BOARD DATE:	  14 January 2015

		DOCKET NUMBER:  AR20140018857 


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:

The applicant defers his request, statement, and evidence to his counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, on behalf of the applicant: 

* a memorandum of reprimand (MOR), dated 7 January 2010, and a general officer memorandum of reprimand (GOMOR), dated 8 May 2014, be removed from the applicant's Official Military Personnel File (OMPF), or
* the MOR and GOMOR be moved to the restricted folder of his OMPF  

2.  Counsel states:

	a.  The applicant has served his country honorably for over 18 years.  He enlisted in the U.S. Marine Corps (USMC) right out of high school and subsequently earned his Army commission on 10 December 1999 upon graduating from college as a second lieutenant (2LT) “infantry” [i.e., ordnance] officer.  He deployed three times and received numerous awards including three Bronze Star Medals and the Meritorious Service Medal.  He received the Bronze Star Medal in May 2003 for exceptionally meritorious service in support of Operation Iraqi Freedom (OIF).

	b.  His meritorious service continued, and in 2007 he received a second Bronze Star Medal for exceptionally meritorious service as a company commander (CDR) during OIF.  He received a third Bronze Star Medal in 2011 for exceptionally meritorious service while deployed in support of Operation Enduring Freedom (OEF).  His exceptional service does not support the allegations in his reprimand.

	c.  On 30 June 2008, the applicant was a captain (CPT) assigned as the S-3 Operations Officer, Dallas Military Entrance Processing Station (MEPS), Dallas, TX.  As part of his assignment, he was responsible for the overall operational mission of the MEPS, applicant flow, and processing.  He supervised the file room, front desk, processing, testing, travel, and medical.  This included supervising over 32 civilian employees, 2 officers, and 6 military members.

	d.  In May 2009, the applicant’s Officer Evaluation Report (OER) noted that he had done a superior job maintaining the high-paced operational tempo of the second largest MEPS in the nation.  It was further noted that he worked at all levels to ensure efficient, compliant, and friendly service to all.  His OER indicated he had already been selected for promotion to major (MAJ) and had great potential for the rank of lieutenant colonel (LTC).  He was promoted to MAJ on 2 September 2009.

	e.  On 7 January 2010, the applicant received an MOR for violating Article 92, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order and dereliction of duty based on allegations of unauthorized recruiting practices.  The CDR relied upon a statement of a MEPS applicant who indicated the applicant gave her a business card to contact him about the programs (emphasis added).  While the MOR noted the MEPS applicant was "uncomfortable," this was not actually reflected in the statement from the MEPS applicant.  The statement does not contain a name and included an illegible signature.  The statement denotes "an Army guy came up and was trying to get me to join the Army officer program."  Not only does the statement not indicate that the Army guy was the applicant, it does not provide any information concerning the individual.

	f.  The MOR also alleged that on 10 December 2009 the applicant took a female MEPS applicant into his office for a lengthy period of time.  His CDR and the first sergeant (1SG) entered the office and the MEPS applicant excused herself.  He was verbally counseled regarding the perception he was creating and told his actions were unacceptable.  Prior to the verbal counseling, the applicant regularly met with Soldier recruits in an attempt to help them be successful in the military.  His actions were generally considered helpful to the Soldiers and he had not received any counseling prior to that date.  

	g.  Finally, the MOR indicated that subsequent to the counseling regarding having a female MEPS applicant in his office, the applicant found the same MEPS applicant and gave her a business card and asked her to text him.  He then sent her a friend request through Facebook.  According to Colonel (COL) D_____, the MEPS applicant's statement indicated that the MEPS applicant was uncomfortable and put off by the advances.  The MOR does not address that several MEPS employees “friend requested” MEPS applicants, including LTC E______, the applicant's CDR.  The MEPS applicant's statement also said that when he approached her in the cafeteria, he introduced her to a recruiter passing by to clarify her ability to become an officer would be without ever serving as an enlisted member.  The statement of Sergeant First Class (SFC) B______ supports that the applicant's conduct was purely professional; he needed no supervision and his demeanor was amicable.

	h.  Immediately following the receipt of the MOR, the applicant was assigned to the 4th Combat Aviation Brigade (CAB) as the Brigade (BDE) S-4.  His reassignment hindered his ability to gather evidence to support his claim, including receiving information regarding the MEPS applicant, R______'s, criminal history for fraud over $10,000.

	i.  MAJ W____, who was present at the MEPS in 2009, stated the applicant got along with everyone and there were no issues prior to the alleged incident.  More likely, MAJ W____ thought the 1SG was the likely source of the allegations, stating she was the one person he would refer to as a nightmare to work with and drama was her middle name.  MAJ W____ further stated he did not believe the applicant crossed the line with the MEPS applicant.  

	j.  Since receiving the MOR, the applicant has repeatedly attempted to have it removed from his OMPF.  Throughout the process, he has maintained his innocence regarding the allegations and sought relief from the unjust MOR.  

	k.  On 3 December 2013, when the applicant was on a Morale, Welfare, and Recreation (MWR) sponsored tour of Sapporo, Japan, Specialist (SPC) B______ reported she received unwanted comments from the applicant.  According to the applicant, SPC B______ sat next to him on the bus, stood next to him in the group photograph, and approached him for tokens to throw into a fountain.  He added that she never gave any indication that she was upset.  Upon arrival at Camp Chitosi, SPC B______ told her supervisor, Staff Sergeant (SSG) F_______, that a sergeant major (SGM) sat next to her on the bus, handed her his phone, and it read "I don't mean to offend you but you are beautiful, do you think I have a chance?"  He then sent another text that said "Do you have a boyfriend?"  SSG F_______ reported that she urged SPC B______ to report the incident to the Sexual Harassment/Assault Response and Prevention (SHARP) program point of contact (POC).  SPC B______ identified SGM C___ as the individual on the bus but later identified the applicant.  She then made the same statement to the SHARP POC that she had made to her supervisor.  

	l.  The record contains a statement from SPC P___ who was reportedly sitting on the bus near the applicant and SPC B______, stating that he noticed they were speaking to each other but most of the ride SPC B______ was quiet.  SPC P___ did not overhear any of the conversation and stated the applicant was pretty social and talked to almost everyone on the bus.

	m.  In a memorandum, dated 8 December 2013, the investigating officer (IO), LTC D__, outlined the facts of his investigation and findings.  It was not until 23 January 2014 that the IO met with the applicant to obtain his explanation of what transpired between him and SPC B______.  The applicant stated he was actually exchanging messages with an acquaintance of his, Ms. H______.  He had an email from Ms. H______ that explained the context of their conversations over time, including the period of the alleged incident with SPC B______.   The IO asked him to provide copies of the original text messages.  As they had been deleted, the applicant provided his cell phone bill which showed numerous texts between himself and Ms. H______ on the date of the incident.  The IO found the absence of the text messages from that date left the possibility that SPC B_____ was the intended recipient of the text messages.  The IO stated the applicant was at best sufficiently negligent with his personal communication.

	n.  On 21 May 2014, LTC R____ indicated the evidence seemed to point to the applicant texting with a romantic interest and not targeting a Soldier.  He recommended the GOMOR be filed in the applicant's local file.  In contrast, in his filing recommendation on 2 June 2014, COL C____ stated his recommendation was based on the fact that this was the second GOMOR the applicant received for unprofessional behavior with junior enlisted females and that he thought the applicant purposely wrote the text to show the SPC.  This recommendation for filing of the GOMOR went against the applicant's command recommendation and was based on previous allegations.

	o.  To justify correction of his record, the applicant must show to the satisfaction of the Board that the record is in error or unjust.  His record is in error because he received an MOR and a GOMOR based on allegations unsupported by law and fact.  As such, the MOR should be removed from his OMPF because it is factually and legally inaccurate.  The MOR was received based on two separate incidents in 2009.  There is insufficient evidence to support that the applicant had an inappropriate relationship with the MEPS applicants.  The GOMOR should be removed because in requesting the GOMOR his chain of command failed to follow Army regulations and the GOMOR would result in unjust hardship.  In issuing a GOMOR, the GO must reasonably believe the recipient is guilty of the conduct by a preponderance of evidence.  See the Army Board for Correction of Military Records (ABCMR) Docket Number AR20090012709.  In the applicant's case, there was not enough evidence to support a reasonable belief that he was guilty of the alleged conduct.  The statements from the aggrieved MEPS applicants do not corroborate the findings in the MOR.  Based upon the evidence of record [previously discussed in paragraphs e through g above], particularly the complete lack of any support for some of the statements made in the MOR, there exists a reasonable doubt as to whether the applicant is guilty of the alleged conduct.  Therefore, the MOR was erroneous.

	p.  The MOR stated he violated Article 92, UCMJ, and was in violation of U.S. MEP Command (USMEPCOM) Regulation 600-22 (Personnel Relationships) and Policy Memorandum 11-1.  The MOR noted he violated Article 92 in August 2009 due to unauthorized recruiting practices and in December 2009 for unprofessional and inappropriate personal contact with a MEPS applicant.  The elements of an Article 92 violation for failure to obey a lawful general order or regulation are (a) a certain lawful order or regulation was in effect, (b) the accused has a duty to obey that order or regulation, and (c) the accused violated or failed to obey the order or regulation.  The last element is in question as the factual inaccuracies, as well as the actual conduct in question, do not give rise to a violation of Article 92.

	q.  In United States versus P___, the court found that the appellant violated Article 92, UCMJ, when he acted contrary to U.S. Air Force (USAF) recruiting violations by engaging in verbal conduct of a sexual nature that created an intimidating, hostile, or offensive environment.  The conduct at issue included telling a 17-year old recruit that her eyebrow ring was driving him crazy, as well as touching a 16-year old recruit's leg while in a car alone with her.  In comparing that alleged conduct with the applicant's alleged conduct, the evidence does not support that he engaged in unprofessional and inappropriate personnel conduct with the MEPS applicant in December 2009.  

	r.  While the nature of the conversation in December 2009 may have skirted the line between professional and personal, the evidence suggests the applicant was trying to be helpful to the woman regarding her prospects for becoming an officer.  Albeit, the manner he went about it may not have been customary in the office, there is no indication he was acting willfully to disregard regulations.  The MEPS applicant's statement stated an Army guy went up to her and was trying to get her to join the Army officer program.  Her vague statement does not support that he engaged in unauthorized recruiting practices.

	s.  Upholding the MOR is unjust.  The applicant received one verbal statement that having a female MEPS applicant in his office gave the appearance of unprofessional conduct and had received no prior counseling.  While the applicant admits to Facebook “friend requesting” the MEPS applicant, this behavior was common practice at the MEPS including the CDR who had numerous enlisted members and a junior Soldier on his own Facebook page.  To hold the applicant to a higher standard than his CDR is unjust and erroneous.

	t.  In December 2013, an Army Regulation (AR) 15-6 (Procedures for Investigation Officers and Boards of Officers) investigation was ordered to look into allegations against the applicant of sexual harassment and creation of a hostile work environment.  His chain of command failed to provide him an opportunity to make a statement on his own behalf prior to sending the results of the AR 15-6 to the CDR as required by Army regulation.  AR 15-6 states when adverse administrative action is contemplated against an individual…based upon information obtained as a result of an investigation…the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:  (1) Notify the person in writing of the proposed adverse action and provide a copy of the findings, recommendations of the investigation and the supporting evidence upon which the proposed action is based; (2) give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material, (3) review and evaluate the person's response.

	u.  However, in the case of the GOMOR in 2014, the applicant was not provided an opportunity to make a statement on his own behalf or review the findings prior to his command taking action.  This goes against the rules provided in AR 15-6.  The failure on the part of his command to comply with the regulation calls into question the accuracy of the investigation and renders the processing of the GOMOR erroneous.  Had the command interviewed the applicant, he would have provided statements from Ms. H_______, the statement of SPC P___, and a statement from SGM W_____.  SGM W_____ was on the bus trip to Japan and would corroborate the applicant's statement and would describe his character as respectful and that he had not witnessed any misconduct from the applicant towards SPC B______.  

	v.  The applicant's MOR was filed erroneously; AR 600-37 (Unfavorable Information) requires the CDR to file the applicant's rebuttal with his GOMOR but his OMPF does not contain the rebuttal.  This is erroneous and against Army policy.  Keeping the MOR and GOMOR in the applicant's OMPF after considering the surrounding circumstances and questionable evidence is unjust.  The applicant should be allowed to continue his service and retire as a MAJ.

	w.  In the alternative, the applicant's MOR and GOMOR should be filed in the restricted folder of his OMPF.  AR 600-37, paragraph 7-2b(1), provides that on appeal a GOMOR can be moved to the restricted folder of an OMPF on a showing that the intended purpose has been served and the transfer would be in the best interest of the Army.  The intended purposes of the reprimands have been served; the applicant spent years contesting the January 2010 MOR.  In that time, he witnessed the effects and consequence of his perceived actions in 2009.  Additionally, in his rebuttal to the GOMOR, he included an apology to SPC B_____ and to the command for the misunderstanding that made her uncomfortable.  He has not only reaped the consequences of his actions but he has also shown remorse.  Given the erroneous nature of the factual statements and the failure to follow the provisions of AR 15-6, it would be in the best interest of the Army to place these documents in the restricted folder of his OMPF.  

3.  Counsel provides:

* five memoranda with attachments, dated between 6 January 2010 and 8 May 2014
* three statements of support, dated 6 October 2014 and 15 October 2014
* a letter, dated 18 January 2012
* Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings (ROP), dated 22 December 2011
* four DA Forms 67-9 (OER) covering the rated periods between 17 December 2005 through 30 May 2009
* four DA Forms 67-9 covering the rated period between 14 December 2010 and 17 June 2013
* three Bronze Star Medal award certificates, dated between 8 May 2003 and 5 March 2011
* eight pages of a printout titled The Oklahoma State Courts Network, printed 20 October 2014
* six pages listing Facebook friends of TJ E_____, undated 
* two pages of AR 600-37

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a commissioned officer in the U.S. Army Reserve in the rank of 2LT and executed an oath of office on 10 December 1999. He was ordered to active duty on 7 January 2000 and has continuously served on active duty since that date.  He was promoted to the rank/grade of MAJ/O-4 in the Regular Army on 2 September 2009 while assigned to the Dallas MEPS.

2.  On 7 January 2010, he received an MOR from COL D______, Eastern Sector CDR, USMEPCOM, North Chicago, IL.  COL D______ stated, in part:
	a.  The applicant was reprimanded for attempting to recruit a female Air Force MEPS applicant into the Army and for inappropriately contacting another female MEPS applicant on a personal Facebook account.

	b.  On or about 11 August 2009, he was verbally counseled for attempting to recruit an Air Force MEPS applicant into Army officer programs.  His actions were reported by the MEPS applicant who felt uncomfortable by his recruiting attempts.  He gave her his business card and told her she should contact him or come to his office to talk more about Army programs.  This unauthorized recruiting practice was a violation of Article 92, UCMJ, and USMEPCOM Regulation 600-22.  At that time, he was additionally counseled about the perception he created by having female MEPS applicants in his office for lengthy discussions.

	c.  On or about 10 December 2009, he was seen with another female MEPS applicant in his office on a busy Army mission day where over 150 MEPS applicants were processing through medical alone.  Instead of assisting with the processing, he was in his office with a single MEPS applicant for a lengthy amount of time.  His CDR and 1SG entered the office and the female excused herself.  His CDR then verbally counseled him again about the perception he was creating and told him his actions were unacceptable.  This was a violation of Article 92, dereliction of duty.

	d.  Following the verbal counseling, he found the same MEPS applicant and gave her his business card telling her to send him a text if she had any questions and then sent her a “friend request” through Facebook.  The MEPS applicant's statement clearly indicated she was uncomfortable and put-off by his advances.  His personal contact with an MEPS applicant was unprofessional, inappropriate, and in violation of Article 92, UCMJ, for violating USMEPCOM Regulation 600-22 and Policy Memorandum 11-1.

	e.  His conduct was abhorrent and was inconsistent with the standard of behavior expected of a field grade officer.  His actions demonstrated a willful defiance of authority that was wholly inconsistent with the Army Values, the USMEPCOM mission, and the CDR's vision for overall success.  His continued unwillingness to uphold standards and conduct himself as a professional would not be tolerated.  He (COL D______) had serious concerns regarding his potential for further service as an Army officer.

	f.  The reprimand was imposed as an administrative measure and not as punishment under Article 15, UCMJ.  He intended to request that COL C_____ direct the reprimand be filed in his OMPF.  Before he made the recommendation, he would consider any rebuttal or matters in extenuation and mitigation that he (the applicant) wished to submit.  The matters would be attached to his recommendation and submitted to COL C_____ for consideration.

	g.  This MOR is filed in the performance folder of the applicant's OMPF.

3.  The applicant's counsel provides two statements with the MOR.  

	a.  In a statement, printed on 12 August 2009, an Air Force MEPS applicant, in part, stated the day before she was at the MEPS when an Army guy came up to her trying to get her to join the Army officer program.  He gave her his card and wanted her to call or go to his office when she had a break.  She never went to his office because she wanted to join the Air Force and not the Army.  When she was in the lunchroom eating, he said he guessed playing dominos was more important then talking to him.  She then said she might talk to him later but probably not.  When she went to the [Air Force recruiter's] office to pick out her job and pulled out her driver's license, the business card he had given her fell out and the [Air Force recruiter] made a copy of it.

	b.  In a statement, undated, a second MEPS applicant stated, in part, the applicant helped her the first time she went to the MEPS by unlocking a locker where her personal items were stored.  The second time, he talked to her about joining the Army as an officer.  She stated her recruiter said she had to do enlisted service first because of her criminal history but he told her no she did not.  She was interested so she followed him to his office to ask questions.  In the course of the conversation, he said he was sure she knew she was pretty and she had better be prepared for sexual harassment because it was going to happen.  She was feeling awkward and he asked questions about what interested her in the Army, marriage, kids, and boyfriends.  It hit her that he could be hitting on her and she started talking about her goals.  She felt she was going too far in-depth about her personal relationships but he was inquiring if her boyfriend supported her decision and that a lot of time apart was why his marriage didn't work.  At that point, she knew he was hitting on her in a round-about way.  It made her feel uncomfortable; two gentlemen walked in and she left.  Shortly later, he walked by, gave her his business card and said if she had any questions to text him.  He later sent her a “friend request” on Facebook but she didn't accept the request.  His “friend request” was still on her phone.

	c.  Neither of these statements are filed in the applicant's OMPF.

4.  In a memorandum, undated, COL C_____, CDR, USMEPCOM, stated:

	a.  As a Joint General Court-Martial Convening Authority, he directed the filing of the MOR in the applicant's OMPF.  He further stated he considered all the facts and circumstances of the case and determined an official filing was appropriate.  The provisions of AR 600-37 have been complied with the MOR, dated 7 January 2010, along with the acknowledgement of receipt, and rebuttal packet the applicant submitted, dated 28 January 2010, were enclosed for filing.  

	b.  This memorandum is filed in the performance folder of the applicant's OMPF; however, his OMPF does not contain the applicant's rebuttal packet COL C_____ referred to in the memorandum.

5.  In January 2010, the applicant received a relief for cause OER which covered 6 months of rated time from 31 May 2009 through 14 December 2009 for his duties while serving as the Operations Officer at the Dallas MEPS.  His rater was the LTC E______, and his senior rater was COL D______.  The OER shows the following:

	a.  In Part IVa (Performance Evaluation - Professionalism – Army Values), the rater placed an "X" in the "No" block for Honor, Integrity, Respect, Selfless-Service, and Duty values.

	b.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered comments in Part Vb as follows, in part:

The [Applicant] was relieved from his duties…It is with regret that he allowed poor judgment and inappropriate actions to overshadow an otherwise solid performance.  He competently executed most assigned duties; however, during this rating period, area recruiting services stated concerns to the command regarding his actions with female MEPS applicants.  It was perceived that he inappropriately fraternized with female recruiting applicants and abrasively treated subordinate personnel.  He was counseled verbally and in writing.  On 10 December 2009, he (the rater) witnessed and intervened to end an inappropriate meeting between the applicant and a female Army MEPS applicant in his office.  This MEPS applicant complained, with supporting evidence, that the applicant harassed her.  She included a printed “friend request” from Facebook that he had sent her that morning.  When he was questioned under oath, he lied about the circumstances.  His actions generated a complete loss of confidence of his abilities to perform assigned duties.

	c.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" block and entered the following comments, in part:

He has repeatedly shown the inability to effectively plan, execute, and control lethal and non-lethal effects on the battlefield.  Most troubling however, has been his complete lack of respect for his chain of command, civilian leadership, and his fellow Soldiers.  As a result, he was relieved from his position, received an MOR.  

6.  The applicant was subsequently assigned to the 4th CAB, Fort Hood, TX.  In a rebuttal to the OER, dated 29 January 2010, the applicant stated, in part:

	a.  In Part IVa of the OER, the Army Values of Honor, Integrity, Respect, Selfless-Service, and Duty were marked "No" and he believed they should be marked "Yes."  To say a Soldier and officer was without those values created a portrait of an officer with no redeeming qualities whatsoever.  The comments in Part Vb stated he competently executed most assigned duties.  A negative comment stated it was perceived that he inappropriately fraternized with female recruiting applicants and abrasively treated subordinate personnel.  He does not believe the creation of the perception should be the only criteria on which he was judged.  

	b.  In Part IVb (b2) (Interpersonal) was marked "No" and he believed it should be checked "Yes."  While there were certain failings on his part regarding interpersonal relations between himself and applicants, and himself and subordinates, the OER and developmental counseling statements he received did not reflect a pattern of failure at interpersonal skills.  Only several discreet incidents were referred to.

	c.  He believed the comment in Part Vb that "This [MEPS] applicant complained, with supporting evidence, that the applicant harassed her" should be omitted.  A review of her written statement would demonstrate that her complaints were limited to "feeling awkward," "wishing this guy would leave me alone," and his requesting to add her as a friend on Facebook.  The comments in the complaint did not represent a pattern of misconduct sufficient to be labeled harassment.

	d.  The only comment in the OER that he believed should not be changed was the sentence that reads "It was perceived that [The Applicant] inappropriately fraternized with female recruiting applicants."  He understood that this was the perception.  He felt the perception was inaccurate and unsubstantiated but nevertheless, he took responsibility for allowing the perception to take place.  That part should remain unchanged; however, he had taken steps to amend his behavior so that the perception was not created in the future.

7.  The OER was subsequently processed at the U.S. Army Human Resources Command (HRC) and is currently filed in the performance folder of his OMPF with his rebuttal memorandum.

8.  The applicant subsequently:

* received an "outstanding performance, must promote" and "best qualified" rating on three OERs covering the periods 14 December 2010 through 17 June 2013
* served as the Brigade S-4, 4th CAB, while the unit was deployed to Afghanistan in 2010 to 2011
* was awarded the Bronze Star Medal for exceptionally meritorious service in Afghanistan from 15 July 2010 to 15 June 2011

9.  He subsequently submitted a request to the DASEB to have the MOR removed from his OMPF or transferred to the restricted folder.  On 22 December 2011, the DASEB denied his request and determined the evidence presented did not provide substantial evidence to show the MOR had served its intended purpose or was untrue or unjust. 

10.  He subsequently submitted a request to the DASEB for reconsideration of his request to have the MOR removed from his OMPF or transferred to the restricted folder.  On 10 January 2013, the DASEB denied his request and determined the evidence presented did not provide substantial evidence to show the MOR had served its intended purpose or was untrue or unjust. 

11.  In 2013, he was assigned to Headquarters and Headquarters Battalion (HHB), I Corps, Joint Base Lewis-McChord (JBLM), WA.  On 7 December 2013, an AR 15-6 IO was appointed by the CDR, HHB, I Corps, to conduct an informal investigation into allegations against the applicant of sexual harassment and fraternization with SPC B_____ on 3 December 2013 during an MWR-sponsored culture bus tour. 

12.  In a memorandum of findings and recommendations, dated “8” December 2013 (i.e., 9 December 2013), the IO stated, in part:

	a.  On 3 December 2013, the applicant attended an MWR-sponsored tour of Sapporo.  On the tour bus, he was seated next to SPC B_____ and, after introducing himself by rank, he engaged her in conversation.  In her statement, SPC B______ indicated the applicant typed a text on his phone and showed it to her.  The text read "I hope this doesn't offend you, but I think you are beautiful, I was wondering if I had a chance?"  After she did not respond to the text, he sent a second text that read "Do you have a man?"  She took this to imply his interest in her physically, was shocked, and extremely uncomfortable as a result.

	b.  SPC B______ told SPC M____ at the next bus stop, and SSG F______ upon her return home from the tour.  SSG F______ arranged for SPC B_____ to meet with the SHARP representative, CPT A_____, to file an unrestricted report on 4 December 2013.  SPC B______ couldn't positively identify the individual but on 6 December 2013, both SPC B______ and SPC M____ identified the applicant while eating dinner in the dining facility and informed SSG F______.

	c.  On 8 December 2013, at 1032 hours, the applicant was read his rights; he waived his rights, was interviewed, and completed a DA Form 2823 (Sworn Statement).  He stated that he was late for the tour and took the last available seat on the bus next SPC B______.  He identified himself [rank and name], asked some questions about herself, but couldn't recall her name or rank at the time of his statement, due to being distracted by a football game on his phone.  The applicant further stated he spoke with SGM W_____ seated in front of him but he did not interact with SPC B_____ while off the bus at tour stops.  He indicated he was using his phone to send and receive texts on his phone but had no idea what SPC B______ saw on his phone of an offensive nature.  He also related that he had previously been the subject of allegations of sexual harassment while in company command but the allegations were unsubstantiated.  

	d.  On 8 December 2013, the IO subsequently interviewed and received sworn statements from SPC B______, SPC M____, SSG F_______, CPT A_____, SPC P___, SGM W_____, and other individuals who had been on the bus tour.  

	e.  On 8 and 9 December 2013, he had discussions with COL L______ and was told applicant had previously received an MOR for misconduct with female recruits.  This established a pattern of misconduct regarding fraternization and sexual misconduct.

	f.  On 9 December 2013, he interviewed and received sworn statements from SPC S____ and SFC E____ who had also been on the bus tour and seated near the applicant and SPC B______.

	g.  While the allegation of text message solicitation for a relationship was based only on the statement of SPC B______'s interview, it conveyed a high level of credibility.  Details of the circumstances as reflected in corroborating witness statements were consistent and credible as was the SHARP report and statement from CPT A______.  Based on the totality of the circumstances, he believed a preponderance of evidence, a clear pattern of previous misconduct regarding issues of inappropriate behavior, and the perceived credibility of SPC B______, there was sufficient cause to believe the applicant conducted himself in interaction with SPC B______ in such a way to create a hostile environment substantiating the allegation of sexual harassment as defined by unsolicited, unwanted, or offensive comments in AR 600-20 (Army Command Policy), paragraph 7-6b.  The intent to establish a relationship inherent in the content of the text message would violate the Army policy on fraternization in AR 600-20, paragraph 4-14.

	h.  The IO recommended the applicant be issued a GOMOR and consideration of initiation of a show-cause board.

13.  A subsequent legal review of the memorandum found it to be legally sufficient.

14.  In an addendum to his 9 December 2013 memorandum of findings and recommendations, dated 24 January 2014, the IO stated, in part:

	a.  On 23 January 2013, he met with the applicant [for the second time] to discuss information he said that explained the text messages that SPC B______ mistook for her were actually intended for a Ms. H_______.  He provided an email from Ms. H_______ wherein she stated she has been texting the applicant during the period of the incident.  When asked for copies of the text messages, the applicant stated he had deleted them.  He provided a copy of his cell phone bill which showed numerous tests from his phone to her number on the date in question.

	b.  The IO contacted Ms. H_______ and confirmed the accuracy of the email. When asked to forward cell phone logs showing text message traffic over the period in question, she emailed them but the record did not cover the date in question.  She stated she no longer had access to the text messages from 3 December 2013.  

	c.  While the new information provided a plausible explanation for the text messages, the absence of the messages persisted in clouding the issue of whether they were intended solely for Ms. H_______.  SPC B______ stated he wrote out the text and showed her the phone.  This would indicate he wrote them for SPC B______ whether he subsequently sent them to Ms. H_______ or not.

	d.  The new evidence did not change the initial assessment that the applicant conducted himself, or allowed information to be revealed, in such a way as to create a hostile environment toward SPC B______ causing her to report the exchange as an incident of sexual harassment.  Recommend the applicant be counseled and reprimanded by his chain of command.

15.  In a second addendum to his 9 December 2013 and 24 January 2014 memoranda of findings and recommendations, dated 9 April 2014, the IO stated, in part:

	a.  Per AR 600-20, in the course of investigations relating to claims of sexual assault or harassment, the IO should note concerns or observations of unit policy, procedures, and individual leadership…that may have a dysfunctional effect upon unit climate.  The IO conducted an inquiry into HHB's command climate…as related to sexual harassment and SHARP issues.   

	b.  He found the policies, procedures, training approach and command emphasis in HHB toward SHARP issues was, in general, excellent.  He believed nothing in the HHB's SHARP program or command climate contributed to the applicant's decision to conduct himself inappropriately towards SPC B_____.

	c.  The new evidence did not change the initial assessment that the applicant conducted himself, or allowed information to be revealed, in such a way as to create a hostile environment toward SPC B______ causing her to report the exchange as an incident of sexual harassment.  Recommend the applicant be counseled and reprimanded by his chain of command.

16.  Subsequent legal reviews of the addenda found them to be legally sufficient.

17.  On 8 May 2014, the applicant received a GOMOR from Major General (MG) D___, Deputy CDR, I Corps, JBLM.  MG D___ stated, in part:

	a.  On 3 December 2013, while on a MWR-sponsored tour, the applicant made unsolicited and unwanted comment to SPC B______ that were sexual in nature.  He had introduced himself by rank, ascertained her rank, sat next to her, and engaged in conversation with her.  He later typed the text message on his phone "I hope this doesn't offend you, but I think you are beautiful, I was wondering if I had a chance?" and showed it to her.  After she did not respond, he typed another text message "Do you have a man?"  His actions embarrassed SPC B______, made her extremely uncomfortable, and caused her to immediately report the incident to her supervisor.

	b.  He was hereby reprimanded.  His inappropriate actions and comments negatively impacted good order and discipline and he damaged the Soldier's trust in her military leaders.  His conduct was grossly unbecoming of an officer and a gentleman.  As a commissioned officer, he was expected to be a role model for all Soldiers and to adhere to the highest standards of professional and personal conduct.  His actions brought discredit upon himself, his command, and the Armed Forces.

	c.  While the reprimand was imposed as an administrative measure and not as punishment under Article 15, UCMJ, it had significant consequences for his career.  He (MG D___) was considering filing the GOMOR in his OMPF.  However, he had the right to submit matters on his own behalf within 7 days to be considered before he made the actual filing decision.

18.  In a response to the GOMOR, dated 13 May 2014, the applicant stated, in part:

	a.  He wanted to sincerely apologize for offending SPC B______ and for bringing discredit to the officer corps.  It was not his intent for SPC B to see the romantic message he was sending Ms. H_______.  They were made to make Ms. H_______ feel special but instead made an enlisted Soldier uncomfortable.  He regretted the way his messages were misinterpreted.  He knew how important the SHARP mission was and strived to avoid any appearance of inappropriate behavior.  He would never knowingly hurt any Soldier and felt horrible that a misunderstanding caused SPC B_____ distress.

	c.  He understood that perception was reality and that the previous MOR he had received likely had a large part in shaping the IO's investigation.  He was sure the IO's perception of him was that he was someone who harassed women but that was not him.  He learned from the previous MOR how important it was to ensure there were no misconceptions of his relationship with subordinates and that was why the AR 15-6 investigation and GOMOR were so unexpected.  He gave his word the messages were not directed at SPC B______ and even if the GOMOR was withdrawn, he would continue to regret upsetting SPC B______.  

	d.  He requested the GOMOR be either withdrawn or filed in his local file.  With his response, he included a written apology to SPC B______ that he requested be given to her through her chain of command.

19.  On 14 and 21 May 2014, respectively, his company and BN CDR's recommended the GOMOR be filed in the applicant's local file.

20.  On 2 June 2014, his BDE CDR recommended the GOMOR be filed in the applicant's OMPF.  He stated he made the recommendation because it was the second MOR the applicant received for unprofessional behavior towards junior enlisted females.  He (the applicant) had explanations for his actions but they did not match with the situation as described.  It was his belief the applicant purposely wrote the text messages to show the SPC.

21.  On 4 June 2014, the issuing CDR reviewed the applicant's response and the chain of command's recommendations and directed the GOMOR be permanently filed in the applicant's OMPF.  The GOMOR is currently filed in the performance folder of his OMPF along with his response and his chain of command's recommendations.

22.  The applicant subsequently submitted a request to the DASEB for reconsideration of his request to have the MOR, dated 7 January 2010, removed from his OMPF or transferred to the restricted folder, and for the GOMOR, dated 8 May 2014, removed from his OMPF or transferred to the restricted folder.  On 18 September 2014, the DASEB denied his request and determined the evidence presented did not provide substantial evidence to show the MOR or the GOMOR had served its intended purpose or was untrue or unjust. 

23.  In September 2014, the applicant received an annual OER which covered 12 months of rated time from 18 June 2013 through 17 June 2014 for his duties while serving as the Logistical Plans Chief, I Corps, JBLM.  This was a referred report.  His rater was a LTC and his senior rater a COL.  

	a.  Part IVd1 (Character) of the OER contains the entry "Needs to have additional training to reinforce the principles of the SHARP program to ensure he fully understands the interactions between officer and enlisted Soldiers of the opposite sex."  

	b.  He was rated as capable by the rater and the rater's comments, in part, stated he was a capable officer that aggressively tackled numerous issues within the command.  “His extensive knowledge of logistics were key to the Cops success during a daunting exercise….”

	c.  He was rated as qualified by the senior rater and the senior rater's comments, in part, stated he contributed to the success of I Corps' pivot to the Pacific Command (PACOM) area of responsibility (AOR).  During the rating period he displayed poor judgment by not embracing the Army SHARP cultural.  (The Applicant) confirmed the OER was a referred report and refused to sign it.  

24.  The OER was processed at HRC and is currently filed in the performance folder of his OMPF.  Also filed in the performance folder, as an attachment to the OER, is a memorandum for record, dated 26 September 2014, wherein his senior rater stated the applicant refused to acknowledge receipt of, or sign, the OER based on the advice of his civilian counsel.
25.  Counsel provides three statements of support:

	a.  One, dated 6 October 2014, wherein SGM W____ stated, in part, he was with the applicant during the December 2013 bus tour.  The applicant came in late and sat in the second row, directly behind himself, next to the female SPC.  He and the applicant had a conversation about Hawaii, later he (SGM W____) talked sports with SFC E____, and then he read a book.  The applicant addressed him as SGM and the female next to him was not engaged in any of their conversations. 

	b.  One, dated 10 October 2014, wherein Master Sergeant (MSG) B______ stated, in part, he served with the applicant at the Dallas MEPS.  At the time of the incident, he was in his area and heard of it second hand.  He was present when the applicant spoke with the MEPS applicant in the cafeteria regarding her ability to become an officer.  MSG B______ introduced him to the MEPS applicant and was purely professional.  

	c.  One, dated 15 October 2014, wherein Ms. K_______, a paralegal in the applicant's counsel's law firm, stated, in part, she interviewed a MAJ W_____ on 9 September 2014.  The MAJ had worked with the applicant at the Dallas MEPS and stated he did not personally witness the incident but the applicant spoke to him about it.  He had admitted that he made a poor decision and should not have had a young, female recruit in his office because of how it could be perceived.  

	d.  Six pages, undated, of lists of friends from a Facebook account of a "Tj Edwards" with several names annotated as noncommissioned officers (NCOs) and another as a SPC.  An online search of Facebook failed to reveal a current Facebook for the same person as show on the pages provided. 

26.  USMEPCOM Regulation 600-22 states, in part:

	a.  Military and civilian members of USMEPCOM will not socialize or have any contact with any applicant or enlistee for any reason other than that required in order to accomplish the unit mission.  Soliciting personal information, such as telephone numbers, addresses, email addresses, or social media user names, from applicants or enlistees processing at a MEPS to be used to contact an applicant or enlistee for other than official business is strictly prohibited.  Providing personal information to an applicant to be used by the applicant to contact a military or civilian member of USMEPCOM is strictly prohibited.

	b.  Recruiting is not a part of the USMEPCOM mission and engaging in such activity impedes the efficient and effective processing of applicants through the accessions process.  USMEPCOM are prohibited from passing any applicant's personal information to any person, service, or agency other than the sponsoring service processed for liaison or recruiter.  USMEPCOM personnel are prohibited from recruiting or referring an applicant or an enlistee to a specific uniformed service.  Penalties for violation of this regulation include the full range of statutory and regulatory sanctions; for military personnel, according to Article 92, UCMJ.

27.  AR 600-37 provides that:

   a.  An administrative MOR 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 filing determination is made.

   b.  A GOMOR 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 GOMOR is to be filed in the OMPF, the recipient's submissions are to be attached.  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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

28.  In ABCMR docket number AR20090012709, an applicant requested through his counsel reconsideration of his previous request for a GOMOR to be removed from his OMPF.  An AR 15-6 investigation had been initiated against the applicant due to charges of adultery.  The IO determined the adultery charges were unfounded but that the applicant was guilty of assorted misconduct because his conduct created an appearance of misconduct.  His counsel contended he was given the GOMOR based on nebulous perceptions rather than on a preponderance of real evidence that actually refuted the charges.  The applicant believed the findings of AR 15-6 were flawed and there was no basis for his GOMOR.  The Board denied the applicant's request to remove the GOMOR from his OMPF and determined that the appearance of impropriety was all that was required to issue a GOMOR.  

29.  In United States v. SSG P___, the USAF Court of Criminal Appeals affirmed the SSG's general court-martial conviction and sentence of a bad conduct discharge, confinement for 15 months, forfeiture of all pay and allowances, and reduction to E-1.  The SSG had been convicted of four specifications of violating a lawful general regulation, one specification of maltreatment of a subordinate, and two specifications of assault consummated by battery, in violation of Article 92, Article 93, and Article 128, UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant received an MOR in January 2010 for attempting to recruit a female Air Force MEPS applicant into the Army, inappropriately contacting another female MEPS applicant on a personal Facebook account, and having female MEPS applicants in his office.  

2.  USMEPCOM Regulation 600-22 states military members of the MEPS will not have any contact with any MEPS applicant for any reason other than that required to accomplish the unit mission.  Providing personal information to an MEPS applicant to be used to contact a military member of the MEPS is strictly prohibited.  USMEPCOM personnel are prohibited from recruiting or referring an applicant or an enlistee to a specific uniformed service.  Penalties for violation of the regulation for military personnel were in accordance with Article 92, UCMJ.  

3.  The applicant himself stated he talked with MEPS applicants about Army officer programs as he was trying to be helpful and he acknowledged he created the perception that he inappropriately fraternized with female recruiting applicants.  In addition he provided them with his business card in case and sent each “friend requests” on Facebook.  These were clear violations of USMEPCOM regulations and he was appropriately issued a MOR for his inappropriate behavior.  The applicant was afforded the opportunity to review the evidence against him and to submit matters in his own behalf prior to a final filing decision.  His response was received and considered.  Subsequently, the MOR was referred for filing in his OMPF.  

4.  The MOR was properly administered in accordance with applicable regulations and is properly filed in the performance folder of his OMPF of his OMPF.  There is no evidence of an error or an injustice.  Although his OMPF does not contain his rebuttal to the MOR, this constitutes an administrative error and does not render the MOR untrue or unjust.  

5.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  There is generally a reluctance to move unfavorable information to the restricted folder of the OMPF unless it truly has served its intended purpose.  In this case, the applicant's MOR does not seem to have served its intended purpose as he subsequently received a GOMOR for his inappropriate actions with an enlisted female Soldier.

6.  In September 2014, he received a GOMOR for making unsolicited and unwanted comments to an enlisted female Soldier.  His inappropriate actions and comments were found to have negatively impacted good order and discipline.  The GOMOR was issued as an administrative measure and not as punishment under the provisions of Article 15, UCMJ, after an AR 15-6 investigation determined the applicant conducted himself, or allowed information to be revealed, in such a way as to create a hostile environment toward the enlisted female Soldier.  The applicant was afforded the opportunity to submit statements and evidence to the IO on two separate occasions.  He also submitted matters in his own behalf prior to a final filing decision of the GOMOR.  His response was received and considered.  Subsequently, the GOMOR was referred for filing in his OMPF.  

7.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance folder of his OMPF.  There is no evidence of an error or an injustice.  In addition, the GOMOR was issued just over 8 months ago; there is no evidence that shows it has served its intended purpose.

8.  An MOR and GOMOR are administrative matters and are not subject to the rules of evidence applicable to trial by court-martial.  In a court-martial the Government must prove a Soldier's guilt beyond a reasonable doubt.  There is no such requirement for issuing an MOR or GOMOR.  The officer issuing the reprimand must only reasonably believe the recipient is guilty of the conduct in question by a preponderance of the evidence.  In addition, when making a recommendation on the filing of a GOMOR, it is very appropriate to consider any other prior actions taken against the individual for similar inappropriate actions.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140018857





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ABCMR Record of Proceedings (cont)                                         AR20140018857



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