ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 July 2020 DOCKET NUMBER: AR20200000438 APPLICANT REQUESTS: * removal of the general officer memorandums of reprimand (GOMOR), dated 27 January 2014 and 27 September 2018, from his Army Military Human Resource Record (AMHRR) * removal of the negative DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1- CW2) Officer Evaluation Report (OER)) covering the period 16 May 2018 through 13 September 2018 from his AMHRR * removal of all investigative material from his AMHRR * removal of any material related to administrative separation from his AMHRR * retention on active duty * promotion to major (MAJ) with appropriate date of rank and back pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, Applicant, dated 1 October 2018, subject: Filing Request of GOMOR * Memorandum, Applicant, dated 2 November 2018, subject: Filing Request Supplemental Matters * Memorandum, Applicant, dated 28 November 2018, subject: Follow-Up Prior to GOMOR Filing Decision REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 600-20 (Army Command Policy and Procedure) prescribes the policy and responsibility of command, which includes readiness and resiliency of the force military and personal discipline and conduct, the Army Equal Opportunity (EO) Program, and the Sexual Harassment/Assault Response and Prevention (SHARP) Program (formerly the Prevention of Sexual Harassment and the Army Sexual Assault Prevention and Response Programs). a. Paragraph 4-14b (Relationships between Soldiers of Different Grade) states Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier, or between a noncommissioned officer and a junior enlisted Soldier. Examples of familiarity between Soldiers that may become "undue" can include repeated visits to bars, nightclubs, eating establishments, or homes between an officer and an enlisted Soldier, or a noncommissioned officer and a junior enlisted Soldier, except for social gatherings that involve an entire unit, office, or work section. All relationships between Soldiers of different grade are prohibited if they: (1) compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; (2) cause actual or perceived partiality or unfairness; (3) involve, or appear to involve, the improper use of grade or position for personal gain; (4) are, or are perceived to be, exploitative or coercive in nature; or (5) create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. b. Paragraph 6-11 (Evaluation Reports) states when evaluating officers, enlisted Soldiers, or Department of the Army civilian employees, rating officials will evaluate those individuals' commitment to the goals and objectives of the EO or Equal Employment Opportunity Program. This includes the individuals' actions or non-actions toward the prevention and elimination of unlawful discrimination and/or sexual harassment. Raters are required to document significant deviations from that commitment and identify instances of reprisal/retaliation taken by the rated individual in that evaluation report. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. Paragraph 1-6 states the objectives of this regulation are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of significant trust and authority or positions or appointments screened for suitability. c. Chapter 3 (Unfavorable Information in AMHRR) states 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. d. Paragraph 3-5 states filing of non-punitive administrative letters of reprimand, admonition, or censure in official personnel files such as a memorandum of reprimand may be filed in a Soldier's AMHRR 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 AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed per chapter 7 (Appeals). e. Paragraph 7-2a (Appeals for Removal of AMHRR Entries) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. The recipient has the burden of proof to show by clear and convincing evidence that the document is either untrue or unjust, in whole or in part. Appeals that merely allege an injustice or error without supporting evidence or a compelling argument will be returned without action. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the official military personnel file, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 5. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports and associated support forms that are the basis for the Army's evaluation reporting system. a. Paragraph 2-12j stated the rater will assess the rated Soldier's performance in fostering a climate of dignity and respect and adhering to the requirements of the SHARP Program. This assessment should identify, as appropriate, any significant actions or contributions the rated officer or noncommissioned officer made toward: (1) promoting the personal and professional development of subordinates; (2) ensuring the fair, respectful treatment of unit personnel; and (3) establishing a workplace and overall command climate that fosters dignity and respect for all members of the unit. (4) This assessment should also identify any failures by the rated Soldier to foster a climate of dignity and respect and adhere to the SHARP Program. (5) Raters will include this information in the DA Form 67-10-1, Part IVc(1) (Character). b. Paragraph 3-36 (Modifications to Previously Submitted Evaluation Reports) addressed requests for modifications to both completed evaluation reports that are filed in a Soldier's AMHRR and evaluation reports that are being processed at Headquarters, Department of the Army, prior to completion. (1) An evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. (2) Requests for modifications to evaluation reports already posted to a Soldier's AMHRR require use of the Evaluation Report Redress Program. (3) Requests that a completed evaluation report filed in a Soldier's AMHRR file be altered, withdrawn, or replaced with another report will not be honored if the request is based on the following: * statements from rating officials that they underestimated the rated Soldier * statements from rating officials that they did not intend to assess the rated Soldier as they did * requests that ratings be revised * statements from rating officials claiming administrative oversight or typographical error in checking blocks on forms for professional competence, performance, or potential * statements from rating officials claiming OERs or noncommissioned officer evaluation reports were improperly sequenced to Headquarters, Department of the Army, by the unit or organization * a subsequent statement from a rating official that he or she rendered an inaccurate evaluation of a rated Soldier's performance or potential in order to preserve higher ratings for other officers or noncommissioned officers (for example, those in a zone for consideration for promotion, command, or school selection) (4) For evaluation reports that have been completed and filed in a Soldier's AMHRR, substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Administrative appeals will be considered regardless of the period of the evaluation report; decisions will be made based on the regulation in effect at the time reports were rendered. (5) An exception is granted for evaluation reports when: * information that was unknown or unverified when the evaluation report was prepared is brought to light or verified * this information is so significant that it would have resulted in a different evaluation of the rated Soldier * the following actions will be accomplished in an effort to modify the evaluation report – * if the information would have resulted in a higher evaluation, the rated Soldier may appeal the evaluation report and rating officials may provide input to support this point * if the information would have resulted in a lower evaluation, rating officials may submit an addendum to be filed with the OER c. Chapter 4 (Evaluation Report Redress Program) stated the program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred. (1) Paragraph 4-8a (Timeliness) stated because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. (2) Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of an evaluation report, the applicant will produce evidence that establishes clearly and convincingly that: * the presumption of regularity referred to in paragraphs 3-36a and 4-7a will not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice (3) Paragraph 4-11d stated for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the applicant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the evaluation report was rendered. The results of a commander's or commandant's inquiry may provide support for an appeal request. 6. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Paragraph 1-10c (Promotion Eligibility), as established by the Secretary of the Army under Title 10, U.S. Code, Sections 573, 574, and 619, states officers must meet the following minimum time-in-grade requirements to be considered for promotion. Captain (CPT), MAJ, and lieutenant colonel must serve at least 3 years of time in grade to be considered for promotion. a. If selected, officers may be promoted without regard to any additional time-in- grade requirements, except as provided in paragraph b below. b. To the extent permitted by Title 10, U.S. Code, Section 622, promotion zones for Medical or Dental Corps officers will be established to ensure that those in the zone, if selected, will be promoted on the sixth anniversary of their active date of rank, except as provided in paragraph 1-16b(1) and (2). 7. Secretary of the Army memorandum, dated 9 December 2014, subject: Army Directive 2014-29 (Inclusion and Command Review of Information on Sex-Related Offenses in the AMHRR), established new policy to ensure accountability for sex- related offenses. Sex-related offenses include violation of Article 120 of the Uniform Code of Military Justice (UCMJ). Commanders will ensure that a Soldier's permanent record in the AMHRR is annotated for Soldiers who receive a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. For the purposes of this directive, "punitive administrative action" means any adverse administrative action initiated as a result of sex-related offenses and includes, but is not limited to, memorandums of reprimand, admonishment, or censure from all levels of command. This requirement applies to Soldiers in all components, regardless of grade. Commanders do not have the option to designate that these documents be filed locally or in the restricted folder of the AMHRR. Documents will be filed in the performance- disciplinary folder in the interactive Personnel Electronic Records Management System. The Commander, U.S. Army Human Resources Command, will designate and implement an appropriate code for use on Soldiers' record briefs to identify those Soldiers with a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. The requirement to annotate the AMHRR is retroactive to 26 December 2013. This policy does not prohibit a Soldier from appealing the placement of the notation in the AMHRR to the ABCMR. FACTS: 1. The applicant states the underlying allegations and subsequent investigation in this case are both procedurally and equitably defective. He was given erroneous derogatory information, to include GOMORs and negative OERs, and was recommended for separation. 2. The applicant was promoted to CPT effective 1 January 2015. 3. The memorandum from the Commanding General, Headquarters, 1st Cavalry Division, dated 27 January 2014, subject: GOMOR, reflects the following: a. Major General (MG) K____ reprimanded the applicant in writing for being disrespectful toward a superior commissioned officer, violation of the III Corps and Fort Hood Phantom Warrior Standards Handbook, and conduct unbecoming an officer and gentleman. Specifically, he was approached by First Sergeant (1SG) D____ on 5 November 2013 who informed him that he was in violation of the Phantom Warrior Standards Handbook by being in the gym in civilian attire during the hours of 0630- 0745. The applicant smirked and walked away from 1SG D____. The applicant was then approached by CPT H____, who identified himself to him and informed him of the same. CPT H____ asked the applicant to identify himself, which he refused, and was disrespectful toward CPT H____ when during the course of the conversation the applicant stated, "You're frustrated?! I don't give a shit if you're frustrated." b. It was a matter of serious concern to MG K____ that the applicant committed such an irresponsible act of misconduct. His behavior was inappropriate and unprofessional. The U.S. Army reposed trust and confidence in him when it bestowed upon him the privilege of being a commissioned officer. With that privilege, comes the responsibility to set a standard of professional conduct that Soldiers under him could follow. The applicant failed in that responsibility. His command lost confidence in his judgment and conduct as an officer. c. The administrative reprimand was imposed under the provisions of Army Regulation 600-37 and not as punishment under the UCMJ. The applicant was advised that MG K____ was considering whether to direct filing the reprimand permanently in his AMHRR per Army Regulation 600-37, paragraph 3-4b. The applicant was given 7 calendar days to forward any matters for consideration by MG K____ through his chain of command prior to making his fling decision. 4. On 10 February 2014, the applicant acknowledged receipt of the GOMOR. 5. The applicant's memorandum for record, dated 11 February 2014, subject: Filing Request for GOMOR, requests filing the GOMOR locally. He states one can infer the incident in the gymnasium on 5 November 2013 was an anomaly based on knowledge of his solid service as a warrant and commissioned officer. There is no history or indication of a recurring event. The incident was the result of numerous severe outside stressors culminating in one moment of lapsed judgment. He did not wish to excuse his actions; however, he did not believe the promise of his military career should hinge on a singular misstep. 6. On 11 March 2014 after considering the GOMOR, the circumstances surrounding the misconduct, rebuttal matters, and the recommendations of the chain of command, the imposing general officer directed permanently filing the GOMOR in the applicant's AMHRR with all enclosures. 7. The memorandum from MAJ O____, Headquarters, 13th Expeditionary Sustainment Command, dated 20 July 2018, subject: Findings and Recommendations, Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) Investigation into Allegations of Sexual Harassment Report of Investigation, states he was appointed to investigate the circumstances surrounding allegations of sexual harassment within Headquarters and Headquarters Detachment, 61st Multifunctional Medical Brigade, specifically those related to the applicant. a. After considering the evidence thoroughly and impartially, he found the applicant sent inappropriate text messages to Sergeant (SGT) C____. The applicant also made inappropriate sexual advances toward SGT C____ and Specialist (SPC) C____ in the forms of verbal and nonverbal harassment. He also found the applicant engaged in acts which would be considered in violation of the UCMJ and Army Regulation 600-20, paragraph 4-19. MAJ O____ recommended consideration of appropriate action under the UCMJ for the foregoing findings. MAJ O____ found the applicant classified African American male Soldiers as "black men trying to use Army" and consequently he recommended consideration of remedial EO training. MAJ O____ also found that Sergeant First Class (SFC) W____, Headquarters and Headquarters Detachment 1SG, was aware of conversations regarding the inappropriate behavior of the applicant and did not initiate an investigation. Accordingly, MAJ O____ recommended consideration of an investigation into the ethical conduct of SFC W____. b. The applicant was the Commander, Headquarters and Headquarters Detachment, 61st Multifunctional Medical Brigade. SGT C____ was one of several Soldiers working in the orderly room in close proximity to the applicant. The working environment involved regular interaction between the applicant and the Soldiers in the orderly room. c. On 27 June 2018, SGT C____ filed a complaint with Ms. T____, SHARP Victim Advocate, 1st Medical Brigade. Ms. T____ documented the complaint on a DA Form 7279 (EO Complaint Form) and a Sexual Harassment Intake Form (exhibit 1) stating the applicant had been behaving inappropriately toward SGT C____. SGT C____ reported that she received inappropriate text messages from the applicant and it reached the point where she felt uncomfortable in the workplace. SGT C____ indicated several verbal and nonverbal categories of harassment on the Sexual Harassment Intake Form that she had experienced from the applicant. d. After a thorough investigation, MAJ O____ determined that the greater weight of the evidence supported each of the following findings: (1) The applicant sent inappropriate texts to SGT C____. (a) On 29 December 2017, the applicant sent a text message (exhibit 2) to SGT C____ wishing her a belated happy birthday. In the text message, the applicant stated, "You know you are important to me but I'm sure you have no idea how special you are to me. If you ever need a mountain moved, I'm there. And if I was 21, Roger would have competition." Roger is SGT C____'s husband. This text message created a clearly predictable perception of undue familiarity between an officer and an enlisted Soldier (see Army Regulation 600-20, paragraph 4-14b). (b) On 4 January 2018, the applicant sent a text message (exhibit 3) to SGT C____ asking, "want to go to the movies on Tuesday?" This incident occurred while the applicant knew that SGT C____ was actively trying to get help for her husband to be taken to the emergency room. This text message created an actual perception of undue familiarity between an officer and an enlisted Soldier (see Army Regulation 600-20, paragraph 4-14b). (2) MAJ O____ found the applicant made inappropriate sexual advances toward SGT C____ in the forms of verbal and nonverbal harassment. (a) The text message (exhibit 3) inviting SGT C____ to the movies with a smiley face perceived as sexually oriented and made SGT C____ feel uncomfortable. (b) In reference to a picture during Sergeants Time Training, SGT C____ stated (exhibit 4, page 2) the applicant said, "now I have had my fair share of being with women and watching porn, but that doesn't look like herpes it just looks like razor bumps." This perceived sexual comment is verbal harassment. (c) SGT C____ stated (exhibit 4, page 3) the applicant asked her several times to be a model for body sculpt, which made her feel uncomfortable. This perceived sexual comment is verbal harassment. (d) SGT C____ stated (exhibit 4, page 4) she and another Soldier (exhibit 5) saw a naked picture on the applicant's cell phone. The incident occurred when the applicant asked SGT C____ to scroll through pictures on his cell phone and choose pictures for the battalion wall. The naked picture on the cell phone is nonverbal harassment. (e) SGT C____ stated (exhibit 4, page 4) the applicant often referred to her as "yes dear" in text messages on weekends for which he would apologize. SPC C____ (exhibit 6, page 1) and SPC H____ (exhibit 7, page 1) stated the applicant referred to SGT C____ as his "Golden Child." SPC C____ (exhibit 8, page 1) stated the applicant talked to SGT C____ "flirtatiously" in the office. These terms of endearment are perceived as verbal harassment. (f) SPC C____ stated (exhibit 6, page 1) he "witnessed [Applicant] having weird sexual looks while looking at SGT C____." Undressing with the eyes is perceived as nonverbal harassment. (3) Except for SGT C____, MAJ O____ found no evidence to support the applicant sent inappropriate texts to any other service member in Headquarters and Headquarters Detachment, 61st Multifunctional Medical Brigade. (4) In addition to SGT C____, MAJ O____ found the applicant made inappropriate sexual advances toward SPC C____ in the forms of verbal and nonverbal harassment. (a) SPC C____ (exhibit 8, page 2) stated the applicant persistently requested that she ask her personal trainer, an SGT in the 61st Multifunctional Medical Brigade, "if she would let him make a body mold of her so he could sculpt her." This perceived sexual comment is verbal harassment, which made SPC C____ feel uncomfortable. (b) SPC C____ (exhibit 9, page 1) stated that while she was attending an organizational day at a community center in Copperas Cove, she was wearing a swim top that became transparent in the water. SPC C____ stated, "after being in the pool I felt as if [Applicant] was watching me and I began to feel uncomfortable." Even after she came out of the pool and was getting dressed, SPC C____ stated "the whole time I felt as if he was staring at me inappropriately." Undressing with the eyes is perceived as nonverbal harassment. (c) SPC C____ (exhibit 9, page 1) stated that a few weeks after the incident at the organizational day, the applicant was giving her a ride from the motor pool back to the company when he asked her if she was still breastfeeding. SPC C____ stated, "Immediately I felt again uncomfortable and as if he was being highly inappropriate." This perceived sexual comment is verbal harassment. (5) MAJ O____ found the applicant engaged in acts which would be considered in violation of the UCMJ and Army Regulation 600-20, paragraph 4-19, specifically relating to his treatment of females within the unit. SGT C____ (exhibit 4, page 5) and SPC C____ (exhibit 6, page 2) stated they witnessed the applicant referring to SFC C____ as a "bitch." SFC C____ (exhibit 10, page 1) stated the applicant "had the look like this bitch when he saw" her. These behaviors that undermine dignity and respect are prohibited. (6) MAJ O____ found the applicant engaged in acts in violation of Army Regulation 600-20, paragraph 4-14b. The applicant's friendliness and special treatment toward SGT C____ (exhibits 4, 5, 7, and 8) in contrast to his unprofessional behavior toward other Soldiers (exhibits 6, 8, 10-12) caused actual and perceived partiality and unfairness in the unit. (7) MAJ O____ found the applicant classified African American male Soldiers as "black men trying to use the Army." (a) SPC H____ (exhibit 7, page 3) stated the applicant said, "SPC C____, PV2 [Private Two] P____, and I are typical black men trying to use the Army." (b) SGT C____ (exhibit 7, page 5) witnessed the applicant telling a Soldier "he is just another black man looking for a handout from the Army." (c) SPC C____ (exhibit 6, page 2) stated the applicant said he is "just a typical black person looking for a handout." (d) Soldiers will not be classified or otherwise managed on the basis of race, color, gender, or national origin (see Army Regulation 600-20 paragraph 6-2b). (8) MAJ O____ found SFC W____, the Headquarters and Headquarters Detachment 1SG, 61st Multifunctional Medical Brigade, was aware of conversations regarding the inappropriate behavior of the applicant (exhibit 4, pages 3-4) and did not initiate an investigation. (a) SGT C____ (exhibit 4, pages 3-4) stated that she had informed SFC W____ about the text message (exhibit 13) from SPC B____ regarding the inappropriate behavior of the applicant. (b) Even after providing each witness Department of Defense Directive 7050.6 (Military Whistleblower Protection), dated 17 April 2015 (exhibit 14), to address and mitigate barriers to disclosure, most of the witnesses feared reprisal from SFC W____. As a result, some of the witnesses missed their first scheduled interview and MAJ O____ had to notify their chain of command. The absence and rescheduling of witnesses presented difficulties and unusual delays during the early stage of the investigation. PV2 P____ (exhibit 15) stated he did not wish to make a statement due to fear of reprisal from "1SG W____ and [Applicant]." e. Recommendations: (1) consideration of appropriate action under the UCMJ should be considered, (2) consideration of remedial EO training should be considered, and (3) consideration of an investigation into the ethical conduct of SFC W____. 8. On 20 July 2018 after considering the GOMOR; supporting documentation; the circumstances of the misconduct; all matters submitted by the applicant in defense, extenuation, or mitigation, if any; along with recommendations of subordinate commanders, the imposing general officer directed permanently filing the GOMOR in the applicant's AMHRR with all enclosures. 9. His OER covering the period 16 May 2018 through 13 September 2018 shows in: a. Part Ii (Reason for Submission), "Relief for Cause"; b. Part IIa(1) (Name of Rater), F, ; c. Part IIc(1) (Name of Senior Rater), N, ; d. Part IId (This is a referred report, do you wish to make comments?), is marked "Referred" and "Yes, comments are attached"; e. Part IIIa (Principal Duty Title), Company Commander; f. Part IIIb (Position Area of Concentration/Branch), 67J00; g. Part IVb (Headquarters, Department of the Army, Comparison of the Rater's Profile and Box Check at the Time this Report Processed), "Unsatisfactory" and contains the comments: "[Applicant] was relieved by COL [Colonel] Y____, 1st Medical Brigade rear provisional commander on 13 September 2018 for violating the Army's SHARP policy. [Applicant's] performance was unsatisfactory and did not adhere to the expectations of that of a commanding officer. A DA Form 67-10-1A (Officer Evaluation Report Support Form) was not received or requested due to the timing and reason for submission of the evaluation"; h. Part IVc(1) (Character), "[Applicant] failed to adhere to the Army Values by violating SHARP regulations and by not providing a harassment free working environment. His failure to adequately support SHARP/EO directly contributed to his relief from command"; i. Part IVc(2) (Presence), "[Applicant] maintained an excellent level of physical fitness, however failed to maintain proper military and professional bearing. His inability to follow orders and comply with regulations lead [sic] to the command losing faith and trust in his ability to command Soldiers"; j. Part IVc(3) (Intellect), "[Applicant] failed to exercise sound judgement and made decisions that negatively affected his unit. [Applicant's] interpersonal tact needs improvement"; k. Part IVc(4) (Leads), "[Applicant] failed to effectively lead his Soldiers. He violated their trust by choosing to sexually harass Soldiers under his command rather than to lead them by example"; l. Part IVc(5) (Develops), "[Applicant] failed to foster a positive working environment. Rather, he perpetuated a toxic climate where Soldiers feared harassment and reprisal"; m. Part IVc(6) (Achieves), "[Applicant] was able to achieve some aspects of his mission, but his relief from command overshadowed any of his accomplishments"; n. Part VIa (Potential Compared with Officers Senior Rated in Same Grade), "Not Qualified"; and o. Part VIc (Comment on Potential), "[Applicant's] chain of command lost confidence in his ability to carry out his duties as a commander due to misconduct and poor judgment. The rated officer refused to sign." 10. The memorandum from the Commanding General, Headquarters, Fort Hood, dated 27 September 2018, subject: GOMOR, reflects the following: a. MG K____ reprimanded the applicant in writing for violating Army Regulation 600-20. b. Between 29 December 2017 and 3 July 2018, the applicant repeatedly verbally and non-verbally sexually harassed several Soldiers under his command. Specifically, he invited SGT C____ out on a date, asked to sculpt her, and indicated he would compete with her husband for affection. In addition, he made numerous discriminating statements to Soldiers based on their race, including stating several members in his command were just more black males trying to use the Army. c. The applicant's actions fell well below the standards expected of a commissioned officer in the U.S. Army. As the commander, his actions had a clear and predictable negative impact on his unit. He failed to uphold the standards as outlined in Army Regulation 600-20, prohibiting sexual harassment and discrimination based on race, color, gender, religion, or national origin. There was no excuse for such egregious behavior. His conduct had no place in his formation or in the U.S. Army. d. The administrative reprimand was imposed under the provisions of Army Regulation 600-37 and not as punishment under Article 15, UCMJ. The applicant was advised that per Army Regulation 600-37, paragraph 3-5b, MG K____ would consider whether to direct permanently filing the reprimand in his AMHRR. The applicant was given 7 calendar days to forward any matters for consideration through his chain of command. 11. On 1 October 2018, the applicant acknowledged receipt of the GOMOR. 12. The applicant's memorandum, dated 1 October 2018, subject: Filing Request of GOMOR, requests suspension of the GOMOR pending a thorough investigation of the allegations made against him. At the completion of that investigation, he leaves the filing location to MG K____'s discretion. He states the next paragraphs are intentionally strongly worded to draw MG K____'s attention; no disrespect is intended. a. Through this entire debacle, he has asked that Army processes be followed according to regulation. He has sequentially addressed his concerns to increasingly higher levels of leadership. He questioned that "As a person accused of sexual harassment, does it not bring pause to you that I am so adamant about wanting more investigation and visibility brought to my alleged misconduct?" b. The accuser (complainant) and two key witnesses in the sexual harassment case in the GOMOR made positive sworn statements about his character in an unsubstantiated EO claim covering the same time frame. He asserts the 1st Medical Brigade attempted to suppress this information from Brigadier General W____ and MG K____. c. On 13 September 2018, he illustrated to Colonel Y____ how easily a text message could potentially be forged. He already supplied his entire call and text log history (in appeal) dating back to February 2017. d. Because he is an African American male accused of sexually harassing two Caucasian women and begging his leadership to further investigate, common sense for the prudent leader would be to ensure no impropriety occurred on the part of his command because of the possible ramifications should such impropriety come to light. e. In October 2001, he was a 25-year-old squad automatic weapon gunner in the 3rd Ranger Battalion. He was one of 300 chosen to make the first combat jump in Army history since the 1989 Panama invasion. He took lives on the battlefield for our country. Upon his return from Afghanistan in 2002, his bigoted 1SG told him that he and his Caucasian wife were using the Army as a welfare system because he was transitioning to become a warrant aviator. In 2014, he was called a nigger to his face by his rater, the man who recently vacated the position of 1st Air Cavalry Brigade Delta Company. Due to his color, he is no stranger to having to prove he belongs. It is incredibly insulting to be accused of being racist toward other African American males. This allegation illustrates the lack of knowledge of this case and the importance to actually investigate. f. Given that MG K____'s subordinate commanders failed to ensure Army Regulation 600-20 was consulted in the investigation and adjudication of his case, MG K____ was in the unique position to amend their mistakes and ensure a "complete, thorough, and unbiased" investigation was conducted without the appearance of undue command influence and before further action was taken. With the information he gathered to date and the teleconference conversation he had with the Department of the Army Inspector General P____, he believes he had more than enough evidence to bring a case to Congress that shows impropriety stretching all the way to sections of the Pentagon. There was still time to correct this current course. That power resided in MG K____'s hands. 13. The applicant's memorandum, dated 2 November 2018, subject: Filing Request Supplemental Matters, responds to each count from MAJ O____'s findings and recommendations, dated 20 July 2018. a. Response to exhibit 2: He did not send this message. The exhibit simply states "[Applicant]." There is no phone number associated with it. The date simply says today. There is no time stamp. There are no messages before or after it in the screenshot. This message could have been received by SGT C____ any day at any time from anyone and later altered. He also provided his AT&T text and call log dating back to February 2017 and illustrated to Colonel Y____, the provisional 1st Medical Brigade Commander, how easily a text message could potentially be forged. b. Response to exhibit 3: He did send this message; however, all markers of time are missing from the exhibit. This message was not intended for SGT C____, nor was there anything overtly or covertly sexual about it. The message was intended for his friend Heather. At that time, they were going to the movies once a week for more than 2 years. They do not have a romantic relationship. Additionally, it would take an extremely insensitive person to ask a woman out on a date in between discussing her husband's "medical emergency." Aside from this case, there has been no serious question of his integrity during his entire military career. c. Response to exhibit 3: This message was not intended for SGT C____ and was not sexual. Inappropriate from a leader/subordinate fraternization standpoint if was intended for SGT C____, but it wasn't. (1) Response to statement, "I've had my fair share of being with women and watching porn, but that doesn't look like herpes it looks like razor bumps": Aside from being completely uncharacteristic of him to make such a statement at all, much less in the company of his subordinates, SFC W____ was present for this and can answer to it. (2) Response to body sculpt: As stated in his appeal, he never asked to sculpt anyone's body. He expressly stated he wanted to cast the faces of everyone who worked in his shop so he could hang those faces on the wall in the common area with the understanding that every person would receive their face as a farewell gift when they had a permanent change of station. SPC C____ was very excited about the opportunity. This particular offer went to SFC G____ (detachment sergeant at the time), SGT C____, SPC (name masked), and SPC (name masked). Although he was in command of a 78-Soldier detachment, he only had direct supervision of those 4. His intent in his offer was clear and, other than SPC (name masked), none of them showed interest. He dropped the idea. SFC G____ and SFC W____ can give more insight on this. SPC (name masked) and SPC (name masked) should be specifically questioned if they were asked to make face casts. (3) Response to nude photograph on phone: SGT C____ (exhibit 1) says SPC (name masked) had his phone and was scrolling through the photographs. She says a picture of a naked woman popped up. SPC (name masked) (exhibit 5) also says he had the phone and was scrolling through the photographs while "Sergeant C____ was doing something on the computer and she was not paying attention to the pictures. As soon as she looked at the cell phone, a rare picture popped up. The picture was like a nude picture of someone or probably himself." Unpacking this, the person who had control of the phone and was scrolling through the photographs does not remember if what he saw was a man or woman and hypothesized the alleged naked photograph was of him. The other person (SGT C____) was not paying attention until the moment his phone, under the control of a third party, allegedly displayed a nude photograph that the two witnesses cannot agree on. He questions where the sexual harassment is. (4) Response to claim he often referred to her as "yes dear": This is a misrepresentation of the accuser's actual statement. "Sometimes I would get random messages from him like, yes dear and then a follow up, I'm sorry I didn't mean to send that to you. It was weird to me considering it would happen on the weekends and we hardly directly message each other." Common sense and the reasonable man would recognize this event as a message going to the wrong recipient. "Yes dear" is a phrase he reserves for his wife out of sarcasm only. Even SGT C____ admits the message to have been disjointed and out of place. (5) Response to claim SPC (name masked) witnessed him giving "sexual looks" to SGT C____: He denies such activity. SFC B____, SFC G____, and SFC W____, his three detachment sergeants during the duration of his command can attest. Also, a third party cannot claim sexual harassment for someone else and SGT C____ makes no such claim in her six-page statement. Also of note is SGT C____'s statement, "The people in the office noticed the way he acted around me before I realized it was inappropriate myself." The implication of that phrasing is that SGT C____ was coerced by outside forces to believe that he was sexually harassing her. That goes against the Army Regulation 600-20 definition of sexual harassment. (6) Response to no evidence of him sending inappropriate texts to any other Soldier: He questions why he would chance doing such a thing now with a change of command a week from the date of the accusation, retirement a year away, a daughter nearly the same age as the accuser, and no previous history of such activity in his 23 years of military service. (7) Response to claim of sexual advances toward SPC (name masked): (a) He has spoken to SFC B____, SFC G____, SFC W____, and Major V____ about SPC (name masked) and her inability to perform and her dishonesty. (b) He did request that SPC (name masked) ask her friend if she were interested in being casted. As stated in his appeal, he asked numerous people of varying ages, sex, and race to cast their faces for no monetary exchange. His command was aware of this. (8) Response to claim of ogling of SPC (name masked) breasts at an organizational day: This recollection is a blatant mistruth. When SPC (name masked) got out of the pool to change her daughter's diaper, he noticed her bathing suit top was transparent and, by any stretch, inappropriate for a military or family event. He told her so and directed her to put something on over it immediately. (9) Response to claim he asked SPC (name masked) if she were still breastfeeding during a drive: He does not recall ever giving SPC (name masked) a ride from the motor pool and he would not have asked her if she were breastfeeding. However, as commanders are required to comply with Army Directive 2015-43, dated 10 November 2015, it is within his right to ask a Soldier if she needs accommodations for breast feeding. (10) Response to claim of mistreatment of females within the unit in violation of UCMJ: (a) Response to claim he referred to SFC (name masked) as a "bitch": It never happened. SFC (name masked) was under the impression that he had far more oversight of her career than he did. (b) Response to claim that SFC (name masked) submitted an anonymous EO complaint against him in 2017 because she felt he was preventing her from going to the Warrior Transition Unit: This is a decision that does not rest in his hands. She also submitted two anonymous complaints against Colonel R____ for the same thing. (11) Response to claim of violation of Army Regulation 600-20, paragraph 4-14b (Relationships between Soldiers of Different Grades), specifically special treatment toward SGT C____: If one actually reads all of the sworn statements, each female Soldier says, "[Applicant] was so mean to me but was nice to everyone else." Every Soldier interviewed, with the exception of SFC G____, either received some form of adverse action from him or felt somehow slighted by him in his upholding of Army regulations, such as Army Regulation 40-501 (Standards of Medical Fitness), paragraph 7-9c(12). This particular regulation is widely abused in the 1st Medical Brigade simply because Soldiers don't know it but want to evoke an Army regulation. With SPC (name masked), SPC (name masked), and several other Soldiers, he ordered them to find the regulation, bring it to him, and explain what it meant in their own words. (12) Response to statement of Black men trying to use the Army: Sergeant Major C____ and SFC W____, and Staff Sergeant W____ either had conversations with him about this topic or were present when the actual conversations were had with SPC (name masked) and PV2 (name masked). He never had a conversation that could be perceived as such with SPC (name masked), although he claims in his statement that he said this to him. Again, simply comparing the sworn statements will illustrate several discrepancies and exact wording duplication. 14. The applicant's memorandum, dated 28 November 2018, subject: Follow-Up Prior to GOMOR Filing Decision, reiterates his desire expressed in his rebuttal and several email messages: that MG K____ take on the role of appellate authority to thoroughly investigate the charge against him. In his initial rebuttal response, he stated, "at the completion of that investigation, I leave to your discretion the filing location of your GOMOR." Regardless of location, the filing of a GOMOR for this sexual harassment case against him can only serve to reinforce that case. Rescission of the GOMOR simply ceases to speak to the sexual harassment case against him, but the case remains. True redress is found in addressing directly the sexual harassment case against him. 15. On 19 December 2018, after MG K____ carefully considered the GOMOR; the circumstances of the misconduct; and all matters submitted by the applicant in defense, extenuation, or mitigation, if any; along with recommendations of subordinate commanders, he directed permanently filing the GOMOR in the applicant's AMHRR. He directed the applicant would be notified of his ability to appeal this decision to the Department of the Army Suitability Evaluation Board (DASEB) pursuant to Army Regulation 600-37, chapter 7. 16. On 16 April 2019, the DASEB denied his request for removal of the GOMOR, dated 27 January 2014, from his AMHRR. The DASEB determined the evidence presented did not clearly and convincingly establish that the GOMOR was untrue or unjust and, as a result, the presumption of regularity applied. 17. On 19 May 2019, the DASEB denied his request for removal of the GOMOR, dated 27 September 2018, from his AMHRR. The DASEB determined that the evidence presented did not clearly and convincingly establish that the GOMOR was untrue or unjust and, as a result, the presumption of regularity applied. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board found insufficient evidence that clearly and convincingly establishes that the GOMORs the applicant received were untrue or unjust. The Board further found insufficient evidence establishing clearly and convincingly that the presumption of regularity should not be applied to his referred OER or that action is warranted to correct a material error, inaccuracy, or injustice in the referred OER. By a preponderance of the evidence, the Board determined the presence of the GOMORs, the referred OER, and records of related investigations in his AMHRR is not in error or unjust. 3. The Board agreed that, in the absence of a basis for removing any derogatory records from his AMHRR, there is no basis for recommending his retention on active duty or consideration for promotion to MAJ. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000438 21 1