IN THE CASE OF:	   

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140007439 


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 a general officer memorandum of reprimand (GOMOR), dated 2 August 2013, from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  He was not informed the letter was placed in his permanent file.

	b.  He came to the Wounded Warrior Battalion with a medical illness.  He was diagnosed with a cognitive executive functioning disorder in addition to other possible mental issues, but the command chose to place the GOMOR in his permanent file.  This is totally wrong.

	c.  He has served his country for almost 30 years, but he believes a political decision has been made because of the current political climate that unjustly tarnishes his military career.

	d.  The same investigating officer (IO) conducted a line-of-duty (LOD) investigation that was discovered to be unjust by the U.S. Army Human Resources Command.

3.  The applicant provides:

* letter from his physician, dated 20 February 2013
* memorandum appointing an IO pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), dated 18 June 2013
* executive summary pertaining to Army Regulation 15-6 investigation, dated 3 July 2013
* GOMOR, dated 2 August 2013
* memorandum rebutting the GOMOR, dated 16 August 2013
* memorandum directing filing the GOMOR, dated 20 September 2013
* memorandum requesting a formal LOD investigation, dated 7 October 2013
* memorandum appointing an LOD IO pursuant to Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), dated 9 October 2013
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 November 2013
* memorandum rebutting the adverse LOD decision, dated 23 December 2013
* memorandum pertaining to review of the LOD finding, dated 13 February 2014
* interactive Personnel Electronic Records Management System (iPERMS) document search extracts
* email correspondence
* 10 character-reference letters

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard (ARNG), the applicant was commissioned as a Reserve officer on 11 May 1986 in the rank of second lieutenant.  He was appointed as a second lieutenant in the ARNG on 6 May 1987.  He was promoted to lieutenant colonel on 28 June 2007.  It appears he was mobilized and he entered active duty on 15 February 2013.  He served in Afghanistan from 3 March 2013 to 17 April 2013.

2.  In June 2013, an investigation was initiated against the applicant to investigate allegations of sexual harassment.

3.  On 2 July 2013, an MEB diagnosed him with posttraumatic epilepsy.  The MEB recommended his referral to a PEB.

4.  He provided a summary of the investigation findings, dated 3 July 2013.  The IO recommended appropriate disciplinary action against the applicant for sexual harassment and conduct unbecoming an officer.  The IO stated:

	a.  It is clear that sexual harassment; inappropriate, but non-sexual, contact; and inappropriate conduct; did occur over the course of several weeks.

	b.  In the context of overt flirting, comments such as "My wife isn't here" and "I'm a lonely man" could be construed, at the very least, as sexual harassment and, to some, a solicitation for sex.  Both of which are Uniform Code of Military Justice offenses.

	c.  The applicant has demonstrated both an ability and desire to "work the system" for secondary gain by requesting additional work-ups for conditions he doesn't have to "increase his disability rating" as discussed with a physician's assistant.  He withheld critical information about his seizure disorder by stating that his condition had been stable since 2011 and failing to mention the 27 February 2013 seizure before his waiver approval in an attempt to overcome a disqualification for deployment.

	d.  It is clear the applicant displayed conduct unbecoming of an officer, and was reminded of that by a lieutenant colonel who told him to behave like a field-grade officer.

5.  On 2 August 2013, he received a GOMOR for making inappropriate comments to a female attending physician assistant and making inappropriate comments regarding a photograph of animal genitalia to female employees of the Warrior Transition Battalion.  

6.  He submitted a rebuttal to the GOMOR on 16 August 2013.  In summary, he stated:

	a.  He is currently a patient/member at the Wounded Warrior Battalion in need of medical care and attention.  In April of this year, he was evacuated out of Afghanistan.  He is being treated for post-traumatic stress disorder and epilepsy.  On 29 July 2013, he was diagnosed with a cognitive-communications disorder.  This disorder causes the patient to demonstrate memory/concentration/executive function difficulties caused by a history of seizure disorder.  He is currently under the influence of medication daily.

	b.  His comments to the female attending physician assistant were intended to be received as complimentary.  His statements were very positive.  He was just surprised to see her because during his previous appointment his doctor was a white gentleman.  The female was not his primary doctor.

	c.  He visited a Wildlife Safari Ranch and took pictures of all the animals in the park.          
	d.  Most doctors and civilian employees serving wounded warriors understand that their job is to help Soldiers heal even when there is a political mess going on about how to correct inappropriate behavior by high ranking Soldiers in the past.

	e.  He has served his country respectfully for the last 29 plus years and have never intentionally intended to offend anyone.

	f.  The majority of our Soldiers and civilian employees are looking for a complimentary comment of response from their fellow Soldiers.  He has tried to be a person of encouragement in spite of his illness.  

7.  On 20 September 2013, the commanding general directed permanently filing the GOMOR in the applicant's OMPF.

8.  On 3 March 2014, an informal physical evaluation board (PEB) found him physically unfit due to post-traumatic epilepsy.  The PEB recommended a 40-percent disability rating and permanent retirement.

9.  On 20 May 2014, he retired by reason of permanent disability.

10.  A review of the performance folder of his OMPF in iPERMS revealed a copy of the GOMOR in question.

11.  He provided numerous identical character reference letters from subordinate Soldiers and civilians who attest:

* the applicant presents himself in a most professional manner
* he is hard charging and a true leader
* he showed pictures to several staff members of animals that he had taken while visiting the Natural Bridge Wildlife Ranch and all the pictures were beautiful and exotic
* all comments made regarding the pictures were very appropriate for someone visiting a Wildlife Ranch
* he is a great asset to the Army

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Official Military Personnel File.  It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, 


performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

13.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS), and the U.S. Army Human Resources Command website provides a listing of documents authorized for filing in iPERMS.  It states to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the Department of the Army Suitability Evaluation Board (DASEB).

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant, a lieutenant colonel, received a GOMOR in August 2013 for making inappropriate comments (sexual harassment) to a female physician assistant and making inappropriate comments regarding a photograph of animal genitalia to female employees of the Warrior Transition Branch.  The commanding general directed permanently filing the GOMOR in the applicant's OMPF.

2.  He contends the GOMOR should be removed from his OMPF because he was not informed it was placed in his permanent file, he had medical issues, and he served his country for almost 30 years.

3.  The governing regulation states administrative letters of reprimand will be filed in the performance folder of the OMPF unless directed otherwise by the DASEB.

4.  There is no evidence that the GOMOR was improperly imposed.  The GOMOR is properly filed in the performance folder of his OMPF.  Therefore, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20140007439



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ABCMR Record of Proceedings (cont)                                         AR20140007439



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