MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR1999020801

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the General Officer Memorandum of Reprimand (GOMOR) dated 10 September 1996 be removed from his Official Military Personnel File (OMPF); that his relief-for-cause Non-Commissioned Officer Evaluation Report (NCO-ER) for the period November 1995 through August 1996 be removed from his OMPF; and that he be reinstated on the E-8 promotion selection list and promoted to E-8 effective 1 April 1997 with all due back pay and allowances.

APPLICANT STATES:  The applicant defers to counsel. 

COUNSEL CONTENDS:  That the applicant did not sexually harass Sergeant (SGT) O___ under the meaning of Army Regulation 600-20.  SGT O___ did not indicate in her statement that he made a sexual advance or verbal or physical conduct of a sexual nature; she did not indicate that acceptance of such conduct was made a condition of her job or was the basis for any assignment or duty decision made by him; she did not indicate that her work performance was affected by the conversation she had with him at the party; and, most importantly, she did not indicate that his conduct was “severe” or “pervasive.”  SGT O___ never fulfilled her responsibility to inform the applicant that she felt “uncomfortable” so he could not have known that his otherwise innocent conduct was causing her to be “uncomfortable.”  The investigating officer’s (IO) conduct of the investigation was flawed.  Approximately 30 people were at the party in question and he took affidavits from only 7 people.  Three of the statements concerned the applicant’s attendance at another party at another time or his character in general.  The applicant obtained other statements that contradict those taken by the IO.  According to Nurse C___, she believed the interaction between the applicant and SGT O___ to be “congenial socialization and nonforceful.”  The substance of the statements made to the IO lead to the inescapable conclusion that there was no sexual harassment and that the severe administrative actions resulting from the investigation were inappropriate and unjust.  Removal from a promotion list is reserved for conduct that is not minor.  This incident, even if true, was clearly a minor incident since it did not even merit nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ).  He was relieved for cause despite otherwise outstanding performance and conduct.  

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 9 August 1978.  He was promoted to Sergeant First Class, E-7 on 1 January 1990 and on an unknown date was selected for promotion to E-8 and placed on the E-8 promotion recommendation list.  At the time of the incident that led to the GOMOR and the contested      NCO-ER he was assigned as the Chief Wardmaster at Keller Army Community Hospital, West Point, NY.

On 17 May 1996, during a hail-and-farewell party hosted by a lieutenant colonel from the hospital, SGT O___ alleged that the applicant brought her wine after she repeatedly told him she was drinking Pepsi, followed her around at the party, made inappropriate comments and touched her arm and thigh in a manner suggestive of an invitation to a more intimate relationship. 

On 22 May 1996, SGT O___ discussed the incident with her section leader, who told her that her complaint was “not an EO issue” so SGT O___ dropped the formal charges to informal charges.  On 23 May 1996, the applicant informed SGT O___ that she was being assigned on-call for the entire Memorial Day weekend instead of her original assignment to participate for a few hours in a parade.  She reinstated her formal charges on 21 June 1996.

As a result of SGT O___’s charges, an investigation was conducted.  The applicant denied all the allegations.  Several of the witness’ affidavits obtained by the IO substantiated the applicant’s behavior.  

During the investigation, the IO obtained statements from two females, SGT B___ and Ms Z___, who stated that during a party several months earlier the applicant made inappropriate comments of a sexual nature to them at that time.  Neither of them filed a complaint at the time because alcohol was involved.  

The investigation was completed (the report of investigation is not available).  On 25 July 1996, the Staff Judge Advocate reviewed it and found the proceedings complied with the legal requirements of Army Regulation 15-6, that sufficient evidence existed to support the findings of the IO and that the recommendations were consistent with the findings.  On 28 July 1996, the applicant submitted a letter of rebuttal.

The applicant received a relief-for-cause NCO-ER for the period November 1995 through August 1996.  The NCO-ER contained numerous commendatory comments but also contained comments noting that he was the subject of substantiated findings of an equal opportunity (EO) complaint, that he exercised poor judgment during off duty time and that he had been relieved for making improper verbal comments and physical contact.  

On 16 September 1996, the Commander, U. S. Army Medical Department Activity, West Point, NY gave the applicant a memorandum of reprimand for violating the Army’s sexual harassment policy and for exercising poor judgment by making improper verbal comments and physical contact with SGT O___.  The applicant obtained counsel and provided rebuttal comments to the memorandum. Counsel noted in part that SGT B___, who alleged that a similar incident occurred with her several months earlier, never filed a complaint of sexual harassment against the applicant and in fact she provided a character reference on his behalf.
On 22 October 1996, the Superintendent, U. S. Military Academy considered the applicant’s rebuttal and directed that the reprimand be filed in his OMPF.

On an unknown date, the applicant’s name was removed from the E-8 promotion recommendation list.  This action was apparently initiated by Headquarters, Department of the Army.

On 15 November 1996, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB reviewed the case and on  23 February 1997 denied his appeal.  The DASEB determined that while his conduct may not have met a legal standard of sexual harassment, it clearly met the standard necessary for an administrative action such as a memorandum of reprimand – the interaction was more familiar than appropriate between seniors and subordinates; it involved members of the opposite sex and included discussion, directly or through innuendo, that implied interest in a personal relationship; and the junior member felt uncomfortable with her relationship to the senior following the interaction.  The impressive array of character witness statements would perhaps be appropriate as a mitigating factor in considering the level of disciplinary action taken but was not relevant to the DASEB’s function of determining if the letter itself was unjust.  The DASEB determined that the fact that other personnel who witnessed the events in question concluded there was no sexual harassment was irrelevant.  Sexual harassment, and what constitutes inappropriate conduct, is subject to various interpretations and the DASEB adhered to the interpretation noted earlier – that his conduct fell outside that considered acceptable for a senior NCO during interaction with a junior NCO.  The DASEB determined that even discounting the statements of witnesses who may have been biased against the applicant and testimony of those who only observed his conduct from a distance, the charges were sustained.

On 28 July 1998, the DASEB reevaluated the applicant’s case at the request of the Board.  The DASEB opined that the evidence of record showed that his actions with regard to SGT O___ could constitute sexual harassment.  The DASEB was loathe to second guess the decision of the commander who imposed the GOMOR who had at his disposal a more complete picture of the events and the recommendations of staff and subordinate commanders who knew best what impact the incident had upon good order and discipline in the command.  Nonetheless, the DASEB was concerned that the misconduct was minor in nature, that SGT O___ failed to take immediate steps to express her immediate displeasure with the applicant’s conduct, and that the actions of the command in response to the incident were severe.  The DASEB believed the intended purpose of the GOMOR had been served and recommended transfer of the GOMOR to his restricted fiche.

On 28 July 1998, the DA Enlisted Special Review Board (ESRB) reviewed the applicant’s request to remove his NCO-ER at the request of the Board.  The ESRB noted that the GOMOR and the EO complaint determination supported the comments included in the NCO-ER.  The ESRB noted that the supporting statements provided by the applicant speak highly of his duty performance but none of the individuals provided any evidence that invalidated the contents of the contested report.  The ESRB opined that the negative comments on the relief-for-cause NCO-ER were substantiated by the findings of the EO investigation.  The chain of command lost their confidence in his ability to perform appropriately and relieved him.  The ESRB also noted that the applicant’s and his counsel’s own chronology demonstrated that he was afforded and exercised due process many times over the last several years.  The DASEB determined that the presumption of regularity was applicable to the contested NCO-ER and recommended denial of his appeal.

Army Regulation 623-205 establishes the policies and procedures for the     NCO-ER system.  Paragraph 2-10 states that relief-for-cause is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior or performance of duty warrant removal in the best interest of the U. S. Army.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual’s official personnel files; and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  A letter may be filed in the OMPF only upon the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual.

Army Regulation 600-37 also states 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.  Only 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.  Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

Army Regulation 600-20 prescribes policies and responsibilities of command which includes military discipline and conduct and the Army EO Program.  Until 1999, the Army’s sexual harassment policy was described in paragraph 6-4.  It  defined sexual harassment as a form of gender discrimination that involves unwelcome sexual advances, requests for sexual favors and either verbal or physical conduct of a sexual nature when, among other instances, such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile or offensive working environment. It went on to state that any soldier who makes deliberate or repeated unwelcome verbal comments, gestures or physical contact of a sexual nature is engaging in sexual harassment.  Effective 15 July 1999, chapter 7 was created to describe the Army’s sexual harassment policy.  In addition to the above, it states that all soldiers have a responsibility to help resolve acts of sexual harassment.  Examples are the direct approach (tell the harasser directly to stop); the indirect approach (send a letter to the harasser); the third party approach (ask a third party to approach the harasser); or use the chain of command.  It does not prescribe a certain order to be followed in using these approaches.

Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  In pertinent part, it states that removal from a Department of the Army (DA) promotion recommended list has far-reaching, long-lasting effects on the soldier.  The probability for subsequent selection for promotion is extremely limited.  Removal should be considered only when circumstances involved warrant such significant action.  Commanders may recommend that a soldier’s name be removed from a DA recommended list at any time.  The recommendation for removal must be fully documented and justified.  Headquarters, DA will make the final decision on the removal based on results and recommendations of the DA Standby Advisory Board.  Punishments under the UCMJ or nonpunitive measures should not automatically become a sole basis to suggest that a soldier’s’ name be removed from the recommended list.  To remove a soldier based solely on an isolated minor act of misconduct may be unfair to the soldier and the Army since the removal action has a       long-term effect.  If a document is later filed in a soldier’s OMPF that, had it been present at the time a promotion board considered him for promotion, would have prevented his selection for promotion, consideration is given to removing him from that promotion list.

The DASEB’s and ESRB’s advisory opinions were provided to the applicant for rebuttal.  The applicant replied (SEE ATTACHED) by again denying the sexual harassment allegation and stating his professional demeanor both on and off duty has never been less than impeccable.  The applicant’s counsel replied by stating that neither he nor the applicant received the ESRB case summary.  The ESRB case summary was faxed to counsel on 7 April 2000.  Neither he nor the applicant responded within the given time frame. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board concludes that the evidence of record substantiated SGT O___’s allegation of sexual harassment.  SGT O___ complained to her chain of command of the applicant’s unwelcome verbal and physical conduct, which she perceived as being of a sexual nature, within days of the incident.  This alone may not have constituted sexual harassment in the eyes of a reasonable person. However, it appears the applicant had some authority over SGT O___.  Several days after the incident he changed her holiday work schedule to place her on-call the entire weekend instead of working for only a few hours as originally scheduled.  The Board concludes that it was reasonable for SGT O___ to presume that it was her lack of response to his perceived advances that created the effect of creating an intimidating, hostile or offensive working environment.  It was reasonable for her to make a formal sexual harassment complaint at this time.  Three to four weeks is not an unreasonable amount of time to let pass before making an important decision such as this especially since her informal complaint was initiated within days).

3.  Notwithstanding the DASEB’s second determination, the Board concludes that there was/is nothing in the regulation to require the “victim” of sexual harassment to personally confront the harasser.  SGT O___ fulfilled her obligation to report the incident by bringing it to the attention of her chain of command within a reasonable period of time.

4.  The Board agrees with the DASEB’s determination that the fact that other personnel who witnessed the events in question concluded there was no sexual harassment was irrelevant.  Sexual harassment is a personal experience.  The applicant perceived she was being sexually harassed.  The Board concludes that the few statements obtained from the IO supporting SGT O___’s perception were adequate to substantiate the allegation.  Therefore, the Board concludes that the IO’s investigation was not flawed in any material way.

5.  If the incident concerning SGT O___ had been an isolated incident, the Board concludes that the punishment meted out by the applicant’s chain of command (a GOMOR filed on his performance fiche and a relief-for-cause NCO-ER) may have been too severe.  In that case a GOMOR filed on his restricted fiche may have been appropriate.  However, the IO’s investigation brought to light an earlier, similar incident involving the applicant.  The fact that the two females involved in that incident did not file a complaint is irrelevant.  The fact that one of the females later provided him a character witness statement is irrelevant, except to make her earlier allegation more believable because it showed she was not out to “get” the applicant for any reason.  The fact that the two statements did not concern the May 1996 incident is irrelevant.  The statements gave his chain of command evidence that he had made repeated (“pervasive”) unwelcome verbal comments, gestures or physical contact of a sexual nature.  By regulation, a soldier who does so is engaging in sexual harassment.

6.  The Board concludes that the incident involving SGT O___, combined with the evidence of an earlier, similar incident meant that the applicant was no longer involved in only a minor, isolated incident.  The Board further concludes that the two incidents combined gave his chain of command sufficient justification for directing the GOMOR be filed on his performance fiche.  

7.  The regulation provides that a soldier’s chain of command may relieve the soldier from duty when his personal or professional conduct or behavior warrant such removal.  The applicant’s chain of command lost confidence in him when he exercised poor judgment during his off duty time by making improper verbal comments and physical contact.  The Board concludes that the applicant has not met the burden of proof to grant relief by removing the NCO-ER from his OMPF.

8.  The Board concludes that Headquarters, DA appropriately determined that if the GOMOR and or the relief-for-cause OER had been in the applicant’s OMPF at the time the promotion board considered him for promotion, he most certainly would not have been selected for promotion.  Therefore, he was properly removed from the promotion recommended list.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__slp___  __lem___  __aao___  DENY APPLICATION

    Carl W. S. Chun
    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999020801	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.