BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20170001360 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 BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20170001360 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. BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20170001360 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, in effect – * removal of the General Officer Memorandum of Reprimand (GOMOR), dated 16 October 2014 and all related documents from the restricted folder of his official military personnel file (OMPF) * removal of the referred Officer Evaluation Report (OER) covering the rating period 1 May through 17 December 2014 from the performance folder of his OMPF * promotion consideration to colonel (COL) by a special selection board (SSB) under the fiscal year 2016 (FY16) criteria 2. The applicant states: a. The GOMOR was unjust even though the correct procedures were followed. Corrective action should be retroactive. He was disadvantaged by the presence of the OER in his file during the November 2016 COL’s Board. b. The opinion imposed by the Department of the Army Suitability Evaluation Board (DASEB) on 8 June 2016 cited the following comments: "A review of the evidence directly supports (LTC S____'s) argument that he is innocent. The actions taken by the imposing authority (IA) Brigadier General (BG) G____ were based on an inaccurate and incomplete investigation of the incident. Additionally, the DASEB redacted comments from the GOMOR. On 16 November 2016, the findings of the Show Cause Board that was held cited he did not commit an act of personal misconduct as alleged. c. On 16 October 2014, he received a GOMOR from BG G____, Commander United States Central Command, for allegedly engaging in abusive sexual contact with a civilian female at a social event in Eskan Village, Kingdom of Saudi Arabia, on 6 June 2014. He filed a rebuttal to the reprimand in which he described the circumstances surrounding the accident that led to the incident. d. The issuance of the GOMOR was based on a flawed and incomplete investigation into the alleged actions. The written response and appeal to the GOMOR illustrated significant substantive deficiencies in the investigation. Specifically, the facts developed during the course of the inquiry and the subsequent clarification and follow-up statements by witnesses illustrated that no crime or any type of impropriety had occurred. e. The facts developed during the investigation established that he and another officer, CPT A____, were attending a social event on 6 June 2014 in Eskan Village, Saudi Arabia. At the function they were seated next to an Australian female, Ms. G____. The seating area was filled with chairs and tight with limited space between the chairs and arranged tables. Ms. G____ was consuming alcohol during the event and at one point stood up to leave the seating area. While doing so, she lost her balance, bent over and almost fell into him, buttocks first. In order to prevent her buttocks from falling into his face, he raised his hands and pushed Ms. G____ away. The applicant’s contact with Ms. G____ was from his personal space. f. He provided a clear and accurate description of the event occurring in this fashion. In addition to his explanation of the event, CPT A____ the officer alongside him was present as an eyewitness and provided a sworn statement describing the event. CPT A____ stated that Ms. G____ was side stepping to leave and her balance was off. The applicant then put his hand up, with his fingers semi-close together, and pushed her buttocks away from falling into his face. CPT A____ further provides that there was no inappropriate touching. In sum, CPT A____ the one and only disinterested eyewitness to the incident, clearly stated that nothing improper occurred. g. Ms. G____ was asked what happened and she was subsequently interviewed by the Army Criminal Investigation Division (CID). She did not desire to report the incident nor make a sworn statement concerning the incident. Ms. G____ stated to Special Agent (SA) S____ B____ that she did not feel violated by the act or believe that it was a reportable incident. Further, Ms. G____ stated that she did not feel she had been assaulted or it was malicious in nature. Finally, and importantly, Ms. G____ told SA S____ B____ on 20 July 2014 that she neither felt the incident to be a sexual or a violent act nor did she wish to report the incident. h. It is important to note the GOMOR references a comment by another officer, COL S____, who initially claimed that he heard the applicant "bragging" about the event. This suggested his action was intentional and an assaultive act. While initially mentioned in the preliminary investigation, further evidence indicates this comment was untrue. On the contrary, evidence indicates that this was a misinterpretation of COL S____'s statement by investigators looking to support their case. In a follow-up inquiry, COL S____ retracted and clarified his remarks, which reflects he acted to stop Ms. G____ from falling. As COL S____’s follow-up statement illustrates, his initial remarks were taken out of context and misconstrued. i. He has provided numerous references concerning his character, truthfulness, and integrity. They all unequivocally illustrate that he would not commit a sexual assault on anyone at any time. The allegation that he would commit a crime of abusive sexual contact is completely inconsistent with his character as an officer and a man. j. BG G____ relied solely and exclusively on a deficient investigative product that failed to completely and thoroughly examine the allegations in the case. The limited investigation that was conducted reveals an effort to substantiate the allegation rather than a rigorous impartial fact finding effort to discover what actually happened in the case. k. His OERs for the last five years are provided for consideration. Every evaluation states that he is an "outstanding performer and must promote." They further provide that he is "Best Qualified." His OERs also show remarks such as he is a consummate professional officer with outstanding military character. It is evident that an officer of this character is not an individual who would commit the crime of sexual assault. l. Members of the Army General Officer community also provided compelling statements concerning his character. Specifically, MG M____ S____, who has known him both personally as well as professionally for over 5 years, stated the applicant is not the kind of individual who would commit the kind of acts referenced. His conduct has always been exemplary and beyond reproach. He lives the Army Values and treats everyone with dignity and respect. Further, MG C___, his previous Brigade Commander, stated the applicant is an outstanding officer who lives the Army values in all he does. He displayed high ethics and was willing to always help anyone. m. The letters of support are evidence that his past service to the Army has been in accordance with Army Values and Army Ethics. The GOMOR will curtail his future honorable service. The partial cure imposed by the DASEB stating the GOMOR has served its purpose and should be transferred to the Restricted File is a partial cure to the harm that flowed from the GOMOR. Based on the discussion above, the enclosed evidence, and all matters submitted, he respectfully requests the Board grant the requested relief and remedy the factual error and the injustice of the harm that will continue to flow from the GOMOR. 3. The applicant provides: * self-authored statement, dated 22 November 2016 * Board of Inquiry (Show Cause) Findings * DASEB Findings * CID Investigative Report, dated 23 July 2014 * GOMOR, dated 16 October 2014 * GOMOR filing determination, dated 3 November 2014 * GOMOR rebuttal statement, dated 28 November 2014 * GOMOR reconsideration, dated 7 June 2015 * denial of request for reconsideration * Referred OER * past OERs * Officer Record Brief * seven letters of support * counsel’s undated letter to U. S. Central Command CONSIDERATION OF EVIDENCE: 1. The applicant is serving in the United States Army Reserve (USAR) as a lieutenant colonel (LTC)/O-5 with a date of rank of 3 January 2011. He was serving in an active duty status and assigned to Riyadh, Saudi Arabia, during the time of the incident. 2. On 26 August 2014, a final CID report of investigation established probable cause to believe the applicant committed the offense of abusive sexual contact when he inappropriately touched Ms. G___ in a sexual manner. The Staff Judge Advocate concurred that probable cause existed. The final CID report of investigation contains relevant comments that show: a. On 6 June 2014 Mr. B___ B___, a civilian employee, attended a social event as part of his professional duties, and during the event he was approached by Lieutenant (LT) T___ R___, U.S. Navy, who informed him that someone had pinched his girlfriend (Ms. G____) on her "butt" though he did not witness it himself. He asked the applicant if he had touched Ms. G____ on her posterior, and the applicant admitted he touched her. The applicant stated he was seated next to Ms. G____ and she stood up out of her chair and stepped in front of him, placing her posterior immediately in front of him. The applicant stated he touched her posterior in a manner so as to induce Ms. G to move from in front of him. The applicant admitted he made a poor decision in deciding to touch Ms. G____. After speaking with the applicant, Mr. B____ B____ informed LT R____ that the applicant admitted to touching Ms. G____ and reminded LT R____ of his right to file a complaint with his chain of command. LT R__ indicated he did not believe the applicant’s actions constitutes a sexual or violent act. Mr. B__ B___ advised Ms. G____ she had the right to file a complaint with United States law enforcement as she was an Australian citizen. At the end of the evening, Ms. G___ stated that "she didn’t feel violated by the act or believe it was a reportable incident." b. On 17 July 2014, Special Agent B____ T____ interviewed COL M____ and he noted the applicant openly admitted to COL M____ that he did touch Ms. G____’s buttocks without her consent. On that same date, the Special Agent interviewed Ms. G____ and he noted that Ms. G____ did not want to report the incident to law enforcement because she thought “he was a drunk guy and there was nothing to it,” Ms. G____ stated that during the course of the night she consumed approximately three (3) alcoholic beverages. Ms. G____ further stated at some point during the social event she decided to get up for an unknown reason and after she got up, she turned and semi bent over, and as she did that she felt someone grab her buttocks. Ms. G____ stated she did not feel as if she was assaulted or the act was malicious in nature and she had no intentions of reporting this to law enforcement. c. On 22 July 2014, Special Agent T____ interviewed CPT A____ (female officer/sole eyewitness) and CPT A____ stated that she saw Ms. G____ lose her balance and start to fall backwards, the applicant put his hands up semi-closed together and pushed her buttocks away from falling into his face. d. On 4 August 2014, Special Agent L____ W____ noted that during a telephonic interview COL S____ stated when he began speaking with the applicant about a party they both attended, the applicant stated that one of the females had such a nice butt that he could not help himself but to squeeze it. COL S____ stated he told the applicant that such behavior was highly inappropriate and on a later date related this conversation to COL M____. e. On 20 August 2014, in a sworn statement, COL S____ stated during the course of a conversation with the applicant he stated that he had “grabbed” a female civilian visitor to Eskan Village during a previous social gathering. COL S____ told him his action was unacceptable and that such actions give Eskan a bad reputation. 3. On 16 October 2014, he was issued the GOMOR by BG G____, Commanding General (CG), United States Central Command, MacDill Air Force Base, Florida. BG G____, in part, stated: a. The applicant was reprimanded for his deplorable and reprehensible conduct of engaging in abusive sexual contact against a civilian female, thereby demonstrating a complete lack of self-control, extremely poor judgement, and utter disregard for the values and principles of the U. S. Army and Sexual Harassment/Assault Response & Prevention (SHARP) program. A comprehensive investigation found that on 6 June 2014 at a social event the applicant squeezed the buttocks of a civilian female as she bent over. In addition to this abusive sexual contact, the applicant bragged about it to a group of individuals that it looked so good, he could not resist. The abusive act and immature statement were wholly unbefitting any member of the armed forces, but especially an officer of his rank and responsibilities. b. The reprimand was administrative in nature and was not imposed as punishment under Article 15, Uniform Code of Military Justice (UCMJ). He was considering filing the GOMOR and enclosures in the applicant's OMPF but would consider any written matters the applicant submitted prior to making the final filing decision. 4. On 28 October 2014, the applicant provided a response to the GOMOR. He stated, in effect: * he did not commit the misconduct for which he was reprimanded * he neither inappropriately touched Ms. G___ nor bragged about it * he served his country for over thirty years in positions of great responsibility * he has never faced discipline and his judgment has consistently been valued and never questioned * he requested the imposing authority carefully review the CID investigation and evidence * the evidence does not demonstrate that he committed a crime * he respectfully requested a rescission of the reprimand or that it be filed locally 5. On 3 November 2014, after reviewing the applicant's response, enclosures, and his chain of command recommendations, BG G____, the imposing authority, directed the GOMOR be filed in his OMPF. He also directed that a copy be filed in the applicant’s local file for a period of 3 years or until he was reassigned to another general court-martial convening authority. 6. On 7 December 2014, after reviewing the applicant’s case, COL S____ submitted a memorandum addressed to the imposing authority requesting reconsideration of the applicant's GOMOR. He stated, in part: * he was concerned that the initial decision may have been based on misinterpretations of the statements that were attributed to him * he never stated the applicant bragged about the situation or stated to him "he couldn’t help to touch the butt" * this was both inaccurate and inconsistent with his sworn statement and the in-office interview summary statement provided by the investigators * it was his responsibility to clarify that he never had personal knowledge the applicant engaged in inappropriate touching * he stated, "I became aware of an alleged improper touching incident" 7. On or about 7 April 2015, the applicant received notification he would receive a referred OER covering the rating period 1 May through 17 December 2014. His principal duty title was Operations Officer S3. His duties were assisting and advising the Saudi Arabian Ministry of Interior's Facilities Security Forces infrastructure security staff at various locations in Saudi Arabia. a. Rater's evaluation – (1) Part IVa (Performance evaluation – professionalism, competencies and attributes) states, "Demonstrated physical fitness and maintained military appearance and professional bearing." (2) Part IVd1 (Adherence to Army Values, Empathy, and Warrior Ethos/Service Ethos and Discipline. Fully supports SHARP, EO [Equal Opportunity], EEO [Equal Employment Opportunity]) states, "[The applicant] did not fully support SHARP/EO standards and performance expectations during this rating period as substantiated by a comprehensive formal investigation that determined the officer exhibit unprofessional behavior." (3) Part IVd2 (Provide narrative comments… ), states, "[The applicant] is a competent officer, but by his own actions, failed to foster a climate of dignity and respect." (4) Part IVe (Overall Performance) shows "Unsatisfactory" and states, "[The applicant] did not fully live up to his overall career potential during this rating period." b. Senior rater's evaluation – (1) Part VIa (Potential compared with officers senior rated in the same grade) shows the entry "Not Qualified." (2) Part VIc (Comments on Potential) states, "After an investigation was completed, [the applicant's] chain of command found that he failed to meet the standards of the U.S. Army SHARP Program." c. The applicant provided rebuttal comments to the referred OER. He asserts he did not commit the misconduct for which he was reprimanded. He states, "I neither inappropriately touched Ms. G___ nor bragged about it." He continues, "This evidence does not demonstrate that I committed a crime. To the contrary is supports my innocence." 8. On 23 April 2015, the applicant by memorandum provided a written response to the pending referred OER. He asserts he did not commit the misconduct for which he was reprimanded. He has served for more than 30 years and never faced disciplinary action. His judgment was never questioned. He asserts he is innocent. He restates the sequence of events at dinner with Ms. G___ when she stood up, bent over, appeared to lose her balance and began to fall towards him. He states, "I reacted by reaching up in order to ensure she would not fall on to my face. In doing so, I touched her buttocks." During the investigation, Ms. G___ stated she "didn’t feel violated by the act or believe it was a reportable incident." He asserts his reaction was natural to prevent the woman from falling onto him and he did not violate SHARP. 9. In June 2015, the applicant filed a request for reconsideration of the GOMOR. He requested rescission of the reprimand and further stated that he did not commit the misconduct for which he was reprimanded. He asked the imposing authority to review the additional evidence that was submitted on 7 December 2014, by COL S____. 10. On 6 July 2015, the imposing authority denied his request for reconsideration. The imposing authority stated that after carefully and thoroughly reviewing the matters submitted in support of the GOMOR reconsideration and also having reviewed all of the evidence previously submitted prior to issuing the GOMOR, he found no basis upon which to rescind the GOMOR. 11. On 31 August 2015, the applicant petitioned the DASEB to transfer the GOMOR from the performance to the restricted section of his OMPF. 12. On 16 September 2015 his referred OER was finalized and filed in the performance folder of his OMPF. 13. On 24 May 2016, the DASEB, by majority vote, determined the evidence submitted was sufficient to warrant the relief requested because the intended purpose had been served. As a result, the board directed: a. the administrative GOMOR, dated 16 October 2014, would be transferred to the restricted folder of the applicant's OMPF. b. removal from the GOMOR of the comments, "In addition to this abusive sexual contact, you further manifested your abysmal judgment by bragging to a group of individuals that it looked so good, [you] could not resist." "Both your complete disrespect for the bodily integrity of this woman and your immature statement." c. this action was not retroactive and, therefore, did not constitute grounds for promotion reconsideration, if previously non-selected. d. the decision memorandum and allied documents would be filed in the restricted folder of the applicant’s OMPF. 14. The DASEB did not address the referred OER in its deliberations. This referred OER is filed in his performance folder of his OMPF. The restricted folder of his OMPF does contain the redacted GOMOR and all relevant documents. 15. Based on the adverse information filed in his OMPF, he went before a field board of inquiry. On 16 November 2016, the board findings and recommendations were approved. The President of the Board was a BG. The board determined, "[The applicant] did not commit an act of personal misconduct as alleged, to wit, engaging in the unwanted physical contact of a civilian female while under the influence of alcohol." He also, "did not commit conduct unbecoming an officer as alleged." In view of their findings, the board recommended the applicant be retained. (The entire board report is unavailable to this Board.) 16. The applicant continues to serve in the U.S. Army Reserve, in a troop program unit, as the Deputy Commander for the 377th Military Intelligence Theater Support Battalion consisting of four geographically dispersed companies. While in this position, he received two OERs showing his overall performance as "Excels" and "Proficient" and he is "Highly Qualified." In addition, on 22 July 2016 he successfully completed the U.S Army War College and was awarded an advanced degree. 17. In support of his case, the applicant provided multiple letters of support, wherein his superiors, peers, and subordinates stated the applicant was a critical asset to the Army, his integrity was unquestionable, he was a great officer and leader, and it was in the best interest of the Army for him to continue to serve. He also provided his counselor's undated letter to the Commanding Officer, United States Central Command, stating – * he has carefully reviewed the investigation that was conducted and found, based on the evidence, the allegations are legally and factually insufficient * if he was on active duty at the time of this matter and reviewed the matter as a Staff Judge Advocate, he would have closed the matter with a memorandum for record * if he was sitting as a military judge, he would have dismissed the case * the crime of abusive sexual contact involves touching either directly or indirectly through the clothing, and any body part of any person if done with the intent to arouse or gratify the sexual desire of any person * CPT A (female officer) ____ was present as an eyewitness and provided a sworn statement during the investigation describing the event * CPT A (female officer/sole eyewitness)____ stated “there was no inappropriate touching” and nothing improper occurred * COL S____ retracted and clarified his remarks that the applicant acted in order to stop Ms. G____ from falling * COL S____’s initial remarks were taken out of context and misconstrued REFERENCES: 1. Army Regulation 600-20 (Army Command Policy) states the purpose of the EO Program is to formulate, direct, and sustain a comprehensive effort to maximize human potential and to ensure fair treatment for all persons based solely on merit, fitness, and capability in support of readiness. The philosophy is based on fairness, justice and equity. The U.S. Army will provide EO and fair treatment to Soldiers and others without regard to race, color, gender, religion, national origin, and provide an environment free of unlawful discrimination and offensive behavior. This applies to Soldiers both on and off post, during duty and non-duty hours. a. Sexual harassment is a form of gender discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between the same or opposite genders when: (1) submission to, or rejection of, such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay, or career. (2) submission to, or rejection of, such conduct by a person is used as a basis for career or employment decisions affecting that person. (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. b. Any person in a supervisory or command position who uses or condones implicit or explicit sexual behavior to control, influence, or affect the career, pay, or job of a Soldier or civilian employee is engaging in sexual harassment. Similarly, any Soldier or civilian employee who makes deliberate or repeated unwelcome verbal comments, gestures, or physical contact of a sexual nature is engaging in sexual harassment. c. Categories of sexual harassment include verbal. Examples of verbal sexual harassment may include telling sexual jokes, using sexually explicit profanity or similar language. d. Examples of physical sexual harassment may include touching, patting, pinching, bumping, grabbing, cornering, or blocking a passageway; kissing; and providing unsolicited back or neck rubs. Sexual assault and rape are extreme forms of sexual harassment and serious criminal acts. When these acts occur, report them in accordance with the procedure outlined in chapter 8 and appendix H, of this regulation. (1) Sexual assault is a crime defined as intentional sexual contact, characterized by use of force, physical threat or abuse of authority or when the victim does not or cannot consent. Sexual assault includes rape, nonconsensual sodomy (oral or anal sex), indecent assault (unwanted, inappropriate sexual contact or fondling), or attempts to commit these acts. Consent is not given when a person uses force, threat of force, or coercion or when the victim is asleep, incapacitated, or unconscious. (2) Other sex-related offenses are defined as all other sexual acts or acts in violation of the UCMJ that do not meet the above definition of sexual assault, or the definition of sexual harassment as promulgated in Department of Defense Directive (DODD) 1350.2 (DOD Military Equal Opportunity Program). Examples of other sex-related offenses could include indecent acts with another and adultery. e. The SHARP Program reinforces the Army’s commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting, and accountability. Army policy promotes sensitive care and confidential reporting for victims of sexual assault and accountability 2. Army Regulation 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. a. 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 supporting documentation furnished by the recipient must be reviewed and considered before a filing determination is made. b. 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 folder. 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 Army Regulation 600-37, chapter 7. c. Paragraph 7-2 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 proof 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. Also in paragraph 7-2 is guidance regarding the transfer of memoranda of reprimand to the restricted portion of the OMPF. It states such an appeal is based on proving the intended purpose has been served, and their transfer would be in the best interests of the Army. The burden of proof rests with the recipient of the memorandum and substantial evidence must be provided to show these conditions have been met. 3. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribes the policies and tasks for the Army's Evaluation Reporting System and includes reporting systems for officers. It includes policy statements, operating tasks, and rules in support of operating tasks. a. Chapter 3 (Army Evaluation Principles), paragraph 3-2 (Evaluation requirements), shows that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, and Headquarters, Department of the Army (HQDA) selection boards and career managers can make intelligent decisions. b. Chapter 3, Section VI (Restrictions), precludes unproven derogatory information from being entered on the OER. Evaluation of adverse actions encompass a variety of situations that are not in accordance with the Army Values, acceptable leadership actions, skills, attributes, and/or good order and discipline, which need to be addressed appropriately in evaluation reports. In addition to addressing the special interest items mentioned in paragraph 3–5b(2) in the counseling and evaluation processes, Army Regulation 600–20 allows that the following items may be mentioned in a Soldier’s evaluation report, when substantiated by a completed command or other official investigation (for example, commander’s or commandant’s inquiry, Army Regulation 15–6 (Procedures for Administrative Investigations and Boards of Officers) investigation, EO investigation, and/or investigations by official military or civil authorities. Those items include – * criminal acts * conviction of driving under the influence charge * acts of sexual misconduct or physical or mental abuse * inappropriate or unprofessional personal relationships * involvement in extremist organizations and/or activities * acts of reprisal * behavior that is inconsistent or detrimental to good order, conduct, and discipline * activities or behavior otherwise prohibited by AR 600–20 c. The following items require comments on evaluation reports when substantiated by an Army or DOD investigation or inquiry (see also Army Regulation 600–20). Those items are – * substantiated EO complaints * substantiated findings of sexual harassment and/or sexual assault * substantiated failure to report a sexual harassment and/or sexual assault * substantiated failure to respond to a complaint or report of sexual harassment and/or sexual assault * Substantiated retaliation against a person making a complaint or report of sexual harassment and/or sexual assault d. Chapter 4 (Evaluation Report Redress Program) emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. Substantive appeals must be submitted within 3 years of the evaluation report "THRU" date. Appeals must be processed through the HRC, Evaluations and Appeals Branch, prior to submission to the Army Special Review Board. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that the presumption of administrative regularity will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. Failure to submit an appeal within this time frame will require the appellant to submit their appeal to the Army Board for Correction of Military Records (ABCMR). 4. AR 600-8-104 (Army Military Human Resource Records (AMHRR) Management) provides policies, operating tasks, and steps governing the OMPF. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. b. The Authorized Documents list provides guidance for filing documents in the OMPF. It shows the DA Form 67-10-2 (OER) will be filed in the performance folder of the OMPF. 5. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. Chapter 7 provides for SSBs and states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: a. an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list; b. the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or c. the board that considered an officer from in or above the promotion zone did not have before it some material information. 6. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty (AD) to the Reserve component and discharge functions for all officers on AD for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. a. The board of inquiry’s purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army. Through a formal administrative investigation conducted under Army Regulation 15-6 and this regulation, the board of inquiry establishes and records the facts of the respondent’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service. b. Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer’s disposition, consistent with this regulation. The Government is responsible to establish, by preponderance of the evidence, that the officer has failed to maintain the standards desired for their grade and branch. 7. Title 10, U.S. Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. DISCUSSION: 1. The applicant contends the GOMOR received on 16 October 2014 and related documents, to include a referred OER, should be removed from his OMPF and he should receive an SSB for promotion consideration to colonel. 2. After an investigation was completed, the applicant’s chain of command found that he failed to meet the standards of the Army SHARP program. He received a GOMOR and a referred OER for engaging in abusive sexual contact toward a civilian female. His conduct was considered unbecoming of an officer in his position of his responsibility, and he failed to lead by example. His actions also showed a lack of judgment and maturity. 3. While the information from COL S____ as reported by the CID agent in August 2014 and by himself in December 2014 are contradictory, there is no contradiction to the account provided by the victim, who related the applicant touched her buttocks when she was trying to walk past him at a social dinner. The applicant states he pushed her away from him so she would not fall onto his face or person. He states she was unsteady on her feet after getting up from a chair. The investigation revealed she had consumed at least three alcoholic drinks. In retrospect, the applicant admitted he made a poor decision in touching the victim implying he should have let the victim fall onto his person. Throughout the investigative report the victim stated she did not believe it was abusive sexual contact on the part of the applicant and did not want to file a complaint. 4. However, the applicant’s leadership issued him a GOMOR for engaging in abusive sexual contact. After careful consideration of the applicant's case, as well as the recommendations of his chain of command, the imposing general officer ordered the permanent filing of the GOMOR in the applicant's OMPF. In May 2016, the DASEB, acting within its authority and in accordance with governing regulations, directed the transfer of the GOMOR and allied documents to the restricted folder of the applicant's OMPF stating the intent of the GOMOR had been served. Additionally, specific derogatory comments were redacted from the GOMOR including, "In addition to this abusive sexual contact… could not resist." 5. The applicant’s rating chain issued him a referred OER based on his abusive sexual contact toward the victim. The applicant received unfavorable comments with respect to SHARP and EO programs within his referred OER that were substantiated by a formal investigation wherein it was determined the applicant exhibited unprofessional behavior. The rater's comments show the applicant failed to foster a climate of dignity and respect, and the senior rater's comments show that he failed to meet the standards of the Army SHARP program. He received an unsatisfactory rating from his rater and a not qualified rating from his senior rater. The evidence of record shows the contested OER was referred to the applicant in accordance with the governing regulation. He rebutted the derogatory comments and ratings. Upon review of his rebuttal, the reviewing official did not adjust his evaluation and it is filed in the performance folder within his OMPF. He did not appeal the OER to the Army Special Review Board. 6. The purpose of a board of inquiry is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army, released or discharge. As required by regulation, the applicant underwent a board of inquiry wherein it was determined he did not commit an act of personal misconduct and he did not commit conduct unbecoming of an officer. The board recommended his retention in the service. He was released to his Reserve Component troop program unit where he successfully serves as a deputy commander and completed the U.S. Army War College. 7. It is within the Board’s purview to correct a record to remove an error or an injustice. The investigation shows the applicant touched the buttocks of a female at a social dinner as she arose from her chair because she was unsteady on her feet and appeared to be falling toward the applicant’s personal space (i.e., face). It appears without thinking through the consequences of his action, he touched her buttocks to push her away. The woman did not want to file a complaint; however, it was pursued by members of his unit. He regrets his decision to push her away as it led to an investigation for abusive sexual contact, a GOMOR, referred OER, and a board of inquiry. The DASEB redacted derogatory information from the GOMOR and moved it and allied documents to his restricted folder of the OMPF. A board of inquiry retained him in the service where he serves as a deputy commander within the Reserve component. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170001360 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170001360 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2