ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20180000390 APPLICANT REQUESTS: defers to counsel. COUNSEL REQUESTS: a. removal of the adverse Board of Inquiry (BOI) results from the applicant's official military personel file (OMPF); reinstatement of the applicant to active duty for such time until he becomes retirement eligible or, in the alternative, constructive credit for the 12 days necessary to make him retirement eligible; and c. expedited consideration of and action on this request because the applicant's career and potential retirement are dependent on the substantive issues addressed herein below. APPLICANT'S AND COUNSEL'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) * Counsel's Supplemental Statement * General Officer Memorandum of Reprimand (GOMOR) and Filing Determination * Initiation of Elimination Notice * BOI Index of Exhibits * Record of BOI Proceedings * Request for Retirement in Lieu of Elimination * Memorandum, U.S. Army Combined Arms Support Command, dated 9 August 2017, subject: Service Copy of BOI Report/Proceedings * Memorandum, Deputy Assistant Secretary of the Army (Review Boards), dated 21 December 2017, subject: Officer Elimination Case (Applicant) * U.S. Army Criminal Investigation Command (CID) Agent's Investigation Report (AIRs) * Matters in Rebuttal to GOMOR, dated 27 April 2017 * Text Messages * Two DA Forms 2823 (Sworn Statement) from Major (MAJ) J L. F , dated 6 March 2017, and MAJ A H. E , dated 7 March 2017 * Notice of Substantial Board Defect, dated 6 July 2017 * Two Memoranda for Record (MFR), dated 3 and 4 August 2017 * Five Noncommissioned Officer Evaluation Reports (NCOERs) * 13 Officer Evaluation Reports (OERs) * Six Academic Evaluation Reports (AERs) * Certificates of Achievement FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states: a. On 19 April 2017, the applicant was reprimanded in writing for allegedly committing sexual harassment in violation of Army Regulation 600-20 (Army Command Policy), paragraph 7-6b. Specifically, the GOMOR alleges the applicant asked a female officer in the rank of MAJ (further identified in this case as MAJ S ) a series of intimate and sexually explicit questions, removed her hairclip, touched her hair and head, and continued to touch her hair while advancing closer, nearly straddling and cornering her in her chair. The GOMOR is filed in the applicant's OMPF. b. On 18 May 2017, the applicant received a notification of initiation of elimination action. c. On 30 June 2017, a BOI found the applicant committed an act of sexual harassment and conduct unbecoming an officer and recommended his elimination from the Army under honorable conditions (general). d. On 15 August 2017, the applicant acknowledged receipt of the BOI report and initiated an application for retirement in lieu of elimination. Despite his request to retire in lieu of elimination, the Deputy Assistant Secretary of the Army (Review Boards) determined he would be involuntary eliminated from the Army with a general discharge. The applicant became retirement eligible on 16 January 2018 and completed 19 years and 11 months of creditable military service as of the date of his application to the Board. e. The BOI should be removed from the applicant's OMPF because the government failed to prove the allegations against him were true by a preponderance of the evidence. The BOI failed to prove the alleged conduct constituted an act of sexual harassment as a matter of law and the proceedings contained fatal flaws, which prejudiced the applicant's right to a fair board. In addition, the CID never opined the applicant committed an act of sexual harassment. f. The applicant unequivocally denies that he asked MAJ S a series of intimate and sexually explicit questions as alleged in the GOMOR. He did touch MAJ S 's hair clip in a friendly manner to remove a source of distraction, as she kept touching it during their conversation. However, he denies running his hands through her hair. In fact, text messages from MAJ S 's cellphone, obtained by CID, reveal no inappropriate textS between the applicant and MAJ S , but more that they enjoyed a cordial and friendly relationship. g. The only evidence the applicant asked MAJ S inappropriate questions is her own statement. Therefore, the truth of MAJ S 's statement is necessarily dependent upon her credibility. A close review of the statements provided during the CID investigation reveal several important discrepancies. (1) In MAJ E 's sworn statement, he indicates MAJ S told him she was yelling at the top of her voice to the applicant to get out. In direct contradiction, in MAJ F 's sworn statement, she states she was in an adjacent room during the incident in question and heard the applicant's and MAJ S 's muffled voices through the wall. MAJ F never heard yelling and, although she turned her music up in order to focus on her studying, she could still hear their voices as they continued talking for a short time. Accordingly, had MAJ S yelled at the top of her voice as she claims, MAJ F would have heard likewise. This information tarnishes the credibility of MAJ S 's statements and accusations, as well as MAJ E 's story. (2) In MAJ E 's sworn statement, he claimed the applicant asked MAJ S if she had "ever seen a black dick." In MAJ F 's sworn statement, she stated she overheard the applicant ask MAJ S about "being with a black man" and that the question was not "meant as overtly sexual." MAJ F 's sworn statement contains personal knowledge of the discussion in question and MAJ E 's sworn statement only contains second-hand information provided by MAJ S . (3) Finally, MAJ E relates that the applicant positioned himself 3-6 inches from MAJ S , having his hips at MAJ S 's shoulders. This detail appears nowhere in MAJ S 's own statement to CID, but was added in her story to MAJ E to exaggerate the applicant's alleged behavior, which greatly diminishes MAJ S 's credibility. (4) During the applicant's BOI, MAJ S added a variety of new facts, to include a description of an encounter with the applicant outside her hotel room. These are unpersuasive and inherently self-serving given the fact that they were never previously documented. h. Each of the discrepancies mentioned above relates to important details about the conversation between the applicant and MAJ S . Given that the statement provided by MAJ F , who overheard the conversation, directly contradicts the stories that MAJ S told CID and MAJ E , there is no way to conclude that the applicant acted inappropriately. i. The applicant's actions on the night in question did not constitute sexual harassment as defined by Army regulation. (1) Army Regulation 600-20, paragraph 7-4(a), states sexual harassment is a form of gender discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between the same or opposite genders when: * submission to, or rejection of, such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career * submission to, or rejection of, such conduct by a person is used as a basis for career or employment decisions affecting that person; or * such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment. (2) The applicant denies he asked MAJ S any intimate and/or sexual questions and he denies the he ever straddled MAJ S at any time. He admits to removing a clip from her hair, but denies any sexual component to that act, and devoid of any sexual act or discussion, there could not have been sexual harassment. (3) Subparagraphs 7-4a(1), (2), and (3) of Army Regulation 600-20 does not apply to the allegations in question because there were no situations where any sexual act or conduct was: * made a condition of a person's job, pay, or career * a basis for career or employment decisions affecting that person * unreasonably interfered with an individual's work performance or created an intimidating, hostile, or offensive working environment (4) The specific allegation that the applicant violated Army Regulation 600-20, paragraph 7-6b, in creating a hostile work environment is unfounded. A workplace is only deemed a hostile environment when inappropriate behaviors unreasonably interfere with performance. The applicant denies there was any sexual component to his interaction with MAJ S , the interaction did not take place at work, and there is absolutely no evidence his alleged actions unreasonably interfered with MAJ S 's performance. Therefore, his alleged actions do not constitute a violation of Army Regulation 600-20, paragraph 7-6b, as a matter of law. j. Once the applicant's BOI closed, his attorney at the time submitted a Notice of Substantial Defect, dated 6 July 2017. It provided that the BOI contained a fatal flaw which prejudiced a substantial right of the applicant. MAJ S , the alleged victim and primary witness in the case, was permitted to remain in the board hearing room as a spectator in violation of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-14, which states unequivocally that any person called as a witness will not be present as a spectator. Also, Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), paragraph 3-8(b), similarly states "witnesses, other than respondents, normally will not be present at the investigation or board proceedings, except when they are testifying. In some cases, however, it is necessary to allow expert witnesses to hear evidence presented by other witnesses, so that they may be sufficiently advised of the evidence to give informed testimony as to the technical aspects of the case." (1) Clearly, both regulations prescribe the attendance of witnesses as spectators. In this case, MAJ S was the primary fact witness in the case against the applicant, not an expert witness. Neither rule contains an exception for witnesses to attend as spectators at the conclusion of their testimony. (2) These rules reflect a policy choice by the drafters to protect the rights of the respondent. Among those rights are the right to confidential proceedings and the right to a fair and unbiased board hearing. The danger of allowing witnesses, especially alleged victims, to sit and observe board proceedings such as these is the very real risk that their presence will influence the board proceedings and outcome. The record indicates the board recorder announced MAJ S 's presence as a spectator to the BOI, which confirms their awareness of her presence during the remainder of the proceedings. The mere possibility that her presence improperly influenced the board hearing nullifies the entire process and as such, the BOI proceedings should be removed from the applicant's OMPF or the case should be returned for rehearing by a new BOI in accordance with Army Regulation 600-8-24, paragraph 4-16. k. Army Regulation 600-8-24, paragraph 6-16(d), states an officer who receives a notification memorandum of impending elimination may request retirement in lieu of elimination if the officer has 19 years and 6 months of service or more on the date of such application. The applicant became retirement eligible on 16 January 2018. Although the applicant did not have this sufficient service on the date he received his notice of initiation of elimination on 18 May 2017, he did reach 19 years and 6 months of service after his elimination board took place. The applicant submitted a post-board inquiry request for retirement in lieu of elimination on 15 August 2017, at which time he completed in excess of 19 years and 6 months of service and was therefore eligible to submit said request. Despite this request, he received correspondence that showed the senior official performing the duties of the Assistant Secretary of the Army (Manpower and Reserve Affairs) determined he would be involuntarily eliminated from the Army with a general discharge under honorable conditions. This correspondence contained no language which acknowledged his pending request for retirement in lieu of elimination nor did it contain any explanation for the decision to eliminate him instead of extending him on active duty through his retirement date to permit him the opportunity to retire. l. Army Regulation 600-8-24, paragraph 6-16(d), states if the officer elects to retire and the elimination action involved misconduct or moral or professional dereliction, the Commanding General, U.S. Army Human Resources Command, will forward the retirement application and memorandum of notification for elimination with all supporting documents to the Army Grade Determination Board. It is unclear why the applicant's post-board request for retirement in lieu of elimination was not accepted and forwarded in accordance with the regulatory guidance. If said request was considered, it is unclear why it was denied. The applicant had over 19 years and 6 months of service, was entitled to submit a request for retirement in lieu of elimination, and, minus the reason for the denial, it is impossible to address any substantive issues. However, it is clear: (1) The record provides no actual evidence that a deliberation took place on the matter nor does it provide an explanation of why it was denied. As such, the result is arbitrary and erroneous. (2) If there were deliberation on the matter, the denial of said request is entirely inequitable based on the totality of the circumstances. * there is strong evidence the allegations against the applicant are false and that his actions on the night in question do not constitute "sexual harassment" as defined by Army regulation * even if the BOI findings stand, it is nevertheless entirely inequitable to deny the applicant the opportunity to retire * the applicant spent nearly 20 years serving the Army and his country as both an NCO and an officer * his long track record of honorable and selfless service is reflected in his NCOERs, OERs, and AERs * his evaluation reports not only illustrate his sustained performance, but also serve as evidence of good character as a Soldier and person * his lengthy service without any other single act of misconduct or blemish additionally shows he could not have committed the allegations in question * he earned the opportunity to retire and to deprive him retirement given the quality and nature of his lengthy service to his country is inequitable, unfair, and unjust m. A selection of the applicant's awards and decorations are provided for reference and in consideration of the requested relief. The reasons listed above – justice, fairness, and equity – require the applicant be granted the requested relief in this case. 2. On 19 April 2017, the applicant was issued a GOMOR by the Commanding General, U.S. Army Combined Arms Support Command, Fort Lee, VA, for committing sexual harassment in violation of Army Regulation 600-20, paragraph 7-6b, while attending the Command and General Staff College. The commanding general stated: An Army Criminal Investigative Division [U.S. Army Criminal Investigation Command] investigation revealed that you asked a female Officer a series of intimate and sexually explicit questions. You then removed the Officer's hairclip and touched the Officer's head and hair. The Officer told you to stop and tried to fix her hair. Rather than stopping, you continued to touch the Officer's hair and advanced closer to the Officer, nearly straddling her and cornering her in her chair. You finally ceased this inappropriate behavior when the Officer again told you to stop and pushed you away. 3. On 16 May 2017, the Commanding General, U.S. Army Combined Arms Support Command, directed permanent filing of the GOMOR in the applicant's Army Military Human Resource Record. 4. On 16 May 2017, the Commanding General, U.S. Army Combined Arms Support Command, notified the applicant of initiation of his elimination. The commanding general cited the following reasons as the basis for the elimination action: the applicant committed sexual harassment against a fellow student while attending the Command and General Staff College, his receipt of a GOMOR, and his conduct unbecoming an officer. On 18 May 2017, the applicant acknowledged receipt of the pending elimination action against him. 5. On 30 June 2017, the BOI found the allegations of sexual harassment in violation of Army Regulation 600-20, paragraph 7-6b, against a fellow student while attending the Command and General Staff College and of conduct unbecoming an officer were supported by a preponderance of the evidence. The BOI recommended the applicant's separation from the service with a general discharge. 6. On 6 July 2017, the applicant's counsel submitted a Notice of Substantial Defect on the BOI, indicating: * MAJ S was forbidden by Army regulation from being present as a spectator at the applicants BOI * the Board President did not possess the authority to allow MAJ S as a spectator, neither did he affirmatively grant her permission to stay * MAJ S 's presence destroyed the applicant's right to confidential proceedings * by regulation, the general officer show cause authority had only two possible options with regard to the defect – either direct the applicant's retention or order the case be returned for a new board 7. On 25 July 2017, the Chief of Administrative Law, Office of the Judge Advocate, Fort Lee, VA, conducted a legal review in response to the Defense of Substantial Defect of the BOI. The Administrative Law Chief provided: a. A substantial defect did not occur; therefore, the board's findings and recommendations should be approved. b. The applicant's counsel did not object to MAJ S 's presence during the proceedings; MAJ S was present after she had already testified and was permanently excused by the recorder and applicant; and there is no evidence that MAJ S 's presence influenced the board members' findings and recommendation. c. After MAJ S was permanently excused, she exited the courtroom and then re-entered the gallery area. Upon seeing her enter the room, the assistant recorder, who was standing and preparing to deliver his closing argument, stated she could be seated in the gallery area. The Board President did not respond and the applicant's counsel did not object. d. Army Regulation 600-8-24, paragraph 4-14, states, in part, "The board president may exclude any spectator when (in the opinion of the board) [his or her] presence interferes with the proceedings. Any person called as a witness will not be present as a spectator." The Board President and neither board member chose or asked to exclude MAJ S . e. Even if it were determined that MAJ S should not have been present in the gallery during the closing arguments and the reading of the panel's decision under the provisions of Army Regulation 600-8-24 and Army Regulation 15-6, such a defect is not a "substantial defect" and did not substantially prejudice a substantial right of the applicant within the meaning of Army Regulation 600-8-24 and Army Regulation 15-6. In accordance with Army Regulation 15-6, paragraph 3-20d, "No error is substantial within the meaning of this regulation if there is a failure to object or otherwise bring the error to the attention of the investigating officer, legal advisor, or board president, prior to the board adjourning. Accordingly, any error that would have been substantial as defined within AR 15-6 [Army Regulation 15-6] may be treated as harmless if the Respondent or Respondent's counsel fail to object." 8. On 4 August 2017, the Commanding General, U.S. Army Combined Arms Support Command, determined there was no substantial defect committed during the BOI. As a result, he directed continued processing of the applicant's elimination. 9. On 9 August 2017, the applicant acknowledged receipt of the service copy of the BOI Report/Proceedings. On 15 August 2017, he elected to apply for retirement in lieu of elimination. 10. On 21 December 2017, the senior official performing the duties of the Assistant Secretary of the Army (Manpower and Reserve Affairs) determined the applicant would be involuntarily eliminated with his service characterized as general under honorable conditions based on misconduct and moral or professional dereliction. 11. The applicant's record shows, with the exception of one "Fully Capable" rating, he received all "Among the Best" ratings in his NCOERs and "Best, Most, or Highly Qualified" ratings in his OERs. His awards include the Purple Heart, Joint Service Commendation Medal, Army Commendation Medal (3rd Award), Army Achievement Medal (5th Award), Joint Meritorious Unit Award, Valorous Unit Award, Army Good Conduct Medal (2nd Award), National Defense Service Medal, Afghanistan Campaign Medal, Iraqi Campaign Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, NCO Professional Development Ribbon (2nd Award), Overseas Service Ribbon (3rd Award), North Atlantic Treat Organization Medal, Combat Action Badge, Army Parachutist Badge, and Air Assault Badge. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, counsel statement and evidence in the records. The Board discussed the proceedings and recommendation of the BOI for separation, the subsequent legal review, the CID report, the applicant’s election to retire in lieu of elimination and the approval of his involuntary elimination from service by the Senior Official Performing the Duties of the Assistant Secretary of the Army (Manpower and Reserve Affairs). In reviewing the totality of the documents provided for this case, the Board determined there was no error or injustice presented in the records or by the applicant that would require a correction to the applicant’s record. 2. After reviewing the application and all supporting documentation, the Board determined that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 2 July 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 600-20 prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign Plan, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Harassment/Assault Response and Prevention Program (formerly the Army Sexual Assault Victim Program). Chapter 7 provides for the prevention of sexual harassment. a. Paragraph 7-4 defines sexual harassment is a form of gender discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between the same or opposite genders when: (1) submission to, or rejection of, such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career; (2) submission to, or rejection of, such conduct by a person is used as a basis for career or employment decisions affecting that person; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment. b. Paragraph 7-4b states that any person in a supervisory or command position who uses or condones implicit or explicit sexual behavior to control, influence, or affect the career, pay, or job of a Soldier or civilian employee is engaging in sexual harassment. Similarly, any Soldier or civilian employee who makes deliberate or repeated unwelcome verbal comments, gestures, or physical contact of a sexual nature is engaging in sexual harassment. c. Paragraph 7-6 (Types of Sexual Harassment) provides that quid pro quo refers to conditions placed on a person's career or terms of employment in return for favors. It includes implicit or explicit threats of adverse action if the person does not submit to such conditions and promises of favorable actions if the person does submit to such conditions. A hostile environment occurs when Soldiers or civilians are subjected to offensive, unwanted, and unsolicited comments or behaviors of a sexual nature. If these behaviors unreasonably interfere with their performance, regardless of whether the harasser and the victim are in the same workplace, then the environment is classified as hostile. 2. Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. a. Paragraph 3-8b (Witnesses/Attendance as Spectators) states witnesses, other than respondents, normally will not be present at the investigation or board proceedings, except when they are testifying. In some cases, however, it is necessary to allow expert witnesses to hear evidence presented by other witnesses, so that they may be sufficiently advised of the evidence to give informed testimony as to the technical aspects of the case. In such instances, the report of proceedings will indicate that the expert witnesses were present during the testimony of the other witnesses. b. Paragraph 3-20a (Harmless Errors) states harmless errors are defects in the procedures or proceedings that do not have a material adverse effect on an individual's substantial rights. A harmless error does not prevent the approval authority from taking final action on the investigation or board. c. Paragraph 3-20c (Substantial Errors), states the approval authority may set aside all findings and recommendations and refer the entire case to a new investigating officer or board composed of entirely new voting members. Alternatively, the approval authority may take action on findings and recommendations not affected by the error, set aside the affected findings and recommendations, and refer the affected portion of the case to a new investigating officer or board. In either case, the new investigating officer or board may be furnished any evidence properly considered by the previous one. The new investigating officer or board may also consider additional evidence. If the regulation or directive under which a board is appointed provides that the approval authority may not take less favorable action than the board recommends, the approval authority's action is limited by the recommendations of the original board, even if the case is referred to a new board that recommends less favorable action. d. Paragraph 3-20d (Failure to Object to Board Proceedings) states no error is substantial within the meaning of this paragraph if there is a failure to object or otherwise bring the error to the attention of the investigating officer, legal advisor, or board president prior to the board adjourning. Accordingly, errors in board proceedings described in subparagraph c above may be treated as harmless if the respondent or respondent's counsel fails to object. 2. Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel. An officer may be considered for elimination for misconduct, moral or professional dereliction, or in the interest of national security. a. Paragraph 4-6 (Boards) states the BOI's purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army. b. Paragraph 4-14 (Spectators) states that at the respondent's request, the board president may permit the respondent's personal friends or relatives to be present during open board hearings. However, the respondent will be advised the presence of these spectators terminates the confidential status of the proceedings. The board president may exclude any spectator when (in the opinion of the board) the spectator's presence interferes with the proceedings. Any person called as a witness will not be present as a spectator. c. Paragraph 4-15 (Conclusion of Hearing) states the BOI determines its findings and recommendations by secret written ballot in closed session with a majority vote deciding any issue.