IN THE CASE OF:	  

		BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20140007255 


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 transfer of a General Officer Memorandum of Reprimand (GOMOR) from the performance folder of his official military personnel file (OMPF) to the restricted folder.

2.  The applicant states:

	a.  He feels the GOMOR in his OMPF serves as a hindrance to his progression within the Army and that it has served its intended purpose.  Since the GOMOR, his record has been exemplary as evidenced by the Officer Evaluation Reports (OERs) he received over the last 4 years; one of which was given to him by the same command he served under when he received the GOMOR.  His chain of command is supportive of the movement as are many of his peers and team members.

	b.  As proof that it has served its intended purpose, one must simply look at his record which is one of the best for a logistician in a fires brigade.  He was passed over by the Fiscal Year 2014 (FY14) Major (MAJ) Promotion Board solely due to the GOMOR.  The GOMOR has harmed his ability to progress but not his resolve to serve.  His conduct has been nothing but exemplary as the letters of support and his chain of command attest to.  His professional actions since the GOMOR demonstrated the ability of a Soldier to accept the punishment, not let it affect his judgment or performance, and continue to strive for excellence.  

	c.  In July 2013, the Department of the Army Suitability Evaluation Board (DASEB) denied his request for the transfer of the GOMOR to his restricted folder.  DASEB stated he did not provide sufficient support and it was not in the best interest of the Army to transfer the GOMOR.  He challenges that determination as the standard appears to not be a realistic expectation.  The DASEB admitted to inconsistencies in the GOMOR packet from the Army Regulation (AR) 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers) investigation to the legal review.  He understands he cannot challenge the GOMOR; he just wants it transferred to the restricted folder of his OMPF so that his merits will be allowed to stand on their own and he will be able to continue to serve. 

	d.  He would like his achievements noted; he received the Bronze Star Medal, Joint Meritorious Unit Award (2nd Award), Joint Service Achievement Medal, and the Military Outstanding Volunteer Service Medal.  He also received ratings of "outstanding performance, must promote" and "best qualified" on his last four OERS which reflect his dedication to duty and the uniform he wears.  As a commander, he received an "above center of mass" evaluation from his senior rater who, despite knowing about the board of inquiry (BOI), deemed him one of his best commanders while keeping him in command for 10 more months. 

	e.  He was selected by the Commanding Generals, 1st Cavalry Division and the U.S. Army Human Resources Command (HRC) for retention.  The GOMOR in his file contradicts the potential both commands indicated by supporting his retention.  Additionally, in his current position, his ability as a leader earned him a position as both support operations officer and battalion executive officer (XO).  Surely a Soldier of questionable character would not be placed in a position to wear two hats and work in key developmental positions for field grade officers.

	f.  According to AR 600-37 (Unfavorable Information), paragraph7-2(b)(1), he must show that the GOMOR has served its intended purpose and the transfer of the GOMOR is in the best interest of the Army.  His record demonstrates excellence since the GOMOR and indicates he deserves to continue to serve the Army.

3.  The applicant provides his Officer Record Brief (ORB), four DA Forms 67-9 (OER), and seven memoranda, dated between 3 March 2013 and 14 April 2014.

CONSIDERATION OF EVIDENCE:

1.  The applicant is an active duty Regular Army officer.  He was promoted to the rank/grade of captain (CPT)/O-3 on 9 December 2008.  On 8 November 2010, he was assigned to Headquarters and Headquarters Company (HHC), 589th Brigade Support Battalion (BSB), 41st Fires Brigade, 1st Cavalry Division, Fort Hood, TX.
2.  On 3 February 2011, the applicant's spouse contacted Major (MAJ) CDW, XO, 589th BSB, and complained the applicant was engaged in an affair with a junior enlisted Soldier, Specialist (SPC) YY.

3.  On 7 February 2011, CPT JCB, the 41st Fires Brigade, Judge Advocate (JA) appointed an IO to conduct an AR 15-6 investigation into allegations that the applicant engaged in a personal relationship with an enlisted Soldier and determine, if such a relationship did exist, was it in violation of Article 133 (Conduct Unbecoming an Officer) and Article 134 (Adultery and Fraternization), Uniform Code of Military Justice (UCMJ), or AR 600-20 (Army Command Policy).

4.  On 8 February 2011, the IO interviewed the applicant's spouse and stated he was looking into the allegations she made that the applicant was having an adulterous relationship with SPC YY.  His spouse stated she was not expecting an investigation when she made the call.  All she wanted was for her spouse to stop communicating with SPC YY and for him to deposit the money he took from their joint account back into the account so she could purchase groceries.  She subsequently declined to answer any further questions.

5.  In a sworn statement, dated 9 February 2011, MAJ CDW stated on or about 6 December 2010 the applicant told him he had an adulterous affair that ended in March 2010.  This was after the XO pulled him aside to discuss his emotional demeanor at work.  He (the applicant) stated he was more than likely getting divorced due to an ended adulterous affair he had while at Fort Lee, VA.  On 3 February 2011, his spouse called him (MAJ CDW) and stated he had not stopped the affair.  When he went to pick up his household goods at Fort Lee, he went to see SPC YY at Fort Bragg, NC, and continued to text her messages that she read on his cell phone that stated he and SPC YY would be together in April when he would finalize his divorce based on Texas law.

6.  On 10 February 2011, the IO conducted an interview with the applicant and read him his rights; he declined to answer questions or make a statement.

7.  In a sworn statement, dated 16 February 2011, Lieutenant Colonel (LTC) PKC, Commander, 589th BSB, stated that during the brigade's exercise from 1-16 December 2010 he had numerous counseling sessions with the applicant reference his marriage.  It was apparent he was extremely emotional and his work performance was impacted by the constant phone calls and trips back to his residence during duty hours to resolve/address issues with his spouse.  The applicant stated marital infidelity and trust were the main marriage issues. 

8.  On 17 February 2011, the IO conducted a telephonic interview with SPC YY, informed her of who he was, why he was calling, and he read her her rights; she declined to answer questions or make a statement.

9.  The DA Form 1574 (Report of Proceedings by IO/Board of Officers), dated 24 February 2011, shows the IO stated there was no factual evidence the applicant engaged in a personal relationship with an enlisted Soldier; however, having interviewed his spouse, he was unable to verify if the allegations she made were valid.  She refused to provide any evidence of text messages, email traffic, or hotel receipts that she claimed she had copies of when she spoke to MAJ CDW.  While speaking with MAJ CDW, the applicant did admit to an adulterous affair that ended in March 2010.  The IO recommended the applicant be given a DD Form 2873 (Military Protective Order) ordering him to refrain from initiating any communications with SPC YY for 90 days and he should seek marriage counseling from Family Advocacy.

10.  On 29 April 2011, he received a GOMOR from MG DBA, Commander, 1st Cavalry Division.  MB DBA stated:

	a.  The applicant was hereby reprimanded for engaging in an adulterous relationship with a junior enlisted Soldier.  In December 2010, his poor performance during the brigade's mission rehearsal exercise drew the attention of his battalion XO.  When the XO confronted him, he (the applicant) admitted that he had engaged in an adulterous affair which resulted in difficulties within his marriage.  On 3 February 2011, his spouse contacted the XO to complain that he continued to engage in an affair with a junior enlisted Soldier, that he had visited her at Fort Bragg when he went to collect his household goods, and that they were communicating by phone and text message.

	b.  It was a matter of serious concern to MG DBA that he committed such irresponsible acts of misconduct and exercised such poor judgment.  His behavior was inappropriate and created an actual or clearly predictable adverse impact on discipline, authority, morale, and the ability of the command to accomplish its mission, and compromised the integrity of his supervisory authority.  The U.S. Army reposed special trust and confidence in him when it bestowed upon him the privilege of becoming a commissioned officer.  With the privilege came the responsibility to set a standard of personal conduct that Soldiers under him could follow.  He had failed in this duty.  Any future misconduct could result in far more serious consequences.

	c.  The reprimand was administrative in nature and was not imposed under Article 15, UCMJ.  He was considering filing the reprimand in the applicant's OMPF as a permanent document but would consider any written matters he wished to submit prior to his final filing decision.

11.  On 3 May 2011, the applicant acknowledged receipt of the GOMOR and stated:

	a.  His conduct was not in accordance with expectations of an officer in the U.S. Army.  He respectfully requested the reprimand be placed in his local file and not in his OMPF.

	b.  He realized his actions were detrimental to both his personal and professional obligations and career.  He had since ceased contact [with the junior enlisted Soldier] and continued to receive both individual and joint weekly counseling with his spouse in an attempt to rebuild their relationship.  He realized the difficulty and stress he had placed on his family and he worked daily to restore the lost trust.  As they continued to work toward reconciliation, the permanent letter would undoubtedly restrict opportunities and increase an already tenuous situation.

12.  After considering the applicant's rebuttal statement and the facts and circumstances surrounding the misconduct, MG DBA determined the GOMOR would be permanently filed in his OMPF.  It is currently filed in the performance folder of his OMPF.

13.  On 22 March 2013, HRC initiated elimination action against the applicant under the provisions of AR 600-8-24 (Officer Transfers and Discharges), chapter 4, paragraph 4-2b for misconduct, moral, or professional dereliction. 

14.  The applicant provides five memoranda of support, dated between 3 March and 16 May 2013, wherein LTC EJK, LTC JAC, LTC BFG, CPT FG, and Sergeant Major (SGM) TED all stated his professionalism, exceptional skills, personal integrity, and dedication to service was beyond approach.

15.  On 17 June 2013, MG ARI, Commander, 1st Cavalry Division, Fort Hood, appointed a board of officers en-o determine if the applicant should be eliminated from the Army under the provisions of AR 600-8-24, chapter 4, paragraph 4-2b. 

16.  On 18 July 2013, DASEB denied his request to transfer the GOMOR to the restricted folder of his OMPF and stated the evidence presented did not provide substantial evidence the transfer of the GOMOR would be in the best interest of the Army and, by unanimous vote, determined the overall merits of his case did not warrant the requested relief.
17.  On 21 August 2013, the board of officers appointed by MG ARI completed their inquiry.  The DA Form 1574, dated 21 August 2013, shows after careful consideration of the evidence the board determined by a preponderance of evidence that the applicant had engaged in an inappropriate relationship with a junior enlisted Soldier and recommended the applicant be eliminated from the Army with the issuance of an honorable discharge.

18.  On 23 December 2013, MG ARI approved the findings of the board, disapproved the recommendation, forwarded the elimination packet to HRC with a recommendation that the applicant be retained in the Army.  

19. On 7 February 2014, MG RPM, HRC, directed the elimination proceedings be closed and the applicant be retained in the Army.

20.  The applicant accomplished the following since receiving the GOMOR:

* received an "outstanding performance, must promote" and "best qualified" rating on three OERs covering the periods 11 May 2011 through 9 January 2014
* served as the logistics officer for the Joint Afghan Detention and Corrections Advisory Team during the unit deployment to Afghanistan from May 2011 to May 2012
* served as company commander for Forward Support Company (FSC), Fort Hood, for 16 months from August 2012 to January 2014
* was awarded a Joint Service Achievement Medal in 2011, Military Outstanding Volunteer Service Medal in 2011, and the Bronze Star Medal for exceptionally meritorious service in Afghanistan in May 2012

21.  The applicant provides a memorandum of support, dated 14 April 2014, wherein LTC EJK stated the applicant was a solid officer who demonstrated ethics and morality in accordance with Army Values.  He (LTC EJK) had been the applicant's commander from May 2012 to September 2013 and handpicked him to assume command of the FSC where he did outstanding work.  He was an outstanding officer with unlimited potential.

22.  AR 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.  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 filing determination is made.
23.  A GOMOR may be filed in a Soldier's OMPF 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 GOMOR is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the GOMOR and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR, dated 29 April 2011, should be transferred to the restricted folder of his OMPF as it has served its intended purpose.

2.  The evidence of record confirms the applicant, a married CPT, received a GOMOR in April 2011 for having an inappropriate relationship with a junior enlisted Soldier.  He was afforded the opportunity to submit matters in his own behalf prior to a final filing decision.  He took responsibility for his actions and admitted to having an affair with the Soldier; his response was received and considered.  Subsequently, the GOMOR was referred for filing in his OMPF.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance folder of his OMPF.  There is no evidence of an error or an injustice.

3.  In August 2013, the DASEB denied his request to transfer the GOMOR to the restricted folder of his OMPF and determined he had not presented sufficient substantial evidence that showed the intent of the GOMOR had been served at that time.

4.  However, a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  There is no doubt that after his misconduct in 2011 the applicant has rebounded in an outstanding manner.  He accepted responsibility for his actions and has taken big leaps toward improving himself both personally and professionally.  He has rebounded since his incident and successfully completed several assignments, received three best-qualified OER ratings, and he was awarded the Bronze Star Medal for his meritorious service while deployed to Afghanistan.  His attitude, which is normally recognized as a major ingredient in the success or achievement of an individual, is that of an officer who, despite the set-back, has Soldiered on with a strong desire to serve and grow.  It has been over 3 years since he received the GOMOR and the GOMOR appears to have served its intended purpose.

5.  Therefore, in the interest of justice, the GOMOR, dated 29 April 2011, should be transferred to the restricted folder of his OMPF.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for 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 29 April 2011, to the restricted folder of his OMPF.



      _______ _   __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)                                         AR20140007255





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ABCMR Record of Proceedings (cont)                                         AR20140007255



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