BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140009479 


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 reconsideration of his earlier request for correction of his records by removing a General Officer Memorandum of Reprimand (GOMOR), dated 27 October 2010, from the restricted folder of his Army Military Human Resource Record (AMHRR).  As new issues, he further requests, in effect:
   
   a.  removal from the U.S. Army Retired List.
   
   b.  reinstatement to the Fiscal Year 2013 (FY13) Lieutenant Colonel (LTC), Maneuver, Fires and Effects (MFE), Operations Support (OS), and Force Sustainment (FS) Promotion List.
   
   c.  consideration for promotion to LTC by a special selection board (SSB).

2.  The applicant states:

* the majority of the Board in the original proceedings believed the GOMOR was issued unjustly due to a lack of evidence substantiating the allegation
* the majority of the Board gave significant weight to the statement in support of the applicant made by a female senior noncommissioned officer, as she was friends with both parties and found it odd the accusing lieutenant did not mention the incident to her
* the Deputy Assistant Secretary (Army Review Boards) did not support the majority opinion of the Board and found there to be insufficient evidence showing the GOMOR is untrue or unjust
* the Deputy Assistant Secretary (Army Review Boards) gave deference to a disinterested LTC who stated the applicant was capable of the illegal act and he believed the accuser to be credible, despite an excellent officer evaluation report (OER) written by that LTC
* the applicant continued to perform admirably while attempting to clear his name and remained an outstanding Soldier, leader, husband, and father
* he deployed to Iraq in 2011 and was awarded the Bronze Star Medal
* he completed Command and General Staff College Intermediate Level Education with his instructor noting his unlimited potential and that he will succeed at higher levels of responsibility
* he served honorably for 17 years, including deployments to Afghanistan and Iraq, overseas tours in Korea and Germany, and enlisted service in the Georgia Army National Guard
* due to his ongoing battle to clear his name of a false accusation, he was never allowed fair consideration for promotion and continued service
* he was forced to request honorable retirement through the Temporary Early Retirement Act (TERA)

3.  The applicant provides:

* self-authored statement
* letter of support from Colonel (COL) R____ C____, dated 3 February 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Officer Record Brief
* Army Board for Correction of Military Records (ABCMR) correspondence, dated 5 June 2013
* Army Review Boards Agency (ARBA) memorandum, dated 5 June 2013
* U.S. Army Human Resources Command (HRC) memorandum, dated 1 August 2013
* HRC correspondence, dated 14 August 2013
* letter from Cravens and Noll Professional Corporation, Attorneys and Counselors at Law, dated 3 July 2013 
* copies of Bronze Star Medal, Defense Meritorious Service Medal, Meritorious Service Medal, and four Army Commendation Medal Certificates
* U.S. Army Combined Arms Support Command and Fort Lee, VA, Permanent Orders 170-00002, dated 22 October 1996, awarding him the Parachute Rigger Badge
* Headquarters, U.S. Army Infantry Center, Fort Benning, GA, Permanent Orders 164-467, dated 22 August 1994, awarding him the Parachutist Badge
* 25 OER's
* two promotion orders and one recommendation for promotion
* numerous transcripts, military training certificates, and service school academic evaluation reports
* active duty orders, active duty report, oath of office, Georgia Army National Guard discharge
* 12 letters of support or reference

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 ABCMR in Docket Number AR20120020934 on 23 April 2013.

2.  The applicant provided a substantial amount of documentary evidence which is not listed in the original Record of Proceedings.  Additionally, he advanced the argument that he should be able to continue his Army career and be promoted to LTC.

3.  The applicant's records show he was serving as a Regular Army commissioned officer in the Adjutant General Corps at the time of his initial application to this Board.  He was promoted to the rank of MAJ effective 2 April 2006.

4.  A DA Form 3975 (Military Police Report), dated 19 April 2010, indicates the offense of indecent exposure perpetrated by the applicant in Room 5, Building 2602, Fort Bliss, TX, was founded.

5.  On 15 June 2010, the applicant indicated on a DA Form 3881 (Rights Warning Procedure/Waiver Certificate) that he did not choose to waive his rights, he wanted a lawyer, and he did not want to be questioned or say anything pertaining to a criminal investigator's desire to question him regarding the offense for which he was suspected/accused of (indecent exposure, soliciting sodomy, conduct unbecoming).

6.  A DA Form 7569 (Investigator Activity Summary), dated 18 June 2010, indicates there was probable cause to believe the applicant committed the offense of indecent exposure and that no further investigative activity was required.

7.  On 23 June 2010, the accuser, a female second lieutenant (2LT), completed a sworn statement in which she claims the applicant indecently exposed himself to her while they were alone behind closed doors during unit status report turn in for the month.

8.  An 11th Air Defense Artillery Brigade Memorandum for Record, dated 30 June 2010, referencing the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation findings and recommendations pertinent to two alleged assaults on the female 2LT, one sexual assault involving a civilian neighbor, and one indecent exposure involving a superior-grade officer (the applicant) states the allegations were founded.

9.  On 27 October 2010, the Commanding General, 3rd Army, U.S. Army Central Command, issued a GOMOR to the applicant for indecently exposing himself.  The GOMOR imposing authority stated vulgar acts as these are completely inappropriate for an officer or any member of the Armed Forces to commit and demonstrated a severe lack of judgment which brought discredit upon the applicant, the command, and the U.S. Army.

	a.  The GOMOR was imposed as an administrative measure and not as punishment under the provisions of Article 15 (Nonjudicial Punishment), Uniform Code of Military Justice.

	b.  On 24 November 2010, the applicant submitted a rebuttal to the GOMOR imposing authority stating the allegations made against him were untrue.  He asserted that the accuser was a junior officer who would do everything she could to get reassigned to Fort Lewis, WA, and that she fabricated the allegations against him as a means to achieve her goal.

	c.  On 22 December 2010, after reviewing the case file, the filing recommendations of the applicant's chain of command, and the applicant's rebuttal, the GOMOR imposing authority directed filing the GOMOR in the applicant's AMHRR.

10.  On 28 February 2012, after examining the applicant's record and the documents he submitted in appeal, the Department of the Army Suitability Evaluation Board (DASEB) determined the evidence did not substantiate that the GOMOR in question had served its intended purpose or that its transfer would be in the best interest of the Army.  As a result, the DASEB voted unanimously to deny his appeal.

11.  On 23 April 2013, the ABCMR reviewed the applicant's request for removal of the GOMOR or transfer of the GOMOR to the restricted folder of his AMHRR.  The majority of the Board believed the GOMOR was issued unjustly due to the lack of evidence presented that the allegation was substantiated.  The majority of the Board believed the case was based primarily on the 2LT's word over the applicant's word.  The Board gave significant weight to the statement of a female senior noncommissioned officer, a friend to both individuals, who provided a letter of support for the applicant.  The Board's majority recommended removal of the GOMOR from the applicant's AMHRR.

12.  On 5 June 2013, after reviewing the findings, conclusions, recommendation, and reason for dissent from the Board's recommendation, the Deputy Assistant Secretary (Army Review Boards) made the decision to reject the Board's majority recommendation and adopt the minority recommendation, thereby granting partial relief.

	a.  The Deputy Assistant Secretary (Army Review Boards) found insufficient evidence that the GOMOR is untrue or unjust and gave deference to the imposing authority's decision in the matter, mindful that he is better positioned to assess the credibility of the individuals involved.  Thus, removal of the GOMOR from the AMHRR was not directed.

	b.  Nonetheless, it was determined that the GOMOR had served its intended purpose; therefore, the transfer of the GOMOR and all allied documents to the restricted folder of the AMHRR was directed.

13.  On 1 August 2013, HRC notified the applicant of his separation due to non-selection for promotion by the Department of Army FY13, LTC MFE, OS, and FS Promotion Selection Board.  He was informed his separation from active duty would take place no later than 1 December 2013 and that Department of the Army TERA offers officers who have twice failed selection for promotion to the next grade and have at least 15 but less than 20 years of active Federal service by their mandatory separation date the opportunity to apply for early retirement in accordance with Military Personnel Message 12-329 (TERA).

14.  On 30 November 2013, the applicant was honorably retired by reason of voluntary early retirement with 17 years and 6 months of active service.

15.  The applicant provided a memorandum signed by COL R____ C____, Assistant Commandant, U.S. Army Quartermaster School, dated 3 February 2014, requesting reconsideration of the decision to transfer the GOMOR to the restricted folder of applicant's AMHRR.  COL R____ C____ states the applicant is one of the most professional officers he has served with and there is no way he committed any of the accusations.  COL R____ C____ states the applicant served as the primary staff officer for human resource management at the time he was assigned to the U.S. Army Quartermaster School.  This period does not coincide with the time frame of the alleged indecent exposure.  COL R____ C____ was not the applicant's rater or senior rater while assigned to the U.S. Army Quartermaster School, as his OER covering the period 30 June 2012 through 31 May 2013 shows.

16.  The applicant also provided numerous records (OERs, award certificates, orders, transcripts) spanning 17 years, documenting the many achievements of his military career.  He also provided 11 prior letters of recommendation and character references dating from 16 November 2010 to 10 April 2013 attesting to his professionalism and good character.

17.  Army Regulation 600-37 (Unfavorable Information) 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 a filing determination is made.

18.  A memorandum of reprimand may be filed in a Soldier's AMHRR 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 reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

19.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance folder of the AMHRR unless directed otherwise by an appropriate authority (DASEB or this Board).

20.  Army Regulation 600-8-29 (Officer Promotions) provides the Army's policies and procedures regarding officer promotions.  Chapter 7 provides guidance for SSB's.  It states SSB's may be convened (discretionary) to consider or reconsider commissioned officers for promotion when Department of the Army discovers that the officer was not considered by a regularly-scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information.  Reconsideration will normally not be granted when an administrative error was immaterial (minor) or when the officer, by exercising reasonable care, could have detected and corrected the error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the documentation he provided were carefully considered.

2.  While attesting to the applicant's duty performance and general good character, the letters of support and military records he provided are not evidence of a clear and convincing nature sufficient to overcome the burden of proving the GOMOR itself is untrue or unjust.

3.  As the evidence and argument presented by the applicant are insufficient to show any error or injustice in this case, his request to remove the GOMOR and allied documents from his AMHRR should be denied.

4.  Therefore, his related issues concerning reinstatement on active duty, reinstatement to the promotion list, and subsequent promotion consideration to LTC should also be denied as no evidence has shown that material error was made in his non-selection for promotion or his voluntary retirement under TERA.

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 with regard to removal of the GOMOR.  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 AR20120020934, dated 23 April 2013.

2.  The Board further determined the evidence presented was insufficient to warrant the remainder of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal from the U.S. Army Retired List, reinstatement to the FY13 LTC MFE, OS and FS Promotion List, and consideration for promotion to LTC by an SSB.



      __________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)                                         AR20140009479



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ABCMR Record of Proceedings (cont)                                         AR20140009479



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