IN THE CASE OF: BOARD DATE: 10 September 2015 DOCKET NUMBER: AR20140006426 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests: * voidance of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) * voidance of the applicant's involuntary discharge for misconduct * reinstatement of the applicant to active duty with all back pay, allowances, and benefits 2. Counsel states: a. An Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation found the applicant did not engage in sexual harassment or possess or consume alcohol, the two main allegations. The investigation found the female Soldiers involved did not feel intimidated and did not believe the applicant was sexually harassing them. b. Six sworn statements were prepared before the Army Regulation 15-6 investigation was ordered and an investigating officer (IO) was appointed, but were relied upon by the IO. The individual administering the oaths was himself a witness and had no legal authority to administer oaths. The sworn statements comprise over 50 percent of the investigation and were the basis for follow-on questions submitted to the witnesses by the IO. The report of investigation (ROI) indicates the IO interviewed only one witness. c. No one in the chain of review and approval of the ROI commented or acted upon the self-evident concerns arising from the sworn statements. The time frames and the linguistic forms clearly indicate collaboration by the witnesses in preparing their statements. The same individual evidently prepared the five typewritten statements (only four were typewritten). d. The IO and the judge advocate officer who reviewed the ROI were grossly negligent in the discharge of their duties to approach the allegations in an impartial manner and ensure the rights of the Army and the applicant were respected. e. The applicant's guilt was determined before he had an opportunity to submit his rebuttal. The records show the applicant received the general officer memorandum of reprimand (GOMOR) on 5 January 2013. Lieutenant Colonel (LTC) L____ stated in writing on 9 January 2013 that Major General (MG) G____ H. C____ directed him to initiate separation action against the applicant. The applicant submitted his rebuttal to the GOMOR allegations on 12 January 2013. f. As a matter of law, the applicant did not and could not have committed the most serious charges that the IO substantiated; i.e., attempted fraternization and attempted violation of a general order pertaining to alcohol. g. The sexual harassment allegations were not processed in accordance with Army Regulation 600-20 (Army Command Policy), appendix C (Equal Opportunity/Sexual Harassment Complaint Processing System). h. Even if the applicant committed the conduct that was substantiated, involuntary separation and issuance of a GOMOR were grossly disproportionate responses. i. MG S____ W. S____ sought delegation authority from MG C____ because the applicant "to the best of my knowledge, has not been previously disciplined in the military and his actions…do not warrant non-judicial punishment." j. MG C____ issued the applicant a GOMOR based on a fatally-flawed Army Regulation 15-6 investigation and directed filing the GOMOR in the performance folder of the applicant's Official Military Personnel File (OMPF). k. The GOMOR is factually inaccurate and details allegations that were not substantiated by the Army Regulation 15-6 investigation; examples are the assertions that the applicant made indecent remarks to two enlisted females about nude beaches and on another occasion used the phrase "suck my dick." 3. Counsel provides a 28-page memorandum with 18 enclosures consisting of the applicant's DD Form 214, numerous sworn statements, documents relating to the Army Regulation 15-6 investigation, GOMOR and related documents, extract of Article 136 of the Uniform Code of Military Justice, extract of Army Regulation 27-55 (Notarial Services), extract of U.S. Court of Criminal Appeals case United States versus Myers, Declaration of Master Sergeant (MSG) G____ L. H____, and a character-reference memorandum. CONSIDERATION OF EVIDENCE: 1. The applicant was commissioned as a second lieutenant in the Regular Army on 14 October 2010. He was promoted to the rank of first lieutenant (1LT) effective 14 October 2012. 2. He deployed to Kuwait on or about 20 November 2011. 3. In a statement, dated 12 October 2012, SGT V____ W____ C____ stated she joined a conversation in the food court with SGT F____ G____, the applicant, and MSG H____ following a concert on 4 September 2012. The applicant and MSG H____ introduced themselves and offered her alcohol. She declined, but they kept pushing. They suggested the group could go back to the room and play cards and drink. She and SGT G____ declined and left the food court. 4. In a statement, dated 12 October 2012, SGT V____ W____ C____ stated she walked outside to use the latrine on 11 October 2012 and saw SFC M____ and the applicant talking by her room. On the way back the applicant approached her trying to explain a situation that happened between him and Specialist (SPC) N____ A____ V____ earlier. He stressed that he didn't do anything. The applicant was surely intoxicated because she smelled alcohol on his breath. SFC M____ explained what happened between SPC V____ and the applicant in the room. When she came back out, she told the applicant she knew he was harassing SPC V____ and being disrespectful and needed to leave. The applicant kept trying to explain and addressing her by a different name. She had to continuously tell him to stop talking about the situation and get out of the area. 5. In a statement, dated 12 October 2012, SGT F____ M. G____ stated she and SGT C____ stopped at the concert on their way back from class. SGT C____ went to the stage to meet the performer while she stayed back to wait for her at a picnic table. The applicant and MSG H____ approached her and started talking to her. At that time she didn't know who they were and had never spoken to them before. The applicant asked her, "coffee or water?" She didn't know what he meant so she told him she didn't like coffee. He kept asking her the same question and would snicker every time she said she didn't like coffee. When SGT C____ walked up, they introduced themselves to her and asked her the same question. SGT C____ knew what the question meant. Up to this point alcohol had not been offered, only what her preference was which apparently meant white or dark liquor. The applicant and MSG H____ told them they had alcohol in their room and that she and SGT C____ should come to their room to play cards and dominoes and get drunk. She and SGT C____ declined and left. The applicant said to let him know if ever they were ready. 6. In a statement (typewritten), dated 12 October 2012, SFC S____ B. M____ stated she was heading to the female latrine on 11 October 2012 when she noticed SPC V____ sitting on the stairs outside her room reading. On her way back she noticed a male sitting on a chair in close proximity to SPC V____ leaning over talking to her. She recognized the applicant after he gestured her over. She made eye contact with SPC V____; her instincts told her that SPC V____ was uncomfortable so she asked SPC V____ if she knew the applicant. SPC V____ said she did not know him at the same time the applicant said he was her cousin. She repeated the question and again SPC V____ said she did not know him. The applicant insisted that he was her cousin and tapped SPC V____ on the knee. She acknowledged the gesture and asked SPC V____ if she felt uncomfortable with the situation. When SPC V____ indicated her discomfort, she directed her to her room and advised the applicant that his behavior was inappropriate. The applicant responded that he was Sexual Harassment/Assault Response and Prevention (SHARP)-trained and he was not doing anything wrong. She advised the applicant that she was also SHARP-trained and the behavior was fraternization and a matter of perception at a minimum. The debate continued and she detected a hint of alcohol on his breath. She confronted him and he stated he had Listerine (antiseptic mouthwash containing alcohol) on his breath. At this point Staff Sergeant (SSG) C____, SGT C____, and an unknown male Soldier came out of their rooms. She advised the applicant that the discussion was over and she would be reporting the incident through her chain of command. He stated she was overreacting and went to talk to SGT C____ and her male counterpart. 7. In a statement (typewritten), dated 12 October 2012, SPC (Promotable) N____ A____ V____ stated she was sitting on the stoop of her living quarters playing with her electronic device and smoking on 11 October 2012, which was her custom every night. She saw the applicant approaching and he initiated conversation with her. He repositioned a chair directly in front of her, very obviously invading her personal space. He started talking and every other word was "nigga." When she told him she was from New York, he stated, "niggas from NY are the shit…Like, if you not feelin' a nigga, you'd tell him to go suck a dick." She engaged him in conversation and asked him where he lived, where he was from, and where he was assigned. She ensured that he knew she was aware that he was an officer by asking him if he was a "butter bar [second lieutenant]." The applicant shrugged and said his rank was irrelevant because he treated everyone the same, E-1 to E-10. Around this time SFC M____ was outside. When the applicant noticed her, he called her over and engaged her in conversation. He continuously used the word "nigga" and would touch her knee when trying to emphasize a point. SFC M____ immediately pointed out that he shouldn't be touching her. He replied that she was his cousin. SFC M____ asked her if the applicant was really her cousin and she said he was not her cousin, they had just met, and she didn't even know his name. SFC M____ told the applicant that it was obvious that she was uncomfortable and he argued that it was alright because he was not in her room after 2300 in accordance with Camp Buehring policy. SFC M____ informed the applicant that his behavior was inappropriate due to the time, location, rank structure, etc., and he debated that he was doing nothing wrong. SFC M____ told her to go to her room when she saw the applicant was not willing to leave the premises. She never had interaction with the applicant until 11 October 2012 and didn't know his name until 12 October 2012. 8. In a statement (typewritten), dated 12 October 2012, 1LT B____ A. N____ (presumed to be the staff duty officer) stated he received a telephone call on the night of 11 October 2012 from SFC M____ who stated she had something to bring to his attention. He met SFC M____ and SSG C____ at his door. SFC M____ explained that the applicant approached SPC V____, sat down very close to her, proceeded to try to carry on a conversation with her, and placed his hand on her knee. SFC M____ stated she asked SPC V____ if she was uncomfortable and SPC V____ replied that she didn't know the applicant and his presence was not welcome. Before she continued, he asked SFC M____ if the applicant's touching progressed behind SPC V____'s knee and she said it had not. SSG C____ also confirmed the physical contact had not progressed beyond the applicant touching SPC V____'s knee. SFC M____ stated the applicant smelled of alcohol. The applicant had already departed the area and he did not have any contact with him. After consulting with SFC M____, they decided to wait until morning to alert the 164th Theater Airfield Operations Group chain of command. 9. In a statement (typewritten), dated 12 October 2012, SSG G____ L. C____, stated he was watching a movie in his room on 9 September 2012 at around 10:30 p.m. when he heard loud voices outside. He went to his door and looked outside to see what was happening. He saw SFC M____ and an unknown male officer outside talking next door to him. After changing clothes, he went outside to investigate because he knew SFC M____ didn't hang out at night and would not be talking to a male at such an inappropriate time. When he came outside, the unknown male officer was talking to another male who hangs out with SGT C____. On his way to another Soldier's room, the officer stopped him and began explaining that he did nothing wrong and that SFC M____ was crazy. He exchanged looks with the other male Soldier and walked away. On his way back to his room SFC M____ exited her door and told him to walk with her. She explained what was happening on their way to see 1LT N____. SFC M____ described seeing SPC V____ and an unknown male outside. She could see that SPC V____ was uncomfortable so she asked SPC V____ if she knew the male and SPC V_____ said no. The male officer stated they were cool, they were cousins. SFC M____ asked SPC V____ if she was alright and SPC V____ said she was a little uncomfortable. SFC M____ told him she then directed SPC V____ to go to her room and informed the male officer that he was in the wrong. SFC M____ told him the male officer couldn't understand how he was in the wrong. SFC M____ couldn't smell alcohol on the officer's breath. He and SFC M____ walked to 1LT N____'s room to report the incident during which time the male officer walked away. 10. On 15 October 2012, the Commander, 54th Theater Signal Battalion, appointed Major (MAJ) (Promotable) M____ D. T____ as an IO under the provisions of Army Regulation 15-6 to conduct an investigation into numerous allegations of unprofessional conduct by the applicant on or about 4 September 2012 and 11 October 2012. The investigation would address the following matters: a. Did the applicant sexually harass any Soldier during the 4 September 2012 and 11 October 2012 incidents in question? b. Did the applicant engage in an inappropriate relationship with MSG H____ or any other Soldier of the 164th Theater Airfield Operations Group while assigned to Camp Buehring in violation of Army Regulation 600-20 and Article 134 (Fraternization)? c. Did the applicant consume or possess alcohol in violation of General Order Number 1B while assigned to the 319th Strategic Signal Company at Camp Buehring? d. Did the applicant fail to treat Soldier(s) with dignity and respect in violation of Army Regulation 600-100 (Army Leadership) during the incidents in question? e. Did the applicant's behavior on 4 September 2012 and 11 October 2012 violate Article 133 (Conduct Unbecoming an Officer and Gentleman)? f. Are there any other matters pertaining to these incidents that you deem relevant? 11. In a sworn statement, dated 18 October 2012, SGT V____ W____ C____ responded to questions from MAJ M____ D. T____ wherein she stated she had nothing to add to her previous statement before responding to the questions directly. In response to the questions, she stated: a. She had no contact with the applicant and MSG H____ prior to the incident on 4 September 2012. She did not feel the applicant or MSG H____'s comments were sexually suggestive or flirtatious. The applicant or MSG H____ did try to convince her to consume alcohol. The applicant and MSG H____ were both persistent about consuming alcohol but only the applicant asked her an additional time. They said they had the alcohol and tried to get her to leave the night of 4 September 2012 to play cards and drink. She was in uniform. She did not believe they wanted to engage in sexual relations based on their behavior. The incident made her uncomfortable because she didn't know them and they tried to get her to engage in an activity after she declined. She did not feel she was being sexually harassed. b. She recognized the applicant on 11 October 2012 and thought he was intoxicated. He was addressing her by the name A____. He looked intoxicated and his behavior was abnormal. He was talking over everyone and not making sense. He was persistent in his actions; he did not understand that no means no. His behavior was not professional/officer-like because he was trying to get Soldiers to engage in activities they shouldn't. 12. In a sworn statement, dated 18 October 2012, SGT F____ M. G____ responded to questions from MAJ M____ D. T____ wherein she stated she had nothing to add to her previous statement before responding to the questions directly. In response to the questions, she stated: a. She had no contact with the applicant and MSG H____ prior to the incident on 4 September 2012. She did not feel the applicant or MSG H____'s comments were sexually suggestive or flirtatious. The applicant commented that he and MSG H____ weren't trying to have sex or do anything like that; they just wanted to have some fun. The applicant and MSG H____ were both very persistent about consuming alcohol, even after she and SGT C____ declined several times. She believed they had alcohol in their possession, specifically mentioning the brand Ciroc (vodka). She was wearing her wedding ring at the time, but she didn't think they noticed or paid attention to it. She and SGT C____ were in uniform. She did not remember if she or SGT C____ identified their names and ranks, but both the applicant and MSG H____ introduced themselves by their ranks. She is almost positive she did the same. She felt the applicant and MSG H____ were interested in engaging in sexual relations because of the persistent invitations to their room and they commented that they weren't trying to have sex with them. She felt the comments were intended to find out how receptive she and SGT C____ were to sexual relations. The incident made her feel uncomfortable but she wasn't intimidated by them. She started feeling uneasy when they kept insisting after she declined their offer of alcohol or going to their room. She felt she was being sexually harassed as much as basically harassed. She felt some of the comments showed sexual intentions; e.g., they referred to being in Europe on nude beaches watching naked women and how difficult it was to avoid getting an erection. Most of the other comments were directed toward the offer of alcohol. 13. In a sworn statement, dated 18 October 2012, SFC S____ B. M____ responded to questions from MAJ M____ D. T____ wherein she stated she investigated the situation on 11 October 2012 after the applicant called her over. She recognized him from seeing him around the base. In reference to her eye contact with SPC V____, she stated SPC V____'s eye contact and body language told her she was uncomfortable. When asked how she acknowledged the applicant tapping SPC V____ on the knee, she stated she said, "Really? Did you just tap her on the knees? You don't even know her like that." She also stated she was offended by his dialogue because he used the word "nigga" quite a few times. She felt the applicant had alcohol on his breath opposed to Listerine because the scent was strong even after 40 minutes of conversation and his claim that it was Listerine seemed rehearsed. He was loud and defensive and kept insisting he wasn't doing anything wrong and that she was overreacting. She could not say with certainty if he was intoxicated. She did not feel the applicant sexually harassed her but she believed he was inappropriate with SPC V____ in terms of the time/location and rank structure. She tried to make him understand that his conduct was unprofessional but he became very defensive. By way of explanation, the applicant said they were all human at the end of the day and rank structure didn't mean anything. 14. In a sworn statement, dated 18 October 2012, SPC N____ A____ V____ responded to questions from MAJ M____ D. T____ wherein she explained the applicant invaded her personal space (on 11 October 2012) by leaning forward, face to face with her. She stated she was offended by the applicant's use of the words "nigga" and "dick." Regarding his comment that everyone is the same, E-1 through E-10, she thought he meant it was alright to be comfortable around him and everything said was rank immaterial. She estimated the applicant was in her personal space making her uncomfortable for approximately 5 minutes. He was tapping her knee for emphasis as he was talking to SFC M____. It made her uncomfortable, but she didn't think it was sexual in nature. She never smelled alcohol on his breath. She had her nose and mouth covered during their conversation and she only smelled cigarette smoke. His actions appeared to be that of a drunk person, especially after he started arguing with SFC M____. His use of the word "nigga" was inappropriate, but he comments were not sexual in nature. She did not feel he sexually harassed her. She did not know why he stopped to talk to her; they didn't converse much in order to speculate. 15. In a sworn statement, dated 18 October 2012, 1LT B____ A____ N____ responded to questions from MAJ M____ D. T____ wherein he stated SFC M____ was very professional and reliable. She always strives to do what is best in every situation. As SHARP-trained, she was capable of judging what is and is not appropriate when it comes to sexual harassment/assault. SFC M____ is not overprotective of her Soldiers; she treats them as adults but will offer assistance or make a correction as needed. 16. In a sworn statement in response to questions from MAJ M____ D. T____, dated 18 October 2012, SSG G____ L. C____, stated he did not know the 1LT. The 1LT was defensive but did not seem to have been drinking. 17. On 20 October 2012, the applicant signed a DA Form 3881 (Rights Warning Procedure/Waiver Certificate) acknowledging the IO, MAJ M____ D. T____, wanted to question him about suspected/accused sexual harassment, fraternization, violating U.S. Central Command (USCENTCOM) General Order Number 1B, failing to treat other Soldiers with dignity and respect, and conduct unbecoming an officer. He indicated he did not want to be questioned or say anything. A memorandum from the IO, MAJ M____ D. T____, to the Commander, 54th Signal Battalion, dated 20 October 2012, subject: Invocation of DA Form 3881 Rights, (Applicant), states the applicant invoked his rights on that date. 18. On 20 October 2012, MSG G____ L. H____ was presented a DA Form 3881 to acknowledge the IO, MAJ M____ D. T____, wanted to question him about being suspected of fraternization/inappropriate relationship, a violation of USCENTCOM General Order Number 1B. He indicated he did not want to be questioned or say anything and he did not sign the form. A memorandum from the IO, MAJ M____ D. T____, to the Commander, 54th Signal Battalion, dated 20 October 2012, subject: Invocation of DA Form 3881 Rights, MSG G____ L. H____, states MSG H____ invoked his rights on that date. 19. Headquarters, 160th Signal Brigade, memorandum, dated 4 November 2012, subject: Army Regulation 15-6 Investigation and Findings, states the IO determined the following allegations against the applicant based on a preponderance of the evidence and the reasonable person standard: a. The applicant did not sexually harass any Soldier during the 4 September 2012 and 11 October 2012 incidents in question. b. The applicant attempted to fraternize with enlisted members in violation of Article 80 of the UCMJ and Army Regulation 600-20 but did not violate Article 134 of the UCMJ. c. The applicant did not consume or possess alcohol or violate USCENTCOM General Order 1B while assigned to Strategic Task Force, 319th Expeditionary Signal Battalion, attached to the 54th Theater Signal Battalion, Camp Buehring, Kuwait. d. The applicant failed to treat Soldiers with dignity and respect in violation of Army Regulation 600-100. e. The applicant's behavior on 4 September 2012 and 11 October 2012 violated Article 133 of the UCMJ. 20. On 15 November 2012, MG S____ W. S____, Commanding General, 335th Signal Command (Theater) (Provisional), requested delegation of authority to dispose of the applicant's misconduct case wherein he stated an Army Regulation 15-6 investigation of the applicant was initiated based on allegations of sexual harassment, fraternization, conduct unbecoming an officer, failure to treat Soldiers with dignity, and violation of USCENTCOM General Order 1B as it relates to the possession and consumption of alcohol. He summarized the investigation and stated the IO was unable to substantiate any violations of sexual harassment or USCENTCOM General Order 1B. The IO concluded the applicant engaged in attempted fraternization, conduct unbecoming an officer, and failure to treat Soldiers with dignity. The IO recommended issuance of a GOMOR and additional counseling and training related to sexual harassment. He stated he was the first general officer in the applicant's chain of command and the applicant had not previously been disciplined to the best of his knowledge and his actions, although inappropriate and displaying a serious lack of judgment, did not warrant nonjudicial punishment. 21. On 5 January 2013, MG G____ H. C____, Deputy Commanding General-Operations, Third U.S. Army/U.S. Army Central (USARCENT), issued a GOMOR under the provisions of Army Regulation 600-37 (Unfavorable Information) reprimanding the applicant for attempting to and soliciting others to violate Army Regulation 600-20 and USCENTCOM General Order 1B by using indecent language and being disorderly. He advised the applicant that he would consider any matters the applicant presented before making his filing decision. 22. The applicant acknowledged receipt of the GOMOR on 5 January 2013 and indicated he elected to submit written matters within 7 calendar days. 23. In a memorandum to MG G____ H. C____, Deputy Commanding General-Operations, Third U.S. Army/USARCENT, dated 7 January 2013, subject: Rebuttal Matters to GOMOR (Applicant), the applicant stated he had served in the U.S. Army for 32 months, 15 months of which were deployed. He had been able to excel in his career field and gain invaluable knowledge as an Army officer. He had never been the subject of any type of negative or adverse action. While he caused the unpleasant experience, he was able to see where he went wrong. He automatically responded to the allegations against him in a defensive manner. He was so intent on proving his innocence that he overlooked his own faults. When he looked at the situation from a professional standpoint, he realized how he placed himself in compromising situations and how it would lead others to question his integrity. Since then he has attended several retraining courses and sought mentorship for constructive growth as an Army officer. He offered his sincere apology for his poor judgment and the embarrassment he brought to the chain of command. He requested leniency and set aside and destruction of the administrative reprimand or, in the alternative, filing it locally and not in his OMPF. 24. On 10 January 2013, LTC J____ L____, Commander, 54th Signal Battalion, counseled the applicant, advising him of the suspension of favorable action (flag) code change from under investigation to pending elimination. He advised the applicant that he would have 30 days to determine his options once formal written notice was issued by MG C____. He recommended that the applicant finish the GOMOR filing request and submit it. He further recommended that the applicant contact Trial Defense Services for assistance. 25. On 7 February 2013 after reviewing the case file, GOMOR, filing recommendations from the applicant's chain of command, and the applicant's rebuttal matters, MG G____ H. C____, Deputy Commanding General-Operations, Third U.S. Army/USARCENT, directed filing the GOMOR, rebuttal matters, and the filing decision in the applicant's OMPF. 26. 17 February 2013, the applicant submitted additional information in matters regarding the GOMOR for attempting to and soliciting others in violation of USCENTCOM General Order Number 1B (possession and consumption of alcohol), using indecent language, and being disorderly. a. He stated the IO concluded there were no findings of alcohol possession or consumption. There was no evidence to concretely affirm that he ever had alcohol before, during, or after the investigation process. b. He stated the IO findings indicated no evidence to conclude any sexual proclivities in the incidents that occurred on 4 September 2012 and 11 October 2012. The Soldiers involved did not feel they were harassed. The incident on 4 September 2012 was caused by a private conversation with a senior NCO around Soldiers. The comments made during the conversation were intended to be private; however, the Soldiers overheard the conversation about his vacation. c. The IO coached the witnesses in several of the sworn statements by suggesting the existence or nonexistence of material facts; specifically, suggesting the existence of alcohol, using one Soldier's statement of obscene language to lead questions in another interview with a Soldier, and guiding Soldiers to make statements relating to an intoxicated person's appearance without the Soldier making statements that the accused was intoxicated. d. He sincerely regretted the incidents that transpired on 4 September 2012 and 11 October 2012 and learned to have better situational awareness when dealing with Soldiers so nothing can be misconstrued. He attended a vast amount of retraining and sought additional mentorship during the process. e. He requested reconsideration of the filing decision and requesting having the GOMOR locally filed. He stated he wanted the opportunity to continue to serve as an Army officer. 27. On 27 February 2013, Lieutenant General (LTG) V____ K. B____, Commanding General, Third U.S. Army/USARCENT, initiated elimination action against the applicant wherein he advised the applicant that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2b(5) and 4-2b(8), due to his misconduct and moral or professional dereliction. a. He cited the following specific reasons for elimination: (1) The applicant approached two enlisted Soldiers on 4 September 2012 and told them they should hang out in his quarters and get drunk with him. During this conversation he also made indecent comments regarding being on nude beaches in Europe watching naked women and how hard it was not to have an erection. (2) The applicant approached a junior enlisted female Soldier on 11 October 2012 and engaged in inappropriate conversation with her. During the conversation he used indecent language and engaged in unwanted physical touching of the Soldier. (3) The applicant received a GOMOR on 4 January 2013 for the aforementioned misconduct. (4) Conduct unbecoming of an officer as indicated in the aforementioned misconduct. b. He advised the applicant that a flag had been initiated against him in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)). c. He advised the applicant of his option to seek counsel to prepare a written statement indicating any pertinent facts or rebuttal bearing on questions pertaining to his elimination. d. He advised the applicant of his option to submit a rebuttal with all supporting documents to show how he had successfully overcome the reason for the show-cause proceeding or a statement explaining his actions. e. He advised the applicant of his option to submit a request for resignation in lieu of elimination in accordance with Army Regulation 600-8-24. f. He advised the applicant that he was recommending his general discharge under honorable conditions. He further advised the applicant that since an honorable or general discharge was recommended, his case would be forwarded directly to the U.S. Army Human Resources Command (HRC) without referral to a board of inquiry. The least favorable discharge characterization he could receive would be under other than honorable conditions. The final decision on the type of discharge would be determined by Headquarters, Department of the Army. 28. On 28 February 2013, the applicant acknowledged receipt of the elimination memorandum. 29. On 30 March 2013, the applicant submitted a request for retention in which he described his reasons for joining the Army, his family history of military service, the family sacrifices he made in pursuing a military career, and his commitment to the mission and development of Soldiers in his unit. 30. On 30 March 2013, the applicant's defense counsel submitted an appellate brief citing the founded allegations in the Army Regulation 15-6 investigation. a. He argued the allegations that the applicant attempted to commit fraternization were unfair, prejudicial, and incorrect. The IO failed to corroborate the information by other means than the two accusers. The applicant was never in a position to commit fraternization. b. He argued that there was no evidence to support the finding that the applicant repeatedly used obscene language toward enlisted Soldiers or put them in situations where they experienced physical or mental discomfort. All of the information provided in the investigation arose from a confrontation with an NCO who told several people her side of the story and all those Soldiers testified to the IO as if they had personal knowledge of the events when they did not. c. He argued that unbecoming conduct means conduct morally unfitting and unworthy rather than merely inappropriate or unsuitable misbehavior. An officer talking to an NCO or a junior enlisted Soldier in a nonprescribed time or location does not violate Article 133 of the UCMJ (i.e., conduct that offends so seriously against law, justice, morality, or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents). In answer to the IO's questions if the applicant's conduct was becoming of a commissioned officer, SFC S____ M____ indicated the applicant's conduct was unprofessional given the time/location and rank structure of the parties involved. 31. On 17 April 2013, LTG B____ forwarded an elimination action against the applicant to the Commander, HRC. He stated the elimination action was based on allegations that the applicant attempted to and solicited others to violate Army Regulation 600-20 and USCENTCOM General Order Number 1B while deployed to Kuwait. After reviewing all matters pertaining to the applicant, LTG B____ recommended disapproval of the applicant's request for retention. He further recommended the applicant's separation under the provisions of Army Regulation 600-8-24 with the issuance of a general discharge under honorable conditions. 32. On 23 April 2013, the applicant underwent a separation medical examination. No significant medical conditions were identified. 33. On 26 April 2013, the applicant underwent a mental status evaluation. He was found fit for full duty, including deployment. The medical examiner determined the applicant could understand and participate in administrative proceedings, could appreciate the difference between right and wrong, and met medical retention requirements. The medical examiner indicated the applicant met psychiatric criteria for expeditious administrative separation. 34. A message from the Commander, HRC, to the Commander, Third U.S. Army/USARCENT, dated 28 May 2013, announced the Deputy Assistant Secretary of the Army (Review Boards) determined the applicant would be eliminated from the U.S. Army. The message stated the applicant would be discharged for misconduct and moral or professional dereliction of duty with his service characterized as general under honorable conditions under the provisions of Army Regulation 600-8-24, paragraph 4-2b, not later than 14 calendar days after the applicant receives official notification of the message. 35. In a declaration from MSG G____ L. H____, dated 2 June 2013, he stated unequivocally that neither he nor the applicant ever offered alcohol to SGT V____ C____ and SGT F____ G____. The comment the applicant made about coffee and water was misunderstood. It was meant in the context of someone saying, "We have good food and good music, now all we need was some good drink." He remembered SGT G____ saying she didn't drink coffee which is when the applicant explained that was what Soldiers were calling white and dark liquor. The applicant further explained that he really did have coffee and bottled water in his room. At no time did anyone offer any alcohol or ask for any alcohol. The applicant was already talking to SGT G____ when he joined them. They never approached SGT C____. The only reason he asked SGT C____ and SGT G____ if they wanted to play dominoes was because they were two persons short. No one invited them to anyone's room. He does not know why SGT C____ and SGT G____ would lie the way they did. He believes they were influenced by someone else to say those things. He would never jeopardize his career by offering anyone alcohol and he repeated that the applicant did not offer them alcohol at any time. 36. A message from the Commander, HRC, to the Commander, Third U.S. Army/USARCENT, dated 13 June 2013, announced the Deputy Assistant Secretary of the Army (Review Boards) determined the applicant would be discharged not later than 21 June 2013. 37. On 21 June 2013, the applicant was discharged under honorable conditions under the provisions of Army Regulation 600-8-24, paragraph 4-2b, by reason of unacceptable conduct. 38. Counsel provided 10 statements from a variety of commissioned officers, NCOs, and civilians who attest to the applicant's strength of character. 39. USCENTCOM General Order Number 1B, dated 13 March 2006, title: Prohibited Activities for U.S. Department of Defense Personnel Present within the USCENTCOM Area of Responsibility, identifies and regulates conduct prejudicial to the maintenance of good order and discipline of forces in the USCENTCOM area of responsibility. Paragraph 2c prohibits introduction, purchase, possession, sale, transfer, manufacture or consumption of any alcoholic beverage within the countries of Kuwait, Saudi Arabia, Afghanistan, Pakistan, and Iraq. 40. Army Regulation 600-20 prescribes the policy and responsibilities of command which include the wellbeing of the force, military discipline and conduct, the Army Equal Opportunity Program, Prevention of Sexual Harassment, the Army Sexual Assault Prevention and Response Program, and the Sexual Harassment/Assault Response and Prevention Program. a. Paragraph 4-14b states relationships between Soldiers of different rank are prohibited if they compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; cause actual or perceived partiality or unfairness; involve, or appear to involve, the improper use of rank or position for personal gain; are, or are perceived to be, exploitative or coercive in nature; or create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. b. Paragraph 7-2 states commanders and supervisors will continually assess and be aware of the climate of command regarding sexual harassment. Identify problems or potential problems; take prompt, decisive action to investigate all complaints of sexual harassment; and either resolve the problem at the lowest possible level or, if necessary, take formal disciplinary or administrative action. c. Appendix C states attempts should always be made to solve the problem at the lowest possible level within an organization. Upon receipt of a complaint, the commander is required to identify and rectify sexual harassment. (1) The commander will either conduct an investigation personally or immediately appoint an IO according to the provisions of Army Regulation 15-6. The purpose of any investigation of unlawful discrimination or sexual harassment is to determine to the maximum extent possible what actually occurred, to assess the validity of allegations made by the complainant, to advise the commander of any leadership or management concerns that might contribute to perceptions of unlawful discrimination and poor unit command climate, and to recommend appropriate corrective actions. The commanding officer is responsible for ensuring the investigation is complete, thorough, and unbiased. (2) The IO must interview every individual who may have firsthand knowledge of the facts surrounding the validity of the allegations. The IO must also interview everyone who can substantiate the relationship or corroborate the relationship between the complainant and the subject. The IO must interview the person who initially received the formal complaint, the complainant(s), any named witnesses, and the subject. The IO should normally interview the subject after interviewing other witnesses, so that he or she will have a complete understanding of the alleged incident. If needed prior to the conclusion of the investigation, the IO should conduct a second interview of the complainant and the subject. The IO may choose to re-interview certain witnesses for clarification of conflicting statements. When the investigation is completed, the IO should review the evidence, determine if the investigation adequately addresses allegations, make factual findings about what occurred, and provide recommendations consistent with the findings. (3) The appointing authority will submit the ROI to the servicing staff or command judge advocate for a determination of legal sufficiency. After the legal review is completed, the appointing authority will decide whether further investigation is necessary or whether to approve all or part of the findings and recommendations. 41. Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. The primary function of any investigation is to ascertain facts and to report them to the appointing authority. a. It is the duty of the IO to ascertain and consider the evidence on all sides of each issue, thoroughly and impartially, and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority. An IO, recorder (or assistant recorder), or board member is authorized to administer oaths in the performance of such duties under Article 136 of the UCMJ. b. Whether the proceeding is formal or informal, to save time and resources, witnesses may be asked to confirm written sworn or unsworn statements that have first been made exhibits. The witnesses remain subject to questioning on the substance of such statements. c. Although the direct testimony of witnesses is preferable, the IO or board may use any previous statements of a witness as evidence on factual issues, whether or not the following conditions exist: * proceedings are formal or informal * witness is determined to be unavailable * witness testifies * prior statements were sworn or unsworn * prior statements were oral or written * prior statements were taken during the course of the investigation 42. Army Regulation 600-8-24 provides that the following reasons (or ones similar) require an officer's record to be reviewed for consideration of terminating appointment. Standing alone, one of these conditions may not support elimination, however, this derogatory information combined with other known deficiencies form a pattern that, when reviewed in conjunction with the officer's overall record, requires elimination. * punishment under Article 15, UCMJ * conviction by court-martial * final denial or revocation of an officer's Secret security clearance by appropriate authorities * relief for cause officer evaluation report * adverse information filed in the OMPF * failure of a course at a service school DISCUSSION AND CONCLUSIONS: 1. Counsel requests voidance of the applicant's involuntary discharge for misconduct; voidance of the applicant's DD Form 214; and reinstatement of the applicant to active duty with all back pay, allowances, and benefits. 2. The evidence shows SFC M____ witnessed the applicant's behavior toward a junior enlisted female Soldier near the enlisted quarters at Camp Buehring, Kuwait, on 11 October 2012 which she believed was inappropriate. She approached them and asked SPC V____ if she knew the applicant. SPC V____ stated she did not know the applicant at the same time the applicant stated he was SPC V____'s cousin. When she determined that SPC V____ was uncomfortable with the situation, she instructed SPC V____ to go to her quarters and advised the applicant that his behavior was inappropriate. She and the applicant continued to debate the character of his behavior and she advised him that his behavior constituted fraternization or the perception of fraternization at a minimum. She suspected the applicant had been drinking alcohol. After the applicant left the area, SFC M____ walked to 1LT N____'s quarters accompanied by a male NCO, SSG C____, and reported the incident. After consulting with 1LT N____, they decided to wait until morning to alert the chain of command. 3. Seven Soldiers rendered statements on 12 October 2012 regarding incidents that occurred on 4 September 2012 and 11 October 2012 involving the applicant. The statements indicated the applicant and a senior male NCO approached two junior enlisted female Soldiers on 4 September 2012 and invited them to his room to play dominoes and get drunk. The statements further indicated the applicant was witnessed near the enlisted quarters at Camp Buehring on 11 October 2012 and described his behavior and language as inappropriate. These statements were taken by 1LT N____ in the aftermath of SFC M____'s report of the applicant's behavior outside SPC V____'s room the night before. 4. An Army Regulation 15-6 investigation determined: * the applicant did not sexually harass any Soldier during the 4 September 2012 and 11 October 2012 incidents in question * the applicant attempted to fraternize with enlisted members in violation of Article 80 and Army Regulation 600-20 but did not violate Article 134 * the applicant did not consume or possess alcohol or violate USCENTCOM General Order 1B while assigned to Strategic Task Force, 319th Expeditionary Signal Battalion, attached to the 54th Theater Signal Battalion, Camp Buehring, Kuwait * the applicant failed to treat Soldiers with dignity and respect in violation of Army Regulation 600-100 * the applicant's behavior on 4 September 2012 and 11 October 2012 violated Article 133 5. The applicant was issued a GOMOR on 5 January 2013 for attempting to and soliciting others to violate Army Regulation 600-20 and USCENTCOM General Order 1B by using indecent language and being disorderly. The applicant submitted matters in rebuttal to the GOMOR on 7 January 2013 wherein he alleged that the accusations were erroneous and offered his sincere apology for his poor judgment and the embarrassment he brought to the chain of command. After reviewing all matters relating to issuance of the GOMOR, the imposing general officer directed filing the GOMOR, rebuttal matters, and the filing decision in the applicant's OMPF. 6. Elimination action was initiated against the applicant on 27 February 2013 due to his misconduct and moral or professional dereliction. The applicant submitted a request for retention on 30 March 2013. The elimination action was forwarded to HRC for determination on 17 April 2013. The Commanding General, Third U.S. Army/USARCENT recommended disapproval of the applicant's request for retention and further recommended his general discharge under honorable conditions. 7. The Deputy Assistant Secretary of the Army (Review Boards) determined the applicant would be discharged not later than 21 June 2013. The applicant was discharged accordingly on 21 June 2013. 8. Counsel provided no direct evidence to refute the allegations made by the complainants/witnesses. 9. There is no evidence to support counsel's contention that the IO administering the oaths had no legal authority to do so. Army Regulation 15-6 provides that an IO is authorized to administer oaths in the performance of such duties under Article 136 of the UCMJ. 1LT N____ took statements the day following the incident; he was a witness only in the sense that SFC M____ first brought the incident to him in his role as staff duty officer and the IO later asked for his opinion of SFC M____. The statements originally taken by 1LT N____ were presented to MAJ T____, the Army Regulation 15-6 IO, who was authorized to administer oaths. MAJ T____ followed up with additional questions, self-evidently incorporating the 12 October 2012 statements. 10. There is no evidence to support counsel's contention that no one in the chain of review and approval of the ROI commented or acted upon concerns resulting from the statements. The evidence clearly demonstrates careful consideration was given to the weight of the statements and that they were sworn. 11. There is no evidence to support counsel's contention that the four typewritten statements indicated collaboration by the witnesses. Each statement provides an individual account of the incident with no indication of repetitive language. 12. There is no evidence to support counsel's contention that the IO and the judge advocate officer who reviewed the ROI were grossly negligent in the discharge of their duties to approach the allegations in an impartial manner and ensure the rights of the Army and the applicant were respected. To the contrary, the IO found two and a portion of a third of the five allegations to be unsubstantiated. 13. There is no evidence to support counsel's contention that the sexual harassment allegations were not processed in accordance with Army Regulation 600-20. The evidence clearly demonstrates an IO was appointed according to the provisions of Army Regulation 15-6. The IO interviewed the person who initially received the formal complaint, the complainant(s), any named witnesses, and attempted to interview the applicant who declined to be questioned or make a statement. 14. There is no evidence to support counsel's contention that issuance of the GOMOR was based on a fatally-flawed investigation and/or the applicant's involuntary separation was grossly disproportionate to the applicant's misconduct. The investigation was not fatally flawed and the applicant's due process rights were not violated. The applicant's misconduct was properly captured in the GOMOR. While not found to have committed the most serious misconduct, he solicited Soldiers to violate USCENTCOM General Order Number 1B; was overtly familiar with junior female enlisted Soldiers, including touching one on the knee; and called a senior NCO who tried to correct his behavior "crazy" in front of her Soldiers. His lack of judgment is arguably the more troubling for having occurred while sober. 15. In the absence of evidence showing the applicant's separation was in error or unjust, there is no basis for voiding his involuntary discharge for misconduct; voiding his DD Form 214; or reinstating him to active duty with all back pay, allowances, and benefits. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ 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. __________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. ABCMR Record of Proceedings (cont) AR20140006426 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140006426 21 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1