letters from a retired lieutenant general and former ambassador to Afghanistan; the Counselor for Public Affairs, U.S. Embassy Riyadh; and his immediate supervisor and rater at the time of the allegation, which were not previously considered by the Board.  These letters are new evidence which warrant consideration at this time.

3.  On 19 May 1979, he was appointed as a Reserve commissioned officer in the rank of second lieutenant.  He was promoted to captain on 4 June 1986, to MAJ on 3 June 1993, and to LTC on 2 June 2000.

4.  On 7 January 2002, he was ordered to active duty in support of Operations Noble Eagle and Enduring Freedom.  He served in Qatar from 3 April 2003 to 11 May 2003.  He arrived in Kuwait/Iraq on 28 May 2003.

5.  On 20 July 2003, he was issued a GOMOR for attempting to arrange an evening of private socialization with a subordinate female enlisted Soldier on 21 June 2003.  The GOMOR indicated that his persistent attempts to engage in unlawful fraternization constituted sexual harassment and affected good order and discipline.  On 23 June 2003, he again contacted the female enlisted Soldier and again asked her to socialize privately with him.

6.  He was issued a notification of eligibility for retired pay at age 60 (20-year letter) on 23 July 2003.

7.  On 18 October 2003, the imposing authority directed filing the GOMOR locally for 18 months.

8.  He departed Iraq/Kuwait on 11 January 2004.

9.  On 16 January 2004, the Combined Forces Land Component Command (CFLCC) Chief of Staff appointed an IO to conduct an informal investigation into the facts and circumstances surrounding the allegation that the applicant sexually harassed a female enlisted Soldier while at Camp Doha, Kuwait.  The IO found the female enlisted Soldier's testimony was credible and the applicant behaved in an inappropriate manner.

10.  On 29 February 2004, the IO completed his findings and recommendations of the Army Regulation 15-6 investigation.  The IO recommended forwarding the Army Regulation 15-6 information to the applicant's chain of command and placing a letter of reprimand in his file.  The IO also recommended no longer allowing the applicant in theater to film.  If the applicant were determined to be mission essential to the project and if he must continue to film Soldiers for "An Army of One" video, the IO recommended having someone present.

11.  On 30 June 2004, he was issued a GOMOR for sexually assaulting and fraternizing with a female enlisted Soldier.  The GOMOR indicated he went to her private quarters and compromised his rank and position when he made unwanted sexual advances toward her by touching and kissing her neck in a sexual manner.  He further made a comment that suggested he wanted to meet with her in Washington, DC.  His actions were completely inappropriate and placed the Soldier in a position that caused her to question not only her safety, but also the professionalism and integrity of and trust she placed in commissioned officers.  On 9 September 2004, the imposing authority directed filing the GOMOR in his AMHRR.

12.  He was honorably released from active duty on 1 October 2004.

13.  On 23 November 2004, the 90th Regional Readiness Command (RRC) notified the applicant that involuntary separation action was being taken against him under the provisions of Army Regulation 135-175 (Separations of Officers).

14.  On 15 December 2004, the U.S. Army Reserve Personnel Command, St. Louis, MO, notified the applicant that the 2004 Department of the Army (DA) Colonel (COL) Reserve Components Selection Board (RCSB) had not selected him for promotion to COL.

15.  On 9 June 2005, the 90th RRC notified the applicant that a show-cause hearing would commence on 15 July 2005 to consider him for administrative separation.

16.  His show-cause board proceedings are not available for review; however, he was recommended for discharge under other than honorable conditions.

17.  On 17 November 2005, the U.S. Army Human Resources Command (HRC) notified the applicant that the 2005 DA COL RCSB had not selected him for promotion to COL.

18.  On 21 December 2005, HRC published orders discharging him from the U.S. Army Reserve (USAR) under other than honorable conditions effective 21 January 2006 under the provisions of Army Regulation 135-175.

19.  On 2 October 2006, the Army Discharge Review Board determined his character of service was too harsh and unanimously voted to upgrade his discharge to general under honorable conditions based on equity and his overall length and quality of service.

20.  On 23 February 2007, the applicant's original USAR discharge was voided and he was issued new discharge orders (D-02-704604) showing he was discharged from the USAR under honorable conditions.

21.  On 13 September 2007, the ABCMR denied the applicant's request to revoke his discharge orders and transfer him to the Retired Reserve or the Individual Ready Reserve.

22.  On 28 June 2012, the Army Grade Determination Review Board reviewed the request for a grade determination on the applicant.  The Deputy Assistant Secretary of the Army (Review Boards) directed his placement on the Retired List in the grade of MAJ/O-4 when he becomes eligible and applies for retirement.

23.  The applicant provided a letter from his immediate supervisor and rater at the time of the allegation, dated 1 November 2013, who stated:

	a.  He has known the applicant for 26 years.

	b.  He served with the applicant as his immediate supervisor and rater during the period in question when the allegation of sexual harassment (trying to kiss a female Soldier in Kuwait in December 2003) while on official orders to Iraq/Kuwait was initiated.

	c.  He was aware and involved from day 1 of the allegation.  He was present and participated in an overseas telephone interview on 28 January 2004 while the applicant answered questions about the alleged incident from the IO.  The telephone call originated in Kuwait, they were in Washington, DC.  He was also present and observed the continuing progress of this situation during the spring and summer of 2004.  During that period, he awaited receipt of documentation of a completed Army Regulation 15-6 investigation as was promised by the IO, but it never appeared.  He believes that no such document was ever completed and the action moved forward solely as a result of a conversation between the IO and the CFLCC Chief of Staff.

	d.  There is history between the CFLCC Chief of Staff, the applicant, and himself.  This history may have influenced the manner in which the CFLCC Chief of Staff handled the situation.

	e.  He assigned the applicant the mission of traveling to the Operation Iraqi Freedom theater to record video and still photography of the activities of the U.S. Army and its allies in support of the operation.  This material was to be broadcast quality and was to be used in a follow-on project by the Army Plans and Operations Department.

	f.  Travel to the theater needed to be cleared through the CFLCC.  Coordination for this authority was attempted by the applicant and him with the CFLCC Chief of Staff who did not want to admit them to theater.  The CFLCC Chief of Staff was adamant that he wanted no individuals with cameras admitted and delayed their eventual arrival in theater.  They were eventually provided with unlimited access to the theater and the CFLCC Chief of Staff was not pleased with this development.  The allegations against the applicant during a conversation between the IO and the CFLCC Chief of Staff some months later provided him an opportunity to vent his displeasure with the applicant.  He believes the CFLCC Chief of Staff acted improperly when he forwarded an incomplete action and he did so because he did not care for the applicant.

	g.  The applicant would make three trips into the theater.  The material he obtained would be used to create many products that were and are used internally and outside the Army to tell the story of what the Army accomplished during Operation Iraqi Freedom.  The images obtained by the applicant are archived at the Command and General Staff College library at Fort Leavenworth and will prove indispensable and will be appreciated for decades to come.

	h.  The applicant received an honorable discharge for his service during this activation only to later suffer from the flawed investigation that followed him upon his return to his Reserve Component.

	i.  The applicant has served the U.S. Army well and faithfully for in excess of 20 years.  The service he provided to very senior accounts was well received and he was awarded commendations for that service.  He does not believe this 

incident – the result of what appears to be a tainted investigation – should overtake the years of good and faithful service.

24.  He provided a letter from the U.S. Ambassador to Afghanistan from May 2009 to July 2011 who stated:

* the applicant's relentless work, can-do spirit, and caring attitude set a tremendous example and inspired many on their team
* he was the Senior Advisor/Master Trainer to the Government Media and Information Center
* he trained close to 300 Afghans in the art of strategic communications
* the applicant's work under his direction motivated and inspired Afghans

25.  The applicant provided a letter from the U.S. Embassy Deputy Director for Afghan Communications detailed to the Government Media and Information Center from October 2011 to October 2012 who stated:

* he interacted on a daily basis with the applicant
* the applicant impressed him with his top-of-line expertise, his unflappable dedication and commitment, and his outstanding interpersonal skills
* the applicant achieved much in his capacity as Senior Trainer
* he mentored and advised Afghans
* he assisted in building a high-level television production studio for production and broadcast programming
* he developed a training schedule and curricula for provincial and ministerial leaders and spokespersons
* he worked with high-level officials within and outside the U.S. Government, both on the military and civilian side

26.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service), paragraph 2-11, states service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army's Ad Hoc Review Board for final determination of the Soldier's retirement grade if, during the mandatory review of the Soldier's records by the Retired Activities Directorate, it is determined that revision to a lower grade was expressly for prejudice or cause or there is information in the Soldier's service records to indicate clearly that the highest grade was not served satisfactorily.

27.  Title 10, U.S. Code, section 3964, provides that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty as determined by the Secretary of the Army upon completion of 30 years of service.  This service may consist of combined active service and service in the U.S. Army Reserve Control Group (Retired).  The Army Grade Determination Review Board is the agency that reviews the records and/or applications for advancement on the Retired List on behalf of the Secretary for those who have attained 30 years of service.

28.  Army Regulation 15-185 (Army Board for Correction of Military Records) governs operation of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  It further states the Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that the Army Regulation 15-6 investigation was never completed.  The evidence of record shows the investigation was completed on 29 February 2004 and the IO's findings and recommendation were approved by the proper authority.  As a result, the applicant was issued a GOMOR on 30 June 2004 for sexually assaulting and fraternizing with a female enlisted Soldier.

2.  His contention that negative command influence prompted the GOMOR (presumably dated 30 June 2004) and the letter provided by his immediate supervisor and rater at the time of the allegation were noted.  However, there is no evidence of record to support this contention.  Further, that was the second time he received a GOMOR for the same type of incident.

3.  The evidence of record shows:

* he was promoted to LTC on 2 June 2000
* he received a GOMOR for unlawful fraternization with a female enlisted Soldier in July 2003
* he received a GOMOR for sexual assault and fraternization with a female enlisted Soldier in June 2004

4.  Since he received two GOMOR's within 1 year, he did not serve satisfactorily in the rank of LTC.  Therefore, there is insufficient evidence on which to base granting his request to be advanced on the Retired List from MAJ to LTC.

5.  His request for a personal appearance hearing was also carefully considered.  However, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision in his case.  Therefore, a personal appearance hearing is not warranted to serve the interest of equity and justice.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120014041, dated 8 August 2013.

2.  With regard to the applicant's new request for a personal appearance hearing, the Board determined the evidence presented is insufficient to warrant a recommendation for relief.




      _____________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)                                         AR20140003169



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ABCMR Record of Proceedings (cont)                                         AR20140003169



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