IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20150000137 


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 reconsideration of his previous request for removal of a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF).  Specifically, he requests that the Army Board for Correction of Military Records (ABCMR):

	a.  consider the facts and remove the reprimand from his OMPF,

	b.  order an investigation into the circumstances which resulted in imposition of the GOMOR and provide a copy of "the investigation that never occurred" which he has requested since imposition of the GOMOR, and

	c.  provide him with contact information for the Federal court with jurisdiction for hearing his case so he may contract a lawyer to file a claim to have the erroneous, unjust reprimand removed from his permanent file.

2.  The applicant states he has appealed to the Department of the Army Suitability Evaluation Board (DASEB) and the ABCMR asking for removal of an erroneous and unjust GOMOR from his permanent file.  The decisions of both boards were solely based on assumptions.  The facts of his case are:

* he never committed the acts cited in the reprimand
* there is absolutely no proof whatsoever of him committing those acts
* he never committed or admitted to committing adultery
* there was never any kind of investigation regarding his case
* he was given 7 calendar days to respond to the reprimand – an unreasonable amount of time from a remote overseas location
* the facts of his case are not altered simply because of a poorly-worded rebuttal made in haste to meet the 7-day deadline

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120016931 on 20 November 2012.

2.  The applicant's argument that the prior DASEB and ABCMR decisions were solely based on assumptions, not factual information, is a new argument which will be considered at this time.

3.  On 20 July 2010, he was issued a GOMOR for engaging in an adulterous relationship with a civilian employee he directly supervised between April and June 2010.

4.  On 9 August 2010, he responded to the administrative reprimand and submitted matters for consideration.  He stated his actions as a supervisor in an inappropriate supervisor-employee relationship were wrong.  His long-term separation from his spouse did not excuse his lapse of personal judgment, neither did his scheduled transfer to another department which would have removed the civilian employee from his supervision.  He maintained that the relationship did not compromise the mission or his ability to perform his duties.

5.  On 30 August 2010, after considering matters submitted in the applicant's behalf, the GOMOR-imposing authority directed permanently filing the GOMOR in his OMPF.

6.  On 1 December 2011, after careful consideration of the facts and evidence, the DASEB determined there was insufficient evidence to justify removal or transfer of the GOMOR to the restricted folder of his OMPF.

7.  In his original application to the ABCMR, dated 29 August 2012, he stated he received copies of the email correspondence between himself and the civilian employee on 14 June 2012 after filing a request under the Freedom of Information Act.  He stated the email correspondence was personal and obtained illegally by the civilian employee's ex-husband.  He noticed numerous inaccuracies, misrepresentations, and fabrications apparently made by the civilian employee's ex-husband.  He was not previously given the opportunity to view the email used to charge him with adultery.  His chain of command accepted the email as fact and charged him without letting him see the email or asking if the messages were accurate or true.  Despite the added language in the stolen email, no mention of sexual relations or a relationship of a sexual nature was mentioned leading him to continue to question how his chain of command assumed adultery occurred and proceeding in charging him with adultery in the GOMOR.  He denied engaging in an adulterous relationship.  He provided copies of the email recovered from his personal email account between himself and the civilian employee.

	a.  In an email message from the civilian employee to the applicant, dated 6 May 2010 at 2:24 p.m., she wrote, in part:

…I asked her to come stay with me so that I can check up on her and make sure if she needs to go back that she has someone to take her -- she is here now.  So, pending how she is feeling, she may still be here on Sunday.  I don't want her to be alone right now.  I hope you understand.  You can still come over, but then she would know.  Your call.

	b.  In an email message from the applicant to the civilian employee, dated 6 May 2010 at 11:14 p.m., he wrote, in part:

…About her being there, of course I understand -- but she absolutely can't know -- not right now.  I want people to know and do not want to have to be secret with you, but we have to wait until your divorce is over and mine is at least in progress and we don't directly work together.  Too many bad things can result -- we can talk later… [ellipsis in original text] (but you have to try to get her out by Sunday…)

Can't wait to be with you… [ellipsis in original text]

	c.  In an email message from the civilian employee to the applicant, dated 12 May 2010 at 12:18 p.m., she wrote, in part:

I spent all night and day with you and you've only been gone since 3, and I miss you so much.  What is wrong with me???

	d.  In an email message from the applicant to the civilian employee, dated 13 May 2010 at 10:56 a.m., he wrote, in part:

That was a really nice phone call from you today to tell me you loved me after we had our hasty departure in the hall.  I love to know that you were thinking about me.  You seem to be able to always make me smile and feel good -- just being with you or hearing some sweet words from your super sexy voice (which you know I adore -- if you didn't -- you do now!)  Work sucks – I need a hug from you about once every 30 minutes for it to be good.

See you tonite [sic],

I love you.

	e.  In an email message from the applicant to the civilian employee, dated 15 May 2010 at 5:57 a.m., he wrote, in part:

Every minute, day, night that we spend together (especially the nights… [ellipsis in original text]) is great!  I love being with you.

I miss you and love you.

	f.  In an email message from the applicant to the civilian employee, dated 26 May 2010 at 11:33 a.m., he wrote, in part:

…I thought about coming out there for the weekend to see you… [ellipsis in original text] but your family doesn't know anything about me or us yet so I'm sure me coming to see you would create a bunch of questions, etc.  Plus, I don't know when you are supposed to meet up with [redacted] to get the divorce paperwork taken care of -- probably not a good idea to be there for that.  …We have plenty of time and when I do meet your family, I at least want them to know about me and us… [ellipsis in original text]  So have a good time over the next week and a half and know that I wish I was there with you too (something we will not have to worry about on future vacations!!)

	g.  In an email message from the applicant to the civilian employee, dated 26 May 2010 at 1:00 p.m., he wrote, in part:

Hey Babe --

Yeah -- about your email from A____... [ellipsis in original text] interesting… [ellipsis in original text] but, you know what, I don't really care… [ellipsis in original text] we have 12 more work days together and then I am moving upstairs.  I mean, don't tell anyone yet, because I could still probably get into some hot water, especially if people think "us" has been going on for a while when we were working together, but after I move upstairs, I don't care who knows… [ellipsis in original text] I want people to know so we don't have to be so secretive anymore… [ellipsis in original text] I still can't believe J____ suspects… [ellipsis in original text] I thought we were being pretty stealthy…maybe someone saw my car at your house… [ellipsis in original text] they better get used to it…

	h.  In an email message from the civilian employee to the applicant, dated 25 May 2010 at 7:04 p.m. [Italy], she wrote, in part:

I can't wait for the airport hug/kiss… [ellipsis in original text] which will set the stage for later, lol [laugh out loud]…

…That J____ was commenting on my possible sexual habits is interesting.  Maybe we're not as stealthy as we think.

	i.  In an email message from the applicant to the civilian employee, dated 25 May 2010 at 2:51 p.m., he wrote, in part:

I know what you mean about missing me so much… [ellipsis in original text] the way I felt on vacation… [ellipsis in original text] it was bad.  I agree… [ellipsis in original text] last time on vacation by ourselves!  It is not a good feeling being away from you… [ellipsis in original text] and I can't believe how that feeling is… [ellipsis in original text] I guess it's because we have seen each other all the time for last year or so (with the exception of the couple months you had off when you had [redacted]) and then since April when we first kissed… [ellipsis in original text] can't explain it… [ellipsis in original text] blows my mind.  What have you done to me??

	j.  In an email message from the applicant to the civilian employee, dated 27 May 2010 at 3:56 p.m., he wrote, in part:

…You'll have to come spend the night during the weekend and we can set up some beds for L____ and K____.

Tough to explain how much I miss you… [ellipsis in original text] I think you understand though… [ellipsis in original text]

My love is yours… [ellipsis in original text]

	k.  In an email message from the applicant to the civilian employee, dated 31 May 2010 at 4:40 p.m., he wrote, in part:

Hi baby -- that was nice to be able to talk to you for while tonite [sic] -- to really hear your voice and hear how you were doing -- I miss that so much, and like you said, I am so looking forward to spending some time with you when you get back -- so I am planning on staying at your house the whole week -- need some catching up!

I said I wanted to talk to you when you get back -- just some thoughts of me wanted to give you a little more commitment to our relationship and wanting to be a bigger part of your life (yes -- L____ and K____)… [ellipsis in original text] but I will pitch my little proposition to you when you get home :) [smile] I am pretty sure you'll be happy with it…

Have a good time and I can't wait for you to be home in my arms.

Have a good night my love… [ellipsis in original text]

	l.  In an email message from the civilian employee to the applicant, dated 1 June 2010 at 7:46 a.m., she wrote, in part:

…I gave him the divorce paperwork last night and he was okay with it….It's a nice feeling.  I hate that the situation makes me feel bad about us.  I love you and I love us, so I want it to be over so that it is not casting a shadow over our relationship.  I know you understand…

I was thinking about what you said, about changing things a bit when I get back.  I have a few things to tell you too.  Not bad things.  I guess we both have things we want to say.  I love you, miss you and can't wait to see you.

	m.  In an email message from the applicant to the civilian employee, dated 1 June 2010 at 4:56 p.m., he wrote, in part:

Babe --

…Missing you is something I don't want to get used to, but we are in the last few days, and I am getting really excited about you coming back….I know you are looking forward to that being over… [ellipsis in original text] it will come soon enough… [ellipsis in original text] and mine will follow just a little while later.  I can't wait until things are done on my side.  Even though things are over, I just want it to be final and done… [ellipsis in original text]

I keep thinking that I am so glad that we met and we connected like I never thought we would.

	n.  In an email message from the applicant to the civilian employee, dated 2 June 2010, he wrote:

…Only five days until I see you… [ellipsis in original text] actually four full days, but like you said, who's counting?  I really miss you so much and I am kicking your butt for doing this to me.  I don't care if you planned this before "us," over two weeks is torture and at a minimum you are getting your feet tickled for two minutes.

Ok, baby --- I want to give you a hug and I have so much I want to say to you right now… [ellipsis in original text] it could probably all be summed up with a hug and a nice, long, deep kiss… [ellipsis in original text] you understand… [ellipsis in original text] because we so click.  I miss you so much.

See you in a few days my love… [ellipsis in original text]

8.  On 20 November 2012, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice to justify removal of the GOMOR from his OMPF.

9.  On 2 October 2014 after careful consideration of the facts and evidence, the DASEB again determined there was insufficient evidence to justify transfer of the GOMOR to the restricted folder of his OMPF.

10.  A review of the performance folder of his OMPF on the integrated Personnel Electronic Records Management System revealed a copy of the GOMOR in question.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  Army Regulation 600-8-104 (Army Military Human Resources Records Management) prescribes the policies governing the Army Military Human Resource Records Management Program.

	a.  Paragraph 1-6 states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, and any other personnel actions.

	b.  Paragraph 3-6 states that once properly filed in the OMPF (as defined in table 3-1), the document will not be removed from the record unless directed by the ABCMR.

	c.  Table 3-1 states administrative letters of reprimand will be filed in the performance folder.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR, dated 20 July 2010, should be removed from his OMPF because he never committed the acts cited in the reprimand and there is absolutely no proof whatsoever of him committing those acts.  He further contends the prior decisions of the DASEB and ABCMR were solely based on assumptions.

2.  He was issued a GOMOR on 20 July 2010 for engaging in an adulterous relationship with a civilian employee he directly supervised between April and June 2010.

3.  The email correspondence between him and the civilian employee during the period 6 May 2010 through 2 June 2010 clearly shows they were knowingly involved in an improper intimate relationship while they were each married to other spouses.

4.  In his written response to the GOMOR, dated 9 August 2010, he stated his actions as a supervisor in an inappropriate supervisor-employee relationship were wrong.  His long-term separation from his spouse did not excuse his lapse of personal judgment, neither did his scheduled transfer to another department which would have removed the civilian employee from his supervision.  He maintained that the relationship did not compromise the mission or his ability to perform his duties.

5.  There is no evidence indicating the GOMOR was improperly imposed.  The GOMOR was properly filed in the performance folder of his OMPF in accordance with regulatory guidance.  Therefore, there is no basis for granting the applicant's request.

6.  The ABCMR is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

7.  The ABCMR does not provide general contact information for Federal courts having jurisdiction over claims against the U.S. Army.  The applicant is advised to contact his local Staff Judge Advocate Office for information pertaining to the appropriate Federal court having jurisdiction over his case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120016931, dated 20 November 2012.



      ___________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)                                         AR20150000137



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ABCMR Record of Proceedings (cont)                                         AR20150000137



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