IN THE CASE OF:	   

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150003594 


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 two General Officer Memoranda of Reprimand (GOMORs) and a Relief for Cause (RFC) Officer Evaluation Report (OER) from his record.

2.  The applicant states, in effect, that:

   a.  The first GOMOR’s allegations that he engaged in inappropriate relationships with subordinate female Soldiers are unsubstantiated. The investigation was flawed, biased, and deficient.  The investigating officer (IO) had previously been in the immediate chain of command of the principal witness.

   b.  In regards to the second GOMOR, he accepts responsibility for his actions but the error was not committed with the intent to deceive or cause harm to anyone.  The email that was the basis for this action was drafted prior to being relieved from his position as the unit commander.  It was an honest mistake not to have removed his title as commander from the email when the message was sent the day after he was relieved from that position.  
   
   c.  An Involuntary Separation Board (ISB) found that he should be retained and determined that he had not engaged in inappropriate relationships.  The ISB determined that the inappropriate relationships allegations were unfounded; therefore, the RFC OER is invalid.  
   
   
   d.  The Department of the Army Suitability Evaluation Board (DASEB) erred in not considering the ISB's findings that the Army Regulation (AR) 15-6 investigation was flawed.  The applicant quotes a statement made by a witness who testified for the applicant before the ISB in which the witness, a colonel, stated “he believed the investigation was flawed” and recommended that the applicant be retained. 

   e.  He has received four strong OERs since the GOMORs and the RFC OER were included in his records and he continues to outperform his peers despite non-selection for special assignments and promotion.  He meets the regulatory requirements to have the documents removed or transferred to the restricted portion of his Army Military Human Resource Record (currently known as the official military personnel file (OMPF)).  

3.  The applicant provides copies of:

* a 9 page personal brief titled "Brief in Support of Application for Discharge Upgrade"
* an 8 September 2011 AR 15-6 (Procedures For Investigating Officers And Boards Of Officers) investigation with attachments 
* a 19 November 2014 Department of the Army Suitability Evaluation Board (DASAB) determination 
* a 9 December 2011 GOMOR 
* a 5 August 2013 DASEB determination with an OER attached
* a Board of Officers hearing with attachments 

CONSIDERATION OF EVIDENCE:

1.  The applicant, with prior enlisted service, was commissioned in the U.S. Army Reserve on 4 March 2004 with a promotion to captain effective 24 February 2009.  As an Active Guard Reserve (AGR) officer he was assigned as the Commander, 369th Chemical Company, a drilling Reserve unit. 

2.  On 8 September 2011, an investigation under AR 15-6 was completed.  

   a  The investigating officer (IO) interviewed 14 people, three of whom declined to give a statement (the applicant, Sergeant First Class (SFC) E____, and a second female noncommissioned officer).  
   
   b.  Seven of the remaining eleven interviewees were found to have had direct knowledge of the applicant's behavior which led to showing a pattern of conduct unbecoming an officer.  
   
   c.  The IO found that the evidence supported findings that there was no personal malice or motive to harm the applicant, that the applicant had engaged in conduct unbecoming an officer, and failure to obey a general order by engaging in prohibited relationships with female subordinates by –
   
* kissing Staff Sergeant (SSG) B____
* kissing, groping, and fondling SFC E____
* sending emails containing sexual innuendos to SFC E____ and 
			Sergeant (SGT) R____
* sending SFC E____ his photo via her cell phone
   
   d.  Additionally, the IO found there was insufficient evidence to show the applicant engaged in retaliatory actions against a female Soldier for resisting his sexual advances.  
   
   e.  A question about the applicant and/or some of the witnesses being possibly involved in falsification of Army Physical Fitness Test (APFT) scores was also raised but not addressed in the final determination.

3.  On 5 November 2011 the applicant was temporarily suspended from his duties as commander of the 369th Chemical Company.  

4.  The findings of the AR 15-6 investigation resulted in the issuance of the 7 November 2011 GOMOR for an inappropriate senior-subordinate relationship with a junior enlisted female and conduct unbecoming an officer.

5.  On 15 November 2011, the brigade commander relieved the applicant of his command.

6.  On 1 December 2011, the applicant received a RFC OER for the period 5 December 2010 through 7 November 2011 based on the findings of the 
AR 15-6 investigation. 

7.  On 9 December 2011, the applicant received a second GOMOR for releasing confidential mental and physical healthcare records of a subordinate (who was a witnesses in the AR 15-6 investigation).  He was also reprimanded for misrepresenting himself as the unit commander and obtaining those records after he had been relieved of his command.

8.  On 8 March 2013, the applicant requested that the DASEB review his case and transfer the 9 December 2011 GOMOR to the restricted portion of his OMPF.  He stated he used the title commander the day after he was relieved because the records request had been drafted prior to him being relieved of command.  The release of the personal health records was due to him not understanding that his actions were improper and it was done solely to show the Soldier had underlying medical issues.  He contended the GOMOR had served its intended purpose and it would be in the best interest of the Army to remove or transfer it to the restricted portion of his record.  

9.  On 18 July 2013, the DASEB reviewed the applicant's request to have the 9 December 2011 GOMOR transferred to the restricted portion of his Official Military Personnel File (OMPF).  

	a.  The DASEB proceedings state that careful consideration was given to the facts that after the GOMOR was issued to the applicant, he –

* had a successful OER 
* had completed additional military schooling
* was awarded the Army Achievement Medal
* had provided two character reference letters

   b.  By unanimous vote, the DASEB determined the overall merits of this case did not warrant the requested relief.  Given the seriousness of the appellant's misconduct, along with his rank and duty position at the time of the GOMOR incident, he had failed to provide evidence that it would be in the best interest of the Army to transfer the GOMOR.  Therefore, transfer of the GOMOR was not recommended.

10.  On 20 December 2013, a Formal Board of Officers – ISB was convened by the Commander, 4th Sustainment Command to determine if the applicant should be involuntarily separated for personal misconduct, conduct unbecoming an officer, and derogatory information.  A copy of the summary transcript of the hearing was provided by the applicant.  

	a.  During the hearing the character and reliability of statements made by the primary witness (Mr. V____) in the AR 15-6 investigation were raised into question by two witnesses who were called to testify by the applicant's counsel.  They described Mr. V____ as unresponsive to actions that he was directed to and needed to complete.  They considered Mr. V____ incompetent and dishonest and from their personal interactions with him, they stated they did not trust Mr. V____'s integrity. 

	b.  The applicant's current commander stated his review of the AR 15-6 investigation found it lacking and deficient in verifiable information.  If he had been the appointing officer he would have determined that the preponderance of evidence did not support the findings.  To support the findings more than one witness would be necessary and the majority of the testimony was hearsay in nature.  He found the applicant to be a very professional officer and had not heard of or witnessed any indications of inappropriate actions or had any problems with the applicant.  He also stated that he knew the 369th Chemical Company had a long history of problems that were in evidence prior to the applicant's assignment.  It was because of these problems that the unit was assigned a full time AGR officer to command it.

   c.  The applicant testified that he had counseled Mr. V____, the primary witness against him, on several occasions for security violations.  He had relieved Mr. V____ of his duties and fired him from his civilian technician position, and believed Mr. V____ was falsifying APFT data in conjunction with SFC E____.  He had also counseled SSG B____ who had alleged he had made sexual advances.  The applicant stated that he had submitted several inquiries and proposed actions on problems within the unit that were either ignored or disregarded without investigation by his command.  He also stated that he had not been given sufficient time to perfect his appeal of either the first GOMOR or the RFC OER.

	d.  Only the ISB cover page is included in the available official military record. The copy of the ISB provided by the applicant ends with page 22 and does not include the recommendation page(s).

11.  The 23 December 2013 ISB cover sheet shows the ISB rendered the opinion that the allegations did not warrant separation and recommended that the applicant be retained in the United States Army.  

12.  On 30 June 2014, the applicant requested that the DASEB remove or transfer the 7 November 2011 GOMOR to the restricted portion of his OMPF.  He stated that:

   a.  The GOMOR was untrue, unjust, and based on a substantively flawed investigation.  The IO relied solely on hearsay or biased statements and evidence.
   
   b.  The principal witness, Mr. V____, made his allegations in retaliation for the applicant having given him negative counseling statements, relieving him from his duties, and challenging Mr. V____ about falsifying his APFT data.  
   
   
   
   
   c.  The second witness, SFC E____, was in fact the instigator of one of the alleged misconduct incidents; it was she who sexually assaulted the applicant not the other way around.  Though he reported the incident no investigation was ever undertaken.  SFC E____ falsified her testimony because the applicant had counseled her for falsifying APFT data and substandard performance.
   
13.  On 16 October 2014, the DASEB reviewed the applicant's request to have the 7 November 2011 GOMOR either removed or transferred to the restricted portion of his OMPF.  By unanimous vote the DASEB determined that the overall merits of the case did not warrant removal or transfer of the contested document.

14.  Army Regulation 600-37 (Unfavorable Information), states:

   a.  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.  
   
   b.  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.

   c.  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. 

   d.  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. 
   
   e.  Letters of reprimand admonition or censure may be the subject of an appeal for transfer to the restricted fiche.  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.

15.  Army Regulation 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 (the DASEB or this Board).

16.  Army Regulation 623-3 (Personnel Evaluation – Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  An OER is required when an officer is relieved for cause regardless of the rating period involved.  RFC is defined as the removal of an officer from a rateable assignment based on a decision by a member of the officer's chain of command or supervisory chain.  RFC occurs when the officer's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army. 

	b.  The rated Soldier may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  An appeal must be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by the Army Human Resources Command.

DISCUSSION AND CONCLUSIONS:

1.  Based on the findings of the AR 15-6 investigation, the 7 November 2011 GOMOR was appropriate.  The applicant's contentions that the witness and one of the females involved made their statements and accusations as a form of retaliation for negative counseling has been considered; however, the applicant has not provided and the record does not contain any evidence or documentation to substantiate these claims.

2.  The applicant appealed the 7 November 2011 GOMOR through his chain of command without success.  The DASEB determined the GOMOR was neither improper nor untrue; therefore, removal was not warranted.  It was also determined that the intended purpose for the issuance of the GOMOR had not been served and transferring it to the restricted portion of his OMPF would not be in the best interest of the Army. 
3.  Being that the basis for the 7 November 2011 GOMOR was upheld the issuance of the RFC OER was appropriate.

4.  The applicant has admitted he made a mistake in violating the law and regulation providing the basis for the issuance of the 9 December 2011 GOMOR. Even if he had still been the unit commander the disclosure of medical records belonging to one of his accusers in the 15-6 investigation was a serious offense, not a simple mistake. 

5.  The imposition of the GOMOR is a subjective matter and each imposing officer will have slightly different opinions as to what would constitute sufficient evidence to issue a GOMOR.  The fact that his current commander and members of the ISB may have disagreed with the validity of the AR 15-6 investigation is not sufficiently mitigating evidence to outweigh the opinion of the imposing officer and the findings of the DASEB on the same issue.

6.  The GOMORs were properly filed and the applicant has not proven that either of the GOMORs or the RFC OER were untrue or unjust.  There is insufficient evidence to support removal of the GOMORs and RFC OER from his OMPF. 

7.  While the applicant has not been shown to have engaged in the same or similar behaviors since the GOMORs were issued, he does not appear to accept the fact that he was found to have participated in activities that were improper or at least gave the impression of being improper.  Therefore, a finding that the intent has been served is not justified.  Neither transfer of the GOMORs and RFC OER to the restricted section of his OMPF nor removal from his OMPF is warranted.

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)                                         AR20150003594



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ABCMR Record of Proceedings (cont)                                         AR20150003594



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