IN THE CASE OF:  	  

		BOARD DATE:  5 November 2014	  

		DOCKET NUMBER:  AR20140012860 


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.  removal of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 6 May 2010 through 5 May 2011 from his Official Military Personnel File (OMPF) and

	b.  removal of a general officer memorandum of reprimand (GOMOR), dated 8 July 2011, from his OMPF.

2.  The applicant states:

	a.  On 14 January 2014, a Field Board of Inquiry (FBOI) was conducted to determine his retention on active duty and the board determined he should be retained on active duty without reassignment.

	b.  The U.S. Army Human Resources Command memorandum, dated 18 July 2013, directed him to show cause for retention due to the referred OER and GOMOR.  The FBOI determined that both documents did not have merit and there was no misconduct on his behalf, thus the elimination action was closed.

3.  The applicant provides:

* U.S. Army Human Resources Command memorandum, dated 31 January 2014
* FBOI findings and recommendation

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a major in the Regular Army.

2.  Records show an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation commenced on 17 March 2011 to determine whether the applicant facilitated communication between captain (CPT) P____ and a female civilian and whether the applicant knew of the no-contact order issued to CPT P____.

3.  On 1 April 2011, the investigating officer (IO) found:

	a.  The applicant did not intentionally serve as a third party to facilitate communications between CPT P____ and the civilian or knowingly assist CPT P____ in violating a no-contact order issued to the CPT on 14 December 2010.  The applicant was not aware of the no-contact order.

	b.  The applicant did not allow CPT P____ to use his telephone to call his family back in the United States in December 2010.  CPT P____ did not use that telephone to contact the civilian.  The IO found that is how the civilian obtained the applicant's personal telephone number.  CPT P____ made a false statement to the applicant by stating he would use the telephone to contact his family back in the United States.

	c.  When the applicant was given a no-contact order on 27 January 2011, he did not violate that order.  The civilian specifically stated the applicant avoided her at a social function on 12 February 2011 after she attempted to get his attention.

	d.  The applicant denied all communications with the civilian.  However, she stated that she had talked to the applicant at least once and received a text from his personal cellular phone.  The IO confronted the applicant in a follow-up interview referencing the contact with the civilian and he denied the conversation and text exchange ever happened.

	e.  The civilian claimed the applicant gave her and CPT P____ a ride back from Camp Humphreys to Uijeongbu over Labor Day weekend in 2010.  The applicant denied that as well in a follow-up interview.

	f.  Regardless of the alleged contact via conversation or text, the applicant did not knowingly discuss any part of the previous investigation against CPT P____ or attempt to coerce the civilian to make any false statements regarding that investigation.  The context of the alleged conversation was in response to a possible suicide ideation that CPT P____ had made to his family.

	g.  The IO also found the fraternity that both the applicant and CPT P____ are members of may contribute to an improper senior-subordinate relationship.

	h.  In addition, the fraternity had numerous social events with other organizations which place senior and subordinate officers in social settings.  The civilian claims the applicant was aware of the type of relationship she had with CPT P____.  The applicant denied knowing the extent of the relationship while it was going on.

4.  The IO recommended:

	a.  in any future Article 15 or court-martial, CPT P____ be charged with violating the no-contact order;

	b.  scheduling a leader development class to focus on the conduct of officers as members of non-military organizations; and

	c.  counseling the applicant by his rater on his responsibility and duty as an officer to ensure that conduct of subordinate officers is keeping with the finest traditions of military service, whether on duty or off duty.  The IO did not have any substantial evidence that the applicant was complicit in this case, but his proximity to the situation placed him in a difficult position as senior officer regarding the perception of wrongdoing.

5.  A memorandum from the Brigade Judge Advocate to Commander, 1st Brigade Combat Team, 2nd Infantry Division, dated 29 April 2011, stated the Army Regulation 15-6 investigation is legally sufficient for the following reasons:

* the IO complied with the appointment orders
* the investigation complied with Army Regulation 15-6
* the evidence supports the findings, except as set forth below
* the recommendations are consistent with the findings

6.  The memorandum also stated that although it is a matter collateral to the subject of the investigation, doubt remains about what happened on Labor Day weekend in 2010.  The Brigade Judge Advocate recommended the IO's findings and recommendations with the following exceptions/substitutions:

	a.  Except finding h (paragraph 3h above), substituting therefor:  "In view of [Civilian's] detailed and credible account of Labor Day Weekend 2010, which is entirely consistent with available DBIDS [Defense Biometric Identification System] records, I find by a preponderance of the evidence that [Applicant] made a false official statement to the Investigating Officer in violation of Article 107, UCMJ [Uniform Code of Military Justice], in denying that he had ever spoken with [Civilian], given her a ride in his vehicle at any time, or known of any type of relationship between CPT P____ and [Civilian].

	b.  Except the following words from recommendation c (paragraph 4c above) "I do not have any substantial evidence that he was complicit in the case, but his," substituting therefor "His."

7.  The contested OER is a 12-month annual OER covering the period 6 May 2010 through 5 May 2011 for duties as the Battalion Executive Officer for Headquarters and Headquarters Company, 1st Battalion, 72nd Army Regiment, Camp Casey, Korea.

8.  In Part IV (Performance Evaluation – Professionalism), the rater placed an "X" in the "No" block for Army Value Integrity.

9.  He was rated "Unsatisfactory Performance, Do Not Promote" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by his rater.

	a.  In Part Vb (Comment on Specific Aspects of the Performance), his rater stated:

Another superb performance from the most tenacious and effective Executive Officer I have served with in over 20 years of service.  [Applicant] spent the past twelve months leading my Staff through high OPTEMPO [operational tempo] and personal [sic] turnover, and the results were impressive.  [Applicant] delivered by focusing attention on Staff systems that allowed me to 'see ourselves' and make adjustments where necessary.  Because of his accomplishments, I commanded the battalion and held weekly Commander Meetings in lieu of a Command and Staff meeting.  This paid huge dividends in managing our most critical resource – time.  Unfortunately, during this rating period, [Applicant] clearly demonstrated a lack of integrity.  This caused me to lose confidence in him as a leader and reevaluate his overall potential for service at positions of greater responsibility.  Because of this action, I do not believe we should promote [Applicant] to Lieutenant Colonel.

	b.  In Part Vc (Comment on Potential for Promotion), his rater stated, "Officer does not have potential for promotion to the next higher grade.

10.  He was rated "Do Not Promote" in part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) by his senior rater.  In part VIIb (Potential Compared with Officers Senior Rated in Same Grade), his senior rater indicated "BELOW CENTER OF MASS – RETAIN."  In part VIIc, his senior rater stated:

Absolutely brilliant performance by one of the top field grade officers in the BCT [Brigade Combat Team].  [Applicant] was instrumental in creating and sustaining unmatched combat readiness systems that ensured his Armor battalion achieved excellence in the areas of maintenance and deployment readiness.  He consistently demonstrated tactical prowess and the ability to rapidly solve complex problems.  He portrayed all the attributes the Army seeks when selecting future battalion commanders.  Unfortunately, he revealed a flaw in character that is inconsistent with our values and preclude [sic] any further consideration for advancement.  I no longer endorse [Applicant] for positions of authority or responsibility that demand integrity, and the ability to make moral and ethical decisions under duress.  Great potential to continue to serve in senior staff positions that can leverage his impeccable technical and tactical skills.

11.  A memorandum from the Acting Staff Judge Advocate, Headquarters, 2nd Infantry Division, to the Commanding General, 2nd Infantry Division, dated 8 July 2011, stated:

	a.  On 17 March 2011, an Army Regulation 15-6 investigation commenced.

	b.  On 24 March 2011, the applicant was interviewed and denied that he had ever spoken with the female civilian, given her a ride in his vehicle at any time, or knew of any type of relationship between CPT P____ and the female civilian.

	c.  On 29 March 2011, the female civilian stated she had talked to the applicant at least once and received a text message from him.  She also stated the applicant gave her and CPT P____ a ride to Uijeongbu from Camp Humphreys over the Labor Day weekend.  During the ride, she stated she had a conversation with the applicant and he dropped both her and CPT P____ off at their apartment.

	d.  The applicant also attended many of the same fraternity events that CPT P____ and the female civilian attended.  At these events, CPT P____ and the female civilian's intimate relationship was easily observable as demonstrated by photographs.  The applicant did not, however, knowingly aid CPT P____ to violate the no-contact order.

	e.  The chain of command recommended that the commanding general initiate a GOMOR and a general officer Article 15 for the applicant.

	f.  The Staff Judge Advocate recommended that the commanding general initiate a GOMOR for the applicant.

12.  On 8 July 2011, he received a GOMOR for making a false official statement during an Army Regulation 15-6 investigation.  The IO questioned him about an alleged inappropriate relationship between CPT P____ and a civilian.  During the course of the investigation, he denied ever having spoken with the civilian, denied giving her a ride in his vehicle at any time, and denied having knowledge of any type of relationship between the officer being investigated and the same civilian.  However, the civilian gave a detailed account of how he had communicated with her in the past, how he gave her a ride in his vehicle, and how he knew of her relationship with the same officer.

13.  On 25 August 2011, the commanding general directed permanently filing the GOMOR in the applicant's OMPF.

14.  On 24 October 2013, the Department of the Army Suitability Evaluation Board (DASEB) determined:

* the overall merits of the applicant's case did not warrant removal of the GOMOR
* the evidence submitted was sufficient to warrant partial relief by transferring the GOMOR to the restricted portion of the applicant's OMPF
* this action is not to be considered retroactive and, therefore, does not constitute ground for promotion reconsideration if previously non-selected
* the Record of Proceedings and allied documents would be filed in the restricted portion of the applicant's OMPF

15.  In December 2013, an FBOI was conducted.  The applicant and three witnesses (a colonel, who was a character witness and did not mention the incident in question; a civilian, who was a character witness and did not mention the incident in question; and the applicant's wife, who was a character witness and stated she did not know the facts of this case) testified on his behalf.  It appears the officer (CPT P____, who the applicant testified that it appears the woman in question confused him with) and the civilian in question did not testify at the hearing.  The FBOI found:

	a.  The allegation of making a false official statement resulting in a referred GOMOR and a referred OER was not supported by a preponderance of evidence.

	b.  The allegation of conduct unbecoming an officer was not supported by a preponderance of the evidence.

	c.  The findings do not warrant separation.

16.  The FBOI recommended his retention in the Army without reassignment.  On 14 January 2014, the approval authority approved the FBOI's findings and recommendations.

17.  On 20 March 2014, the Officer Special Review Board (OSRB) denied his request to remove the contested OER from his OMPF.  The board determined the overall merits of his case did not warrant the requested relief.

18.  A review of the performance section of his OMPF on the integrated Personnel Electronic Records Management System revealed a copy of the OER in question.  The GOMOR was filed in the restricted section.

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 OMPF.  It states letters of reprimand and DA Forms 67-9 will be filed in the performance section of the OMPF.

20.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF 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 rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

21.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
4-15b(3), states a Board of Inquiry may not recommend removal of documents such as OER's, Article 15's, and memoranda of reprimand from an officer's OMPF.  The board recommendations are limited to either retention (with or without reassignment) or elimination.



DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR for making a false official statement during an Army Regulation 15-6 investigation.  This misconduct was the basis for the contested OER.

2.  He contends his GOMOR and OER should be removed from his OMPF because an FBOI determined the allegation of making a false official statement resulting in the GOMOR and OER was not supported by a preponderance of evidence.  The FBOI also recommended his retention in the Army without reassignment.

3.  The determination by the FBOI that the preponderance of evidence did not support the conclusion that he made a false statement does not invalidate either the GOMOR or referred OER.  In fact, two other boards (DASEB and OSRB) determined that the matters presented by the applicant were not sufficient to warrant removal of either document from his OMPF.  Also, the Brigade Staff Judge Advocate found by a preponderance of evidence that the applicant made a false official statement to the IO in violation of Article 107 in denying that he had ever spoken to the female civilian, given her a ride in his vehicle at any time, or known of any type of relationship between CPT P____ and the female civilian.

4.  The FBOI couldn't make a recommendation to remove these documents because, per the governing regulation, such a recommendation is prohibited as beyond the FBOI's purview.  The regulatory provision recognizes the authority of the FBOI to decide whether an officer should be eliminated from the service; however, it reserves judgment on the retention of adverse information to the discretion of other boards.

5.  The mere action of the FBOI to retain the applicant after concluding the misconduct was not supported by a preponderance of evidence should not alone serve as a basis in equity to grant him relief.

6.  Further, only the applicant and three character witnesses testified at his hearing.  It appears that none of the witnesses testified about the incident in question and were only character witnesses.  It appears that the commanding general believed the Staff Judge Advocate’s interpretation of the IO’s conclusions regarding the woman’s credibility and determined the applicant demonstrated a lack of integrity.

7.  The applicant has not met his burden to prove he did not make a false statement.  Therefore, there is insufficient evidence on which to grant 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 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)                                         AR20140012860



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012860



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1