ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 March 2019 DOCKET NUMBER: AR20170018038 APPLICANT REQUESTS: through counsel, removal of the general officer memorandum of reprimand (GOMOR), dated 3 October 2014, from her Army Military Human Resource Record (AMHRR). 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, Counsel, 28 August 2017, subject: Supplemental Statement in the Case of (Applicant) * Tab A – GOMOR, GOMOR Rebuttal, Supporting Documents * Tab B – DASEB Appeal * Tab C – DASEB Decision * Tab D – DASEB Email * Tab E – Restricted and Unrestricted Sexual Assault Report * Tab F – Memorandum for Record, Psychiatrist, 11 March 2016 * Tab G – U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), 5 August 2014 * Tab H – Promotion Recommendation, 2 September 2016 * Tab I – Email, 4 June 2015 * Tab J – Memorandum of Support, 13 July 2015 * Tab K – Memorandums/Letters of Recommendation (20) * Tab L – Promotion Review Board (PRB) Notice, 10 March 2016 * Tab M – PRB Rebuttal, 29 March 2016 * Tab N – PRB Decision, 16 December 2016 FACTS: 1. Counsel states the applicant requests removal of the GOMOR, dated 3 October 2014, from her military records in its entirety as it is untrue, unjust, and has served its intended purpose. a. In November 2013, the applicant was the victim of military sexual assault by a male lieutenant and classmate. She filed a restricted report that she later changed to an unrestricted report. She now suffers from post-traumatic stress disorder (PTSD) and insomnia resulting from the assault. b. Her conduct that led to the GOMOR was in part caused by her medication for diagnosed PTSD and insomnia, caused by the sexual assault. c. On 25 July 2014, the applicant made inappropriate comments to Sergeant (SGT) D M , a noncommissioned officer (NCO). The comments she made to him consisted of asking him how his husband was doing, knowing he was married to a woman. The applicant would later describe her comments as joking when interviewed by CID. At the time she made the comments and when she gave her interview, she had not yet realized that her medication for PTSD and insomnia reduced her ability to fully perceive and appreciate her surroundings. d. At the time of this incident, SGT M was sitting in a chair at the barracks charge of quarters (CQ) desk with his back facing the hallway. The applicant was conducting barracks checks. In addition to making the inappropriate comments, SGT M also alleged the applicant touched his shoulders for about 2 seconds while she was passing behind him in the hallway. The applicant has no memory of doing so, but if it happened, it was inadvertent contact made while squeezing past his chair in the hallway. The incident was reported to CID as a sexual assault. e. Following the investigation, the applicant received a GOMOR. Since then, she has fully corrected her behavior and has not had any subsequent issues. She was also promoted to first lieutenant (1LT) after gaining the support from Major General (MG) F , the GOMOR-issuing authority. f. The GOMOR is untrue and unjust because it specifically states the applicant "massaged [a male NCO's] shoulders and chest." This statement is untrue where the alleged victim (the male NCO) stated the applicant touched his shoulders only, and that she did not touch any other part of his body. The GOMOR is also unjust because the applicant's conduct was partially the result of medication she was taking for PTSD related to her prior sexual assault. The applicant does not now and never has sought to blame her medication for this incident, but the fact is that her medication carried known side effects that caused out-of-character behavior. The applicant has never conducted herself in this manner prior to or since this incident, further establishing that her medication (not her character) was the significant contributing factor. It is unjust to permanently file this GOMOR in her AMHRR where her conduct was significantly caused by her prescribed medications for her sexual assault-related PTSD. g. The GOMOR has served its intended purpose. The issuing authority subsequently recommended the applicant for promotion to 1LT, despite the GOMOR, and the Secretary of the Army chose to retain the applicant on the promotion list and promote her to 1LT, despite the GOMOR. Clearly, it has served its intended purpose. The Secretary of the Army agreed the GOMOR served it intended purpose when he ordered applicant's promotion to 1LT following the PRB. The Secretary of the Army certainly would not have ordered her promotion following the PRB if he did not believe the GOMOR has served it intended purpose h. Redacting the GOMOR is insufficient. The allegation the applicant touched the chest of SGT M is the most serious offense alleged. Removing that offense from consideration likely would have resulted in the local filing of the GOMOR. This is evidenced by the fact that, as drafted, the applicant had the support of most of her chain of command for local filing. Only the brigade commander recommended permanent filing based on the "nature of the offenses." Had the "nature of the offenses" not included touching the chest, it likely would have swayed his recommendation, and thereafter the decision by Major General F . Once this information was finally presented to MG F a year later as part of the argument for the applicant's retention and promotion to ILT, MG F recognized the discrepancy by supporting the applicant's promotion to ILT. This demonstrates that MG F would likely have filed the GOMOR locally had he known the evidence did not support the allegations. Accordingly, the GOMOR must be removed. i. The DASEB never reviewed or considered the Secretary of the Army's promotion decision. As such, the DASEB decision warrants no deference. The DASEB received the Secretary of the Army's decision from the applicant in February 2017. As late as April 2017, the applicant was assured by the DASEB that the board would consider the Secretary of the Army's promotion decision. On 11 July 2017, the applicant received the DASEB decision and discovered the DASEB failed to consider the Secretary of the Army's decision, as her case was closed on 31 January 2017 prior to the DASEB receiving the Secretary of the Army's promotion decision. As such, no deference should be afforded to the DASEB's decision in this case because they were not able to consider the Secretary of the Army's determination that the applicant should be promoted and continue her career. 2. The applicant is currently serving in the Regular Army in the rank of 1LT. 3. On 22 November 2013, the applicant filed a restricted report of sexual assault. 4. The CID ROI, dated 5 August 2014, identifies the applicant as the subject of the investigation. SGT M reported he was sexually assaulted by the applicant. a. The investigation established probable cause to believe the applicant committed the offense of assault when she intentionally threw her headgear without provocation and hit SGT M while he was assigned as the CQ NCO. b. The investigation established probable cause to believe the applicant committed the offense of cruelty and maltreatment when she subjected SGT M to repeated offensive comments while subject to her authority as the staff duty officer of the day. c. The investigation established probable cause to believe the applicant committed the offense of abusive sexual contact when she massaged SGT M 's shoulders without his consent. 5. On 3 October 2014, the applicant was issued a GOMOR for her demonstrated lack of professionalism and poor judgment. An investigation revealed that while working as the staff duty officer, she made inappropriate and offensive comments to a subordinate Soldier regarding his sexual preference. Additionally, despite being warned that her behavior may be inappropriate, she massaged his shoulders and chest, and behaved in a manner that made him feel uncomfortable. She was given 10 days to submit matters in rebuttal, extenuation, and mitigation. 6. On 15 October 2014, the applicant acknowledged receipt of the GOMOR and requested filing the GOMOR in her local file. She took full responsibility for her immature and unprofessional conduct on 25 July 2014. She contested the allegation of massaging SGT M 's chest. The referenced massage did not occur and SGT M stated as much. SGT M specifically said that she touched him on the shoulders, "just my shoulders," and it "was very brief," "two seconds." They both stated she had to go behind his chair to access the hall to the other CQ. She pushed the chair out of the way as she walked behind him; she did not give him a massage. She would never touch someone inappropriately; however, she did not blame SGT M for interpreting the push as inappropriate given the stupid things she had just said to him. She assured the GOMOR-issuing authority that she would learn and grow from her mistake. 7. On 7 November 2014, the GOMOR-imposing authority directed permanently filing the GOMOR in the applicant's AMHRR. 8. On 1 May 2015, the applicant reconsidered her previous selection of restricted reporting and chose to file an unrestricted report of sexual assault. 9. On 2 September 2015, MG F recommended the applicant for promotion to 1LT. 10. On 10 March 2016, the applicant was notified her records would be referred to a PRB based on the CID ROI, dated 5 August 2014, and the GOMOR, dated 3 October 2014. She was given 14 days to submit a rebuttal, comments, information, and letters of endorsement on her behalf attesting as to why she should be retained and promoted to the next higher grade. 11. The memorandum for record from Dr. B O , dated 11 March 2016, states he was treating the applicant for PTSD and insomnia that occurred as a result of being raped. The applicant experienced a known adverse effect of the medication which resulted in the events that occurred on 27 July 2014, an instance of behavior that wasn't typical of the applicant. 12. On 29 March 2016, she responded to the PRB, requesting promotion and continuance on active duty. She described the circumstances surrounding her sexual assault in 2013 and her subsequent GOMOR for unprofessional conduct in 2014. 13. On 12 April 2016, the applicant petitioned the DASEB for removal of the GOMOR from her AMHRR. a. She stated the GOMOR is untrue in parts and its filing in her AMHRR was unjust for the following reasons. First, the GOMOR contains untrue statements, specifically that she "massaged" the shoulder and chest of a male NCO. Second, the investigation was incomplete and her Constitutional rights were violated when she was questioned by CID. Third, the facts and circumstances surrounding the incident were never considered. b. She stated she was raped by another officer in November 2013 while she was attending the Officer Basic Leaders Course. She immediately filed a restricted report. At the time of the incident in Hawaii, she was suffering from PTSD and insomnia from the rape. She was taking Ambien and instant-release Adderall for attention deficit hyperactivity disorder (ADHD). She did not know how Ambien would affect her or how it would interact with Adderall. The incident in July 2014 was wholly out of character and she attributed her statements and out-of-character behavior to her trauma response and the Ambien she was taking. Her medical provider confirmed that her out-of-character behavior was the result of the trauma and Ambien, and this was a common side effect of the medication. 14. On 15 December 2016, the Secretary of the Army restored the applicant's promotion eligibility to 1LT. 15. On 20 January 2017, the applicant was notified of the Secretary of the Army's decision to retain her on the promotion list. She was promoted to 1LT with a date of rank and effective date of 20 April 2015. 16. On 31 January 2017 after careful consideration of the facts and evidence in the applicant's case, the DASEB determined there was insufficient evidence to justify removal of the GOMOR from her AMHRR. The DASEB determined the evidence presented did not clearly and convincingly establish that the document under consideration was untrue or unjust. 17. The GOMOR is currently filed in the performance folder of the applicant's AMHRR. 18. Counsel provided 20 memorandums/letters of recommendation attesting to her character and professionalism. 19. On 4 March 2019, the Army Review Boards Agency Staff Psychiatrist rendered an advisory opinion wherein she found the applicant's contention that her out-of-character, sexually inappropriate behaviors were due to her use of Ambien to be credible. a. A review of the applicant's military records indicated she was the victim of a sexual assault by a male lieutenant and classmate in November 2013. She developed PTSD with resultant insomnia as a consequence of the attack. b. In July 2014, she made inappropriate comments to a male enlisted Soldier and allegedly touched his shoulders while passing behind him. The incident was reported to CID as a sexual assault. c. In November 2015, the applicant was found to meet the criteria for PTSD. d. She stated the applicant's sexually inappropriate behaviors were more likely than not due to her use of Ambien – which was prescribed to treat her PTSD-associated insomnia – and, as such, are mitigated by her diagnosis of PTSD. e. She concluded the applicant's diagnosis of PTSD is mitigating for the misconduct that resulted in her receipt of the GOMOR. 20. On 12 March 2019, counsel responded to the Army Review Boards Agency Staff Psychiatrist advisory opinion wherein he stated the applicant concurs with the psychiatrist's conclusions. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The Board considered the applicant’s contentions, the evidence of record and the medical advisory opinion and determined that the GOMOR had served its purpose and should be fully removed from her OMPF. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the contested 3 October 2014 GOMOR from her OMPF. 3/21/2019 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. ADMINISTRATIVE NOTE(S): not applicable. 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 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 in accordance with chapter 7. b. Paragraph 7-2 provides that 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. 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 AMHRR. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. 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 AMHRR. Table B-1 states a memorandum of reprimand is filed in the performance folder of the AMHRR unless directed otherwise by an appropriate authority (DASEB or the Army Board for Correction of Military Records).