IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20150001232 


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 the General Officer Memorandum of Reprimand (GOMOR), dated 16 July 2013, and all allied documents from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, the evidence clearly shows his innocence.  His position that he committed no offenses has been supported at every level from the start of the investigation through all intermediate Army channels, to include the Department of the Army Suitability Evaluation Board (DASEB).  The only two people who doubted his innocence were the Commander, Recruiting Command and the Deputy Assistant Secretary of the Army, both of whom summarily overruled all recommendations that the GOMOR not be issued and/or placed in his OMPF.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, removal of the applicant's GOMOR, dated 16 July 2013, and all allied documents from his OMPF.

2.  Counsel states:

   a.  He is an Active Guard Reserve Army Staff Judge Advocate (SJA) with more than 29 years as  an Army attorney.  He opines that a change in the Department of the Army's policy apparently precipitated the Recruiting Command Commander's action to much more aggressively pursue what is termed as "recruiter impropriety" investigations.  He maintains the commander chose to summarily overrule the recommendation of an Army Regulation (AR) 15-6 (Procedures for Investigation Officers (IO) and Boards of Officers) IO who concluded that there was no recruiter misconduct.
   
   b.  This was highly unusual since the commander of the Recruiting Command personally selected and tasked the IO to perform the investigation.  He was aware the AR 15-6 IO provided a recommendation to the appointing authority and the appointing authority could choose a different action.  However, he maintained that in his 29 plus years as an Army JA, he did not recall seeing an instance in which an AR 15-6 appointing official summarily overruled the recommendation of an AR 15-6 IO without at least sending the IO back for further investigation.   

	c.  The commander, based on a AR 15-6 investigation whose results he overruled, filed the GOMOR in the applicant's OMPF and also took action to remove the applicant's credentials as a recruiter.  It was well known within the JA channels that the commander in question repeatedly ignored recommendations of impartial fact-finders, and was dismissive of legal advice that suggested he take alternative or no action.  When the applicant was informed he could request reconsideration of the action to remove his recruiter status, he did so and his recruiter status was returned to him. 

   d.  The applicant recently received the results from the DASEB who unanimously recommended the GOMOR be removed from his OMPF, but the Deputy Assistant Secretary of the Army overruled the unanimous recommendation of the DASEB.  Not only once, but twice, a deciding official in the applicant's case has summarily overruled the well-considered advice of an impartial fact-finder whose duty it was to make recommendations on the matter at hand.  To the best of his knowledge this was unprecedented and has resulted in a miscarriage of justice. 
   
3.  Counsel provides:

* DASEB Record of Proceedings with supporting documents, dated 
   14 August 2014 with decision memorandum
* Memorandum, Subject:  Request for Reconsideration of Removal from 
Recruiting Status, dated 4 and 29 April 2014 and supporting documents
* Memorandum, Subject:  No Contact Order, dated 18 March 2013
* U. S. Army Recruiting Command (USAREC) Form 958 (Incident 
			Information Report), dated 18 March 2013
* Memorandum, Subject:  Report of Investigation (ROI), dated 10 April 2013 
* Commanders Inquiry (CI), dated 20 March 2013, and allied documents
* GOMOR, dated 16 July 2013
* DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* DA Forms 2166-8-1 (NCOER Counseling and Support Form)
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Forms 4856 (Developmental Counseling Form)
* DA Forms 5500 (Body Fat Content Worksheet - Male)
* Enlisted Record Brief
* Future Soldier (FS) Rosters
* Applicant's Planning Guide 
* Plan Status Submitted
* Misconduct U.S. Army Recruiting Battalion, Milwaukee
* Log Sheet
* Orders 340-31, dated 6 December 2011
* Orders 017-005, dated 17 January 2012
* DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and/or Variable Housing Allowance)
* State of Georgia Court Order documents
* Numerous Sworn Statements
* Applicant's apartment with directions to his apartment
* Applicant's Army Knowledge Online page
* FS K.S.'s Twitter and Instagram printouts
* Email
* Applicant's Facebook messages and photos

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 August 2007 and is currently serving as a recruiter on active duty with the Recruiting Command. 

2.  On 21 March 2013, the applicant was suspended from recruiting duties and his special duty assignment pay (SDAP) was terminated.  

3.  On 25 March 2013, the applicant acknowledged receipt of the suspension and termination of SDAP.  He elected not to make a statement.

4.  On 4 April 2014, the applicant requested reconsideration of the decision to remove him from recruiting status.  He stated he was removed from recruiting status following an allegation made by Future Soldier (FS) K.S. that he had engaged in a sexual relationship with her, an allegation that he consistently denied.  He reiterated the information contained in his appeal and provided by counsel.  He also stated that an AR 15-6 investigation was conducted and the IO determined the allegation was unsubstantiated.  However, the determination was overturned. 

5.  On 10 April 2013, an ROI - CI was conducted to determine if the allegations of sexual misconduct against the applicant were true in that he engaged in sexual intercourse with FS K.S. on or about 3 September 2012.  The IO stated:

   a.  He asked FS K.S. for information that would assist with verification of her allegations and statements.  She agreed to provide text, phone, Facebook, Snapchat, and Twitter information, but failed to provide the information.  

   b.  He could not substantiate the allegations against the applicant.  He said he could not confirm that the applicant had an inappropriate and/or sexual relationship with FS K.S.  He could confirm that the timeline of the alleged offenses as described by FS K.S. was unsubstantiated.  FS K.S. was on vacation with her parents over Labor Day and the applicant was at a Labor Day party with members of his recruiting center.  Dates based on interviews and statements conflicted in a manner in which FS K.S.'s statements lost credibility.  Although compelling and well thought-out, the material facts provided that the applicant's statements and those supporting his assertion merit confidence.
   
	c.  He believed FS K.S. was attempting to find a way out of the FS Training Program and in general her commitment to serve in the U.S. Army.  Her tendencies towards sensationalism, attention seeking, and careless remarks via social media provided her a forum for redress against the applicant and other female FSs with whom she had disagreements.  This was consistent with the applicant's approach in dealing with FS and avoidable issues that arose through their actions.

	d.  The preponderance of evidence indicated the applicant was an outstanding FS leader who maintained himself and his FS team in accordance with prescribed policies and regulatory guidance.  The evidence also dictated that FS K.S.’s motivation vacillated based on positive or negative attention she received over the last 7 months resulting in a continual decline in commitment and further compromising her integrity by making sensational allegations from which she could no longer retreat.  

	e.  Based on the findings listed above and the statements provided, he recommended the allegations against the applicant be recorded as unsubstantiated and no further action be taken.

6.  On 14 April 2013, the Battalion Commander, Army Recruiting Battalion Milwaukee, WI, stated that based on the investigation conducted and the packet 
provided by the IO, he concurred and endorsed the unsubstantiated findings that the applicant did not commit sexual misconduct.  He further stated:

	a.  The IO described FS K.S. as having unreasonable expectations of being treated with favor or excepting complacency in response to her displayed lack of discipline and commitment.  The applicant stated just prior to the allegations 
FS K.S. was making mistakes in the program and displayed a lack of commitment.  He had addressed this with FS K.S. and asked other noncommissioned officers (NCOs) in the center to make corrections, too.  This was corroborated by other recruiters and FSs' statements.

	b.  When FS K.S. was being held accountable for her actions, it appeared she made allegations against the applicant to achieve her goals, in this case separation from the FS Training Program.  She displayed a lack of empathy when she made accusations that had serious civilian and military repercussions.

	c.  In sworn statements, other FSs stated the Greenfield Recruiting Center NCOs informed them on boundaries and relationships with recruiters.  It is important to note that at the time the alleged sexual misconduct occurred, 
3 September 2012, the former Greenfield Center Commander was under investigation for misconduct with a female FS and the applicant was interviewed as a possible witness.  It seemed unlikely that the applicant would risk misconduct of a similar type that an FS alleged during an ongoing investigation.

	d.  The timeline of FS K.S.’s story was not possible given her mother's statement that the family was out of town on one of the days the alleged sexual misconduct occurred.  In addition, FS K.S. described the applicant's apartment in detail and drew a sketch; however, the applicant lived in a two-bedroom apartment not a one-bedroom apartment as described by FS K.S.  The detail was a key component of the investigation, especially if FS K.S. visited the apartment on at least two separate occasions.  He believed she would have noticed two bedrooms versus one.  She was able to describe the apartment in detail due to the applicant's extensive picture portfolio on Facebook and lack of security parameters that made his personal life an open book.  The applicant provided two examples of stolen identity in which he was a victim.  As a result, he had updated his security parameters.  

	e.  The applicant violated USAREC Policy by using a personal cell phone for official business to maintain contact with FSs.  He also failed to inform his supervisors of flirtatious texted comments made by one female FS to another female FS.  While not texted directly to the applicant, he was later made aware of the text.  At that time, he should have informed his supervisors and taken action to stop further comments.

	f.  He recommended the applicant receive a battalion commander's memorandum of concern and notification that if any additional information was presented by either FS K.S. or her mother that added to the body of evidence on the allegations, they would re-open the investigation.  In addition, he recommended to the G-1 to put the applicant on orders for a no-cost move to another center within the Milwaukee company footprint.

7.  In a memorandum dated 27 March (sic) 2013, the Brigade JA stated he had reviewed the CI, dated 10 April 2013, concerning the allegations that the applicant engaged in sexual intercourse with FS K.S. in violation of USAREC Regulation 600-25 (Prohibited and Regulated Activities).  He said the investigation was legally sufficient and the evidence supported the findings of the IO.  He stated:

   a.  The investigation was initiated due to FS K.S. reporting to an NCO that she engaged in consensual sexual intercourse with the applicant on or about
3 September 2012 (Labor Day weekend).  After extensive interviews and investigation, there was a conflict between the timelines.  The NCO that held the barbecue stated the barbeque was on 2 September 2012 and the applicant arrived at approximately 1300.  At 1900 the NCO's wife drove all the barbecue attendees, including the applicant, to a local pub where they stayed until approximately midnight.  FS K.S. stated the sexual intercourse occurred at the applicant's residence prior to the applicant going to the barbeque on 
3 September 2012 and the applicant did not leave for the barbeque until 1400 or 1500.  However, FS K.S.'s mother stated that FS K.S. was camping with her family the entire Labor Day weekend.  The applicant provided entries from his recruiter planner showing he was in the recruiting center on 3 September 2012 preparing 3 to 4 Soldier files for shipping.
   
   b.  Throughout FS K.S.'s 7 months as an FS, she had been difficult to handle for the recruiting center.  She dated several male FSs at the same time, lied to those FSs, and had several run-ins with the police.  Additionally, she regularly would be counseled for new lip piercing, ear lobe gauges, and failing to live up to the Army values.  Moreover, a cursory review of her Facebook website, Twitter account, and Instagram website showed an incredible amount of sexual content and profanity.  FS K.S. had a reputation of making false statements and creating drama in order to get attention.  Based on the significant evidence to show she had a tendency to exaggerate the truth, FS K.S. had questionable credibility.  
   
   c.  The applicant had an impeccable career and FSs agree he had high standards and held them to those standards.  The applicant did admit he used his personal cell phone to text FSs, which was in violation of USAREC Regulations, because it was easier than using his government issued cell phone. 

   d.  One concern that was difficult to remedy was that FS K.S. was able to give a reasonable description of the applicant's residence.  However, she failed to identify that the applicant resided in a two-bedroom apartment versus a one bedroom after being in the apartment at least three times.  The applicant stated his Facebook account had several pictures of his apartment and his tattoos and that his Facebook account had been hacked many times.

	e.  Since January 2013, FS K.S. made several remarks on her numerous social media outlets that she wanted out of the U.S. Army FS Training Program.  It had been argued that she was using this allegation as her reason to get out of the program.  Several recruiters stated her motivation dropped shortly after the applicant counseled her about her most recent run-in with local law enforcement. It was shortly after this counseling that FS K.S. made these allegations.

	f.  The IO recommended the investigation be closed as unsubstantiated.  The battalion commander concurred with the recommendation.  Due to the fact that FS K.S. was 18 years old, the investigation fell under the Commanding General's (CG's) Uniform Code of Military Justice Withholding Policy.  The investigation must be forwarded to the USAREC Office of the SJA for the CG's final action.

8.  The ROI/CI and sworn statements are void of any evidence to show that there was a relationship between the applicant and FS K.S.  The sworn statements taken from other FSs all stated that they had never had any type of relationship with the applicant.  Many admitted that FS K.S. told them she had sex with the applicant.  In a sworn statement provided by FS K.S.'s former boyfriend, he said she also told him that she had sexual intercourse with the applicant.  He recalled a text from the applicant that said something along the lines of “you're cute.”  However, when he confronted her, she responded that it was about her new Facebook picture.

9.  On 16 July 2013, the Recruiting Command SJA recommended the CG substantiate the applicant's misconduct.  She provided a synopsis of the issue of misconduct for the CG's review and action.  She stated:

   a.  FS K.S. was 17 years old at the time of this incident.  She turned 18 years of age on 18 October 2012.  She reported to an NCO that she engaged in consensual sexual intercourse with the applicant on 3 September 2012.  She 
stated she and the applicant had been text messaging about her coming to see the applicant's house to go swimming.  This text messaging began after she received a Facebook message from the applicant to text him on his personal cell phone.  The applicant stated he used his personal cell phone to text FSs because it was easier than using a government issued cell phone.  She stated that she went to the applicant's residence and she and the applicant engaged in sexual intercourse in his apartment after she and the applicant went swimming. In her statement she described the route to the applicant's apartment, the decor and layout of the apartment, and described tattoos the applicant had on his body.

   b.  The applicant denied the allegations and claimed he was at a barbeque at an NCO's residence and that before that he was at the recruiting center.  An NCO stated the applicant arrived at the barbeque at 1300.  The applicant provided entries from his recruiter planner showing he was in the recruiting center on 3 September 2012, preparing 3 or 4 FS's files for shipping to basic combat training on 4 September 2012.  The recruiter planner was not dispositive of the applicant's location on 3 September 2012.  Further, it was possible that the applicant could have prepared the FS packets before 1000 hours, met with FS K.S., and then left to go to the NCO's residence.

   c.  FS K.S. knew the applicant had tattoos and could describe them.  Further, she could describe the layout of his apartment.  The applicant claimed she learned this information from his "open" Facebook page.  Additionally, he claimed the reason FS K.S. had made these allegations was because he was ''mean" to her by doing spot corrections.  Lastly, the applicant believed FS K.S. made these allegations so that she would not have to ship to basic training.  These assertions were suspect.

   d.  If FS K.S. did not wish to ship, she would not be forced to do so, and could certainly come up with a reason for the Army to disqualify her.  To enforce this point, the applicant claimed he was constantly doing spot corrections and telling her that she would be disqualified if she did certain things.  She could simply engage in the behavior that would get her disqualified rather than make up lies about the applicant.

   e.  Further, in a sworn statement, the Greenfield Reserve Component Center Commander (a sergeant first class (SFC)) detailed how she quizzed FS K.S. about a large picture in the applicant's  home in an effort to determine the truthfulness of FS K.S.’s statement.  She stated she did not remember that picture. The SFC explained that the picture did not exist, and she was merely testing FS K.S.'s veracity.  Had she been untruthful, she would have indicated she had seen the picture that the SFC claimed was "really big and hard to miss" when she was testing her veracity.

   f.  The IO wrongly contends that in light of the timeline provided the
FS K.S. could not have been at the applicant's house.  This was incorrect. 
FS K.S. returned home with her family on 3 September 2012, at around 1000, according to the FS K.S.'s mother.  Multiple statements indicated the applicant did not go to the NCO's barbeque until 1300.  FS K.S. claimed the applicant left his residence to go to the NCO's barbeque at approximately 1400.  Furthermore, she indicated that when she left, the applicant went to a cookout at the NCO's house.  She would have no reason/ability to know where the applicant was going had he not told her.

   g.  FS K.S. disclosed her relationship with the applicant to her former boyfriend.  She had nothing to gain by disclosing this relationship to him.  Further, her former boyfriend indicated that the applicant used to text message FS K.S. "an unusually large amount" when he was dating her.  In fact, the former boyfriend asked her about the frequent text messaging and saw a text from the applicant calling her "cute."  This corroborated the inappropriate relationship.

10.  On 16 July 2013, the applicant received a GOMOR for engaging in an inappropriate relationship between 29 August and 3 September 2012 with a 
17-year old subject of recruiting efforts.  During this time, he allowed FS K.S. to enter his personal residence and he went swimming with her without another qualifying person present.  Additionally, on 27 March 2013, he lied in a sworn statement to the IO denying the relationship.

11.  On 2 August 2013, the applicant acknowledged receipt of the GOMOR and he elected to submit written matters within seven calendar days.  

12.  On 6 August 2013, he stated that he noted several inconsistencies with the investigative process which he believed merited strong consideration to reduce the impact of the administrative adverse action.  The strongest evidence was that the GOMOR was based solely on the written sworn statement of FS K.S.  He said it was noted in both the IO's ROI and the battalion commander's endorsement that FS K.S.’s sworn statements were discredited.  Only in FS K.S.’s sworn statement was there any mention that she was in his apartment and she and he went swimming.  He reiterated that FS K.S. was never in his apartment and they never went swimming.  He further stated that given the volume of FSs and the lack of efficient communication, he used his personal cell phone to maintain more efficient and effective means to manage the program.  He concluded that he believed the great disparity between the recommendation versus his actual adverse action should provide enough weight to merit his request to have the GOMOR placed in his local file.

13.  On 29 August 2013, after carefully considering the circumstances of the misconduct an all matters submitted by the applicant, the CG directed the GOMOR be placed in his OMPF.

14.  On 16 December 2012, he appealed to the DASEB to have the GOMOR removed from his OMPF due to a lack of credible evidence.  He stated that all allegations made against him were unsubstantiated.  He further stated the CG had no evidence that FS K.S. was at his apartment swimming and that she lied to the IO.  

	a.  The analyst recommended removal of the GOMOR from the applicant's OMPF.  The applicant received a GOMOR based on an investigation that relied heavily on statements that were uncorroborated, inconsistent, contradictory, and hearsay.  In this case, the evidence was inconsistent since there was no factual data to support the alleged allegation.  

	b.  The board agreed with the analyst’s recommendation and determined the evidence presented clearly and convincingly established that the document under consideration was untrue or unjust, and the presumption of regularity should not be applied.  Therefore, by unanimous vote, the DASEB determined there was sufficient evidence to warrant removal of the requested document.  As a result, the Board directed the GOMOR, dated 16 July 2013, to be removed from the applicant's OMPF.

	c.  On 31 October 2014, after careful consideration of the facts and evidence, the Deputy Assistant Secretary of the Army (Review Boards) rejected the Board's recommendation to remove the GOMOR and directed that it be retained in the performance section of his OMPF.  She stated that it was her judgment that the applicant's behavior violated AR's, policies and protocols, and he had not shown, by clear and convincing evidence, that the GOMOR was untrue and/or unjust.

15.  Orders 275-09, dated 2 October 2014, show that, effective 24 September 2014, his SDAP for Recruiter, Level 5 ($375.00) was reinstated.  The additional instructions stated the applicant was no longer disqualified.

16.  AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  

	a.  Paragraph 1-1 states, in relevant part, that the intent of AR 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

	b.  Paragraph 1-4 stipulates that the objectives of AR 600-37 are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility.

	c.  Paragraph 7-2a, states that once an official document is properly filed in the OMPF it is presumed to be administratively correct and 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

17.  AR 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.

	a.  Paragraph 2-3 states that unless otherwise provided by another directive, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board.  Therefore, the appointing authority may take action less favorable than that recommended with regard to a respondent or other individual, unless the specific directive under which the investigation or board is appointed provides otherwise.  The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the investigation.

	b.  Paragraph 3-10 states a finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record.  It is directly established by evidence in the record or is a conclusion of fact by the IO.  Negative findings (for example, that the evidence does not establish a fact) are often appropriate. The number and nature of the findings required depend on the purpose of the investigation or board and on the instructions of the appointing authority.  The findings will be necessary and sufficient to support each recommendation.

	c.  Unless another directive or an instruction of the appointing authority establishes a different standard, the findings of investigations governed by this regulation must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, after considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion.  The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness's demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.  Findings will be stated to reflect clearly the relevant facts established by the evidence and the conclusions thereon of the IO.

   d.  Paragraph 3-11 states that the nature and extent of recommendations required also depend on the purpose of the investigation and on the instructions of the appointing authority.  Each recommendation, even a negative one (for example, that no further action be taken) must be consistent with the findings. IOs will make their recommendations according to their understanding of the rules, regulations, policies, and customs of the service, guided by their concept of fairness both to the Government and to the individual. 

18.  USAREC Regulation 601-45 (Recruiting Improprieties Policies and Procedures) provides policies and responsibilities for reporting, processing, investigating, and disposing of allegations of recruiting improprieties within USAREC.  The CG is the only officer who can reinstate suspended recruiters to recruiting duty.  Since reinstatement can only be directed by a USAREC general officer, and SDAP cannot be paid retroactively, suspension is normally appropriate when the commander intends to recommend relief from recruiting duty or some comparable adverse action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 21 March 2013, the applicant was suspended from recruiting duties and his SDAP was terminated based on allegations of sexual misconduct.

2.  On 10 April 2012, an ROI/CI was conducted to determine if the allegations of sexual misconduct against the applicant were true in that he engaged in sexual intercourse with FS K.S. on or about 3 September 2012.  The IO said he could not substantiate the allegations against the applicant.  He said he could not confirm the applicant had an inappropriate and/or sexual relationship with 
FS K.S.  However, he could confirm that the timeline of the alleged offenses as described by FS K.S. was unsubstantiated.  He recommended that based on the findings and the statements provided in the ROI/CI that the allegations against the applicant be recorded as unsubstantiated.

3.  On 14 April 2013, the battalion commander stated that based on the investigation conducted and the packet provided by the IO, he concurred and endorsed the unsubstantiated findings that the applicant did not commit sexual misconduct.  He further stated the timeline of FS K.S.'s story was not possible given her mother's statement that the family was out of town on one of the days the alleged sexual misconduct occurred.  In addition, the commander stated that FS K.S. described the applicant's apartment in detail and drew a sketch, however, the applicant lives in a two-bedroom apartment and not a one-bedroom apartment as described by FS K.S.

4.  On 27 April 2013, Brigade JA reviewed the CI concerning the allegations that the applicant engaged in sexual intercourse with FS K.S. and he said the investigation was legally sufficient and the evidence supported the findings of "unsubstantiated."  The JA explained the investigation was initiated due to
FS K.S. reporting to an NCO that she engaged in consensual sexual intercourse with the applicant on or about 3 September 2012 (Labor Day Weekend). 

   a.  The Brigade JA continued by stating the applicant had an impeccable career and FSs agreed that he had high standards and held them to those standards.  On the other hand, FS K.S. has been difficult to handle throughout her seven months as a FS.  Her Facebook website, Twitter account, and Instagram website showed an incredible amount of sexual content and profanity. She had a reputation of making false statements and creating drama in order to get attention.  

	b.  The Brigade JA reiterated that the IO recommended the investigation be closed as unsubstantiated and the battalion commander concurred with the recommendation.  Brigade JA stated the investigation complied with legal requirements, there were no prejudicial errors in the investigation, sufficient evidence supported the battalion commander's findings, and the recommendations were consistent with the findings. 

5.  On 16 July 2013, the Recruiting Command SJA recommended that the CG substantiate the applicant's misconduct.  She provided a synopsis of the applicant's misconduct for the CG's review and action.  

   a.  She stated that according to FS K.S., the applicant had been text messaging her about coming to his house to go swimming.  She stated she went to the applicant's residence and they engaged in sexual intercourse in his apartment after they went swimming.  She offered FS K.S. described the route to the applicant's house, the layout, décor, and the applicant's tattoos. 

	b.  The applicant denied the allegations and claimed that he was at a barbeque which was verified by other NCOs at the barbecue, who stated he arrived at 1300.  The applicant provided entries from his recruiter planner showing that he was in the recruiting center on 3 September 2012, preparing 3 or 4 FS's files for shipping to basic combat training the next day.  

   c.  The Recruiting Command SJA stated the recruiter planner was not dispositive of the applicant's location on 3 September 2012.  She argued it is possible that the applicant could have prepared the FS packets before 1000 hours, met with FS K.S., and then left to go to the barbeque.  Further, she maintained that the applicant's belief that FS K.S. made these allegations to get out the FS program and not ship to basic training was suspect.  She stated if FS K.S. did not want to ship, she would not be forced to do so.
   
   d.  Lastly, the Recruiting Command SJA maintained that the fact that FS K.S. disclosed her relationship to her former boyfriend, even though she had nothing to gain by disclosing this relationship, provided credence to the alleged inappropriate relationship.  She further maintained that FS K.S.’s former boyfriend indicated that she received an unusual large amount of text messages from the applicant and one text where he called her "cute" which corroborated the inappropriate relationship.
   
6.  On 16 July 2013, the applicant was given a GOMOR for engaging in an inappropriate relationship with FS K.S.  It appears the GOMOR was based solely on the recommendation of the Recruiting Command SJA.  This is based on the fact that during the ROI/CI the IO determined that the allegations of sexual misconduct were unsubstantiated.  Further the battalion commander concurred with the recommendation and the Brigade JA found that there was sufficient evidence to support the findings. 

7.  It also appears the Recruiting Command SJA based her recommendation on FS K.S.’s statement and that of her former boyfriend.  The Recruiting Command SJA maintained that the fact that FS K.S. disclosed her relationship with the applicant to her former boyfriend gave credence to the alleged inappropriate relationship.  Additionally, she stated the former boyfriend indicated FS K.S. received an unusual large amount of text messages from the applicant and one text where he called her "cute" which corroborated the inappropriate relationship. However, no copies of the text messages were provided.  Secondly, when FS K.S. was questioned about the comment of "cute" she told her former boyfriend that it was about a picture she posted on Facebook. 

8.  In accordance with AR 15-6, paragraph 3-10, a finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record.  It is directly established by evidence in the record or is a conclusion of fact by the IO. Additionally, the regulation states the weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness's demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.  Findings will be stated to reflect clearly the relevant facts established by the evidence and the conclusions thereon of the IO.

9.  When considering the veracity of FS K.S. and that of the applicant it does not appear that there is sufficient evidence to substantiate the allegation of sexual misconduct against him.  Basically, the evidence consisted of the applicant's word against that of FS K.S., who was known to have "a tendency to exaggerate the truth and questionable credibility."  Further, the evidence shows that 14 months after receiving the GOMOR, he was reinstated to recruiting duty which is an indication that the procedural process and/or the policy governing recruiter improprieties was flawed.  Therefore, in the interest of equity, it would be appropriate to remove the GOMOR and all allied documents from his OMPF.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all 




Department of the Army records of the individual concerned be corrected by removing the 16 July 2013 GOMOR and all allied documents from his OMPF.  



      __________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)                                         AR20150001232



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ABCMR Record of Proceedings (cont)                                         AR20150001232



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