IN THE CASE OF:	

		BOARD DATE:	  22 OCTOBER 2015

		DOCKET NUMBER:  AR20150001334 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration, in part, of his earlier request for:

* removal of all references to the applicant's Army Grade Determination Board (AGDRB) decision and reduction in rank/grade from colonel (COL)/O-6 to lieutenant colonel (LTC)/O-5 from his Official Military Personnel File (OMPF)
* correction of the applicant's retired rank/grade to show COL/O-6

2.  Counsel states:

	a.  The applicant is assuming arguendo that the general officer memorandum of reprimand (GOMOR) which generated the AGDRB was properly issued and properly placed in his OMPF.

	b.  The AGDRB determination of satisfactory performance will be based on the Soldier's overall service in the grade in question and in accordance with Army Regulation 15-80 (AGDRB and Grade Determinations).


	c.  It is immediately obvious that the applicant did not have the following elements of unsatisfactory performance in his case:

* no nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)
* no court-martial conviction
* no criminal conduct

	d.  The Army Board for Correction of Military Records (ABCMR) opinion skirted the simple but obvious truth that no crime had been committed.  The ABCMR opinion bent over backward to explain that criminal activity was not required to issue a GOMOR.  At no time did the ABCMR even attempt to show that criminal activity had occurred, to include:

* there was no solicitation
* there was no violation of a Marine Corps order
* there was no violation of II Marine Expeditionary Force (Forward) General Order Number 1A

	e.  Counsel questions whether this one event was sufficient to warrant a grade reduction and whether homophobic consideration dominated the process.

	f.  There was a circumstance involving the applicant attempting to establish a sexual liaison with a uniformed male member by email and website, no U.S. Government computer was employed, all parties were adults, adultery in such a circumstance was a legal impossibility, and the suggestion by the ABCMR of the potential for a security compromise is so much nonsense as there was no indication that any person other than a fellow service member was involved nor was there any hint that blackmail could have occurred.  The ABCMR set up a straw man, security concerns, and used it without proof to suggest a security compromise.

	g.  The facts consist of an isolated incident, no criminal activity, the applicant's service as COL/O-6 for 3 years with an unblemished record with the exception of the GOMOR, and an officer evaluation report for the period covering the GOMOR which was outstanding in all respects and issued by both the rater and senior rater knowing of the alleged misconduct.  The applicant's overall performance was satisfactory.

	h.  The evidence left consists of the AGDRB being offended by a homosexual gesture by a senior Army male.  Had it been a heterosexual situation, the matter would have been referred and there may even have been a GOMOR, but reduction in rank under these circumstances is doubtful.  The matter under review is about same-sex phobia on the part of the Army subsequent to voiding the "Don't Ask, Don't Tell" policy.

	i.  Using Craigslist to seek sex is endemic to the combat environment as has been reported in the media.  Other than attempting to criminalize human contact, there is no evidence that the mission was compromised by the applicant's conduct or that the conduct was of such a serious nature to warrant a grade reduction.

3.  Counsel provides:

* brief
* Internet article, "Hooking Up, via Craigslist in Afghanistan," dated 29 July 2013

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 AR20130008467 on 5 March 2014.

2.  The applicant was appointed as a second lieutenant in the Regular Army on 27 May 1987 in the Corps of Engineers.

3.  On 1 May 2009, he was promoted to the rank/grade of COL/O-6.

4.  U.S. Army Maneuver Support Center of Excellence Orders 285-01, dated 12 October 2011, deployed him on an indeterminate temporary change of station effective 27 October 2011 and attached him to Combined Security Transition Command, U.S. Central Command area of operations, Afghanistan.

5.  He served in Afghanistan during the period 27 October 2011 to 26 May 2012.

6.  On 1 March 2012, he submitted a request for voluntary retirement effective 31 December 2012.  On 6 April 2012, his request was approved.

7.  U.S. Army Maneuver Support Center of Excellence Orders 124-1301, dated 3 May 2012, show he had a scheduled separation date for retirement of 31 December 2012 with placement on the Retired List in the rank/grade of COL/O-6 effective 1 January 2013.

8.  His OMPF in the integrated Personnel Electronic Records Management System contains a U.S. Marine Corps Report of Investigation, dated 29 May 2012, which shows he was the subject of an operation targeting personnel living and/or operating aboard Camp Leatherneck, Afghanistan, involved in pandering and prostitution.  The operation also targeted personnel soliciting and/or propositioning sexual activities by means of Internet websites and portable toilet graffiti.  The Report of Investigation also shows a command-authorized search of his assigned living quarters revealed, in part, a ViewSonic View Pad 7 Large Screen Smart Phone which contained several images of male genitalia.

9.  On 14 June 2012, he received a GOMOR for:

* soliciting other persons to engage in lewd sexual activities via an Internet website and through email exchanges between 11 May 2012 and 20 May 2012 while deployed to Afghanistan in support of Operation Enduring Freedom
* seeking out sexual partners who were deployed to Afghanistan with him, despite being married
* during email conversations he requested a "body pic" and emailed a picture of his naked buttocks to a potential sexual partner
* arranging to meet another man, who was a complete stranger, to engage in sexual acts

10.  His GOMOR also shows:

	a.  The incident had the potential of placing him in a compromising position and could have been used by others to force him to reveal classified or sensitive information.

	b.  His actions violated II Marine Expeditionary Force (Forward) General Order Number 1A which prohibits sexual acts or sexual contact with anyone at Camp Leatherneck.

	c.  As a result of his misconduct, he was returned early from deployment.  Loss of personnel from theater due to misconduct erodes mission readiness, since every individual deployed in support of Operation Enduring Freedom was absolutely necessary.

11.  He was given 7 calendar days to respond to the GOMOR.  On 15 June 2012, he provided a response with supporting documents.  In his response he indicated, "Clearly, my actions were unprofessional and unacceptable for a Solider in the U.S. Army."

12.  On 10 July 2012, the commanding general directed permanently filing the GOMOR in the applicant's OMPF.  The commanding general also directed filing the enclosures with the reprimand as appropriate.

13.  On 23 October 2012, he submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR and allied documents from his records.

14.  On 15 November 2012, and after careful consideration, the DASEB denied his request and stated the overall merits of the case did not warrant the requested relief.

15.  On 13 December 2012, the AGDRB directed his placement on the Retired List in the rank/grade of LTC/O-5.

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired in the rank/grade of COL/O-6 effective 31 December 2012.  His DD Form 214 also shows he had two previous deployments to Iraq.

17.  U.S. Army Maneuver Support Center of Excellence Orders 361-1302, dated 26 December 2012, amended U.S. Army Maneuver Support Center of Excellence Orders 124-1301, dated 3 May 2012, to show his retired rank/grade as LTC/O-5 effective 1 January 2013.

18.  On 26 December 2012, a DD Form 215 (Correction to DD Form 214) was issued adding entry to item 18 (Remarks) to show his Retired List grade as LTC.

19.  On 5 March 2014, the ABCMR denied counsel's request in its entirety for removal of all references to the AGDRB decision, the GOMOR and all references to include the underlying investigations, and a DA Form 67-9 (Officer Evaluation Report) for the period 25 May 2012 through 4 November 2012 from the applicant's OMPF.  Counsel also requested changing the applicant's retired rank/grade to COL/O-6.

REFERENCES:

1.  Headquarters, North Atlantic Treaty Organization Training Mission-Afghanistan and Combined Security Transition Command-Afghanistan, General Order Number 1, dated 18 November 2011, subject:  Prohibited Activities, Conduct, Good Order, and Discipline, proscribes certain conduct to ensure good order and discipline are maintained and host nation laws and customs are respected to the maximum extend consistent with mission accomplishment.

	a.  Paragraph 3a(2) states, "All U.S. commanders and leaders are expected to enforce the provisions of U.S. Central Command General Order 1B and this General Order, and subordinate commanders should supplement this General Order as needed to prevent conduct prejudicial to good order and discipline or of a nature to bring discredit to the Armed Forces of the United States and Coalition members."

	b.  Paragraph 4a states, "Members of the United States Armed Forces, and other persons serving with, employed by or accompanying those Armed Forces in Afghanistan, may face administrative action, nonjudicial punishment, or judicial action under the Uniform Code of Military Justice (UCMJ) for violations of this General Order."

	c.  Paragraph 5f (Pornography and Sexually Explicit Material) states, "Introduction, purchase, sale, creation, possession, transfer, distribution, sharing, uploading or downloading from or to the internet or via "chat rooms" or peer-to-peer service, viewing, or display of any type of pornographic or sexually explicit photograph, video, recording, movie, drawing, book, magazine, or other image or depiction is prohibited.  This prohibition does not apply to:  AFN [Armed Forces News] broadcasts, movies and programs shown on installation television or movie channels; or to commercial magazines, books, movies or other materials pre-approved for distribution in Afghanistan through AAFES [Army and Air Force Exchange Service] or MWR [Morale, Welfare and Recreation] outlets or at military authorized or sponsored bazaars."

	d.  Paragraph 5g (Sexual Conduct) states, "Sexual relations in a deployed environment can have an adverse impact on unit cohesion, morale, good order and discipline, and jeopardize unit readiness as well as mission accomplishment. 
All persons subject to this General Order are expected to conduct themselves in a manner that recognizes this reality.  Persons whose sexual behavior adversely impacts unit cohesion, morale, or good order and discipline, jeopardizes unit readiness or mission accomplishment, or is of a nature to bring discredit upon the Armed Forces, may be punished as provided in Paragraph 4."

	e.  Paragraph 5o (Proxy Web Servers) states, "Proxy web servers not located on a DoD [Department of Defense] network are unauthorized, and their use to access web sites is prohibited.  A proxy web server is a computer network internet service that allows clients to make indirect network connections to other network services.  Users mask their surfing habits by going to a web proxy server to surf from that location, thereby circumventing the measures put in place to enforce DoD [Department of Defense] and USCENTCOM [U.S. Central Command] policies."

2.  The purpose of II Marine Expeditionary Force (Forward) General Order 1A, dated 18 June 2011, is to promote security safety, health and welfare, as well as good order and discipline, by prohibiting certain conduct by personnel serving within the II Marine Expeditionary Force (Forward) area of operations.

	a.  Paragraph 3 (Statement of Military Purpose and Necessity) states, in part, "Every single individual deployed within the II MEF (FWD) AO [II Marine Expeditionary Force (Forward) area of operations] is absolutely essential.  Losing personnel due to misconduct, injury, illness, disease or pregnancy erodes mission readiness."

	b.  Paragraph 4c(7) (Sexual Acts and Sexual Contact) states, "Individuals will not engage in any sexual act or sexual contact with another individual, regardless of military or civilian status, or marital status, while deployed in the II MEF (FWD) AO [II Marine Expeditionary Force (Forward) area of operations]."

	c.  Paragraph 4c(7)(a) defines a sexual act as "any act that tends to excite lust or gratify the sexual desires of an individual with respect to sexual relations.  Sexual acts may include, but are not limited to:  vaginal, anal, or oral sex; digital penetration; an act that involves contact with another individual's genitalia, anus, or mouth; or any other act which is intended to satisfy prurient thoughts and desires."

	d.  Paragraph 4c(8) (Pornography) states, "The introduction, purchase, possession, transfer, sale, creation, or display of any pornographic or sexually explicit photographs, video tapes, compact discs (e.g., CDs DVDs), movies, drawings, books, magazines or similar representation is prohibited."

	e.  Paragraph 4c(10) (Proxy Web Servers) states, "Proxy web servers are a computer network Internet service which allows clients to make indirect network connections to other network services.  'Surfing' refers to the act of browsing and examining items of interest or materials that are located on the Internet.  Users mask their 'surfing' habits by going to a proxy web server to 'surf' from a location, thereby circumventing the measures put in place to enforce DoD [Department of Defense] and USCENTCOM [U.S. Central Command] policy.  Individuals are prohibited from using unauthorized proxy web servers to access web sites.  Unauthorized proxy web servers are those proxy servers that are not located on the DoD [Department of Defense] network."

	f.  Paragraph 4c(14) (Cell Phone) states, "Personal cell phones are prohibited.  Exceptions are government issued wireless phones used for official business."

3.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states a commissioned officer must serve on active duty for 3 years in grade to retire in rank above major and below lieutenant general.  All retirements, except for disability separations, involving commissioned and warrant officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially-documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to the Assistant Secretary of the Army (Manpower and Reserve Affairs) for a grade determination in accordance with Army Regulation 15-80, provided such information is reflected, or should be reflected, by regulation in the officer's OMPF.  Examples of such findings or conclusions include, but are not limited to, a memorandum of reprimand; nonjudicial punishment under Article 15, UCMJ; court-martial; or civilian conviction.  Even if the information described above is not required to be filed in the officer's OMPF, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to determination of retired grade.

4.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.

	a.  Paragraph 2-3 states most grade determinations do not require action by the AGDRB or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and this regulation.  For example, under Title 10, U.S. Code, section 1370, an officer will normally retire at the highest grade served unless service at that grade is deemed unsatisfactory.

	b.  Paragraph 2-5 (Unsatisfactory Service) states service in the highest rank/grade or an intermediate rank/grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the rank/grade in question was unsatisfactory.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that rank/grade was unsatisfactory, regardless of the period of time served in the rank/grade.

	c.  Paragraph 4-1 states an officer is not automatically entitled to retire in the highest grade served on active duty.  Instead, an officer is retired in the highest grade served on active duty satisfactorily.

5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  It states 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, administrative remarks, and any other personnel actions.  The following documents are required for filing in the integrated Personnel Electronic Records Management System:

* letters of reprimand, censure, admonition
* officer evaluation reports
* case files for approved separations (including elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service) and all allied documents will be filed in the service folder of the OMPF
* investigation reports (authenticated extracts of completed investigation reports resulting in elimination/discipline)

DISCUSSION:

1.  Records show the applicant served in Afghanistan in the rank/grade of COL/O-6 during the period 27 October 2011 to 26 May 2012.

2.  He had a scheduled separation date for retirement of 31 December 2012 with placement on the Retired List effective 1 January 2013.

3.  He received a GOMOR, dated 14 June 2012, for:

* soliciting other persons to engage in lewd sexual activities via an Internet website and through email exchanges between 11 May 2012 and 20 May 2012 while deployed to Afghanistan in support of Operation Enduring Freedom
* seeking out sexual partners who were deployed to Afghanistan with him, despite being married
* during email conversations he requested a "body pic" and emailed a picture of his naked buttocks to a potential sexual partner
* arranging to meet another man, who was a complete stranger, to engage in sexual acts

4.  He acknowledged his actions were unprofessional and unacceptable for a Soldier in the U.S. Army in his response to the GOMOR.

5.  The DASEB denied his request to remove the GOMOR and its allied documents from his records and stated the overall merits of the case did not warrant the requested relief.

6.  His retirement action was subsequently forwarded to the Assistant Secretary of the Army (Manpower and Reserve Affairs) for a grade determination in accordance with Army Regulation 15-80.  The AGDRB determined the last grade the applicant satisfactorily served without incident was the rank/grade of LTC/O-5 and directed his placement on the Retired List in the rank/grade of LTC/O-5.

7.  Although counsel argues the applicant served satisfactorily in the rank/grade of COL/O-6 for 3 years and no crime was committed, the applicant's behavior and actions violated multiple prohibited activities and conduct outlined in the general orders for personnel assigned in his deployed location while he was serving in the rank/grade of COL/O-6.

8.  Although counsel argues the AGDRB decision was not supported by the facts and regulatory guidance regarding the equity and justice of the applicant's placement on the Retired List in the rank/grade of LTC/O-5, the evidence of record shows the applicant's conduct was a gross departure from conduct expected of Army senior leaders.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)                                         AR20150001334



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ABCMR Record of Proceedings (cont)                                         AR20150001334



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