BOARD DATE: 2 October 2017 DOCKET NUMBER: AR20170002417 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: 2 October 2017 DOCKET NUMBER: AR20170002417 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: 2 October 2017 DOCKET NUMBER: AR20170002417 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 removal of a General Officer Memorandum of Reprimand (GOMOR) dated 5 May 2014 from his Official Military Personnel File (OMPF) and consideration for promotion to lieutenant colonel (LTC) by a special selection board (SSB). 2. The applicant states: * his new command declined to investigate unlawful command influence due to the false nature of the investigation * the Uniform Code of Military Justice (UCMJ) authority was transferred to his new command * his previous command conducted an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation in retaliation against him for providing evidence in a felony trial based on a personal request from a Senior Executive Service (SES) employee in his previous command * the AR 15-6 investigation was conducted improperly with a specific pre-determined outcome * he was coerced into a forced resignation as retaliation * when he did not resign he was investigated and humiliated repeatedly * the complainant in the foreign contact portion of the investigation provided documentation to the investigating officer (IO) stating a complaint was not filed * witnesses in the investigation committed perjury and conspiracy * all Soldiers are failed when general officers are above the law and it leads to the loss of good order and discipline * his issue is akin to the abuse of power of Brigadier General (BG) S_ and others * he has tried repeatedly to resolve the issue through the Army versus public court and lawsuit * he was told on more than one occasion that general officers would not be investigated 3. The applicant provides: * memorandum, subject: GOMOR Rebuttal, dated 25 March 2014 * three emails * third party review of an AR 15-6 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 22 March 1988. He entered active duty for completion of training in military occupational specialty 74D (Computer/Machine Operator) from 8 September to 5 December 1988. 2. On 15 August 1992, the applicant executed an oath of office and he was appointed as a reserve officer. On 11 September 1992, he entered active duty for training in primary specialty 25C (Communications-Electronics Operations Officer). He was awarded specialty 25C and released to a USAR Control Group on 20 February 1993. 3. He served in a variety of assignments, including active duty mobilizations from September 2003 to April 2007 and from October 2007 to August 2011. He was promoted to major (MAJ) on 13 June 2007. 4. On 3 October 2011, he entered active duty as a Regular Army commissioned officer to fulfill active duty requirements in a voluntary indefinite status, in specialty 53A (Information Systems Management), and in the rank of MAJ. 5. On 19 December 2013, an AR 15-6 investigation commenced to determine whether the applicant: * violated Articles 133 (sustained a romantic relationship with a married woman) and 134, UCMJ (did the relationship meet the criteria of adultery) * interfered with child custody or visitation rights of Mr. W_ * failed to cooperate with the investigation in accordance with (IAW) AR 380-67 (Personnel Security Program) * failed to report foreign contact with a suspected intelligence officer from another country within 72 hours IAW Department of Defense Manual (DODM) 5105.21-V3 7. On 22 January 2014 the IO found: * [Applicant's] relationship with Mrs. W_, who is currently married, is of a romantic nature and violates Article 133, UCMJ, conduct unbecoming an officer and gentleman * [Applicant] did not violate Article 134, UCMJ, adultery, as there is no hard or complete evidence that can support all the established criteria for an adultery violation; although the relationship between [Applicant] and Mrs. W_ is inappropriate and the evidence implies they are living together as a couple, there is no evidence that supports they are having a sexual relationship * [Applicant] probably influenced the relationship between Mr. and Mrs. W_ but did not interfere with the child custody or visitation rights of Mr. W_ * [Applicant] failed to report the foreign contact to the security manager 8. The IO recommended the applicant be flagged before undergoing the Fiscal Year (FY) 2014 LTC Promotion Board and that adverse administrative action be taken against him. 9. At the time of the above incident the applicant was assigned to Headquarters and Headquarters Company, Network Command (NETCOM), National Capital Region, Fort Belvoir, VA. 10. On 27 February 2014, the applicant was reprimanded by the Deputy Commanding General, NETCOM, for his conduct and he acknowledged receipt of the GOMOR and elected to submit written matters in defense, extenuation, and/or mitigation. The GOMOR states: a. You are reprimanded. As a commissioned officer, you have a duty to act responsibly in every situation, to do what is right, and to set a positive example. You have completely failed in these responsibilities and discredited yourself and the United States Army. I seriously question your judgment and potential for further military service. Your actions have embarrassed and disappointed your chain of command. b. You are involved in an inappropriate romantic relationship with Mrs. O_ P_ (also known as Mrs. H_ W_), a married woman not your wife. On or about 10 July 2013, approximately two weeks after obtaining her U.S. citizenship, Mrs. P_ left her husband and moved into your home in Alexandria, VA. Since this time you have maintained a romantic relationship with Mrs. P_. You and Mrs. P_ share the same bed, your co-workers understand that she is your girlfriend and your children believe she is your fiancée. Also, you interfered with Mr. W_'s attempts to reconcile his relationship with his wife. c. This is an administrative memorandum of reprimand and is not being imposed as punishment under Article 15, UCMJ. I do, however, intend to file this correspondence in your records. I have not yet determined whether to file it in your local file or in your OMPF. I will base my decision in this regard on the recommendations of your chain of command and on your rebuttal to me, should you decide to submit one. 11. On 25 March 2014, the applicant submitted a rebuttal and requested the imposing officer file the GOMOR in his local military personnel file. He essentially: * apologized for any embarrassment to the imposing officer, the command, and the Army * denied violating the UCMJ and AR 380-67 * stated he had reviewed the GOMOR and was aware of the alleged complaints and accusations * refuted the statements compiled by the IO from Mr. W_, Mr. G_ W_, and Mrs. S_ K_ * in regards to violation of Articles 133 and 134, UCMJ; over the last three years he had been embroiled in a bitter divorce and custody battle; at times the divorce action did affect some aspects of his military position and performance; he did the best he could under the circumstances * domestic issues affecting his children led them to want to stay/live with Mrs. P_ when he was going to deploy * in November 2013, his children were placed in his custody; Mrs. P_ would babysit occasionally between 2010 and 2011 * Mr. W_ was in a relationship with his [applicant’s] ex-wife and Mr. W_ was an active participant in his [applicant’s] ex-wife’s divorce, during this time Mr. W_’s marriage to Mrs. P_ began to fail to the point of divorce * in January 2013, Mr. W_ asked [the applicant] if Mrs. P_ and her daughter could live with him [the applicant] because they were getting divorced; he [the applicant] relied on Mr. W_’s assurances of filing the divorce paperwork and it was a lapse of judgement * the investigation was an act of retribution and witness tampering launched in an attempt to steal a child from her mother as well as affect the outcome of a civil trial * Mrs. S_ K_ alleged Mr. P_ was a former foreign agent to deny travel visas to Ms. P_’s family and prevent her family from testifying in court * the IO did not visit his home, speak to his children, or interview Mrs. P_ or Mr. P_ to verify information 12. On 5 May 2014, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant in defense, extenuating or mitigating, the imposing officer ordered the GOMOR be placed permanently in the applicant's OMPF. 13. HRC confirmed the applicant was considered and not selected for promotion to LTC during the FY13 and FY14 LTC selection boards, respectively. In addition, he did not view or certify his board file for the FY13 board. 14. On 1 February 2015, he was honorably discharged by reason of non-selection for permanent promotion. 15. The applicant provides: a. As part of his rebuttal: (1) A timeline detailing dates and circumstances related to his investigation. (2) Letter authored by Mrs. O_ P_ wherein she states she was never Mrs. H_ W_ and summarizes the events surrounding her relationship with Mr. W_, the applicant, and the circumstances that led to her relocating to Virginia. (3) Letter replying to the applicant’s open record request to the city of Sandy Springs, GA. (4) Civil action court documents, dated 6 November 2013, related to a case between Mrs. R_ B_ and the applicant. (5) Multiple court documents related to custody of minor child between Mr. G_ W_ and Mrs. O_ P_. (6) Fairfax County, VA, police incident report, dated 23 December 2013, responding to a domestic dispute between Mr. W_ and Mrs. P_. b. Three emails authored between September 2016 and January 2017 by Mrs. S_ K_ discussing the applicant’s contact with Ukraine citizens, records correction, and a Federal investigation. c. Memorandum, subject: [Applicant] Inspector General Investigation, dated 12 January 2015, conducted by the applicant’s third party, which summarizes the third party's observations and opinions. REFERENCES: 1. AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. The intent of this regulation is to ensure unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and when appropriate, removed from official personnel files. a. Chapter 1 stipulates 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. b. Chapter 3 states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. c. Chapter 7 states a memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority General Court-Martial Convening 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 chapter 7 of AR 600-37. 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. 2. AR 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the 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. Table B-1 covers authorized documents. Army Personnel Records Division, will update the list of authorized documents for filing in the OMPF quarterly. The new list of authorized documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The latest update, June 2017, states: * File only Letters of Reprimand designated for filing in the OMPF * Letters not designated for filing in the OMPF will not be filed in the interactive personnel electronic records management system; these documents will be filed locally 3. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR. a. This regulation specifies that promotion reconsideration by an 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 judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, 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 military schooling. b. Paragraph 3-19 also lists the following factors that will normally result in a material error determination; e.g., an officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses. If eligible, this person will be considered by the next regularly scheduled selection board. An SSB will not be used when an administrative error was immaterial, or the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the official military personnel file. DISCUSSION: 1. With respect to the GOMOR: a. The evidence of record shows the applicant was given a GOMOR for violation of Article 133, UCMJ. He argues the investigation was conducted in a substandard manner with a predetermined outcome. There is no evidence of record to show the AR 15-6 investigation was conducted improperly. It appears the GOMOR was administered appropriately with no procedural error and all requirements of the regulation were met. b. His conduct was investigated by an IO who determined his conduct as an officer was a departure from that expected of officers in similar positions. While it is true a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance, to train, and rehabilitate Soldiers; it is also true that the quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit upon the Army or is prejudicial to good order and discipline. c. The GOMOR does not appear to be untrue or unjust. Once the GOMOR was filed in his OMPF it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 2. With respect to promotion consideration by an SSB: a. HRC confirmed the applicant was considered twice and not selected for promotion during the FY13 and FY14 LTC selection boards, respectively. In addition, he did not view or certify his board file for the FY13 board. b. By law and regulation, promotion selection boards cannot divulge the reason for non-selection of a particular officer. As such, any contention by the applicant that his non-selection was due to unlawful command influence during the AR 15-6 investigation rather than promotion based on the career milestones set forth in Army guidance, issue is speculative at best. c. Promotion reconsideration is appropriate for non-selected officers whose records contained a material error when it was considered by a promotion board. A material error is defined as being of such a nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance the officer would have been recommended for promotion. d. There does not appear to be a material error in his non-selection for promotion to LTC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002417 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170002417 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2