BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160014020 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160014020 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * removing his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 11 August thru 19 November 2010 * replacing the removed OER with a memorandum of non-rated time 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: * removal from his official military personnel file of a general officer letter of reprimand, an OER addendum, or any other adverse information and/or records not specified above * consideration for promotion by a special selection board * extending his mandatory removal date * the addition of retirement points _____________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. BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160014020 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: a. the removal of the following documents from his official military personnel file (OMPF): (1) A general officer memorandum of reprimand (GOMOR), dated 18 October 2010; (2) A DA Form 67-9 (Officer Evaluation Report (OER)), covering the period 11 August thru 19 November 2010 (hereinafter referred to as the "Referred OER"); (3) An OER addendum, dated 28 February 2011, pertaining to his OER covering the period 11 August 2009 thru 10 August 2010; and (4) any adverse information and/or records arising from "this incident"; b. the reopening of a Department of Defense (DoD) whistleblower complaint; c. fair consideration by a special selection board (SSB) for promotion to colonel (COL); d. an extension to his mandatory removal date (MRD); e. the addition of lost retirement points; and f. any other relief the Board deems just and proper. 2. The applicant states, in effect, he was given the GOMOR and OER based on flawed interpretations of Army Regulation (AR) 600-20 (Army Command Policy), stemming from an egregiously improper legal review of an AR 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation. a. A legal review of the AR 15-6 investigation findings recommended substituting many of the findings of the investigating officer (IO) with findings made up by the Judge Advocate officer who wrote the legal review. b. He was not provided a copy of the legal review until many years later. The findings and recommendations were later rescinded by that commander due to his lack of awareness of the circumstances surrounding his investigation; the complainant had a strong motive to lie about his actions. 3. In a self-authored statement dated 18 June 2016, the applicant states: a. He was mobilized in 2008 with Space and Missile Defense Command (SMDC)/Army Forces Strategic Command (ARSTRAT) to serve as an action officer for the G3 and later in the G39 as the Reserve force development officer and as the mobilization officer. He was responsible for developing the Reserve force structure for Army Forces Cyber Command (ARFORCYBER), which was being developed at the time under SMDC/ARSTRAT, and for ensuring the accurate submission and processing of all mobilization packets for the G39. b. In the fall of 2009, after processing the mobilization packet for a USAR officer named First Lieutenant (1LT) C_, the brigade headquarters and headquarters company (HHC) commander and mobilization officer pulled the packet and submitted a new packet with a different justification. As a result of this curious re­submittal, he became concerned that the approved justification (and consequent mobilization orders) did not match the actual duties 1LT C_ would be performing upon her mobilization to active duty. Although 1LT C_'s packet was the first of which he became aware, he came to learn that this issue was widespread and that not only were other Soldiers being fraudulently mobilized, but some Soldiers' orders were worded in such a way as to give the appearance they were actually mobilized to deploy overseas to a combat zone. He made inquiries to the Department of the Army Mobilization Office, whereafter they stated those orders should not have been submitted in such a way. c. Due to the serious nature of these irregularities, he began to inquire further into the frequency of and reason behind these fraudulent mobilizations. It should be pointed out that said inquiry would have been a normal part of his job as mobilization officer. 1LT C_'s packet was at the top of his list since her packet raised his initial concerns. A meeting was held, at which senior officers and enlisted Soldiers determined that 1LT C_ had been improperly mobilized. A decision was made to release her from active duty (REFRAD) unless a legitimate position could be found. 1LT C_ was informed of the decision on 16 June 2010. Within days, she made a complaint to the SMDC/ARSTRAT Office of the Inspector General (IG), assessing that the applicant was creating a "hostile work environment," which resulted in a commander's inquiry followed by an AR 15-6 investigation. d. The IO of the AR 15-6 investigation was not aware of the confirmation of his findings regarding the mobilization issues. Thus, the IO did not adequately address the mobilization issue in her findings and recommendations. The IO came to the conclusion that he paid excessive unwanted attention to 1LT C_ because he questioned her mobilization orders and took steps to correct her mobilization. The IO further found that the excessive unwanted attention had an adverse impact on her morale. Curiously, the IO specifically stats that "[she] found no evidence, which indicates that he was trying to harass or establish a relationship with 1LT C_." However, the IO found the applicant simply paid excessive attention toward 1LT C_ and consequently made an adverse impact on 1LT C_'s morale and the command's ability to accomplish its mission. This is a prohibited relation in violation of AR 600-20. The incongruent findings were based in large part on either the legal review of the IO's findings, or influence by the legal advisor during the course of the IO's investigation. e. To be clear, the findings of the IO did not come to the conclusion that there was a prohibited relationship, but alleged that the applicant simply paid excessive attention toward 1LT C_. In a letter from the IO, she explains that her interpretation, as approved by the judge advocate general (JAG), was that it was only the effect on 1LT C_ that precipitated a violation of AR 600-20. The IO further stated that if AR 600-20, paragraph 4-14 is correctly interpreted to mean that a violation must be precipitated by some sort of relationship existing between the two officers, then the term relationship, regardless of how loosely defined, can by no legitimate means be used to describe the applicant's and 1LT C_. f. The IO, COL P_, would seem to be confirming her own findings, in that in those findings, she determined that the applicant's actions were mission focused. It was only when Major (MAJ) G_, the Deputy Staff Judge Advocate (SJA) wrote the legal review that he interjected substituted findings that his actions were not mission-focused. When MAJ G_ conducted the legal review, he recommended that the commanding general (CG) substitute certain findings of his own creation for the findings of the IO, most notably that the applicant violated AR 600-20, paragraph 4-14, by engaging in a prohibited relationship with 1LT C_. g. The applicant was not provided with a copy of the legal review when drafting his GOMOR rebuttal. It was only recently that he was able to obtain a copy of it. Subsequently, he received a GOMOR based upon the CG's substituted findings, which in turn were based on the recommendations contained in the legal review. It is very clear based on MAJ G_'s skewed definition of AR 600-20 to the IO, and especially on MAJ G_'s unconscionable legal review that he had a preconceived notion of what the investigation should show, regardless of what it actually found. h. He believes the actions taken against him were retaliation for his activities as a whistleblower, namely bringing to light the numerous fraudulent mobilizations within his unit. i. He was not selected for promotion to COL and was not able to compete for the Army War College or seek a battalion command. He was taken off mobilization and denied further mobilization at SMDC/ARSTRAT for two years, and also denied a mobilization in 2012 to Central Command (CENTCOM), which effectively denied him 730 retirement points. Another 400 points were denied based upon his inability to mobilize to Afghanistan due to the flag in his file as a result of the underlying matter of the case. Finally, he was not able to secure an assignment out of the Individual Ready Reserve (IRR) for three years. j. The retired CG who issued the GOMOR authored two letters requesting the removal of the GOMOR. He states in his first request that he now sees no ulterior motives on the applicant's part toward 1LT C_. The retired CG further stated in his second letter that the GOMOR issued to him was based on the best understanding of the facts at the time, and that the additional information regarding USAR personnel mobilization provided since the GOMOR was issued indicates his actions were in the best interest of the organization. k. His OERs are all either one blocked or two blocked with one block write-ups before and after the period in question. Rating officials typically made comments that he was one of the best officers with whom they ever worked with. 4. The applicant provides the following identified exhibits: * Exhibit 1 – a memorandum from the Chief, G3 Operations, SMDC/ARSTRAT, dated 30 October 2009, subject: Request Approval for Contingency Operation for Active Duty for Operational Support (CO-ADOS) Tour in Support of Overseas Contingency Operations (OCO) * Exhibit 2 – a memorandum for record (MFR) from Sergeant Major (SGM) JC, dated 2 March 2013, subject: Protected Conversations Between [Lieutenant Colonel] LTC [Applicant] and Members of the USASMCD/ ARSTRAT Chain of Command Regarding Fraudulent [U.S. Army Reserve] USAR Mobilizations * Exhibit 3 – a memorandum from the Informal AR 15-6 IO, dated 8 September 2010, subject: Informal AR 15-6 Findings and Recommendations * Exhibit 4 – a memorandum from the Deputy SJA, SMDC, dated 4 October 2010, subject: Legal Review of AR 15-6 Investigation * Exhibit 5 – OER, covering the period 10 March 2009 through 10 August 2009 * Exhibit 6 – a memorandum from the Deputy CG (DCG) for Operations, SMDC, dated 28 February 2011, subject: Modification to a Previously Submitted OER (LTC [Applicant], XXX-XX-5747, 11 August 09 thru 10 August 10) * Exhibit 7 – a memorandum from COL (Retired) JRS, dated 25 May 2015, subject: Petition for the Removal of Unfavorable Information from the OMPF of LTC [Applicant] (XXX-XX-5747) * Exhibit 8 – an MFR from the Chief, Internal Review and Audit Compliance, SMDC, dated 29 October 2012, subject: Summary of Audit Findings * Exhibit 9 – the Referred OER, covering the period 11 August through 19 November 2010 * Exhibit 10 – a GOMOR from the Commanding General (CG), SMDC, dated 18 October 2010 * Exhibit 11 – a memorandum from the Chief of Staff, SMDC, dated 18 October 2010, subject: AR 15-6 Investigation * Exhibit 12 – an MFR from COL JRM, dated 31 October 2015, subject: Evaluation of LTC [Applicant] thru dates 20100811 to 20101119 * Exhibit 13 – a letter of support from Lieutenant General (LTG) (Retired) KTC, dated 14 April 2014 * Exhibit 14 – a memorandum from LTG KTC, dated 17 December 2014, subject: Petition for the Removal of Unfavorable Information from the OMPF of LTC [Applicant] (XXX-XX-5747) * Exhibit 15 – an email exchange originated by COL MMP on 6 November 2009 * Exhibit 16 – an email exchange originated by LTC PJM on 2 December 2009 * Exhibit 17 – an MFR from MAJ (Retired) NAS, dated 8 April 2013, subject: Additional Information Reference [First Lieutenant] 1LT C_'s Hostile Work Environment Complaint * Exhibit 18 – an MFR from Sergeant First Class (SFC) MS, dated 31 January 2013, subject: 1LT C_ * Exhibit 19 – a memorandum from COL (Retired) WJT, dated 19 June 2015, subject: Petition for the Removal of Unfavorable Information from the OMPF of LTC [Applicant] (XXX-XX-5747) * Exhibit 20 – an MFR from the CG, SMDC, undated, subject: Request for Review of AR 15-6 Investigation ICO LTC [Applicant] * Exhibit 21 – a memorandum from General (GEN) (Retired) TAS, dated 19 December 2019, subject: Petition for the Removal of Unfavorable Information from the OMPF of LTC [Applicant] (XXX-XX-5747) * Exhibit 22 – OER covering the period 1 November 2007 through 1 September 2008 * Exhibit 23 – DA Form 67-10-2 (Field Grade Plate (O4 – O5; CW3 – CW5) OER) covering the period 5 June 2012 through 4 June 2014 * Exhibit 24 – OER covering the period 5 June 2014 through 27 March 2015 * Exhibit 25 – an MFR from COL (Retired) MMP, dated 16 September 2012, subject: Clarification of the Interpretation of AR 600-20, para 4-14, and the term "Relationship" * Exhibit 26 – a letter of support from COL MSH, dated 18 July 2012 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. A portion of the applicant's request includes the reopening of a DoD whistleblower complaint. This matter is not within the purview of the ABCMR; the applicant is advised to contact a local IG office for appropriate guidance related to his whistleblower complaint. As it is outside the Board's purview, this element of his request will not be discussed further in this Record of Proceedings. 3. The applicant was appointed as a Reserve commissioned officer of the Army on 23 August 1988 at 23 years of age. He served in positions of increasing responsibility and was promoted to the rank of MAJ on 27 June 2001. 4. The applicant entered a period of active duty on 20 November 2008; he was ordered to active duty and reported to U.S. Army Space Command, Peterson Air Force Base, CO. 5. The applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 24 September 2009. 6. Orders B-01-000447, issued by the U.S. Army Human Resources Command (HRC) on 25 January 2010, promoted the applicant to LTC with an effective date and date of rank of 30 December 2009. 7. The applicant was reconsidered and selected for promotion to LTC by an SSB that convened on 5 July 2011 and adjourned on 25 July 2011, under the 2007 year criteria. Orders B-08-205455, issued by HRC on 31 August 2012, show that as a result of the SSB, his effective date and date of rank were adjusted to 21 December 2007. 8. The applicant received a DA Form 67-9 covering the period 11 August 2009 to 10 August 2010 based on his duty performance as the Reserve Integration Officer while assigned to SMDC/ARSTRAT, Peterson Air Force Base, CO. This OER was accepted by the U.S. Army Human Resources Command (HRC). a. His rater was COL S____, the G39, and his senior rater was COL M____, the Deputy Chief of Staff, G3. b. Part I (Administrative Data), sub-section i. (Period Covered), shows the report covered 12 months of rated time. c. Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), is blank. d. Part IV (Performance Evaluation), sub-section a. (Army Values), shows he received all "Yes" marks. e. Part V (Performance and Potential Evaluation), sub-section a. (Potential for Promotion), shows an "X" was marked for "Outstanding Performance, Must Promote." f. Part VII (Senior Rater), sub-section a. (Promotion Potential to the Next Higher Grade), shows an "X" was marked for "Best Qualified." g. Part VII sub-section b. (Potential Compared with Officers Senior Rated in the Same Grade), shows he was rated "Center Mass." 9. An AR 15-6 IO reported the findings and recommendations of an informal investigation on 8 September 2010, surrounding allegations against the applicant and the USAR mobilization process within SMDC/ARSTRAT. a. The applicant and 1LT C_ were both mobilized Reservists. Both officers performed duties for the G39 section. In May 2010, both officers deployed to Hawaii as part of the G39 contingent participating in exercise Terminal Fury. The applicant was the senior G39 representative for the exercise. Additional facts pertaining to their relationship were well documented in a commander's inquiry; the IO did not find any contradictions to the facts as described in COL W_'s memorandum, dated 28 June 2010 (copy not furnished). b. The IO found that the applicant paid excessive unwanted attention to 1LT C_, which, as a result, had an adverse impact on her morale and the command's ability to accomplish its mission. The utilization of mobilized USAR Soldiers in SMDC/ARSTRAT was occasionally outside of the stated purpose of the mobilization request and consequently called into question the integrity of the mobilization process. Finally, MAJ L_ made a statement that compromised the integrity of his supervisory authority. The IO found no credible evidence that supported the creation of a hostile work environment as defined in AR 600-20, or behavior of a sexual nature directed to 1LT C_. The IO also found no evidence of a no contact order prior to 30 July 2010. c. The applicant paid excessive attention to 1LT C_, as described in several statements in both the IO's investigation and a commander's inquiry. His attention toward 1LT C_ resulted from several circumstances: 1LT C_'s stated interest to the applicant in supporting the G39; 1LT C_'s actual assignments in support of the G39; 1LT C_'s apparent mismatch between the duty that she was mobilized to perform and her actual duties; and the former G39 request that the applicant assist 1LT C_ in various matters. (1) His involvement with 1LT C_ during the exercise may also be justified due to his position as the senior G39 representative participating in the exercise. According to a statement by the former G39, personnel traveling to support Terminal Fury had no official leader. By virtue of the applicant's position as the senior G39 representative deployed, he became the section's leader. (2) His requests to 1LT C_ to coordinate transportation and lodging were typical of senior personnel when in a temporary duty (TDY) status. There was no evidence to suggest the applicant had motives other than mission accomplishment when he repeatedly asked 1LT C_ to add her name to the rental car contract and to billet at the same hotel as the other G39 personnel. (3) 1LT C_ stated that the applicant was informed not to communicate with her during the exercise. He stated he was unaware of such an order. The 1LT's supervisor, MAJ L_, was also unaware of such an order. MAJ L_ stated he never provided 1LT C_ any guidance or direction concerning her interaction with the applicant. (4) 1LT C_ submitted an email account of text messages received from the applicant during the exercise. There was nothing in the texts or in any of the sworn statements to suggest that the applicant was acting beyond his military authority. 1LT C_'s disregard for the applicant's instruction could be considered as disobeying an order. He consequently drove to her compound, ordered her to get in the car, and proceeded to counsel her. 1LT C_ stated, "He said it with a stern voice and he looked very irritated." That tone is typical of what a LTC would express if a 1LT did not comply with instructions. (5) Despite the applicant's mission-focused motives, he appeared to have paid 1LT C_ an excessive amount of attention both in Hawaii and in garrison. He had a serious concern for 1LT C_'s mobilization packet. He was the G39 administrative officer and one of his responsibilities was mobilization packets. 1LT C_ may have perceived his overly obsessive concern for professional development and her mobilization packet as harassment; however, the IO found no evidence that indicated the applicant was trying to harass or establish a relationship with 1LT C_. (6) 1LT C_ had a very severe reaction to the applicant's excessive attention. She explained that she would get anxiety if his name was mentioned, find the nearest staircase or hallway to escape passing him, leave work at different times to avoid routine, and she stopped wearing make-up and going to the gym. The IO wrote that clearly 1LT C_ was distraught over his attention, which largely focused around her professional development and her mobilization packet, but the terms "mentally and physically abused" and feelings of being "unsafe" seem to be disproportionate. The applicant did not violate any orders, commit conduct unbecoming of an officer or commit sexual harassment. The IO found he simply paid excessive attention toward 1LT C_ and consequently had an adverse impact on her morale and the command's ability to accomplish its mission. The IO further stated, "This is a prohibited relation in violation of AR 600-20, paragraph 4-14(5)." (7) As a recommendation, the IO stated the applicant should be formally counseled for his excessive unwanted attention paid to 1LT C_. Their engagement in a prohibited relationship resulted in an adverse impact on her morale and the command's ability to accomplish its mission in violation of AR 600-20. The IO recommended the counseling include the tenets of the Leadership Requirements Model, with special emphasis on sound judgement, interpersonal tact, and communication. The IO also recommended that the no contact order given to the applicant on 30 July 2010 be lifted and that he personally apologize to 1LT C_ for his excessive attention. (8) The IO recommended that 1LT C_ receive professional counseling to help her overcome her feelings of being unsafe in the workplace. Although the applicant clearly provided 1LT C_ excessive attention, he never threated her in a physical or sexual manner. Her feelings of being stalked, unsafe, and mentally and physically abused were real and should be addressed with a professional counselor. (9) The relationship between the applicant and 1LT C_ was allowed to fester for months, with 1LT C_'s chain of command agreeing to hide her so that she could not be readily visited by the applicant. The adverse relationship brought about by the applicant excessive contact should have been terminated well before 1LT C_ resorted to making her initial IG action request. The applicant's rater, the former G39 stated he "learned of a possible issue" three days after initiation of 1LT C_'s IG action. (10) The IO found no evidence of a deliberate attempt to truly resolve the apparent unhealthy relationship between 1LT C_ and the applicant, but rather a deliberate attempt to keep the officers separate and hide 1LT C_ from him. The ongoing attempt to keep the two of them distanced from each other was foiled when they deployed as part of the same section to the same exercise with little prior coordination and no one officially in charge. The unfortunate circumstances created a great amount of anguish in a young 1LT and a significant amount of uncertainly and anxiety in a senior officer. It was the IO's opinion that a lack of communication, confusion in the chain of command, and a lack of effective leadership resulted in the unfortunate situation. 10. A legal review of the IO's findings was performed by the SMDC/ARSTRAT Deputy SJA on 4 October 2010. This official concluded that other circumstances identified in a previous commander's inquiry (not provided) that occurred before the exercise was evident of sexual harassment. Among suggested amendments to the IO's recommendations, the Deputy SJA amended two recommendations to read: * recommendation 1a – that the applicant be issued a GOMOR for violating AR 600-20 * recommendation 1b – the no contact order issued to the applicant should remain in effect until he is demobilized from his present tour at SMDC/ ARSTRAT 11. The applicant received a GOMOR from the SMDC/ARTSRAT CG on 18 October 2010. The GOMOR was issued for engaging in a prohibited relationship with a female junior officer in violation of paragraph 4-14, AR 600-20, over an extended period and on diverse occasions between October 2009 and June 2010. a. He engaged in a pattern of showering unwanted attention on a female junior officer that was excessive, inappropriate, and disruptive. b. His excessive visits to the 1LT were so frequent and disruptive that efforts were made to prevent his access to the officer and her workplace. c. After a brief suspension of his inappropriate attentions, he resumed his inappropriate behavior during a joint exercise in Hawaii where his actions came to the attention of several Navy officers who were highly critical of his behavior. d. On 8 December 2010, the CG directed that the GOMOR be filed in his OMPF. 12. The applicant's previous rater and senior rater for the OER covering the period 11 August 2009 to 10 August 2010 provided memorandums on 26 January 2011 to modify their previous evaluation of the applicant. a. The rater wrote his OER should reflect the following changes: (1) Part IV – "No" checked in blocks 1, 2 and 5 indicating he did not exhibit the Army Values of honor, integrity, and respect. (2) Part Va – he would have checked "Unsatisfactory Performance Do Not Promote." (3) Part Vb, he would have addressed the "no" checks in the Army Values with the following comments: "[The applicant] did not display the Army Values of honor, integrity and respect. He acted dishonorably by failing to adhere to the Army's publicly declared values of integrity and respect by sexually harassing a female 1LT. He violated the Army Value of integrity by falsely denying allegations of misconduct, attempting to deceive the command about his own behavior, and attempting to discredit his accuser with false counter accusations of insubordination. Finally, he violated the Army Value of respect by failing to promote dignity, consideration, fairness, and equal opportunity by attempting to engage in a prohibited and unwelcomed relationship with a female officer of junior rank, which created a hostile work environment." (4) Part Vc, he would have stated, "[The applicant] has the technical and tactical skills needed to succeeded in positions of greater responsibility. However, he lacks the self-discipline to maintain the moral and ethical standards expected of a commissioned officer. He is unsuited for leadership or supervisory positions, particularly those involving female subordinates." b. The senior rater wrote his OER should have been a referred report, and that it should reflect the following changes: (1) Part II – he would have checked block d with an "X" making the OER a referred report. (2) Part VIIa – he would have checked the "Do Not Promote" box with an "X." (3) Part VIIb – he would have checked the "Below Center of Mass, Retain" block with an "X" as his senior rater. (4) Part VIIc – would have read, "Solid duty performance by a capable officer. [The applicant] is mentally sharp, skilled at his craft, and worked diligently to support the development and implementation of ARFORCYBER. He is technically and tactically proficient, and is skilled in both written and oral communications. An inappropriate relationship inconsistent with good order and discipline significantly reduced his overall effectiveness. His extended pattern of behavior raises serious questions of his sound judgement and respect for others. Do not promote or select for leadership positions." 13. The applicant received the Referred OER on 3 February 2011, covering the period 11 August to 19 November 2010, based on his impending release from active duty (REFRAD). a. His rater was colonel (COL) J____, the G3, his intermediate rater was COL JM, the G3 Chief, Operations, and his senior rater was COL LM, the Deputy Chief of Staff, G3. b. Part Ii - shows the report covered 3 months of rated time. c. Part IId – asking if this is a referred report is blank. However, SMDC-OP memorandum, dated 13 May 2011, shows HRC was notified the report was referred and that the applicant refused to sign within the suspense date. d. Part IVa - shows he received all "Yes" marks for Army Values. e. Part Va - shows an "X" was marked for "Satisfactory Performance, Promote." f. Part V, subsection c. (Comment on Potential for Promotion) "With continued mentoring, education, and training, he will be ready for promotion." g. Part VI (Intermediate Rater) "[the applicant] performed energetically during the rating period and achieved great results. His achievements during the last 90 days greatly exceeded expectations. However, I cannot recommend him for promotion at this time. h. Part VIIa - shows an "X" was marked by the senior rater for "Fully Qualified." i. Part VIIb - shows the senior rater rated him as "Center Mass." j. Part VII, sub section c. (Comment on Performance/Potential), shows the senior rater wrote "Solid duty performance by a capable officer. [The applicant] played a pivotal role within the Operations Center. He was key in standardizing the Operation Center's reporting process and developing master scenario events list (MSEL) injects for training and crew certification. Continue to mentor and groom for promotion and schooling. Rated officer refused to sign OER." 14. The applicant's OER addendum covering the period 11 August 2009 to 10 August 2010 was sent to HRC on 28 February 2011 for filing in his OMPF. The official sending the addendum noted the addendum was being forwarded without the applicant's comments. In accordance with regulatory guidance, a written copy of the referred report addendum was sent to him by certified mail requesting he acknowledge its receipt and advising him of his right to submit comments. He signed for the documents, but failed to acknowledge receipt of the referral or submit comments by the suspense he was given. 15. The applicant's promotion selection status is uncertain, with respect to his consideration for promotion to COL by the Fiscal Year (FY) 2013, FY 2014, or subsequent COL, Army Promotion List (APL), Promotion Selection Boards. His record is void of any evidence that clarifies whether he was considered and/or non-selected for promotion to COL following the date he attained eligibility for consideration. However, he was ordered to show cause for retention before the FY15 COL, Army Promotion List (APL), Promotion Selection Board (PSB). The results of the show cause board are not available for review. 16. The applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR and all allied documents from his OMPF. By a unanimous vote, the DASEB approved removal of the GOMOR, dated 18 October 2010. However, he was notified on 19 November 2014, after a careful consideration of the facts and evidence, the Deputy Assistant Secretary of the Army (DASA) (Review Boards), decided to reject the Board's decision to remove the GOMOR, noting he had not shown with clear and convincing evidence that the GOMOR was untrue and/or unjust. 17. The applicant requested the DASEB reconsider the removal of his GOMOR and allied documents form his OMPF. After careful reconsideration, on or about 28 April 2015, the DASEB voted to deny removal of the GOMOR. 18. Orders 15-317-00001, issued by 76th USAR Operational Response Command on 13 November 2015, shows that applicant's mobilization orders for assignment to the 76th USAR Operational Command were revoked. The reason for the revocation was not specified. 19. Orders 16-202-00024, issued by Headquarters, USAR Command (USARC) on 20 July 2016, show the applicant's reassignment orders to Headquarters, USARC, were revoked. The reason for the revocation was not specified. 20. Orders A-10-602655, issued by HRC on 18 October 2016, show the applicant was ordered to active duty to obtain 20 years of active Federal service under the sanctuary program, with an end date of 30 April 2018. 21. The applicant provides: a. Memoranda of support: (1) The memorandum at Exhibit 7 is from the applicant's rater for the OER covering the period 11 August 2009 through 10 August 2010. After retiring, the rater states he read the findings of the AR 15-6 investigative report for the first time. The rater states, in effect, he was deceived by the contents of the investigation and questions the reason he was denied the ability to review the complete report of investigation. (2) An MFR, dated 31 October 2015, is provided by the applicant's former intermediate rater for the Referred OER covering the period 11 August through 19 November 2010. The COL wrote if the GOMOR was not administered during that 3-month rating period that he would have wrote "Select for battalion command and SSC." (3) Exhibits 13 and 14 are correspondence from the CG (now retired) who issued the applicant the contested GOMOR. He states, in effect, he did not believe there was evidence supporting a motive outside of mission accomplishment by the applicant during the time in question, and recommended that the GOMOR be removed from the applicant's OMPF. (a) The GOMOR was based on the best understanding of the facts at that time. The additional information regarding USAR personnel mobilization provided since the GOMOR was issued suggests the applicant's actions were taken in the best interest of the organization. The applicant believed some Reservist's mobilizations did not have the proper justification/certification for mobilization. His attempts to take corrective actions had an unintentional negative impact on 1LT C_. (b) The retired former CG of SMDC/ARSTRAT recommends the Board remove the GOMOR from his OMPF and allow him to continue his service without prejudice. (4) An MFR at exhibit 18 is from the first sergeant (1SG) of the organization at the time in question. The 1SG states, in effect, information surrounding concern with 1TL C_'s daily accountability and that he was not questioned during the investigation. (5) A memorandum at exhibit 19 is provided by a retired COL who states he was not questioned during the investigation. He states, in effect, he worked side by side of the applicant and 1LT C_. He writes the discussions between the applicant and 1LT C_ were professional with the desire to solve military problems. 1LT C_ did not enjoy the meetings, but had she followed orders, there would have been no need for the applicant to talk to her. (6) An MFR at exhibit 20 is provided by LTG M_, who was the new CG of SMDC/ARSTRAT after the CG who issued the GOMOR retired. LTG M_ considered a request provided by the applicant on 3 September 2015. In his capacity as successor-in-command to the AR 15-6 IO appointing authority, he reviewed a report of investigation, dated 30 July 2015 (not provided as evidence), for the AR 15-6 investigation appointed by his predecessor. The memorandum by LTG M_ is not dated; however, it shows the following: * he determined Finding 1, the finding that the applicant engaged in a prohibited relationship in violation of AR 600-20, paragraph 4-14, was erroneous * the finding constituted a substantial error, and cannot now be corrected * he set aside the finding in accordance with AR 15-6, paragraph 2-3c(3)(c) in effect at that time * having set aside Finding 1, he has determined that recommendation 1a (to be issued a GOMOR…) is no longer supported by the findings (7) A memorandum of support at exhibit 21 from retired GEN S_. GEN S_ states, in effect, the applicant tried to identify where Soldiers, including 1LT C_, were working and to correct problems with their mobilization. This critical information was not available at the time of the decision to give him a GOMOR. b. A letter at exhibit 26, dated 18 July 2012, from a COL who states, in effect, the applicant was denied remobilization for up to 24 months as a result of the GOMOR dated 18 October 2010. The letter is not on an official letterhead and does not show the office/authority the COL is representing. REFERENCES: 1. AR 15-6 establishes procedures for conducting preliminary inquiries, administrative investigations, and may be used as a general guide for investigations authorized by another regulation or directive. a. Paragraph 2-9 (Request for Reconsideration) provides a subject, suspect, or respondent (such as an officer against whom an adverse finding was made) may request reconsideration of the findings of an inquiry or investigation upon the discovery of new evidence, mistake of law, mistake of fact, or administrative error. New evidence is that information that was not considered during the course of the initial investigation and that was not reasonably available for consideration. New evidence neither includes character letters nor information that, while not considered at the time of the original investigation, the subject of the investigation could have provided during the course of the investigation. b. A request for reconsideration is not permitted when the investigation resulted in administrative, non-judicial, or judicial action, or any action having its own due process procedural safeguards. Requests for reconsideration must be submitted to the approval authority within 1 year of the approval authority’s approval of the investigation. The approval authority may entertain a request outside of 1 year for good cause. While not exhaustive, good cause is the discovery of new relevant evidence beyond the 1-year time limitation, which the requester could not have discovered through reasonable diligence, or the requester was unable to submit, because duty unreasonably interfered with his or her opportunity to submit a request. The approval authority’s determination of good cause is final. A request for reconsideration will only be considered if the material presented impacts a finding concerning the requester. c. All requests for reconsideration must be submitted through the Office of the SJA/legal advisor responsible for advising the approval authority at the time he or she approved the original investigation. If the approval authority has changed assignments or duty location, the SJA or legal advisor receiving the request, will present it to the approval authority’s successor who, for purposes of the request for reconsideration, will be the approval authority. (1) Upon receipt of a request for reconsideration, the approval authority will determine whether the material presented would impact any finding concerning the requester and, if so, whether the impact is such that the finding is no longer supportable by a preponderance of the evidence. (2) If, after considering a request for reconsideration, the approval authority determines that the finding is no longer supportable, the approval authority will modify the approved findings and update any database or record where the original findings were sent. 2. Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers. a. This regulation specifies that promotion reconsideration by a SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgement of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling. b. Paragraph 2-11 (Consideration for Promotion to Colonel) provides selection boards will convene at the discretion of the Secretary of the Army. The boards will consider ARNGUS and USAR officers, in all competitive categories for promotion to COL. These boards will consider and recommend only those who are in an active status. Table 2-1 shows the time in grade (TIG) requirement for LTC to COL is a minimum of 3 years in the lower grade; however, the normal TIG is 5 years, subject to the needs of the Army. 3. AR 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. 4. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with AR 600-37, chapter 7. Paragraph 7-2 (Policies and standards) provides 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 5. AR 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 6. AR 623-3 (Evaluating Reporting System) in effect at that time, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. This includes the DA Form 67-9. This regulation states in: a. Paragraph 3-20 states each report will be an independent evaluation of the rated Soldier for a specific rating period. It will not refer to prior or subsequent reports. It will not remark on performance or incidents occurring before or after the period covered. The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation. Guidance concerning modification of previously submitted OERS is in paragraph 3–39. b. Paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA. c. Paragraph 3-39a states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the Soldier must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. d. Paragraph 3-39b requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF: (1) Statements from rating officials that they underestimated the rated Soldier. (2) Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did. (3) Requests that ratings be revised. (4) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential. Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report. e. Paragraph 3-39c states exceptions to paragraph 3-39b is granted for OERs only when information that was unknown or unverified when the report was prepared is brought to light or verified, and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared. 7. DA Pamphlet 623-3 (Evaluation Reporting System), paragraph 6-2b(3) in effect at that time, states that statements from rating officials often reflect retrospective thinking, or second thoughts. As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report. Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations. Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared. DISCUSSION: 1. The applicant requests the removal of a GOMOR, OER, and OER addendum from his OMPF, as well as any other adverse information resulting from the incident that preceded the GOMOR and OER. Additionally, he requests fair consideration by an SSB for promotion to COL, an extension to his MRD, the addition of "lost" retirement points, and any other relief the Board deems just and proper. 2. The applicant received an OER covering the period 11 August 2009 through 10 August 2010, which was accepted by HRC and added into his OMPF. 3. On 8 September 2010, an AR 15-6 IO found during her investigation that the applicant created a sexually harassing hostile environment and recommended that he be counseled. However, a legal review of the investigation was completed on 4 October 2010, and the legal official amended the IO's recommendation, in turn recommending that the applicant receive a GOMOR. 4. The applicant received a GOMOR on 18 October 2010 from the CG, SMDC/ARSTRAT, for engaging in a prohibited relationship with a female junior officer in violation of Army Regulation 600-20, paragraph 4-14, over an extended period and on diverse occasions between October 2009 and June 2010. 5. The applicant received a Referred OER covering the period 11 August through 19 November 2010. The rating officials did not mention the GOMOR, or the incidents leading to the GOMOR; however, the rating officials wrote comments that demonstrated he was not ready for promotion at that time. He subsequently refused to sign the OER. The OER does not show it was marked as a referred report; however, a memorandum was sent to HRC notifying them that the OER was a referred report and was submitted without his signature. In accordance with the governing regulation, the OER was automatically deemed a referred report for having negative comments listed in Parts VI and VIIc. 6. Evidence provided by the applicant shows the intermediate rater acknowledged that the Referred OER, covering the period 11 August through 19 November 2010, was given as a result of the GOMOR, and that he would have made favorable comments if it was not for the GOMOR. If that is the case, regulatory guidance prohibits comments on incidents that happened outside the rating period. 7. After the GOMOR was issued on 18 October 2010, the applicant's rating officials prepared an addendum to his OER covering the period 11 August 2009 through 10 August 2010 (the period in which the misconduct occurred). The rating officials were informed of information that was unknown or unverified when the report was prepared. In accordance with regulatory guidance, since the information was so significant that it would have resulted in a lower evaluation had it been known or verified when the report was prepared, HRC appropriately accepted the addendum to the OER and filed it within his OMPF. 8. The applicant contends new information was provided to the retired former CG of SMDC/ARSTRAT who issued him the GOMOR. The former CG subsequently wrote letters expressing his support to remove the GOMOR and allied negative documents. In addition, the applicant's former rating chain stated they would not have furnished an addendum to the OER if they were informed of the specifics within the AR 15-6 investigation. 9. The letters of support highlight the applicant's actions to ensure USAR personnel within the organization were properly mobilized. However, the letters of support do not conclusively show that the allegations of sexual harassment behaviors addressed by the Deputy SJA during the legal review were incorrect or false. 10. The applicant provided the letters of support and additional evidence to the DASEB and he was denied relief in 2014 and 2015. 11. The applicant provided the Board with an undated memorandum from the successor in command at SMDC/ARSTRAT. The CG noted he reviewed the report of investigation, dated 30 July 2015, for the AR 15-6 investigation by his predecessor in command. The Board was not provided the 30 July 2015 report of investigation to review. However, the CG determined the finding that he engaged in a prohibited relationship in violation of AR 600-20, paragraph 4-14, to be erroneous, and that the recommendations were not supported by the findings. 12. Review of the applicant's AR 15-6 investigation, the applicant's contentions and arguments, and the evidence submitted in support of his application, other than his contention that he was doing his job in reference to validating USAR personnel mobilizations, does not conclusively show that his GOMOR, dated 18 October 2010, contains a material error, inaccuracy, or injustice. 13. The applicant's promotion selection status is uncertain with respect to his consideration for promotion to COL by the FY 2013, FY 2014, or subsequent COL, APL, Promotion Selection Boards. However, the evidence of record shows he was ordered to show cause for retention before the FY15 COL, APL, PSB. 14. However, given the nature of his request to the ABCMR, it can be concluded that he was non-selected on at least one occasion, and that he believes the requested removal of documents (e.g., Referred OER, GOMOR, OER Addendum) from his OMPF will result in a more favorable outcome by an SSB. 15. The governing regulation provides that an officer will not be considered or reconsidered for promotion by an SSB unless there was an erroneous non-consideration or material error that existed in the record at the time of consideration. His consideration status is unknown. 16. If the Board recommends relief by removing the Referred OER covering the period 11 August through 19 November 2010, the applicant still would fall short of having a reasonable chance of being recommended for promotion due to the properly filed contested addendum to the OER covering the period 11 August 2009 thru 10 August 2010. 17. The applicant was granted a new MRD date on 18 October 2016. This extension was granted for the purpose of continuing his service while under sanctuary protection, in order to receive a regular retirement, and resulted in his MRD date becoming 30 April 2018. His new MRD surpasses the MRD that was in effect at the time of his request for records correction. 18. The applicant contends due to the derogatory information in his record, he was denied the opportunity to receive mobilization orders that would have entitled him to an additional 1,130 retirement points. He provided a letter from a COL who stated he was denied remobilization for up to 24 months as a result of the GOMOR dated 18 October 2010. Evidence of record shows he had mobilization orders revoked twice after the GOMOR was issued; however, there is no evidence that confirms the reason for revocation. Furthermore, the issuing of a mobilization order does not constitute proof that he would have departed for and completed any tours entitling him to 1,130 retirement points. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014020 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2