IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011334 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011334 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011334 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's request, statements, and submissions were deferred to his counsel for submission. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests removal of a General Officer Memorandum of Reprimand (GOMOR), the relief for cause Officer Evaluation Report (OER), and the relief from command memorandum from the applicant's file, or in the alternative transfer these documents from the performance folder to the restricted folder in the applicant's Official Military Personnel File (OMPF). 2. Counsel states that, in accordance with the provisions of Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers), an investigating officer (IO) was appointed on 29 October 2012. The IO concluded that the applicant had an inappropriate relationship with 1LT V____ J. C____. Based on this report a GOMOR, dated 15 November 2012, was issued stating, "An investigation revealed that you sent and received 3000 text messages to 1LT C____ in a one month period. The nature of these messages were not always professional and at times sexual in nature. At one point you disguised your identity so that 1LT C____'s spouse would not know that you were continually texting his wife." a. Not only are comments in the GOMOR overstated, the evidence of record does not support these allegations which serve as the basis for the above referenced adverse actions against the applicant. b. There are substantial procedural and factual deficiencies in the investigation which contributed to the imposition of the GOMOR and related documents. (1) The IO, for no apparent reason, chose to disregard directions in the appointment letter. (2) The applicant's statement was not properly prepared. As soon as the IO began to write "sworn statements" (utilizing a DA Form 2823 (Sworn Statement)), he became a witness and abandoned his role as a neutral investigator. (3) Virtually none of the written statements the IO prepared on DA Forms 2823 were proper. He summarized his recollection of conversations with witnesses and did not properly execute the forms, as they were neither witnessed nor sworn to as required. (4) The only witness from whom the IO obtained two properly executed statements was SPC A____ F____. As this is the only Soldier who gave a statement adverse to the applicant, it raises some question as to why this witness was allowed to write a statement in his own hand and have it properly witnessed and sworn, yet none of the other statements, particularly those favorable to the applicant and the applicant's statement, were handled in the same manner. (5) A reading of the two statements by SPC F____ shows the information he gave to the IO consisted of two conversations he overheard, one a one sided telephone conversation he overheard, and the other a private conversation he was eavesdropping on. Not only was the information he provided highly suspect, but the IO made no effort to attempt to corroborate the information that SPC F____ relayed to him. (6) The IO in his summary (at page 27, Enclosure 2) under the paragraph heading "Facts" states that 1LT C____ was assigned to the applicant's company from 5 September through 13 October 2012. In fact, 1LT C____ was not assigned to the applicant's command until 25 September 2012 (see DA Form 4187 (Personnel Action), Enclosure 4). This is significant as it shows the truly limited time that the applicant and 1LT C____ spent within the same unit. They were casual acquaintances prior to that time. (7) The IO states that 3,256 text messages were sent between the applicant and 1LT C____ during the one month period they were in the same command. They were only in the same command for 18 days from 25 September to 13 October. The IO failed to verify any e-mail communications, much less the volume indicated. (8) Under Findings, the IO stated that the applicant and 1LT C____ referred to each other as "friends," and that 1LT C____ was heard "calling" the applicant by his first name. This finding is totally unfounded. First, the fact that the applicant and 1LT C____ considered themselves friends is neither actionable nor improper. Both were commissioned officers who knew each other before they were assigned to the same unit, and as noted above, they were assigned together for only 18 days. Both honestly and forthrightly admitted they were friends. Furthermore, there is absolutely no evidence in any part of the 15-6 that even suggests that the applicant and 1LT were on a first name basis with each other at any time. These unsupported "findings" call into question the ability of the IO to accurately collect and review factual evidence and to ultimately make a recommendation to the appointing authority as was his obligation to do. (9) Under Recommendations, the IO states the applicant needs additional training as to what is and is not fraternization. This recommendation is totally confusing as it has no relevance to the matters under inquiry. The elements of the offense of fraternization under Article 134 of the Uniform Code of Military Justice (UCMJ) are as follows: (a) That the accused was a commissioned or warrant officer; (b) That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner; (c) That the accused then knew the person(s) to be (an) enlisted member; (d) That such fraternization violated the custom of the accused's service that officers shall not fraternize with enlisted members on terms of military equality; and (e) That, under the circumstances, the conduct of the accused prejudiced good order and discipline in the armed forces or brought discredit upon the armed forces. (10) Clearly the offense of fraternization was a legal impossibility based on the ranks of the applicant and 1LT C____, only highlighting the IO's lack of perception and understanding of both facts and law during the conduct of this investigation. (11) In the same paragraph, Recommendations, the IO makes the comment "Both of them ... even incriminated themselves in their interviews with me." The IO makes this bold statement with no supporting evidence, probably because there is no evidence to substantiate this assertion. This is just one more example of the inability of the IO to produce an accurate and fair investigative product. The failure to do so deprived the appointing authority of obtaining the best information available upon which to consider and take action, in this case to the detriment of the applicant. (12) There is no evidence to support the amount of texts purportedly exchanged between the applicant and 1LT C____, 3,656 as alleged by her husband Mr. C____. That number was supposedly given to the IO in the statement that he, the IO, made that was unsworn, unwitnessed, and not in evidence as a statement from Mr. C____. There is no evidence that the IO made any effort to obtain substantiation from Mr. C____, he simply relied upon the number given. Possibly the most serious deficiency is that within the entire 15-6 investigation there is not one single text showing the contents of the conversations that took place between the applicant and 1LT C____. The telephone toll bills of Mr. C____ show numerous numbers to and from his residential number, not content, and there is no evidence that the IO attempted to substantiate the actual number, or analyze the phone numbers, time and texts. Not even Mr. C____ could give evidence as to the content of the text messages. He consistently maintained he never saw the texts. (13) The statement given by D____ C____ as recounted by the IO reads: "he suspected his wife had broken the no contact order from the battalion commander by creating a yahoo messenger account and texting the applicant from that account although he has no proof." This is important because it shows the bias and lack of objectivity of Mr. C____ in dealing with the situation at hand. While this is understandable, nonetheless it deserves comment by the IO, and it should have been utilized as a barometer in order to judge the witnesses’ ability and willingness to present objective truthful testimony. It also should have been affirmatively commented upon in the findings and conclusions presented to the appointing authority. There is no evidence that the IO did so. (14) What might be the most serious condemnation of the factual and procedural errors in this process, is the legal review failed to identify or comment on even one of the many points enumerated above. Counsel does attempt refute the entire Department of Army Suitability Evaluation Board (DASEB) decision. Yet in submitting this petition, he does not lightly ask the Board to reject the reasoning and conclusions rendered by the DASEB. Those conclusions lack both factual basis and sound analysis. Particularly, the DASEB stated (at paragraph 4 of Enclosure 1): "There is no evidence to show that the AR 15-6 contained any defects or flaws, or was conducted in a shoddy fashion. It was found to be legally sufficient. Counsel has not provided any evidence that addresses specific defects in the investigation or to support his contention that the investigation was shoddy or based on false allegations." The specific points enumerated above provide sufficient grounds for the Board to re-evaluate the conclusions rendered by the DASEB. Worthy of comment is the statement by the DASEB that "The applicant tacitly admitted to the misconduct in his response to the GOMOR." It is not and never has been the position of the applicant that he is without any fault. He has accepted responsibility for his actions; however the degree of divergence from Army standards, and the subsequent punishment, an OMPF GOMOR, is overly severe in the instant case. Had the applicant not admitted his failings, likely the DASEB would have commented that his failure to accept any responsibility was a showing of a lack of remorse, and utilized that reason to deny his petition. An examination of the DASEB findings, in light of the above, using their standard of clear and convincing evidence, provides more than sufficient reason to reject the DASEB findings. c. Second, even if justified at the time, the GOMOR has served its purpose and should be removed. (1) Chapter 7, Army Regulation 600-37 (Unfavorable Information), allows removals or transfers to the restricted file when the letter of reprimand has served its intended purpose, has been in the OMPF for at least one year since imposition of the reprimand, the Soldier is at least a staff sergeant or above, and has received at least one evaluation since the filing of the reprimand. In the case of the applicant all the above criteria have been met. Since the imposition of the GOMOR and leaving Fort Hood, the applicant has worked extremely hard to prove himself. He knows that his actions in advising 1LT C____ who sought his assistance were ill-advised, and he admitted such in his response to the GOMOR. In his most recent OER, thru date 27 February 2015, while serving in Liberia, COL B____ rates the applicant as Most Qualified. He further states: "Outstanding commander 1/20 Captains in the task force ... promote ahead of peers, send to ILE in residence, and groom for Battalion Command." (2) At Enclosure 5: His OER immediately preceding this, thru date 2 November 2014, rates him Most Qualified by COL A____ J. D____. COL D____ states in that report: "CPT ____ is clearly in the top 5% of all Captains that I rate ... he is a model Company Commander ... select below the zone." This OER was written while the applicant was serving as the Commander of the 583rd Medical Logistics Company. (3) At Enclosure 6: Of particular importance are the two OERs immediately following the applicant's one adverse OER. The OER immediately following, thru date 15 April 2013, a top OER, remarks "promote to MAJ ahead of peers." (4) At Enclosure 3a: The immediate next report thru date 15 April 2014, is also a testament to his fortitude. His senior rater, COL J____ L. G____, states: "Number one Captain I senior rate. A must promote below the zone to Major." (5) At Enclosure 3b: In addition to these OER's during the career of the applicant he has had stellar OERs, as evidenced by the OERs in 2009-2011. (6) At Enclosure 7: Numerous officers have come forward in support of the applicant. Although each letter should be read in its entirety, excerpts of those letters are below. They give witness to an officer who has selflessly served under trying circumstances, while deployed on two separate occasions. While serving in Iraq, COL D____ C. C____ noted the applicant as "in the top 20% of the talented staff Captains on my Brigade Combat Team Staff." (7) At Enclosure 7: The applicant's ORB documents two overseas tours, two awards of the Army Commendation Medal, and two awards of the Army Achievement Medal. (8) At Enclosure 13: MAJ M____ O____ was the applicant's supervisor for a year. She states she strongly recommends removal of the GOMOR and referred OER." She continues saying that the applicant "continues to display dependability, teamwork and integrity, responsibility, ambition and compassion, caring leadership traits.” (9) At Enclosure 8: MAJ R____ S. D____, who knew the applicant for more than a year, writes urging the Board to remove the GOMOR so that he "can be fairly promoted and continue his military career." She adds, "He has always done an outstanding job and has had a reputation that preceded him due to his work ethic and outstanding military bearing." (10) At Enclosure 9: LTC C____ PG. W____ writes: "the applicant demonstrated exceptional military bearing, a strong knowledge of his profession, and a strict adherence to military values." "The applicant is the epitome of professionalism." He requests the GOMOR and relief documents be removed from [the applicant's] file. (11) At Enclosure 10: COL C____ H. W____ writes: "The applicant has discussed with me the events which led to his letter of reprimand and his relief for cause. I can say without a doubt that since I have been his Commander his integrity, loyalty, honor, and commitment to upholding the Army Values are without question and he inspires those around him to live and display those same standards.... I recommend that his Letter of Reprimand be removed and that we continue to develop this leader to be a successful field grade officer." (12) At Enclosure 11: COL E____ H. B____ writes: "His actions while serving under my command demonstrated an officer of high moral character who led from the front, accomplished his mission and took great care of his soldiers." (13) At Enclosure 12: The applicant understands Army regulatory requirements, that is 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d. A final point, a Board of Inquiry (BOI) was held in 2013, and concluded that "CPT D____ R. W____ did not engage in misconduct, moral or professional dereliction, to wit having an inappropriate relationship with a subordinate in his command." The BOI results were accepted by MG A____ R. I_____, the officer who imposed the GOMOR for the same offense. These results are referenced in the DASEB decision, and the fact remains that two Army panels privy to the same information came to opposite conclusions. Interestingly, the DASEB attempted to denigrate the findings of the BOI by engaging in a semantic discussion of the legal standards employed by the BOI vis Art 15-6 investigations. Suffice it to say that MG I____ accepted the Board's findings and recommendations, to wit, "the applicant did not engage in misconduct, moral or professional dereliction to wit being in an inappropriate relationship with a subordinate in his command." 3. Counsel provides documents identified in a list of enclosures. CONSIDERATION OF EVIDENCE: 1. On 13 October 2012, D____ C____, the husband of 1LT C____, contacted the applicant's command stating he had become suspicious of an inappropriate relationship between his wife and the applicant after he noticed his wife trying to hide text messages from him and that his wife was texting the applicant an inordinate amount at all times of the day and night. 2. Also on 13 October 2012, the command initiated a Commander's Investigation, the applicant received a Report to Suspend Favorable Personnel Actions (FLAG), and 1LT C____ received a an order to have no contact with the applicant from LTC W____. 3. On 23 October 2012, an AR 15-6 investigation was initiated with the appointment of CPT M____ as the IO. 4. In concert with the investigation, Mr. C____ provided a copy of his T-Mobile bill with a printout of numbers dialed or received between 11 and 17 October 2012. The number indicated as being utilized by the applicant ends in 6620. 5. On 29 October 2012, the IO submitted his report stating: a. The applicant and 1LT C____ had known each other for approximately one year while they were on Rear Detachment during the Brigade's deployment. b. 1LT C____ was in CPT W____'s company from approximately 5 September 2012 through 25 September 2012. c. The applicant and 1LT C____ sent 3,256 text messages back and forth during a one month period while 1LT C____ was in CPT W____'s company. These text messages included marital and sexual advice that 1LT C____ asked for from CPT W____. d. ln an effort to hide the content of the text messages from her husband, 1LT C____ asked the applicant to text her pretending to be a "SSG Shin" asking about Class VIII. e. The IO's findings, based on the information gathered through interviews and other evidence, were: (1) There was in fact an improper relationship between the applicant and 1LT C____. The applicant and 1LT C____ have both referred to each other as "friends" and 1LT C______ had been heard calling the applicant by his first name on many occasions by her husband and on one occasion by SPC F____. (2) 1LT C____ was overheard saying that she knew it was inappropriate to be texting the applicant late at night. (3) The IO found no evidence that anyone in CPT W____'s unit suspected any fraternization, inappropriateness, or favoritism between the applicant and 1LT C____, and there was no evidence of adultery or sexual contact between the applicant and 1LT C____. f. The IO recommended the applicant and 1LT C____ attend additional training on what is and is not fraternization. Both of them seemed to be confused as to what constituted an inappropriate senior-subordinate relationship and even incriminated themselves in their interviews. 6. On 15 November 2012, the Commander, Headquarters, 1st Cavalry Division, Fort Hood, Texas, issued a GOMOR to the applicant for having an inappropriate relationship with a subordinate in his command, 1LT C____. The imposing officer stated an investigation revealed that the applicant sent and received over 3,000 text messages to 1LT C____ in a one month period. The nature of these messages was not always professional and at times sexual in nature. At one point he disguised his identity so that 1LT C____'s spouse would not know that he was continually texting his wife. The Commander also suspended the applicant from command, citing the reason for the suspension was that he had engaged in an inappropriate relationship with 1LT C____, a married woman not his wife. 7. On 19 November 2012, the applicant acknowledged receipt of the GOMOR and indicated he would submit a response. In his response, he held himself fully accountable for the numerous text messages he sent to 1LT C____ stated he realized it was a lapse of judgment to agree to 1LT C____'s request to disguise his identity for a single text message as someone else. He contended he only wanted to help 1LT C____ through a trying period in her life and that nothing he communicated was for personal gain or any form of gratification. 1LT C___ asked him how she could improve her marriage, and he advised her on how to make things work with her husband. He suggested they attend marriage counseling together as a first step to make their marriage work. He also gave her advice on things that he liked in his marriage from a man's point of view, suggesting she try catering to her husband physically and mentally and to try new things with him. 8. The imposing authority directed the GOMOR be filed in the applicant's OMPF, based on the Commander's determination that he had inappropriate communications of a sexual content and his deception by hiding his identity in an email. The GOMOR and associated documents are filed in the performance folder in the applicant’s OMPF. 9. On 6 December 2012, the applicant was relieved for cause as the company commander with the reason being stated as an inappropriate relationship with 1LT C____, a married woman not his wife. The relief memorandum is filed in the performance folder of his OMPF. 10. On 28 February 2013, the applicant received a relief for cause OER based on the receipt of the GOMOR. The applicant refused to sign this OER and submitted a statement on his own behalf. This OER is filed in the performance folder of his OMPF. 11. A BOI was conducted on 12 April 2013 and the board found that the applicant “did not engage in misconduct, moral or professional dereliction, to wit: having an inappropriate relationship with a subordinate in his command.” The board recommended the applicant be retained in the military. On 24 June 2013, the convening authority directed the applicant be retained. The same general officer was the BOI convening authority, GOMOR imposing authority, and relief from command authority. 12. The applicant appealed his GOMOR to the DASEB. The DASEB denied the applicant's request and noted: a. The applicant was reprimanded for having an inappropriate relationship with a subordinate in his command. In his response to the GOMOR, the applicant accepted responsibility for his actions and the numerous text messages he sent to 1LT C____, and for his lapse in judgment in agreeing to 1LT C____'s request to disguise his identity for a single text message as someone else. Although the AR 15-6 IO did not find the relationship was adulterous or sexual in nature, it constituted an inappropriate senior-subordinate relationship and fraternization. b. Unless the BOI conducted the same type of investigation into the relationship as was conducted prior to the issuance of the GOMOR and/or hearing testimony from the primary sources as in the original investigation, the evidence given in a BOI would not have risen to the level of clear and convincing evidence to show that the GOMOR was untrue. c. As noted in AR 600-8-24 (Officer Transfer and Discharges), a BOI is limited to making a determination on whether to retain (with or without reassignment) an officer on active duty or to eliminate an officer. Although the applicant's BOI may have found that the misconduct addressed in the GOMOR was not substantiated by a preponderance of the evidence, this finding is not binding upon the DASEB or the GOMOR imposing authority. d. A BOI is an independent administrative process separate from the administration of GOMORs. An administrative reprimand is a management tool within the sole discretion of the imposing authority. The imposing authority may rely on any evidence he or she believes is relevant in a case, and is not bound by the findings of an investigation, or the opinions of interested individuals. In the applicant's case, the imposing authority determined that he had sufficient evidence upon which to base a decision and that the applicant's actions merited issuance of a GOMOR. The applicant tacitly admitted to the misconduct in his response to the GOMOR. e. The burden of proof for successfully removing a GOMOR from the AMHRR is established by AR 600-37 as "clear and convincing evidence" that the GOMOR is either untrue and/or unjust. As noted above, the DASEB is not bound by the findings of a BOI based on a "preponderance of the evidence." REFERENCES: 1. AR 600-20 (Army Command Policy), paragraphs 4-14 and 4-15, define improper superior-subordinate relationships, to include several specified prohibited relationships. The regulation is punitive, so violations may be punished under Article 92, UCMJ. 2. AR 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. a. Paragraph 1-1 states the intent of AR 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Paragraph 1-4 stipulates that the objectives of AR 600-37 are to apply fair and just standards to all Soldiers; to protect the rights of individual Soldiers and at the same time permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility. c. Paragraph 7-2a states that once an official document is properly filed in the OMPF, it is presumed to be administratively correct and 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. AR 600-8-24, paragraph 4-15b(3), states that a BOI (Show Cause Board) may not recommend removal of documents such as OERs, Article 15s, and GOMORs from an officer's OMPF. The board recommendations are limited to either retention (with or without reassignment) or elimination. 4. Article 134 of the UCMJ is referred to as the General Article. This Article covers offenses that are not otherwise specified in the UCMJ that are prejudicial to good order and discipline and may be tried by court-martial and punished at the discretion of that court. The general article also covers offenses which bring discredit upon the armed forces and "crimes and offenses not capital." Examples of conduct listed in the Manual for Courts-Martial include adultery, bribery, gambling, straggling, fraternization, inappropriate conduct, and indecent language. 5. Conduct prejudicial to good order and discipline is defined as including a breach of custom that may result in a violation of clause one of Article 134, UCMJ. DISCUSSION: 1. The GOMOR does not refer to a charge of fraternization but rather to an inappropriate superior–subordinate relationship and deception on the part of the applicant. This charge is also punishable under Article 134. 2. Counsel notes alleged errors or procedural process improprieties in the investigation of the applicant’s conduct. While the investigation may not have been perfectly executed, there is no evidence of errors that did harm to the applicant or that deprived him of due process. 3. During the AR 15-6 investigation the applicant admitted to having concealed his identity in at least one email and to giving 1LT C____ (a female subordinate) marital advice and sexual suggestions as to how to improve her relationship and intimacy with her spouse. 4. As noted by the DASEB, the BOI was limited to making a determination on whether to retain the applicant on active duty or to eliminate him. Although the BOI found that, in their opinion, the misconduct addressed in the GOMOR was not substantiated by a preponderance of the evidence, this finding was not binding upon the DASEB nor is it binding upon this Board. 5. Counsel has not provided any evidence to show that the basic reason for the GOMOR was in error or that retaining the GOMOR in the performance folder of the applicant’s OMPF would be unjust. Absent an evidentiary basis for removing the GOMOR, there is no basis for taking any action on the related relief for cause OER or the relief memorandum. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011334 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011334 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2