ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 April 2020 DOCKET NUMBER: AR20180011486 APPLICANT REQUESTS: removal of the letter of reprimand (LOR), dated 17 May 2016, from his Army Military Human Resource Record (AMHRR) or, at a minimum, transfer to the restricted folder of his 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) * DA Form 2166-9-2 (Noncommissioned Officer Evaluation Report (NCOER) SSG-1SG/MSG) covering the period 14 July 2016 through 19 December 2016 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 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 AMHRR. 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 the Army Suitability Evaluation Board or the Army Board for Correction of Military Records). 3. Secretary of the Army memorandum, dated 9 December 2014, subject: Army Directive 2014-29 (Inclusion and Command Review of Information on Sex-Related Offenses in the AMHRR), established new policy to ensure accountability for sex- related offenses. Sex-related offenses include violation of Article 120 of the Uniform Code of Military Justice. Commanders will ensure that a Soldier's permanent record in the AMHRR is annotated for Soldiers who receive a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. For the purposes of this directive, "punitive administrative action" means any adverse administrative action initiated as a result of sex-related offenses and includes, but is not limited to, memorandum of reprimand, admonishment, or censure from all levels of command. This requirement applies to Soldiers in all components, regardless of grade. Commanders do not have the option to designate that these documents be filed locally or in the restricted folder of the AMHRR. Documents will be filed in the performance- disciplinary folder in the interactive Personnel Electronic Records Management System. The Commander, U.S. Army Human Resources Command, will designate and implement an appropriate code for use on Soldiers' record briefs to identify those Soldiers with a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. The requirement to annotate the AMHRR is retroactive to 26 December 2013. This policy does not prohibit a Soldier from appealing the placement of the notation in the AMHRR to the Army Board for Correction of Military Records. FACTS: 1. The applicant states: a. He believes the LOR was given and placed in his permanent record in order for his command to be relieved of responsibility and show that action was taken. In private conversations with his chain of command, they guided him through the process stating they have to do something in order to satisfy the claim and instructing him to accept the LOR in order to close the process. It was also implied that the LOR would be placed in his local file and destroyed when he out-processed from his unit. b. In all the sworn statements, he told the truth and denied the claims against him. No sworn statements from Specialist (SPC) A were given at all. He believes she would not give a statement for fear of falsifying information in that statement. c. The LOR is the only black mark in his record of his military career and he would like it removed. 2. He was serving in the Regular Army in the rank/grade of sergeant first class/E-7 at the time he became the subject of a Commander's Inquiry. 3. On 21 March 2016, an investigating officer was appointed to conduct a Commander's Inquiry into the facts and circumstances regarding the relationship between the applicant and SPC A. 4. On 8 April 2016, the investigating officer determined: a. Found the applicant sexually harassed SPC A because he sent her inappropriate text messages and this interfered with her work performance. b. Found the applicant created a hostile work environment for SPC A. c. Found the applicant engaged in inappropriate behavior with a subordinate. d. The applicant should receive a general officer memorandum of reprimand for his action. He did not conduct himself as every leader should by fostering a healthy climate and "set and exemplify the highest ethical and professional standards as embodied in the Army." A no-contact order should remain in place until the applicant retires. 5. The Legal Review of Commander's Inquiry, I Corps and Joint Base Lewis-McChord, dated 12 April 2015, states: a. There is no legal objection to the investigation. b. The investigating officer substantiated the sexual harassment, hostile work environment, and fraternization. c. There is sufficient evidence to support the findings of the investigating officer (screen shots of text messages the applicant sent to SPC A containing sexually inappropriate comments, constituting sexual harassment and fraternization, and contributing to a hostile work environment). d. The investigating officer's recommendations are consistent with the findings. 6. On 17 May 2016, the Commander, 42nd Military Police Brigade, reprimanded the applicant in writing for misconduct. The commander stated: a. The investigation revealed the applicant sent flirtatious and sexual text messages to a subordinate junior enlisted Soldier. He also made an off-color joke about having sex with her dead body if she died. His messages were unwelcome and the SPC told the investigating officer that she had difficulty making a statement because "talking about this makes me physically ill." b. The applicant's unprofessional and predatory behavior toward one of his junior Soldiers falls well below the standard of conduct expected of an NCO. The seriousness of this matter, together with the lamentable lack of good sense he displayed, caused his commander to seriously question his continued service. c. While this is an administrative action and not punishment under Article 15, Uniform Code of Military Justice, it has significant consequences for the applicant's career. 7. On 19 May 2016, the applicant submitted a memorandum to his brigade commander, requesting consideration of his past performance in determining the filing recommendation. He stated he wanted to apologize to SPC A and his chain of command if any of his actions, statements, or jokes were perceived as inappropriate. Although his personality and the way he speaks is sometimes sarcastic and might be misinterpreted, he never intended to foster an uneasy work environment for SPC A or any of his Soldiers. He stated he was ready to accept whatever actions his commander deemed necessary in the filing the LOR. 8. On 25 May 2016, his company commander recommended temporary filing the LOR in the applicant's local unit file for a period of 3 years or until he was reassigned. 9. On 2 June 2016, his battalion commander recommended permanent filing of the LOR in the applicant's AMHRR. 10. On 13 June 2016, his brigade commander also recommended permanent filing of the LOR in the applicant's AMHRR. 11. On 6 July 2016 after careful consideration of the LOR, supporting documents, circumstances of the misconduct, and along with the recommendations of subordinate commanders, the Commanding General, Headquarters, 593rd Sustainment Command, directed permanently filing the LOR in the applicant's AMHRR along with all enclosures. 12. A review of the applicant's AMHRR shows the LOR is currently filed in his performance folder. 13. The applicant's AMHRR also contains his NCOER covering the period 30 July 2015 through 13 June 2016. a. Part IVc (Character) shows the rater marked "DID NOT MEET STANDARD" and commented, in part: "did not support SHARP [Sexual Harassment/Assault Response and Prevention Program]; engaged in inappropriate personal relationships with a subordinate resulting in a negative command climate within the section." b. Part V (Senior Rater Overall Potential) shows the senior rater rated the applicant as "QUALIFIED" and commented, in part: "[Applicant] did not support SHARP. Limited potential due to an incident based on poor judgment. Promote only if in the needs of the Army." 14. He provided his retirement NCOER covering the period 14 July 2016 through 19 December 2016. a. Part IVi (Overall Performance) shows his rater rated his overall performance as "EXCEEDED STANDARD" and commented: "Outstanding performance by a retiring NCO during a fast paced and challenging OPTEMPO [Operations tempo]. [Applicant] exemplified the Army Values by sprinting through the finish line during the last 6 months of his military service." b. Part V (Overall Potential) shows his senior rater rated his over potential as "HIGHLY QUALIFIED" and commented: "[Applicant] has vast and unlimited potential and is tenacious in task. He will succeed in every assignment. Promote to Master Sergeant now and send to the First Sergeant and Commander Course." 15. He retired on 31 March 2017 in the rank/grade of sergeant first class/E-7. He completed 21 years, 4 months, and 3 days of total active service. His service was characterized as honorable. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is not warranted. The Board considered the applicant's statement, his record of service, the nature of the misconduct and the issuance of a GOMOR and NCOER referring to the misconduct. The Board considered the filing recommendations and the applicant's reason for separation. The Board found insufficient evidence that the LOR is untrue or unjust. Based on a preponderance of evidence, the Board determined that the letter of reprimand as filed in the applicant's records was not in error or unjust. 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. 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. //NOTHING FOLLOWS//