PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 March 2001                  
	DOCKET NUMBER:   AR2000046477

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. William D. Powers		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that her Officer Evaluation Report (OER) for the period 25 June 1998 – 14 May 1999 and the General Officer Memorandum of Reprimand (GOMOR) dated 18 February 1999 be expunged from her records.

3.  The applicant states that both documents were due to reprisal for reporting sexual harassment.  Both documents contain false, slanderous information that was never proven by any investigation.  She was falsely accused of improprieties that she never committed.  The rater was not her rater for the entire rating period.

4.  The applicant's military records show that she was appointed a second lieutenant officer on 19 December 1997 and entered active duty on 6 February 1998.

5.  On 7 December 1998, the applicant sought counseling with the battalion chaplain concerning personal issues and complaints of sexual pressure she was receiving from Captain E___.  She did not want to file official charges of sexual harassment.  She agreed that the chaplain would confront Captain E___ immediately.  She would give the captain a few days to stop his behavior.  If he did not respond to the confrontation, they would then bring the matter to the attention of their rater (both the applicant and Captain E___ worked in the same section).  The chaplain confronted Captain E___ on 7 December 1998.

6.  On 9 December 1998, the applicant sent an email message to her battalion commander and rater complaining about sexual harassment from Captain E___. She stated that Captain E___ had been trying to make advances on her for about 2-3 weeks.  She had not told them about this sooner because she felt she had it under control.  The email is partially illegible but it appears that no specific dates are mentioned.

7.  On 10 December 1998, the applicant’s rater questioned Captain E___ concerning the applicant’s allegations, gave him a “no contact” order concerning the applicant, and requested a written statement from him.  He then informed the applicant what her chain of command was doing to resolve the matter.  Although she had little to add to the information provided in her initial email, he requested a written statement from her describing the interaction between herself and Captain E___ over the previous 2-3 weeks.  

8.  On 10 December 1998, the applicant wrote the requested statement.  She stated that the events started in November 1998 when she returned from the DPC (acronym unknown).  About a week later Captain E___ asked her if she wanted to go for a beer.  She accepted.  When they were leaving, he put his hand on her shoulder.  That made her feel he was trying to go somewhere.  She admitted that, being lonely, his attention was flattering and she wrote telling him how she felt.  There were some explicit details and she explained to him that they were fantasies of hers and she would not act upon them.  He, however, got more persistent.  She told him to stop calling and he then told her he loved her.  Later she told him that the situation needed to stop.  She told him that she just wanted to be left alone.  Later he gave her a note asking her if there could ever be an "us.”  She went to the chaplain at that point.  No specific dates are mentioned in this statement.

9.  On 10 December 1998, Captain E___ wrote the requested statement.  He stated that on 16 November 1998 he met with the applicant for a talk at a gasthaus.  The next day, they agreed to meet at her house after work.  While there they talked and moved on to “heavy petting.”  On 18 November 1998, she wrote him a note explaining the feelings their time the previous night had awakened in her.  They had another “petting” session that night.  On                 21 November 1998, he called her to say he thought he was falling in love with her.  They talked the following week but had no bodily contact.  On 7 December 1998, he gave her a friendship card and a small gift.  At that time she told him she had been with someone else during the previous week and they stopped talking to one another.  Later she spoke with the chaplain, who talked to him. 

10.  On 29 December 1998, the applicant’s rater prepared a memorandum for record (MFR).  In the MFR, he stated that he noticed several inconsistencies between the applicant’s and Captain E___’s accounts.  Captain E___’s statement was much more detailed and self-incriminating but clearly conveyed that the relationship was consensual in nature.  The applicant’s statement made no mention of any physical encounters and focused instead on her efforts to put an end to the unwanted attention Captain E___ was giving her.  He had a joint meeting with the two individuals.  Captain E___ stated that he stood by the details presented in his statement.  The applicant admitted that she had left out many of the details because she was afraid of the possible repercussions.

11.  On 29 December, the applicant prepared an additional statement.  In it she stated that the consenting actions started the first night Captain E___ came over. He started to play with her hair.  She was feeling very strongly that she should tell him to stop but she could not do it.  Therefore, it led to heavy kissing and the intentions were clear.  After he left she thought about it and wrote him about the fantasies she had had (mentioned in her first statement) and that she could not act on them.  The second time he had come over was for lunch.  She tried everything she could think of short of leaving, such as making lunch and playing with her dog not to do anything.  The situation somehow moved into heavy kissing and petting.  No specific dates are mentioned.

12.  It appears that the brigade commander appointed a 15-6 investigating officer (IO) on 13 January 1999 to conduct an informal investigation to investigate the improper relationship between the applicant and the captain.  One of the findings of the IO was that the allegation of either officer attempting to initiate or continue the relationship over the objection of the other was unsubstantiated.  While they expressed their desire to terminate the relationship, they both deliberately and mutually decided to continue the improper relationship until 9 December 1998.  The IO recommended that both the applicant and Captain E___ receive a General Officer Article 15 (Article 135, conduct unbecoming an officer for Captain E___ and Article 135 and Article 107, false official statements, for the applicant), that both be processed for immediate separation, and that both receive a memorandum of non-contact prohibiting all except professional contact between the two.

13.  On 18 February 1999, the applicant was issued a GOMOR for having had an improper physical relationship with a captain, her superior officer and a member of her same section, from 16 November through 9 December 1998.  Although both were married to other individuals, she engaged in consensual intimate physical conduct.  After the romance had run its course, she complained to her chain of command about the captain’s advances, characterizing him as an aggressor whom she had flatly rejected on several occasions and neglecting to mention her extensive voluntary involvement with him.  Paragraph 2 of the GOMOR reprimanded her for her actions in engaging in an improper relationship and that her disregard for regulations, policies and laws would not be tolerated. 

14.  The applicant rebutted the GOMOR.  She stated she did not believe anything she had done warranted the treatment she was receiving.  Her mistake was one of omission.  She failed to disclose that she and Captain E___ had been intimate.  However, any intimacy lasted all of a couple of weeks.  During that period she knew that their actions were a mistake and within a short time she began trying to end matters.  She wanted the commander to realize the mistake had been a discrete, private one.  It was one which she repeatedly sought to end. Her error in omitting to mention their prior relationship was because it was private.  She became aware of his harassment of other females so she believed command attention and a strong directive would get him out of her life.  Failing to disclose their prior contacts was irrelevant.  She made the mistake of almost having an extra-marital affair.  She did not want her chain of command to know that their new lieutenant had made a mistake of this nature.  Nevertheless, she did not believe that mistake should have allowed him to make advances upon her indefinitely.  Once her chain of command learned that something consensual had occurred previously, she believed they lost their objectivity.  They began looking at the case as an integrity issue without appreciating that she had excellent reasons for not wanting to divulge previous consensual contacts.

15.  The GOMOR was directed to be filed in the applicant’s Official Military Personnel File (OMPF).

16.  The contested OER is an 11 month change of duty report for the period      25 June 1998 - 14 May 1999.  In Part IVa, the applicant’s characteristics of honor, integrity, and courage were rated as “no.”  In Part Va, her rater rated her performance as “unsatisfactory performance, do not promote.”  The rater made numerous comments that focused on the improper relationship and the applicant’s questionable integrity.  One comment was “…’s off-duty conduct did not reflect the same high standards that characterized her on duty performance.  Her rater commented that he could not, in good conscience, recommend her for promotion to first lieutenant.  In Part VII, her senior rater rated her promotion potential as “do not promote.”  She was rated below center of mass.  The senior rater made several commendatory comments and several negative comments in Part VIIa.

17.  On 14 June 1999, the Department of the Army Inspector General acknowledged that the applicant did experience a form of sexual harassment but that the circumstances under which she communicated to her battalion commander did not qualify as a whistleblower reprisal complaint.  The Department of Defense Inspector General concurred with these findings.

18.  On 6 August 1999, the applicant was promoted to first lieutenant.  Her subsequent OER for the period ending 1 October 1999 shows that in Part Va her performance was rated as “outstanding performance, must promote.”  In Part VII, her senior rater rated her as center of mass.  All comments by both the rater and senior rater are highly commendatory.

19.  In the processing of this case, an advisory opinion was obtained from the Officer Special Review Board (OSRB) and the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB noted that while the applicant claims that the GOMOR contains “false, slanderous information that was never proven,” she admitted in her rebuttal to the GOMOR that she failed to disclose that the she and Captain E___ had been intimate.  The DASEB opined that the applicant provided no evidence to prove that her admissions to the issuing authority were false or that she provided any “new” evidence that would have changed any portion of his decision for filing the reprimand.  Regarding the contested OER, the OSRB found that both the rater and the senior rater provided both positive and negative but matter-of-fact comments.  The OSRB found that the incident identified did occur during the rating period and the GOMOR was issued before the report was completed therefore it was proven derogatory information that could be included in the report.  The OSRB noted that no evidence was provided that supported the applicant’s claim that the rater was not qualified to render his assessment.  Neither the DASEB nor the OSRB prepared a case summary as there was insufficient evidence to support the applicant’s claims.

20.  The applicant rebutted the advisory opinion.  She stated that the information used as the basis of the GOMOR was based upon a forced statement directed and dictated by her rater.  At no time did any “IO” ask her to review the statements and provide witnesses or documents to counter the false and misleading statements of Captain E___.  She provided documents that showed Major D___ should have been her rater for at least 90 days during this period (June – October 1998), not Major C___ but no one questioned this fact or requested copies of the rating schemes.

21.  The U. S. Total Army Personnel Command provided a copy of the relevant OER pertaining to Captain E___.  No GOMOR was found on his file.  Captain E___’s OER is a 9-rated month annual report for the period 9 April 1998 – 8 April 1999.  In Part Va, his rater checked the “other” block.  The rater made numerous comments that focused on the improper relationship.  He also commented that he could not, at that time, recommend Captain E___ for command.  In Part VII, his senior rater rated his promotion potential as “do not promote.”  He was rated below center of mass.  The senior rater commented on Captain E___’s misconduct in Part VIIa.

22.  Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.

23.  Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual 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.  In pertinent part, it 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. 

24.  Army Regulation 600-20 prescribes the policies and responsibilities of command which includes military discipline and conduct.  It states that all military personnel share the responsibility for maintaining professional relationships.  However, in any relationship between soldiers of different grade or rank the senior member is generally in the best position to terminate or limit the extent of the relationship.

CONCLUSIONS:

1.  On the face of it, the Board finds no error or injustice in the applicant receiving the GOMOR.  There is no evidence to show that she was falsely accused of improprieties that she never committed.  On the contrary, she admitted in her rebuttal to the GOMOR that she did have an improper relationship with Captain E___.  While the Board understands her desire not to incriminate herself by admitting to that relationship in her initial complaint, it does not make the relationship irrelevant once it was discovered.  Also, the Board concludes that her command properly questioned her integrity because her complaints implied that she never wanted Captain E___’s attention and that he had been guilty of sexual harassment during the time they were having a consensual relationship.  The Board notes that trying everything, such as making lunch and playing with her dog, not to do anything is not the same as saying “no.”

2.  The Board is not convinced by the applicant’s contention in her rebuttal to the advisory opinion that her statement was directed and dictated by her rater.  She signed all her statements.  She may have been only a second lieutenant but she was still a commissioned officer who presumably knew better than to sign any statement she believed not to be true.

3.  Army Regulation 600-20 states that all military personnel share the responsibility for maintaining professional relationships.  However, it also states that in any relationship between soldiers of different grade or rank the senior member is generally in the best position to terminate or limit the extent of the relationship.  Therefore, the Board does not believe that both the applicant and Captain E___ should have been held equally responsible for the misconduct.  Although the GOMOR mentioned the integrity issue, it focused on the improper relationship.  Yet, the Board notes that only the applicant, the junior partner in the improper relationship, received a GOMOR for filing in her OMPF.  If anything, the captain should have been held to a higher standard and received the greater punishment.  Had Captain E___ adhered to the standards of conduct expected of one of his higher grade and greater time in service, the integrity of the applicant may never have been put to the test.  In comparison, the applicant’s punishment was grossly unfair.

4.  The applicant provides no evidence to show that the rater on her contested OER did not assume that position until 2 or 3 months after the beginning period.  If true, that fact would be immaterial.  He was still the rater at the end of the rating period in question and would still have rendered the contested OER.  

5.  The Board concludes that the applicant’s contested OER was not grossly unjust.  Both her OER and Captain E___’s OER contain comments focusing on the 2-3 week period out of an 11- or 9-month report, respectively.  Both contained negative recommendations regarding promotion and/or command.  The only inconsistency appears to be in the rater’s check mark in Part Va.  Captain E___’s check mark is “other.”  The applicant’s check mark is “unsatisfactory performance, do not promote,” yet the rater commented in Part Vb that high standards characterized her on duty performance.  As a matter of equity the Board concludes that the applicant’s contested OER, Part Va should be corrected to reflect an “other” check mark.

6.  The Board does not agree with the applicant’s contention that either her GOMOR or her OER were due to reprisal for reporting sexual harassment.  The Board does conclude, however, that her command did not exhibit proportionality in meting out punishment to the applicant and Captain E___, a situation that resulted in unfairness to the applicant.  It would be appropriate to expunge the GOMOR from the applicant’s records.  The contested OER, however, should remain as is except for the correction noted above.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

     a.  expunging the GOMOR dated 18 February 1999 and all related documents from the applicant’s OMPF; and

     b.  amending the applicant’s OER for the period ending 14 May 1999, part Va to delete the “unsatisfactory performance, do not promote” check mark and to reflect instead an “other” check mark.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rwa___  __bjl___  __wdp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Roger W. Able
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000046477	
SUFFIX		
RECON		
DATE BOARDED	20010308	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.	134.01	
3.	111.01	
4.		
5.		
6.