IN THE CASE OF:  		  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140011529 


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 a General Officer Memorandum of Reprimand (GOMOR), dated 8 December 2003, be removed from the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect:

	a.  He was originally told the GOMOR would be filed locally but upon attending the U.S. Army Recruiting Command (USAREC) Master Training Course in 2011 he learned the document was filed in his performance file.  

	b.  In 2012 the Department of the Army Suitability Evaluation Board (DASEB) granted his request to transfer the GOMOR to his restricted file.  However, a month prior to being promoted to master sergeant (MSG/E-8), on 21 October 2013, his military occupational specialty (MOS) was revoked and he was removed from recruiting duty due to the GOMOR and guidance published in the All Army Activity (ALARACT) Message 147, dated 2013, SUBJECT: Headquarters (HQ) DA Executive Order (EXORD) 161-13 Sexual Harassment/Assault Response and Prevention (SHARP) Program Army Stand-Down.

	c.  He is being forced to retire after completing 20 years of service because of his rank and the length of time he has been away from his secondary MOS.

	d.  The injustice is that he was informed that the GOMOR would be filed locally and that he would be able to overcome it.  However, it has been over a decade and he has been promoted twice since the incident, yet the GOMOR is being used to take away his MOS and separate him from the Army.

3.  The applicant provides:

* GOMOR, dated 8 December 2003, with filing recommendations
* Memorandum, Notification of Removal from Recruiting Duty
* DASEB Record of Proceedings in Docket Numbers AR20120006026 and AR20140010214
* Numerous character references, performance evaluations, promotion orders, college transcripts, and award and training certificates

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a MSG in the Regular Army serving in his secondary MOS 92F (Petroleum Supply Specialist).

2.  On 8 December 2003, the applicant received a GOMOR based on the results of a U.S. Army Criminal Investigation Division Command investigation.  The preponderance of the evidence showed the applicant engaged in a sexual relationship with a student at Opelousas High School, while assisting the high school band.  He elected not to submit a rebuttal.

3.  His battalion commander recommended the GOMOR be filed in his local file.  His brigade commander recommended filing of the GOMOR in his OMPF.

4.  On 15 January 2004, the commanding general (CG) directed the GOMOR be filed in the applicant's OMPF.

5.  In 2012, the applicant filed an appeal of the GOMOR with the DASEB.  On 
30 April 2012, the DASEB stated that the GOMOR had served its intended purpose and it would be in the best interest of the Army to transfer the GOMOR and all related documents from the performance portion of his OMPF to the restricted portion.  

6.  Background.  

	a.  On 17 May 2013, the Secretary of Defense signed a memorandum directing the Army to implement a sexual assault prevention and response stand-down.  

	b.  On 28 May 2013, the Secretary of the Army signed a memorandum providing additional guidance on the implementation of screening for personnel in certain duties to include recruiters.

	c.  On 10 June 2013, ALARACT Message 147/2013 provided the criteria by which the screening would be conducted.  Annex D of this message contains ten categories of Type I reports which, if found in a recruiter's records, require immediate removal from recruiting duties.

	d.  Type 1 reports include any credible evidence of criminal activity involving sexual harassment, sexual assault, family member or child abuse, pandering, prostitution, any criminal offense related to pornography, incest, bestiality, adultery, sexual activity with a subordinate or fraternization, and stalking are considered offenses or disqualifying conditions resulting in mandatory permanent disqualification for appointment or retention as a military Sexual Assault Response Coordinators (SARC), SHARP VA, recruiter, drill sergeant, or Advanced Individual Training (AIT) platoon sergeant.

7.  A subsequent review of the applicant's records found unfavorable information, offenses or disqualifying conditions under the Type I category of Annex D to ALARACT Message 147/2013.  Specifically, the applicant engaged in a sexual relationship with a high school student in 2002 while assisting the band and he maintained contact with the high school as a recruiter, constituting fraternization.  He received a GOMOR for sexual conduct.  This is a Type I-1 offense and is non-waiverable.

8.  On 4 October 2013, the applicant was notified of his removal from recruiting duties and informed that he would be assigned outside the command based upon the needs of the Army.  Additionally, he was advised the U.S. Army Human Resources Command (HRC) would determine if reclassification to a different MOS was appropriate.

9.  On 22 October 2013, he requested reconsideration of his removal from recruiting duty stating, in effect:

	a.  He had maintained over 10 years of excellent service in recruiting since receiving the GOMOR, proving that he has overcome this hurdle.  He received the GOMOR prior to being awarded MOS 79R (Recruiter); therefore, he does not understand how he can lose his MOS qualifications because he has not had any issues since being awarded the MOS.

	b.  In addition, the DASEB stated the GOMOR had served its intended purpose but it is being used to prove otherwise by effecting his removal from recruiting duties and loss of his MOS qualification.

	c.  This retroactive implementation of this new Army policy is unfair and an injustice.  As an example, the Army previously allowed individuals with felony offenses to enlist.  These types of offenses are no longer waiverable; but those currently serving with felony convictions are not subject to involuntary separation.  He contends that he is in fact subject to double jeopardy.

	d.  After the imposition of the GOMOR he was converted to a permanent recruiter, promoted twice, excelled ahead of his peers, completed an Associate, Bachelor, and Master's degrees, and various MOS related courses. 

	e.  He understands that the Army has directed a screening of all recruiters and removal of those with character or behavior issues.  His military record shows exemplary performance at all levels and when he faced adversity, he was able to recover and continue to serve at a meritorious level.

10. On 12 March 2014, the Staff Judge Advocate, USAREC, denied the applicant's request for reconsideration of his removal from recruiting duty stating the removal was based on credible evidence and it was affirmed.

11.  On 13 June 2014, the DASEB denied his subsequent request to remove the GOMOR from his OMPF.

12.  He provided numerous achievements and character references which all attest to his trustworthiness, commitment to excellence, moral fiber, and proven character and leadership.

13.  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.

14.  Army Regulation 600-8-104 (AMHHR 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 ABCMR).

15.  ALARACT Message 147/2013, HQDA EXORD 161-13 Sexual Harassment/Assault Response and Prevention Program Army Stand-Down, contains Phase I screening instructions for the implementation of the program.  In Phase I, it states the Army will:

	a.  Conduct a review of qualification of military Sexual Assault Response Coordinators (SARC), SHARP Victims Advocates (VA), Recruiters, Drill Sergeants, and AIT Platoon Sergeants in the Active Component, National Guard and the U.S. Army Reserve (USAR).

	b.  Recruiters, Drill Sergeants and AIT Platoon Sergeants in the Active Component and USAR will not require any new or additional screenings, but rather a validation that all required checks were accomplished an qualifications were met based on current criteria and qualifications.

	c.  HRC will inspect available records to validate that proper background screenings were completed prior to appointment for all active duty and USAR Recruiters, Drill Sergeants and AIT Platoon Sergeants.  Where there is no record of a valid and complete background screening, initiate a new background screening and correct any shortcomings.

16.  Annex D of this message lists waiverable and non-waiverable offenses.  If, upon completion of broadened local or centralized background screening, a Type I, or non-waiverable, offense is discovered, personnel conducting the screening must inform the general officer removal authority.  Removal authority must immediately remove the SARC, SHARP VA, Recruiter, Drill Sergeant or AIT Platoon Sergeant from their duties.

DISCUSSION AND CONCLUSIONS:

1.  After careful consideration of the applicant's contentions there is no basis to remove the GOMOR from his OMPF.

2.  The applicant argues that he, in effect, is the subject of double jeopardy and is being punished for an offense that occurred over 10 years ago.  Additionally, he was told the GOMOR would be filed locally; therefore, giving him an opportunity to overcome it. 


3.  However, the evidence shows while the applicant was assisting a high school band and performing recruiting duties at a high school he engaged in a sexual relationship with a student (fraternization).  This misconduct resulted in him receiving a GOMOR which was directed for filing in his OMPF.  It is unclear why the applicant was unaware the GOMOR was filed in his OMPF.  He should have been reviewing his OMPF on a periodic basis.  In 2012, the GOMOR was transferred to the restricted portion of his OMPF.

4.  He contends that it is unfair that this same document caused him to be removed from recruiting duties and a loss of his MOS qualifications.  His exemplary career after the incident is not in question.  However, the Army has recently taken aggressive measures to ensure that sexual harassment/assault prevention is advocated among those in positions of trust and authority to include recruiters.  As a result, any recruiters with a record of a Type 1 offense, which includes fraternization, will be removed from their duties.  This is not a punishment as would be administered under the Uniform Code of Military Justice but an attempt to safeguard victims of sexual harassment/assault.  His misconduct was of a nature that was prejudicial to good order and discipline and contradictory and the enforcement of the policy.  Consequently, the applicant cannot continue as a recruiter.

5.  He further contends that he is being forced to retire after completing 20 years of service; however, his record is void of any documents, and the applicant has failed to provide any evidence, to show he has been notified that he is subject to involuntary separation.  Even if so, this reason is not sufficient for removal of the GOMOR from the restricted portion of his record.

6.  Given that there is no error or no injustice, it would not be appropriate to remove the GOMOR from the restricted portion of 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)                                         AR20140011529



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ABCMR Record of Proceedings (cont)                                         AR20140011529



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