IN THE CASE OF:	  
		BOARD DATE:	    9 July 2014

		DOCKET NUMBER:  AR20140010066 


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 the general officer memorandum of reprimand (GOMOR), dated 8 March 2012, from the performance folder of her official military personnel file (OMPF).

2.  The applicant states:

	a.  On 17 November 2011 after returning from a 1-year deployment in Afghanistan, a commander's inquiry was conducted based on her former spouse's allegation of fraternization.  As a result of the commander's inquiry, a GOMOR was placed in the performance folder of her OMPF.  New testimony submitted by Mr. M____ D. K____-B____, her husband at the time, in a sworn statement, dated 10 April 2013, has changed the nature and basis in which the decision was rendered.  She has provided Mr. K____-B____'s sworn statement as an enclosure for review by this Board.

	b.  The decision rendered was entirely based on Mr. K____-B____'s testimony.  She believed that she was already found guilty before the commander's inquiry was concluded.  Her chain of command, from company to battalion, never offered her professional advice about running with the individual mentioned in their statements while deployed in Afghanistan.  She worked 
16-18 hours every day during deployment and running prior to the duty day was her everyday routine.  Running helped her cope with her daily deployment stress as the battalion S-1/adjutant.

	c.  Mr. K____-B____ requested and received reassurance from the investigating officer (IO) that he would validate his statement and gain concurrence as outlined in acquiring sworn statements prior to the IO's report submission.  This request was disregarded and the sworn statement was used and submitted without Mr. K____-B____'s signature.  She submitted a rebuttal based on the advice given to her by Trial Defense Services to have the request for the GOMOR locally filed.  However, the GOMOR was filed in her OMPF.  Her incoming battalion commander pursued placement of the GOMOR in her OMPF file despite her outgoing commander's request to handle the action at his level.

3.  The applicant provides:

* self-authored statement, dated 30 April 2014
* letter of recommendation, dated 28 March 2014
* new statement from Mr. K____-B____, dated 9 April 2013
* new sworn statement from Mr. K____-B____, dated 10 April 2014
* contested GOMOR and allied documents (filing decision, chain of command recommendations, and sworn statements)
* informal Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation
* Officer Record Brief
* DA Form 1059 (Service School Academic Evaluation Report) for the period 15 July 2012-6 December 2012
* DA Form 67-9 (Officer Evaluation Report) for the rating periods 19 February 2009-30 June 2010, 1 July 2010-1 June 2011, 2 June 2011-7 February 2012, and 8 February 2012-6 February 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant previously served in the Regular Army as an enlisted Soldier in the rank/grade of sergeant first class/E-7 from 30 December 1999 to 18 February 2009.

2.  She was appointed as a Regular Army commissioned officer and executed an oath of office on 19 February 2009.  She completed the Adjutant General Captain's Career Course.  She was promoted to captain on 25 July 2012.

3.  At the time of her incident, she was serving as the Battalion S-1, 54th Engineer Battalion, Germany.

4.  On 17 November 2011, an IO was appointed to conduct an investigation into the circumstances surrounding an alleged adulterous relationship and/or fraternization involving the applicant and an unidentified male, not her husband.

5.  During November 2011, the IO conducted and completed his investigation which included interviewing the applicant, Mr. K____-B____ (the applicant's husband), the suspected male, and the rear detachment commander.  The IO found the applicant was engaged in an inappropriate relationship with an enlisted Soldier other than her husband, Sergeant (SGT) C____ B____.

	a.  Her husband's eyewitness account and initial allegations corroborated through his conversation with the rear detachment commander and suspicion of an inappropriate relationship by a captain while deployed provided a preponderance of evidence, despite the denial by the applicant and SGT B____. 
A potential adulterous relationship was, however, unsubstantiated.

	b.  The IO recommended administrative action against the applicant and SGT B____ based on their inappropriate relationship between an officer and an enlisted Soldier.

6.  On 8 March 2013, the applicant was reprimanded in writing by the Commander, 7th U.S. Army Joint Multinational Training Command, for fraternization, having an inappropriate relationship with an enlisted Soldier, and conduct unbecoming an officer.  The GOMOR stated:

	a.  It was reported that her husband discovered her in bed with an unidentified black male on 16 November 2011 at her home in Vierath, Germany.  The male was described as having a tattoo on his torso and owning a dark colored, late model Chrysler.  A Commander's Inquiry was initiated into the allegation and she told her husband the male was an enlisted member who worked in the Battalion Operations Center.  Furthermore, once the leadership was informed of the physical description of the unidentified male and his car, one of them immediately identified a specific individual.  Her husband stated the two of them had spent an unusual amount of time together on deployment, including going to physical training together at strange hours, but there was not enough proof to move forward at that time.  During the inquiry, she repeatedly asked her husband to recant his statement and when he refused, she stated that there was no other recourse but for her to deny the allegation to the investigating officer.  The investigation was completed on 30 November 2011 and substantiated her misconduct as prejudicial to the good order and discipline of her unit.

	b.  Her decision to engage in an inappropriate relationship with an enlisted Soldier in her unit is specifically prohibited in Army Regulation 600-20 (Command Policy), paragraph 4-14, and Article 134, Uniform Code of Military Justice (UCMJ).  Her actions demonstrated a lack of maturity, judgment, and leadership. She committed this selfish act without any apparent concern for the good order and discipline or the morale of her unit.  Her actions constituted a breach in personal and professional discipline and the standards of conduct expected of Army officers.  As a commissioned officer, she had been given a sacred trust:  leading Soldiers.  He questioned whether someone with the poor judgment and inability to manage her personal affairs should be entrusted with the responsibility to lead Soldiers in the future.

	c.  The reprimand was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15, UCMJ.

7.  On 13 March 2012, the applicant acknowledged receipt of the GOMOR and submitted a statement wherein she requested filing of the GOMOR locally.  She stated:

	a.  Her actions were not in keeping with the oath of commission as an officer charged with leading Soldiers.  She learned a valuable lesson in upholding Army values and the legal obligation afforded to her position as an officer.  Her local file request reflects her desire to continue to lead Soldiers as she once did prior to this event.  Her future service is a benefit to the Army and to her family.  Her previous evaluations, awards, and trust afforded to her at the time reflect favorably on her capability to lead Soldiers, meet the commander's intent, and uphold personal and professional excellence.  She felt ashamed of her actions.

	b.  The pressures of combat and their cumulative effect affected her greatly.  She now understands that she must honor at all times the trust and responsibility granted to her in peacetime and war.  She has dedicated her 12 years of honorable and faithful service in leading Soldiers, support of Soldiers, and accomplishment of the stated mission objectives.  If provided an opportunity for continued future service as an officer, she would be the model officer in not only meeting the standard, but exceeding the standard in every facet because she knows the detrimental effects associated with failed personal and professional standards.

	c.  She has personally addressed issues outlined in the reprimand to manage her personal affairs.  With the support of her husband, M____ K____-B____, they have charted a course to address personal family issues.  Her husband's faith and confidence has been her strength and guiding force throughout her entire career.  Their family is what is most important to them.

8.  Her chain of command, at all levels, recommended filing the GOMOR in her OMPF.

9.  On 20 April 2012 after careful consideration of the applicant's case, her rebuttal, and the chain of command recommendations, the imposing officer ordered filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance folder of her OMPF.

10.  She provided the following documents in support of her request:

	a.  A letter of recommendation from Colonel T____ W. H____, the 55th Engineer Brigade Commander, dated 28 March 2014, states the applicant served as the Battalion S-1 in the 54th Engineer Battalion during his tenure as the Battalion Commander.  She was aggressive, technically proficient, mature, and epitomized what it means to be a staff officer.  During her tenure under his command, she was often the best staff officer and frequently the best junior officer in the battalion.  As far as the allegation of misconduct between her and another Soldier under his command, he does not condone misconduct and certainly not officer misconduct.  When he was made aware of the allegation, he immediately called her then-husband, Mr. K____-B____, to determine the facts surrounding the incidents as believed by him.  He stated his intent to investigate the allegations to Mr. K____-B____ and immediately assigned an IO.  Additionally, he informed Mr. K____-B____ of the seriousness of such allegations and how he needed to be certain of the evidence he presented as any incidents of officer misconduct would receive general officer-level action.  Mr. K____-B____ informed him that he understood and he wanted to proceed with an investigation.  The investigation and punishment were completed and administered after he changed command.  The new commander decided to give the applicant a GOMOR; however, her husband later provided a follow-on sworn statement which stated that several mistakes were made and that "Today, [he] come [sic] forth on [his] own free will to correct what [he] vehemently believe[s] is a mischaracterization [sic] of justice."  He asks the Board to strongly consider the sworn statement provided by the applicant's former husband, dated 10 April 2013, when evaluating her potential for continued service.

	b.  A statement from the applicant's former husband, dated 9 April 2013, states he would like to express his deep sorrow for impugning the reputation and career of the applicant.  His intent is to exonerate her in an incident on 16 November 2011.  During the period in question, he was angry at his former wife for not informing him about her impending return.  He expressed comments that were incorrect and misleading.  The nearly 4-year separation due to schools, duty assignments, and her year-long deployment strained their relationship to unimaginable ends.  The IO whose name he does not recall assured him that he would validate his statement and gain his concurrence before submission.  However, the officer acted contrary to his stated word and simply signed his statement without his signature and final concurrence.  Additionally, the IO asked him to select an individual out of an array of photographs – an individual he did not see.  This initial action caused him "not to provide corrected testimony."  Furthermore, incorrect assumptions were made about an individual in the array of photographs.  Today, he comes forth of his own free will to correct what he vehemently believes is a miscarriage of justice.  He apologizes to the applicant and wishes her the best of luck in her future endeavors.

	c.  A sworn statement from the applicant's former husband, dated 10 April 2013, states:

I would like to express deep sorrow for impugning the reputation and career of [Applicant].  It is my intent to exonerate her of an incident listed on 16 November 2011.

During the period in question, I was angry at my wife for not informing me about her impending return.  I expressed comments that were incorrect and misleading.  The nearly four year separation due to schools, duty assignments and finally a year-long deployment strained our relationship to unimaginable ends.

The investigating officer whose name I do not recall assured me that he would validate my statement and gain my concurrence before his submission.  However, the officer acted contrary to his stated word and simply signed my statement without my signature and final concurrence.  Additionally, the investigating officer asked me to select an individual out of an array of photos an individual I did not see.  This initial action caused me not to provide corrected testimony.  Furthermore, incorrect assumptions were made about an individual in the array of photos.

Today, I come forth on my own free will to correct what I vehemently believe is a mischaracterization [sic] of justice.  Again, I apologize to [Applicant] and I wish her the best of luck in her future endeavors.

11.  There is no indication the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for a transfer of the contested GOMOR to the restricted folder of her OMPF.

12.  Army Regulation 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 a filing determination is made.

13.  A memorandum of reprimand 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 reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, 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 OMPF, 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 OMPF.

14.  Army Regulation 600-37 states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals submitted under this provision will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

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

DISCUSSION AND CONCLUSIONS:

1.  An Army Regulation 15-6 investigation concluded that the applicant was engaged in an inappropriate relationship with an enlisted Soldier other than her husband.  Her former husband's eyewitness account and initial allegations corroborated through his conversation with the rear detachment commander and suspicion of an inappropriate relationship by a captain while deployed provided a preponderance of evidence, despite the denial by the applicant and SGT B____.

2.  Accordingly, she received a GOMOR.  She was afforded the opportunity to review all of the evidence against her and to submit matters in her own behalf prior to a final filing decision and she did so.  After careful consideration of the applicant's case, her rebuttal, and the chain of command's recommendations, the imposing officer ordered filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance folder of her OMPF.

3.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was not only a commissioned officer in a position of trust and authority, but had also previously served as a senior enlisted Soldier in the rank of sergeant first class.

4.  The investigation did not depend totally on the applicant's former husband's statement.  There were other indicators throughout the investigation that led the IO to conclude that there was fraternization.  Thus, the fact that the applicant's former husband now recants his statement is neither credible nor is it of value.  Not only was he warned by the former battalion commander about the seriousness of his statement at the time, the applicant herself acknowledged her poor judgment.

5.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests, but for the Army's as well.  Here, the applicant violated that trust.  There is a reluctance to remove adverse information from the OMPF when it places the applicant on a par for promotions, assignments, and other favorable actions with other officers with no blemishes.

6.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed in her OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.

7.  The GOMOR is properly filed and the applicant has not proven this GOMOR to be either untrue or unjust.  There is insufficient evidence to support removal of this GOMOR from her records.  She is not entitled to the 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)                                         AR20140010066



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ABCMR Record of Proceedings (cont)                                         AR20140010066



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