IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150001308 


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 31 March 2014, from her official military personnel file (OMPF). 

2.  The applicant states the GOMOR is substantially inaccurate and unjust.  The reprimand includes allegations that resulted from mission-related exigencies. 

3.  The applicant provides:

* contested GOMOR and allied documents 
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* statements from two noncommissioned officers (NCO)
* denial decision by the Department of the Army Suitability Evaluation Board (DASEB)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the contested GOMOR dated 31 March 2014 from the applicant's OMPF.

2.  Counsel states the removal is based on substantive inaccuracy and injustice.  There were multiple errors associated with this GOMOR that were substantially prejudicial to the applicant's material rights.  The reprimand includes allegations that resulted from mission-related exigencies.  The reprimand was unjust. 
3.  Counsel does not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 9 May 1987.  She completed the Transportation Officer Basic Course. 

2.  She entered active duty on 19 July 1987 and after serving in a variety of assignments, she was honorably discharged from active duty on 31 December 1998.  She was transferred to the U.S. Army Reserve (USAR). 

3.  She entered active duty as a member of the USAR Active Guard Reserve on 3 January 1999.  She served in a variety of staff or command assignments and she was promoted to lieutenant colonel in December 2005 and to colonel (COL) in June 2011. 

4.  At the time of her reprimand, the applicant was assigned as brigade commander, 1179th Transportation Brigade.

5.  On 7 February 2014, the Commanding General (CG), 377th Theater Sustainment Command appointed an investigating officer (IO) to conduct an informal investigation into allegations that the applicant fraternized with enlisted members of her command in violation of the Uniform Code of Military Justice (UCMJ).  On 10 February 2014, upon completing his investigation, the IO submitted a DA Form 1574 that shows the following findings/recommendations: 

	a.  Finding 1, that the applicant shared living accommodations other than those directed by operational requirements with Sergeant First Class (SFC) LC in violation of Army Regulation (AR) 600-20 (Army Command Policy), paragraph 4-14(c)(2) on two occasions.  On one occasion, she shared SFC LC's primary residence on post at Fort Hamilton during the aftermath of Hurricane Sandy in November 2012.  It is unknown if she tried to locate other suitable housing prior to accepting this arrangement.  However, Major (MAJ) MW indicated that when the applicant called her and informed her she was going to be staying with SFC LC, MAJ MW had offered the use of her quarters instead and that the applicant declined in favor of sharing accommodations with SFC LC. The second occasion occurred between 24 and 28 July 2013 when the applicant traveled on leave status to Las Vegas, NV with SFC LC, Ms. EP, Sergeant (SGT) NS, Staff Sergeant (SSG) OW, and a friend of SFC LC.  The trip was planned as a celebration of SFC LC's birthday as reported by multiple witnesses.  The applicant purchased the airline tickets for Ms. EP and SFC LC in advance and also paid for the rooms and sought reimbursement.  Additionally, while there were six reported attendees for this trip to Las Vegas, there were only two rooms booked.  The applicant shared a room with SSG OW, Ms. EP, and SGT NS.  She paid for at least one of the rooms and later submitted a reimbursement request to other attendees.  The IO also believed that SFC LC violated Article 107 of the UCMJ by her contention that it was a coincidence that the applicant happened to be in Las Vegas for other reasons at the same time as her birthday celebration as that was not supported by the other evidence (airline tickets, room arrangements and reimbursement) or statements by others as to how the trip was planned and organized.

	b.  Finding 2, that the applicant had a relationship with enlisted members that compromised or appeared to compromise the integrity of supervisory authority or the chain of command.  She regularly shared lunch with enlisted members of the command, though most felt that she was merely friendly and approachable.   The IO stated he personally observed that the applicant's office was located at the top of the stairwell with open access to anyone entering the building.  She had moved to this location from a smaller office located at the back corner of the second floor, next to her command sergeant major's (CSM) office.  This positioning is highly unusual in that there is no buffer between the commander and anyone entering the building.  Further, the position of her office and the fact that she leaves her door open facilitates relationships of undue familiarity.  The trip to Las Vegas was attended by the applicant and that trip appeared to be open to a select few in the unit.  It appeared to some that the applicant was protective of SFC LC and that SFC LC seemed to be a conduit for information to the applicant.  In addition, there appeared to be a split in the unit between those who are the inside and those on the outside as shown by the apparent inner circle (attendees on the Las Vegas trip).

	c.  Finding 3, that the applicant had a relationship with enlisted members that caused perceived partiality or unfairness.  This finding was split, in that as in any unit one will find people who perceive fairness and those who perceive unfairness on the part of the commander.  However, the actions described above in taking a trip with enlisted members of the unit, sharing living accommodations with enlisted members represented questionable judgment at best.  There were also multiple witnesses who perceived that SFC LC enjoyed protected status and provided the applicant with a conduit of information.

	d.  The recommendations were that the applicant should receive a formal written reprimand for violation of Articles 92 and 134, UCMJ, and more specifically AR 600-20, paragraph 4-14c(2); that the appointing authority strongly consider removing or relieving the applicant from command of the 1I79th Transportation Brigade; and that the appointing authority task the command Inspector General to conduct sensing sessions with brigade personnel. 

6.  On 31 March 2014, the CG reprimanded the applicant for fraternization in violation of AR 600-20 and Article 134 of the UCMJ.  

	a.  In July 2013, she attended a personal trip to Las Vegas with two subordinate enlisted members of her command and a subordinate civilian employee.  Her decision to attend this trip was inconsistent with her responsibility for maintaining professional relationships with subordinates.  She did not fulfill the obligation to prevent inappropriate or unprofessional relationships, or the appearance of such relationships.  While on this personal trip she cohabitated with her subordinates in a hotel room.  Additionally, she initially loaned money by paying for her subordinates' share of the cost of this trip.  In November 2012, she lived with SFC LC for a period of time after Hurricane Sandy at SFC LC's residence.  There were other living arrangements made available to her; however she chose to share accommodations with an enlisted person.  Each of these transgressions are in violation of Army fraternization policy under AR 600-20.  

	b.  Her behavior represented failure to uphold the values of the U.S. Army.  Her conduct brought discredit upon herself, the officer corps, and the Army.  Her conduct caused the CG to question her leadership and ability to serve in positions of responsibility and trust.

	c.  Her reprimand was imposed as an administrative measure under the provisions of AR 600-37 (Unfavorable Information), and not as punishment under Article 15, UCMJ.  The CG intended to direct placement of this reprimand into her OMPF but withheld a final decision pending his review of matters she submitted in her defense.  

7.  On 3 April 2014, the applicant acknowledged receipt of the GOMOR and on 10 April 2014, she submitted a statement, together with multiple character reference statements and/or statements of support.  She stated: 

* she recognized her error and misstep in judgment but contended that she did not intend to create the appearance of favoritism
* she explained the facts and circumstances for each incident/event and provided rationale for her actions 
* she understood and expected she would be reprimanded for these transgressions but asked her punishment to end here
* she acknowledged that a referred officer evaluation report and a GOMOR would end her career 
* she admitted what she did was wrong and apologized to the CG; she also requested to resign her command and that she be allowed to retire 

8.  On 10 April 2014, after careful consideration of the applicant's case, her rebuttal, and the statements she submitted with her rebuttal, the imposing CG ordered the filing of the GOMOR in the applicant's OMPF.  The GOMOR was filed in the performance folder of her OMPF.

9.  On 9 October 2014, following her petition to remove or transfer the GOMOR, the DASEB voted to deny the removal of the contested GOMOR or its transfer to the restricted folder.

10.  On 4 March 2015, following her application for voluntary retirement, the U.S. Army Human Resources Command published orders authorizing her retirement effective 31 August 2015. 

11.  Army Regulation 600-37 provides that an administrative memorandum of reprimand 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 a filing determination is made.

12.  A memorandum of reprimand 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 section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 provides that 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.

13.  Army Regulation 600-37 states only letters of reprimand admonition or censure may be the subject of an appeal for transfer to the restricted portion of her OMPF.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

14.  AR 600-8-104 (Army Military Human Resource Record Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  Table B-1 states a memorandum of reprimand is filed in the performance section of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR in March 2014 for fraternization with subordinates in violation of AR 600-20 and Article 134 of the UCMJ.  She was provided an opportunity to submit matters on her own behalf and she did so.  The imposing CG considered the facts and circumstances of her case as well as her rebuttal and ordered the GOMOR filed in the performance folder of her OMPF.  The GOMOR is filed in the performance folder of her OMPF.  She petitioned the DASEB to remove the GOMOR but her request was denied.  

2.  Her conduct was investigated by an IO who determined her conduct as an officer and a brigade commander was a serious departure from that expected of officers in similar positions.  The applicant admitted to the appearance of fraternization in her rebuttal statements and requested leniency.  The multiple character statements she provided were also considered by the imposing officer. As the applicant admitted to the appearance of fraternization, the GOMOR does not appear to be untrue or unjust as counsel contends.

3.  It is true that a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance, to train, and rehabilitate Soldiers.  However, it is also true that the quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  

4.  Once the GOMOR was filed in her OMPF it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  The GOMOR is properly filed and the applicant has not proven this GOMOR to be either untrue or unjust or that it has served its purpose.  Thus, there is insufficient evidence to support its removal from her OMPF. 


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)                                         AR20150001308



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ABCMR Record of Proceedings (cont)                                         AR20150001308



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