IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140008998 


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 following:

* that his discharge be voided
* that he be reinstated to active duty
* promoted to the rank of major with a date of rank of 1 December 2008
* his year group adjusted for competitiveness 
* consideration for a change to Functional Area 57
* removal of his General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF)
* removal of two referred Officer Evaluation Reports (OERs) from his OMPF with the periods declared non-rated
* removal of the Department of the Army Suitability Evaluation Board (DASEB) proceedings from his OMPF    

2.  The applicant states, in effect, that the GOMOR contains erroneous information and resulted in his unjust involuntary discharge from the Army.  He continues by stating that he was misdiagnosed with severe depression when in fact he suffered from chronic post-traumatic stress disorder (PTSD).  He further states that had he been properly diagnosed and properly treated, his misconduct would not have resulted.  Additionally, had the proper diagnosis been made he would not have been discharged.

3.  The applicant provides a two-inch binder containing a five-page and two-page letter explaining his application and a list of enclosures containing enclosures A through P.
CONSIDERATION OF EVIDENCE:

1.  After serving over 4 years of active enlisted service in the Regular Army, the applicant was commissioned as a U.S. Army Reserve second lieutenant upon completion of the Reserve Officer’s Training Corps program on 12 December 1998.  He entered active duty on 19 March 1999.

2.  He completed his training and was transferred to Korea for his first duty assignment.  He also completed multiple tours in Iraq and Kuwait and was promoted to the rank of captain on 1 October 2002.

3.  On 15 December 2008, an investigation conducted under Army Regulation 
15-6 (Procedures for Investigating Officers (IOs) and Boards of Officers) was completed at Fort Sill, Oklahoma which found that the applicant had assaulted his spouse, that he had committed adultery and admitted to committing adultery, and that he had committed offenses that amounted to conduct unbecoming an officer and a gentleman.  The IO noted that the applicant had a history of mental health problems and alcohol abuse and was seeking treatment for both.

4.  The IO recommended that the applicant receive a GOMOR, that he be removed from his present position and reassigned to a position of lesser influence, and that he continue to seek professional help for his problems.

5.  On 29 January 2009, the Commanding General (CG) at Fort Sill issued the applicant a GOMOR for domestic assault and battery; for beating, choking and threatening his wife; for ongoing multiple adulterous affairs with women; and for conduct unbecoming an officer and gentleman.   

6.  The applicant elected to submit a rebuttal to the GOMOR which consisted of his accepting responsibility for his actions and regretting the assault on his wife and having an affair with another woman.  He went on to state that the investigation did not reveal the true facts and then outlined his accomplishments.  He concluded by stating that the stress of multiple deployments and lack of treatment caused his misconduct.

7.  The entire chain of command recommended filing the GOMOR in the applicant’s OMPF and the appropriate authority so directed on 26 March 2009.

8.  Meanwhile, the applicant was selected for promotion to major by the Fiscal Year 2008 Major Promotion Selection Board.

9.  On 11 May 2009, the applicant received a change of rater OER covering the period 20080515 – 20090331 evaluating him as a senior instructor/writer.  In Part IVa, under Army Values, the applicant received "NO" ratings under "Honor" and "Loyalty."
10.  In Part Va, under Performance and Potential Evaluation, he received an "Unsatisfactory Performance" rating.  In Part Vb, the specific comments indicate that the applicant’s personal conduct did not match his duty performance as his duty performance was superb; however, he received a GOMOR for conduct unbecoming an officer and gentleman, which was the direct result of his not living up to the Army’s high personal moral standards.  His rater recommended that he not be promoted to the rank of major and that he be retained as an instructor or staff officer.  His intermediate rater also recommended that the applicant not be promoted but that he should be retained on active duty. 

11.  The applicant’s senior rater (brigade commander) in Part VII gave the applicant a "Do Not Promote" rating and placed him below center of mass on his senior rater profile.  He recommended that the applicant be retained on active duty to continue to receive medical treatment and overcome the personal challenges that afflicted him during the rating period.  

12.  The report was considered adverse and as such was referred to the applicant who responded with a one-page letter of explanation.  Meanwhile, he was removed from the Fiscal Year 2008 Major Promotion Selection List.

13.  On 2 October 2009, he received a change of rater OER covering the period 20090401 - 20090930 evaluating him as a senior instructor/writer.  In Part IVc, under APFT, he received a "NO" rating for meeting height and weight standards.

14.  His rater gave him a "Satisfactory Performance – Promote" rating in Part V and indicated that he had potential for promotion.  His intermediate rater indicated that he should be considered for promotion and his senior rater gave him a "Fully Qualified" rating, placed him center of mass on his senior rater profile and indicated he should be strongly considered for promotion.  The report was considered adverse and as such was referred to the applicant.

15.  The applicant submitted a rebuttal to the referred OER contending that he had amended his marital relationship, graduated from the Army Substance Abuse Program, and had been making progress on getting his weight under control.

16.  On 25 May 2010, while deployed to Iraq, the applicant was notified through his CG by a memorandum from the CG of the U.S. Army Human Resources Command (HRC) that the Maneuver, Fires and Effects Division had identified him to show cause for retention on active duty because of misconduct, moral or professional dereliction.
17.  On 28 September 2010, he appealed to the DASEB requesting the GOMOR to be transferred to the restricted section of his OMPF based on intent served.  The DASEB denied his request on 13 January 2011. 

18.  The applicant completed his deployment to Iraq and was returned to Fort Stewart, Georgia in 2011.  

19.  On 30 June 2011, the applicant submitted a rebuttal to elimination procedures through the CG, 3rd Infantry Division to the CG, HRC.  He asserted, in effect, that the GOMOR contained in his records contained allegations that were not true.  He went on to state that he did not have more than one extramarital affair and never admitted to having more than one affair, that he was never arrested for or convicted of domestic violence, the person who stated he had multiple affairs and that he had impregnated a Soldier’s wife recanted her statement, and that both OER’s were tied to the GOMOR. 

20.  On 3 February 2012, the CG, HRC notified the applicant through his CG that after considering the applicant’s rebuttal, all relevant documentation and the recommendations of the chain of command, a decision had been made to continue with elimination proceedings in his case.

21.  On 13 March 2012, the applicant was notified that he was to appear before a Board of Inquiry (BOI) at Fort Stewart, Georgia on 18 April 2012 to determine if he should be retained or involuntarily separated from the Army.  The board convened at 1005 hours and the applicant was present with counsel.  After hearing all of the testimony and reviewing all of the evidence in his case, the board determined that the applicant committed adultery, that he had an incident of domestic violence in which he assaulted his wife, he committed acts of personal misconduct, and had committed actions considered conduct unbecoming a commissioned officer.  The board notified the applicant that the members had unanimously recommended that he be involuntarily separated with an Honorable Discharge.  The board adjourned at 2035 hours. 

22.  The convening authority approved the findings and recommendations of the BOI on 12 June 2012 and forwarded the results of the BOI to the CG, HRC, the General Officer Show Cause Authority who concurred with the BOI’s recommendation and forwarded the applicant’s case to the Deputy Assistant Secretary of the Army (Review Boards) for final action.

23.  On 23 October 2012, the Army Board of Review for Eliminations convened to review the BOI proceedings.  After reviewing the BOI proceedings, the board determined that the government had established by a preponderance of the evidence that:
* The applicant committed adultery
* The applicant did have an incident of domestic violence in which he assaulted his wife
* The applicant did commit acts of personal misconduct
* His actions can be considered conduct unbecoming a commissioned officer

24.  The board unanimously recommended in a closed session and by secretly written ballots that the applicant be eliminated from the service with an Honorable characterization of service. 

25.  On 31 October 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved the recommendations of the Department of the Army Board of Review for Eliminations and directed that the applicant be honorably discharged for unacceptable conduct.

26.  Accordingly, he was honorably discharged on 16 November 2012 under the provisions of Army Regulation 600-8-24, paragraph 4-2b, due to unacceptable conduct.  He had served 17 years, 9 months, and 27 days of active service.

27.  The statement provided by the applicant with his application from the individual he had an adulterous affair with is dated 4 April 2011 and she indicates that she made up the story about being pregnant and his having an affair with a deployed Soldier’s wife. 

28.  A review of the applicant’s official records shows that after receiving the second referred OER, the applicant received three evaluations during the period of 20091001 – 20120309.  One of the OER’s was rendered during his 12-month deployment to Iraq and the remaining two were rendered at Fort Stewart.  All of the reports show maximum ratings and recommend him for promotion to major.

29. The applicant provides a copy of his VA Rating Decision showing that he was granted service-connected disability compensation effective 17 November 2012 for the following:

* hypertension with cardiomegaly – 30%
* anxiety disorder not otherwise specified and major depressive disorder – 30%
* right elbow strain – 10%
* degenerative arthritis, left knee – 10%
* degenerative arthritis – right knee – 10%

30.  On 8 January 2013, the VA diagnosed the applicant as suffering from PTSD.  The examining psychiatrist opined that his PTSD symptoms had not made him unstable in any way and that they were more a matter of mild occasional discomfort.  There is no security issue and he is fully competent from a security clearance point of view.

31.  Army Regulation 600-8-24 (Officer Transfer and Discharges) serves as the authority for the transfer and discharge of Army officer personnel.  It provides, in pertinent part, that elimination action may be or will be initiated for misconduct, moral or professional dereliction, acts of personal misconduct, conduct unbecoming an officer, and adverse information filed in the OMPF. 

32.  Army Regulation 623-3 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative discharge (elimination) proceedings were conducted in accordance with law and regulations in effect with no indication of any violations of any of the applicant’s rights.  The type of discharge issued and the reasons therefore were appropriate given the circumstances in this case.

2.  The applicant’s contentions and supporting documents have been carefully considered and appear to lack merit.

3.  The applicant’s contention that he should be reinstated because the woman he had an adulterous affair with has recanted the portion of her statement regarding his impregnating her and having an affair with another Soldier’s wife has been noted and appears to lack merit.  While it cannot be determined with any degree of certainty which statement made by the woman is true, the applicant provided the statement to all of the boards that considered his case and when the board’s deliberated, they determined that the two elements of impregnating a women who was not his wife and having an affair with a deployed Soldier’s wife were not the basis for his elimination.
4.  Both the show-cause board and the Army Board of Review for Eliminations determined that the preponderance of the evidence showed that the applicant:

* committed adultery
* did have an incident of domestic violence in which he assaulted his wife
* did commit acts of personal misconduct and
* committed actions that can be considered conduct unbecoming a commissioned officer

5.  Additionally, the applicant has never denied having an adulterous affair with a woman who was not his wife, which in itself is sufficient to warrant elimination proceedings.

6.  The applicant’s contention that his PTSD caused his misconduct has also been noted and appears to lack merit.  After committing the misconduct, the applicant deployed to Iraq for a year and returned to Fort Stewart for an additional 2 years.  During that period, he received maximum ratings on his OERs as well as recommendation for promotion.  There is no evidence to suggest that he did not understand the difference between right or wrong or that he could not adhere to the right.

7.  After reviewing the facts and circumstances surrounding his discharge as well as the documents submitted by the applicant, it appears that the GOMOR was properly administered based on the available evidence at the time, that his OERs were properly prepared, referred and filed in his OMPF in accordance with the applicable regulations and his elimination proceedings were conducted in accordance with applicable regulations.

8.  Accordingly, there appears to be no basis to grant the applicant’s request for reinstatement, promotion, and removal of adverse documents from his OMPF. 

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)                                         AR20140008998



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ABCMR Record of Proceedings (cont)                                         AR20140008998



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