IN THE CASE OF:  	  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20140012304 


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 20 July 2011, from his Official Military Personnel File (OMPF).  He requests, in the alternative, that the GOMOR be moved to the restricted portion of his OMPF.

2.  The applicant states:

	a.  The document is untrue in whole or in part.

	b.  It has been proven that the GOMOR was given based on erroneous and significant difference in information.

	c.  A Board of Inquiry (BOI) was held and the GOMOR was unanimously found to be unsubstantiated with retention recommended as the board's end result.

	d.  Supporting evidence will show that the GOMOR has served its intended purpose.

3.  The applicant provides:

* Self-authored memorandum to the Board, dated 23 June 2014
* State of North Carolina County of Cumberland Divorce Judgment, dated 13 September 2006
* DA Form 4037-E (Officer Record Brief) and copies of his last six Officer Evaluation Reports (OERs)
* Commander, 76th Operational Support Command, memorandum, dated 9 May 2013
* memorandum for Commander, U.S. Army Reserve (USAR) Joint Special Troops Support Command, dated 27 November 2012
* A letter from his former spouse (undated)
* The findings and recommendations of his Administrative Elimination Board (two pages)
* President, Department of the Army Suitability Evaluation Board, letter, dated 30 May 2014

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the USAR, the applicant accepted an appointment as a second lieutenant (O-1) in the North Carolina Army National Guard (NCARNG) on 21 December 1989.  He was promoted to first lieutenant (O-2) on 14 December 1992 and he was promoted to captain (O-3) on 6 November 1995.  

2.  The applicant was honorably discharged from the ARNG for unsatisfactory participation on 6 January 1998.

3.  On 5 April 2001, he accepted an appointment in the NCARNG as an O-3.  He was promoted to major (O-4) on 16 June 2006.

4.  The applicant provides a copy of a Divorce Judgment dated 13 September 2006.

5.  On 10 July 2011 the applicant received a GOMOR for misconduct.  The GOMOR states that prior to February 2011, he engaged in an inappropriate relationship with a fellow officer and that during the relationship, he represented to that officer that he was single.  In February 2011, he presented documents to his deputy brigade commander that indicated he had been divorced.  His brigade commander later determined that he was in fact married at the time by contacting court officials and his spouse.  He eventually admitted that he was, in fact, still married.  Over the course of the matter he was not only untruthful to a fellow officer, but to a superior officer as well.

6.  The GOMOR states that on 14 February 2011, the Garrison Commander revoked his on-post driving privileges.  The Garrison Commander subsequently allowed him limited driving privileges for driving to medical appointments.  On 19 May 

2011, he operated a motor vehicle in violation of the Garrison Commander's revocation.  When caught by Fort McCoy police, he misrepresented the status of his driving privileges.  In doing so, he disregarded an order from the Garrison Commander and again made untruthful statements.

7.  In the GOMOR the applicant was told that as an Army Reserve Soldier and officer, he must adhere to the highest standards of professional conduct and personal behavior.  He was told that at a minimum, it included being truthful at all times, as well as following all lawful orders.  The applicant was told:

* His judgment, character, and ability to serve in positions of responsibility and command within the Army Reserve was in question
* His behavior was unacceptable for anyone of his rank and position
* His behavior brought discredit upon himself, the 86th Training Division and the USAR
* The GOMOR is an administrative action and not punishment under the Uniform Code of Military Justice
* The GOMOR may file in his OMPF
* A final determination would be made after reviewing his rebuttal, if any

8.  On 25 July 2011, the applicant submitted a rebuttal requesting that the GOMOR not be filed in his OMPF.  He stated:

	a.  Reason one for not wanting the GOMOR filed in his OMPF was to protect his son, who looked up to him as his hero.  He did not want his son to know of any of his career shortcomings.  He did not want his son to know or have to feel any embarrassment or failure which he may have brought to their name.  He wanted to keep his image with his son complete and for him to be proud of his father's accomplishments long after he was gone.  He wanted his son to know that his father proudly served his country with honor and dignity.

	b.  He had 26 years of creditable service with three major deployments.  He received an honorable separation after each deployment.

	c.  Throughout his 26 years of service, he had only one other infraction and he did not allow it to discourage him.  He went on to complete that endeavor and continue with his military career.

	d.  He realized that his error in judgment reflected negatively on him, but he did not want it to define his 26-year military career.  He made a stupid mistake and he was truly sorry for that error.  He had learned and he was in counseling seeking professional assistance in ensuring self improvement and inner growth.

	e.  He had character statements from his past commanders and peers which described him as a person and his hard work, dedication, and service to the Army and community.  He also had information from his clinical therapist, which he was submitting.

9.  On 19 August 2011, after careful consideration of the applicant's file including his 25 July 2011 rebuttal, the commanding general (CG) directed that the GOMOR be filed in the performance portion of his OMPF.

10.  On 1 December 2011, the DASEB unanimously denied the applicant's request for removal of the GOMOR from his OMPF.  The DASEB stated that the evidence presented did not provide substantial evidence that the document in question had served its intended purpose or was untrue or unjust or that its transfer or removal would be in the best interest of the Army.  The DASEB stated the following:

	a.  The applicant should have been reasonably apprized of his own marital status.  Reliance upon an on-line divorce judgment without any effort to follow-up through the appropriate court to ensure the judgment was legally binding and properly filed would have been a reasonable action on the applicant's part.

	b.  It appears that the applicant was first confronted regarding his marital status in mid-2010.  Upon contacting the applicant's wife, she initially stated that the applicant was her husband and he had not been faithful to her.  She then rescinded her declaration and said the two were divorced.  In her final statement in December 2010, she said she understood that she was still married based on the fact that no legal document existed, such as a divorce decree, confirming the divorce.

	c.  The applicant took no action after being confronted in mid-2010 until January 2011, when he obtained legal representation and subsequently filed for divorce on 2 March 2011.  The purported divorce decree given on-line in September 2006 differs somewhat from the documents filed by the applicant's attorney on 2 March 2011, most notably in the final equitable distribution of joint property, which was conspicuously omitted in September 2006.

	d.  It is questionable that the applicant ended the relationship as he contends upon discovering that he was still married.  "Col B" indicated that he received both telephone calls and e-mail from "CPT J" expressing great dissatisfaction in the applicant for conveying to her that he was a single man.  She felt compelled to research his status after information was revealed to her that was contrary to the applicant's position as single.  Further, she adamantly requested that the applicant be punished to the fullest extent for misrepresenting his status and putting her in a position of an adulterer and in violation of regulatory and Uniform Code of Military Justice (UCMJ) standards of conduct.

	e.  The finding of the GOMOR was not unjust.  He was confronted in mid-2010 about his status and was disingenuous and unprofessional in his responses.  Months later, on 24 February 2011, "COL B" counseled the applicant on his inappropriate relationship.  At that time, "COL B" indicated he would table his actions for 6 months if the applicant demonstrated a clear effort to return to a high degree of professional and personnel conduct.  "COL B" indicated he would not file the reprimand in the applicant's permanent record or annotate his action in his OER.

	f.  Prior to the end of the 6-month period, the applicant violated the direct order of the Garrison Commander regarding his driving privileges.  Although the applicant provided mitigating evidence in defense of the misconduct, the available evidence shows the applicant's vehicle was observed at other unauthorized locations on Fort McCoy in disregard of the limitations placed on his driving privileges; therefore, while he was only cited on the one occasion, the command was aware of other instances where the applicant was in violation of the restrictions.

	g.  The applicant contended that the reprimand failed to satisfy the required elements of Article 134 (Adultery) under the UCMJ because it recognized the defense of mistake of fact, and such a defense existed in his actions because he had an honest and reasonable belief that he was unmarried.  The applicant did not receive punishment under the UCMJ.  Issuance of a GOMOR is an administrative matter entirely under the purview of the imposing authority.  The imposing authority was not required to satisfy any elements of the UCMJ when administering an administrative reprimand.  In the imposing authority's opinion, the applicant's misconduct merited the issuance of a GOMOR.

	h.  Given the foregoing, the applicant did not provided clear and convincing evidence that the GOMOR was unjust.

11.  The DASEB stated that the applicant also requested transfer of an administrative GOMOR to the restricted portion of his OMPF.  In order to have the GOMOR transferred, the applicant had to show by substantial evidence that it had served its intended purpose and that its transfer was in the best interest of the Army.  The DASEB stated:

	a.  As noted in the governing regulation, in order to meet the conditions for review by the DASEB for transfer of a document, at least 1 year has to have 
elapsed since imposition of the GOMOR and at least one evaluation report, other than an academic report, must be received in the interim.  Only 4 months had elapsed since the applicant was reprimanded and he had not received an OER.

	b.  Given the foregoing, the applicant did not meet the conditions necessary for consideration of transfer at that time.

12.  The DASEB reconsidered the applicant's requests for removal or transfer of the GOMOR on 11 April 2013, 15 August 2013 and 8 May 2014 and his requests were denied.

13.  The applicant provides a memorandum to this Board dated 23 June 2014 stating:

	a.  The GOMOR is wholly unjust because he was reprimanded for behavior that he did not commit.  He did not intentionally engage in an inappropriate relationship with a fellow officer prior to February 2011.  He reasonably believed that he was granted a divorce on 13 September 2006.  During that summary he and his wife completed an on-line divorce packet that they submitted through the North Carolina system.  They both received copies of a "Divorce Judgment" and they believed they were no longer married.  Since that date, they have lived separate lives and have only contacted one another with regard to their son.  Any subsequent relationships that he had were based on the belief that he was no longer married.

	b.  In late 2010 his former wife attempted to re-marry and she discovered that their divorce had been unsuccessful.  She contacted his command to inform them that they were still legally married and he provided his command with documentation that had led him to believe that he was divorced.  He immediately hired an attorney to obtain a proper divorce.

	c.  When he found out he was still legally married, he ended the relationship for which he was reprimanded.  He also provided his command with all of the paperwork associated with both the previous and then current divorce process.

	d.  He was counseled on 24 February 2011 for the improper relationship, but his commander decided to "table" any action for 6 months.  It was his commander's intention that as long as there was no additional misconduct for 6 months a GOMOR would not be issued.  It was unjust of his commander to turn around and issue a reprimand 3 months later when he originally did not feel a reprimand was needed.

	e.  The GOMOR fails to satisfy the required elements of Article 134 under the UCMJ.  The UCMJ recognizes the defense of mistake of fact and as such, a defense exists in his actions because he had an honest and reasonable belief that he was unmarried at the time he engaged in the relationship with a fellow officer.  Given the fact that he had a reasonable defense to his potential Article 134 violations, the issuance of the GOMOR was unjust.

	f.  General Y___ is in support of removing the GOMOR from his file.  His commander supports such a removal.  His wife has issued a statement regarding the true facts of his case.  A BOI found that the allegation that he had an inappropriate relationship with a female officer was not supported by a preponderance of the evidence.

14.  He provides copies of his last six OER's showing he was rated either best qualified or fully qualified for promotion to the next higher grade and either above center of mass or center of mass.  He provides a memorandum from the CG that issued the GOMOR requesting that it be transferred to the restricted portion of his OMPF.  He provides a memorandum from his former commander recommending that he be retained in the Active Guard Reserve program and a letter from his former spouse describing how she and the applicant both believed they were divorced in September 2006.

15.  The applicant provides the findings and recommendations of an administrative elimination board that convened to determine whether he should be separated from the Army prior to the expiration or his term of service due to misconduct, moral, or professional dereliction.  The date that the board convened is not shown on the evidence he provided; however, the findings and recommendations are as follows:

	a.  The allegation of having an inappropriate relationship with a female officer in the notification of proposed separation was not supported by a preponderance of the evidence.

	b.  The allegation of making a false statement to a superior officer in the notification of proposed separation was not supported by a preponderance of the evidence.

	c.  The allegation of driving on post with revoked privileges in the notification of proposed separation was supported by a preponderance of the evidence.

	d.  The allegation of conduct unbecoming an officer in the notification of proposed separation was not supported by a preponderance of the evidence.

16.  The administration elimination board stated that the findings did not warrant separation with respect to the applicant.  Only one of the four allegations was determined to be supported by a preponderance of evidence.  The remaining allegation did not reach a level warranting separation when evaluated against the positive aspects of the applicant's career.  The applicant's OERs and current performance show he provided quality leadership and service throughout his career.  Numerous character references from his current and past commanders, fellow officers, and senior enlisted Soldiers show he was well respected as an officer.  He also took responsibility for his actions exemplifying integrity, a quality an officer must possess.  A final point considered, but not a sole reason for the board recommendation, was that the officer who initiated the GOMOR also recommended the applicant's retention in the Army.  The administrative elimination board recommended that the applicant be retained in the Army.

17.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states:

	a.  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; and

	b.  unfavorable 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.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  Although the administrative elimination board found that the allegations of the applicant having an inappropriate relationship with a female officer, making a false statement to a superior officer, and conduct unbecoming an officer were not supported by a preponderance of the evidence, the CG believed that the 

applicant did engage in an inappropriate relationship with a female officer and that during that relationship, he represented himself as being single.  The CG believed that the applicant was not only untruthful to a fellow officer but to a superior officer as well by presenting documents to his deputy brigade commander that indicated he had been divorced.  He eventually admitted to "COL B" that he was in fact still married.

3.  The administrative elimination board found that the allegation of driving on post with revoked privileges was supported by a preponderance of the evidence. That board is limited to making a determination whether to retain (with or without reassignment) or eliminate an officer.

4.  The administrative elimination board is an independent administrative process separate from the administration of GOMORs, which is entirely within the discretion and purview of the imposing authority.  An administrative elimination board's burden of proof is established by regulation as a "preponderance of the evidence" in making a determination on whether an officer will be retained in the Army.  The burden of proof for successfully removing a GOMOR from the OMPF is established by Army Regulation 600-37 as "clear and convincing evidence" that the GOMOR is untrue and/or unjust.

5.  After reviewing all of the available evidence, the applicant has not shown by clear and convincing evidence that there was an error or injustice in the action taken by the CG to file the GOMOR in his OMPF.  He has also failed to show the statements in the GOMOR are untrue or unjust.

6.  With regard to the applicant's contention that the supporting evidence would show that the GOMOR has served its intended purpose, he has not provided sufficient evidence to support this statement.

7.  In accordance with applicable regulation, 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.  The CG directed that the GOMOR be filed in the performance portion of his OMPF.

8.  The applicant has failed to show error or injustice in the actions taken by the Army in his case.  In view of the foregoing, his request should be denied.


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)                                         AR20140012304



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ABCMR Record of Proceedings (cont)                                         AR20140012304



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