BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150013646 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150013646 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150013646 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of a general officer memorandum of reprimand (GOMOR), dated 15 July 2013, from his Official Military Personnel File (OMPF) or, alternatively, transfer of the GOMOR to the restricted folder of his OMPF. 2. The applicant states a prior subordinate lied in a sworn statement and falsely accused him of committing sexual harassment after it was discovered she misused a U.S. Government travel card. He submitted his own statement denying he sexually harassed her. His command told him they didn't believe he committed sexual harassment, but still thought his contact with the subordinate was unprofessional and gave him a GOMOR. The GOMOR resulted in his premature selection for separation by the Officer Separation Board. The GOMOR is continuing to cause him great hardship. He is now a civilian, but he would like the opportunity to serve his country and possibly reenter the military in the future. Over a year has passed since receiving the GOMOR and he provided documentation showing his military record improved since the incident. It is unjust to keep the GOMOR in his file after it has served its intended purpose. 3. The applicant provides: * DA Form 67-9 (Officer Evaluation Report) covering the period 2 May 2011 through 2 November 2012 * DA Form 67-9 covering the period 3 November 2012 through 21 May 2013 * DA Form 67-9 covering the period 19 July 2013 through 31 December 2013 * DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report) covering the period 1 January 2014 through 6 June 2014 * DA Form 4980-18 (Army Achievement Medal Certificate), dated 28 May 2014 * DD Form 214 (Certificate of Release or Discharge) CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army on 11 May 2007 and entered active duty on 3 June 2007. 2. An Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation commenced on 7 June 2013, resulting from allegations of misconduct on the applicant's part. The investigation was to determine if he sexually harassed Staff Sergeant (SSG) M____ and whether he fraternized with or attempted to fraternize with her during or after January 2013. 3. The investigating officer conducted witness interviews and collected sworn statements from SSG M____ and her supervisor, Chief Warrant Officer Two (CW2) V____. a. The investigating officer cited the following background information: (1) SSG M____ stated she clearly told the applicant "no" when he asked her out to a dinner that was not intended for the whole group of Soldiers and she immediately told her first line supervisor, CW2 V____, that she was being "hit on" by a battalion officer. She felt she handled the situation at her level. SSG M____ stated the applicant texted her again a few weeks later stating he would go on future staff assistance visits so they could see each other. SSG M____ very clearly refused his requests and told him she would not engage in an inappropriate relationship with him. (2) CW2 V____ stated SSG M____ initially apprised him of the situation and requested to take care of the situation at her level. (3) The applicant invoked his right to have his lawyer present and refused to be questioned by or say anything to the investigating officer. b. The investigating officer found the applicant committed: (1) sexual harassment of SSG M____ when he made deliberate or repeated unwelcome verbal comments and sent unwelcome text messages to her, created a hostile environment for her when he asked her out and further requested she take leave to join him in Washington State, and attempted to form a relationship that would clearly undermine good order and discipline of the unit when he told her that he would ensure he would be on subsequent staff assistance visits in order to be with her; (2) maltreatment of a subordinate when he created a hostile environment for SSG M____ by asking her out and further requesting she take leave to join him in Washington, thus attempting to create an inappropriate relationship; and (3) conduct unbecoming an officer when he committed the above violations. 4. On 15 July 2013, the Commanding General, U.S. Army Criminal Investigation Command, issued a GOMOR to the applicant for sending his subordinate several inappropriate text messages in what appeared to be an attempt to start a romantic relationship with her that he knew to violate Army regulations. He continued his harassment by repeatedly asking her out on dates and even went so far as to suggest she take leave and fly to Washington to see him. a. The GOMOR was imposed as an administrative measure and not as nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice. b. He was advised that his response or rebuttal to the GOMOR must arrive within 10 working days of the date the memorandum was provided to him. 5. He submitted a rebuttal on 28 June 2013 wherein he stated: a. He enjoyed talking with agents regarding the aspects and inner workings of the U.S. Army Criminal Investigation Command and spoke with several agents during the staff assistance visit, to include SSG M____. His conversation with SSG M____ focused on her past experiences within the command and his own experiences at the battalion level. b. He mentioned that he and others on the team went out most nights and he wanted to see if she wanted to go out to eat with the group on their final night. He viewed the conversation as part of a professional friendship. Eventually the others in the group decided they did not want to go out, so he sent her a message stating the others weren't going out and asked if she knew anyone who might want to go out for dinner and drinks. SSG M____ did not express that she felt these communications were inappropriate. c. He texted with SSG M____ several weeks later and asked how things were going in Colorado. She responded that she was glad to hear from him. He expressed that traveling to the detachments and meeting personnel at different offices was an enjoyable part of his job and he asked her about a statement she made regarding traveling to Washington. He never said he was going to try to go on additional trips to Colorado to see her. d. He became aware of the allegations against him shortly after he had directed counseling SSG M____ regarding booking travel outside the Defense Travel System when using her government credit card for official travel pursuant to an unauthorized use report showing SSG M____ violated government travel policies. 6. His battalion and brigade commanders both recommended permanently filing the GOMOR in his OMPF. His battalion commander stated it was inconceivable to him that the applicant, having over 6 years of service, did not understand that his actions were wrong. Even if his initial communications were out of professional courtesy, further communications initiated by him from Joint Base Lewis-McChord could not be justified. 7. On 18 September 2013 after reviewing the case file and the filing recommendations of the applicant's chain of command, the GOMOR-imposing authority directed permanently filing the GOMOR in the applicant's OMPF. 8. His DD Form 214 and DD Form 215 (Correction to DD Form 214) show he was honorably discharged on 31 July 2014 due to a reduction in force. He completed 7 years, 1 month, and 28 days of net active service. 9. He provided four officer evaluation reports and one Army Achievement Medal Certificate detailing his outstanding performance during the periods covered. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. 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. a. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7. b. Paragraph 7-2 provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (Department of Army Suitability Evaluation Board or this Board). DISCUSSION: 1. The applicant's request for removal of a GOMOR from his OMPF or transfer to the restricted folder of his OMPF was carefully considered. 2. He claims he did not sexually harass SSG M____ and viewed their conversations and text messages as part of a professional friendship. He states she falsely accused him of committing sexual harassment after she misused a U.S. Government travel card. There is no evidence of record indicating this was the case. 3. The evidence of record shows an Army Regulation 15-6 investigation found he committed sexual harassment, maltreatment of a subordinate, and conduct unbecoming an officer. 4. He was subsequently issued a GOMOR by the Commanding General, U.S. Army Criminal Investigation Command, to which he provided a rebuttal. Based on the facts of the case and a review of his rebuttal, his chain of command recommended filing the GOMOR in his OMPF and the GOMOR-issuing authority used the discretion afforded his position and authority to heed those recommendations, directing placement of the GOMOR in the applicant's OMPF. 5. The evidence and argument presented by the applicant do not show any error or injustice with regard to placement of the GOMOR in his OMPF, nor do they prove it would be in the best interest of the Army to remove the GOMOR from his OMPF or transfer it to the restricted folder. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013646 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013646 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2