IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20160009546 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: 20 December 2016 DOCKET NUMBER: AR20160009546 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: 20 December 2016 DOCKET NUMBER: AR20160009546 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 the following records be removed from official military personnel file (OMPF): * DA Form 67-9 (Officer Evaluation Report (OER) for the rating period 2 July 2012 through 31 May 2013 (hereafter referred to as the contested OER) * general officer memorandum of reprimand (GOMOR), dated 8 May 2013 2. The applicant states: a. He was accused of sending an inappropriate message from a Soldier's phone to her husband, thus creating a hostile work environment. The case of this undeserved action was the biased and subjective feelings of the investigating officer (IO) and chain of command due to the sensitivity of Brigadier General Sxxx's case taking place at Fort Bragg, NC, and the countless allegations brought against some junior members based upon misconduct by a small percentage of higher-ranking service members. People are cautious in times of uncertainly and high tension, but no one should be forced to pay the ultimate price for the sake of comfort when evidence does not support the allegation and what he was accused of is totally out of character. b. The statement from the only eyewitness and spousal issues of jealousy were discounted. The fact that he had only spoken to the Soldier once was also discounted. The innocent are deemed guilty in spite of the evidence presented against them for the sake of emotional comfort. Correcting the injustice does not erase the damage already done; however, it does allow new beginnings to take place without preconceived notions. c. At every level of appeal he was not given a fair assessment based on the evidence presented. The IO wanted to focus on the disparity in rank instead of the facts presented. A general feeling of extreme sensitivity was taken based on the environment at Fort Bragg and the overall attention the Army received from BG Sxxx case. The IO had deployed with the unit and was aware of all parties involved when the case came to light. No one [in his organization] was willing to take a stand based on the evidence or take into consideration his personal circumstances or that of the Soldier and her spouse. It appears decisions were made during a five minute conversation that he had with the IO and the IO’s subjective opinion on the issue of rank. 3. The applicant provides several text-messages and fourteen character reference letters. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed in the Regular Army, Medical Services Branch, on 27 July 2000. He was promoted to major on 1 December 2010. 2. He provided: * several undated text-message articles pertaining to inappropriate messages and how the auto-correct feature found on cell phones can misunderstand words, such as "divorce" instead of "Disney" * statement from a Verizon store manager, wherein smart phones can think for a person and continue texting on one?s behalf often with errors to include sending messages to the wrong recipient * fourteen character reference letters, dated between March and April 2013, wherein the individuals attested to the applicant's strong and flawless character; some of the individuals requested the applicant not receive a GOMOR or that the GOMOR not be permanently filed in his OMPF 3. A Commander's Inquiry Findings and Recommendation memorandum, dated 13 March 2013, shows an IO believed the applicant did in fact send an inappropriate text message on a junior Soldier's phone to her husband ultimately creating a hostile work environment. In addition, the junior Soldier was subjected to unwanted and unsolicited comments by the applicant. 4. On 13 March 2013 the Brigade Judge Advocate determined that there was sufficient evidence to support the IO's findings. 5. On 8 May 2013, the applicant was issued a GOMOR for unprofessional conduct. The memorandum stated an investigation revealed that on 27 February 2013, he sent an inappropriate message from a Soldier's phone to her husband. As a result of his poor judgment and complete absence of professionalism his conduct created a hostile environment. That type of conduct was contrary to the Army's Equal Opportunity Program and would not be tolerated. As a commissioned officer, he was expected to set and uphold the standard for subordinates to follow. He failed in that regard. His conduct had tarnished his position of authority and called into question his leadership abilities and his potential for future service. Further incidents of that nature could result in more serious action being taken against him. The applicant acknowledged receipt of the GOMOR on 9 May 2013 and elected to submit matters for consideration. 6. A response to the GOMOR, dated 14 May 2013, shows the applicant stated the complaint filed against him was false. He could only surmise that the Soldier typed the text herself or the text message resulted from an "auto text/correct" error. The Soldier had made an outrageously false allegation against him and he could only hope that his word as a field grade officer, his record of honorable service, statements provided in support of his character, and the firsthand witness accounts of his interaction with the Soldier supported the finding that he did not send the text message as alleged in the reprimand. If the GOMOR was not rescinded, he requested it be filed in a local unit file. 7. He received a Senior Rater (SR) Option OER (contested report), for the rating period from 2 July 2012 through 31 May 2013, for his duties as the Chief Medical Logistics Planner. In Part IId (Authentication), the rater checked the block to indicate it was a "referred report." The OER shows in: (1) Part IVa (Performance Evaluation – Professionalism – Army Values) the rater placed an "X" in the "No" block for Respect. (2) Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in each "Yes" block. (3) Part Va (Performance and Potential Evaluation) the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered favorable comments. (4) Part Vc (Comments on Potential for Promotion) the rater entered the comment, "Tremendous potential for continued service. Select for resident Senior Service College and promote to lieutenant colonel." (5) Part VIIa (SR) the SR placed an "X" in the "Fully Qualified" block and entered the comments: [The applicant] performed very well during this rating period. [The applicant] is a highly motivated and dedicated professional who routinely places the Division's interests well above his own. [The applicant] is both technically and tactically competent and a dedicated leader. He is an officer who works hard to get the most out of his Soldiers and they generally do very well under his leadership and guidance. Unfortunately, [the applicant] had a founded [equal opportunity] complaint during this rating period which he has worked hard to successfully overcome. [The applicant] never quit and played a key role in spearheading medical supply and equipment requisition across the Division in support of the Global Response Force mission – truly made a difference with his personal efforts. He has very good potential for continued service. Consider for promotion to [lieutenant colonel]. (6) Part VIIb, the SR rated him as "Center of Mass." (7) This form was signed by the rater on 23 June 2013, SR on 24 June 2013, and the applicant on 23 September 2013. 8. On 26 July 2013, the Commanding General (CG) directed the GOMOR, dated 8 May 2013, be filed in his OMPF. 9. A referred evaluation report rebuttal memorandum, dated 22 September 2013, shows the applicant stated that the Soldier made an erroneous allegation against him for sending an inappropriate text on her phone to her husband. He found her written statement misleading and the evidence contradictory – a copy of the text messages. The IO deemed the investigation as substantiated and confirmed no such behavior had ever been demonstrated corroborating all character statements provided on his behalf. He asserts his conduct was in compliance with Army regulations and did not constitute conduct unbecoming [an officer] or caused sexual harassment or a hostile work environment. The IO also confirms he did not commit the alleged actions which is also supported by his many character statements. His performance during that rating period was on track for being an above center of mass placing him in the top one percent of all officers within the Division. 10. On 23 August 2013 by memorandum, the applicant was advised of the requirement to show cause for his retention on active duty under the provisions of Army Regulation (AR) 600-8-24 (Personnel – General – Officer Transfers and Discharges), chapter 4, paragraph 4-2b(5), 4-2b(8), and 4-2c(5), due to his misconduct. The memorandum stated that on 27 February 2013 he allegedly sent an inappropriate text message to the husband of a junior enlisted Soldier using her phone. On 12 March 2013, an AR 15-6 (Boards, Commissions, and Committees Procedures for Investigating Officers and Boards of Officers) IO substantiated these allegations and determined the applicant had created a hostile work environment and that his conduct amounted to maltreatment in violation of Article 93 of the Uniform Code of Military Justice. On 8 May 2013, he received a GOMOR and it was directed to be filed in his OMPF. He was further advised of his rights. The memorandum was signed by the commanding general. 11. A DA Form 1574 (Report of Proceedings by IO) shows a board of three senior officers convened on 9 December 2013 and recommended the applicant's elimination from the Army with an honorable characterization of service. He was represented by counsel during the elimination proceedings. (A complete copy of the hearing transcript is filed with this proceedings as evidence.) 12. By memorandum, dated 2 January 2014, the Office of the Staff Judge Advocate found the preponderance of the evidence supported the elimination board's findings. 13. On 10 January 2014 by memorandum, the applicant was advised a Board of Review determined that he should not be retained and his case would be referred to the Secretary of the Army or their designee for final action. He was advised of his rights. 14. A memorandum, dated 15 January 2014, shows the applicant acknowledged notification of the proposed separation action and elected to submit a rebuttal. 15. The applicant responded by memorandum, dated 22 January 2014, showing he requested retention on active duty and that the findings and the recommendations of the board be disapproved. He also requested enhanced selective early retirement with an effective date of 1 September 2014. In his memorandum he asserts he never committed the act for which he was accused. He takes responsibility and feels remorseful for the perception that he may have done something wrong by asking to see the Soldier?s phone and then asking to speak to that person. He argues this one mistake has caused him his career. He argues there was insufficient evidence to impose nonjudicial punishment yet he finds himself potentially being eliminated from the Army. He asserts that emotional accusers tend to be persuasive with the judicial system convicting innocent victims. He pleads to be retained on active duty. 16. A memorandum, dated 14 March 2014, shows the commanding general had reviewed the board’s recommendations pursuant to AR 600-8-24, paragraph 4-2, and recommended the applicant be eliminated from the U.S. Army with an honorable characterization of service. 17. On 9 May 2014, the Army Board of Review for Eliminations met and determined the applicant should be eliminated from the U.S. Army with an honorable characterization of service. 18. On 25 August 2014, the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) on behalf of the Secretary of the Army, reviewed all the evidence and elimination board findings and recommendations. The DASA (RB) directed the applicant's retention on active duty without reassignment. 18. By memorandum, dated 8 September 2014, the applicant was advised by the U.S. Army Human Resources Command that his elimination action was closed. He was advised he could request removal of all documents associated with his removal to the DA Suitability Evaluation Board. He appealed. 19. On 21 May 2015, the DA Suitability Evaluation Board, after careful consideration, denied the applicant's request for removal of the GOMOR, dated 8 May 2013, from his OMPF. REFERENCES: 1. AR 623-3 (Personnel Evaluation – Evaluation Reporting System) prescribes the policies for completing the OER and associated documents that are the basis for the Army's Evaluating Reporting System. The regulation states in: a. Paragraph 3-19b – References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to Headquarters, Department of the Army. This restriction is intended to prevent unverified derogatory information from being included in report and prevent unjustly information from being permanently included in a Soldier's OMPF such as when the charges are later dropped. b. Paragraph 3-19(2)d – any verified derogatory information may be entered on an evaluation report. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. c. Paragraph 4-4 – alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's or commandant’s attention by the rated Soldier or anyone authorized access to the report. An appeal will be supported by substantiated evidence. d. Paragraph 4–8 – because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible. Substantive appeals will be submitted within 3 years of an OER "THRU" date. e. Paragraph 4-11 – the burden of proof rests with the appellant accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. 2. AR 600-37 (Unfavorable Information) sets forth policies 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 incomplete is not filed in individual official personnel files; and ensure that the best interests 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. The regulation states in: a. Chapter 7 (Appeals and Petitions) – the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. b. Paragraph 7-2 (Policies and Standards), subparagraph b (Appeals for Transfers of OMPF Entries) – contains guidance on transfers of OMPF entries and states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF. (1) Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim. Appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the OMPF. (2) Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of AR 600-37. GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met. 3. AR 600-8-104 (Army Military Human Resources Records Management) provides policies, operating tasks, and steps governing the OMPF. This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. The regulation states in: a. Table 2-1 (Composition of the OMPF) – provides regulatory guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature. It states the letter, referral correspondence, member's reply, and allied documents (if they are specifically directed for filing by the letter or referral correspondence) will be filed in the performance section of the OMPF. All other allied documents not listed will be filed in the restricted section of the OMPF. Once a document is placed in the OMPF it becomes a permanent part of that record and will not be removed from or moved to another folder unless directed by the proper authorities listed in the regulation. b. Paragraph 2-3 – provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this section is controlled. It may not be released without written approval from the Commander, HRC, or the Headquarters, Department of the Army, selection board proponent. This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. DISCUSSION: 1. With respect to removal of the contested OER from the applicant's OMPF: a. The evidence of record shows the applicant was issued a referred report that contained comments concerning a founded equal opportunity violation. The preponderance of evidence does not show the ratings and/or comments in the contested report were rendered in error or that they were not the considered opinions and objective judgments of all the rating officials at the time the report was rendered. b. He has not shown that this OER contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy. There is no substantive evidence of record and he has provided none to show the contested report is incorrect, inaccurate, or unjust. On his behalf he did provide evidence showing certain individuals in the Army contested the allegation and thought he was a fine officer. c. By regulation, in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. 2. With respect to removal of the GOMOR, dated 8 May 2013, from his OMPF: a. The evidence of record shows an AR 15-6 investigation determined that the applicant had created a hostile work environment through his inappropriate actions. As a result, he was issued a GOMOR. After consideration of the applicant's case and his rebuttal statements, the imposing officer directed filing of this GOMOR in the applicant's OMPF. He was subsequently issued a referred OER which referenced the incident. b. He was then invited to show cause for his retention on active duty due to misconduct. On 25 August 2014, the DASA (RB), directed his retention on active duty without reassignment. On 21 May 2015, the DASEB denied his request for removal of the 8 May 2013 GOMOR from his OMPF. c. The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate Soldiers. Once the GOMOR was filed in his OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. The GOMOR is properly filed and the applicant has not shown this GOMOR to be either untrue or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009546 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009546 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2