ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20180014911 APPLICANT REQUESTS: through counsel: * removal of the general officer memorandum of reprimand (GOMOR), dated 21 September 2015, from her Official Military Personnel File (OMPF) * retroactive promotion to chief warrant officer three (CW3) with the appropriate date of rank and any and all back pay due * any other relief that is equitable and just 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), dated 22 October 2018 * Counsel's Brief with Exhibits A through G FACTS: 1. Counsel states: a. On 21 September 2015, the applicant received a GOMOR for allegedly engaging in an inappropriate relationship with Chief Warrant Officer Two (CW2) W____ R____. Although the applicant submitted extensive rebuttal matters, the GOMOR was filed in her OMPF. b. On 17 March 2017, the applicant's elimination action, which had been initiated based on the GOMOR under discussion, was terminated by Major General S____. Of note, Major General S____, the imposing GOMOR official, recommended the applicant's retention. c. On 25 March 2017, the applicant, through counsel, petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR from her OMPF in its entirety or, in the alternative, transfer of the GOMOR to the restricted folder of her OMPF. d. Although she was recommended for promotion to CW3 and placed on the Fiscal Year 2015 promotion list, she was removed from the promotion list on 11 April 2017 and she was notified of this decision on 13 April 2017. e. On 12 April 2018, the DASEB voted to approve transfer of the GOMOR to the applicant's restricted folder of her OMPF because the "intended purpose was served and it would be in the best interest of the Army." f. The applicant is entitled to the requested relief because she maintains that she did not commit the alleged misconduct and the Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation lacked proof by a preponderance of the evidence that she engaged in an adulterous or inappropriate relationship with CW2 W____ R____. Therefore, maintaining this unsubstantiated GOMOR in her OMPF, even in the restricted folder, would be unfair, unjust, and inequitable. g. As an initial matter, the Army Regulation 15-6 investigation itself was flawed in several respects. (1) The timeline reflects the investigating officer (IO) and Mrs. R____ had a number of unusual contacts throughout the investigation (Tab B). The contacts are unusual both in the number of contacts (in that the contact was continuous throughout the investigation) and in the manner of contact (Mrs. R____ would evidently text message the IO, in addition to other forms of contact). The frequency and content of the communications between the IO and Mrs. R____ indicates the IO was unduly influenced by Mrs. R____ and provided her with details about the investigation while it was ongoing, which tainted her as a witness and calls the neutrality of the investigation into question. (2) The Army Regulation 15-6 investigation documents reveal the IO summarized the content of multiple witness interviews in his own words instead of asking the witness to record his/her own answers (Tab B). Any "evidence" collected through this method is highly suspect. It is almost certain that the interviewee's actual responses were not documented exactly as they were being relayed to the IO. Based on this record, it is impossible to derive whether there was other information relayed to the IO beyond what the IO chose to record or whether there was hesitancy or confusion on the part of the interviewee. Rather, the record simply contains the information the IO determined to be relevant. (3) The result is a record that contains only inculpatory information. As a final note, for some of the interviews (like the one conducted with CW2 R____) the IO apparently hand-wrote the interviewee's answers (Tab B). The responses are, therefore, not written by the actual interviewee nor are they entirely legible (Tab B).? h. There is no direct evidence the applicant engaged in an inappropriate and/or adulterous relationship with CW2 R____. The IO's finding that there was an adulterous relationship is based entirely on speculation and conjecture. (1) First, both the applicant and CW2 R____ deny they were involved in an adulterous and/or inappropriate relationship with one another (Tab B). (2) In order to find that the applicant engaged in an adulterous relationship requires that there be evidence that she had sexual intercourse with another individual, that the other individual was married to someone else, and that, under the circumstances, the conduct of the accused was prejudicial to good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces (Manuel for Court-Martial, section IV-117). In this case, the investigation revealed absolutely no evidence the applicant engaged in sexual intercourse with CW2 R____. (3) The IO's finding that an adulterous relationship existed appears to have been based primarily on the fact that CW2 R____ purchased "sex toys" and saw the applicant on a trip within a few days of the purchase and the fact that CW2 R____ sent the applicant flowers on Mother's Day (Tab B). These two facts are easily explained. i. As the applicant noted in her original GOMOR rebuttal, she did not purchase the "sex toys," she was not in the area of the hotel on the date the "sex toys" were purchased, and she did not purchase the room or make the travel plans (Tab B). In her GOMOR rebuttal, the applicant makes it clear that the first time she learned of these "sex toys" was in the 21 July 2015 email in which Mrs. R____ made her allegations (Tab B). Most importantly, CW2 R____ wrote in his rebuttal that he purchased the "sex toys" on 22 May 2015 on his way to the airport to pick up his wife (Tab D). There is simply no evidence that the applicant had anything to do with the "sex toys." The plain fact is that she knew nothing about them. j. With respect to the flowers, the applicant did receive flowers from CW2 R____, but she did not know there was a card that accompanied the flowers until the investigation brought it to her attention (Tab B). In her GOMOR rebuttal she wrote that she assumed the reference to "[s]tart picking names for 2017" was a reference to her "goal to compete in a fitness competition in 2017" and she "needed to pick a stage name" (Tab B). This makes sense, given that their friendship was based, at least in part, on fitness and working out (Tab B). This is entirely consistent with a platonic relationship. k. Most importantly, on 19 May 2015 in an email disclosed by the applicant as a part of her original rebuttal matters, she specifically wrote to CW2 R____ that she "can only be your friend while you are married" (Tab B). This is clear evidence that she was not engaged in an inappropriate and/or adulterous relationship with CW2 R____ and that she would not do so because he was married. l. A Department of the Army Inspector General (DAIG) investigation modified the finding that the applicant engaged in "Adultery in violation of Article 134 (Adultery), Uniform Code of Military Justice (UCMJ)" to read: "The allegation that you engaged in an inappropriate relationship with another officer in violation of Article 133, (Conduct Unbecoming an Officer and a Gentleman), UCMJ was substantiated…" (Tab G). This modification was justified due to a "mistake of law." In other words, the DAIG concluded the allegation that the applicant engaged in an act of adultery was not supported by the evidence. This legal review and decision to modify the finding further erodes the GOMOR, as the GOMOR alleged an adulterous relationship. m. To the extent the GOMOR can still be read to allege an "inappropriate relationship," even if the adulterous nature of the relationship is removed, this reading should fail for two reasons: (1) First, the plain reading of the GOMOR suggests the alleged adultery was the singular focus of the reprimand. There is no further discussion or explanation of a separate basis for an alleged "inappropriate relationship." It is clear that the "inappropriate relationship" is a reference to the alleged adultery. (2) Second, the evidence does not support the finding that the applicant was involved in an "inappropriate relationship" any more than it supports the existence of an adulterous relationship for all of the same reasons addressed above. The weight of the evidence suggests the applicant's relationship with CW2 R____ was strictly platonic, that the applicant went out of her way to keep it platonic, and that Mrs. R____ used this investigation as leverage in her marital dispute with her husband, CW2 R____. The investigation; therefore, lacks proof by a preponderance of the evidence that there was anything inappropriate about the applicant's relationship with CW2 R____. n. Third, the applicant was continuously harassed and threatened by Mrs. R____ over the course of several months (Tab B). There is even evidence that Mrs. R____ physically assaulted the applicant (Tab B). The applicant provided a detailed account of the harassment and threats in her GOMOR rebuttal (Tab B). In one of the emails Mrs. R____ sent the applicant, Mrs. R____ wrote, "[i]t is gonna be a pleasure making sure you lose your rank" (Tab B). In a voicemail Mrs. R____ left for the applicant, she threatened that she would "make sure you two lose everything that you have" (Tab B). The threats and harassment were so bad and so persistent that the applicant was forced to obtain an anti-harassment protection order from the Pierce County District Court (Tab B). Mrs. R____ also committed multiple Health Insurance Portability and Accountability (HIPAA) violations by improperly accessing the applicant's medical records (Tab B). The substantiated HIPPA violation complaints are enclosed at Tab B. These facts demonstrate that Mrs. R____ is not of clean hands and broke the law in her efforts to gain leverage against her husband in their marital dispute. o. Finally, Mrs. R____ had motivation to initiate the investigation of her husband, CW2 R____, and the applicant and to lie to the IO. As the applicant noted in her GOMOR rebuttal, CW2 R____ discussed divorce with Mrs. R____ prior to Mrs. R____ initiating the investigation (Tab B). Mrs. R____ contacted the applicant on 20 July 2015 and told her, "to tell her husband that she 'wants $3,000 a month or else" (Tab B). Then on 21 July 2015, Mrs. R____ sent an email to both CW2 R____ and the applicant stating that if she did not hear back from CW2 R____ "by the deadline, she was going to start an investigation" (Tab B). Obviously, Mrs. R____ was upset about the specter of divorce and used the applicant as a pawn in her scheme to extort her husband and gain an upper hand in their pending divorce/separation battle. Moreover, not only did Mrs. R____ have motivation to lie, she also provided demonstrably false statements to the IO (Tab B). For example, in an email on 7 August 2015, she claimed her husband had admitted the affair; however, in a statement on 12 August 2015, she wrote that "he never came forward and stated he was having an affair...he was adamant that he was not having an affair or doing anything unfaithful" (Tab B). These two statements are directly at odds with one another and one must conclude that Mrs. R____ is lying. p. Accordingly, the IO should have lent no weight whatsoever to Mrs. R____'s statements. Not only is Mrs. R____ a demonstrable liar, but the IO erroneously relied on CW2 P____'s statement to "corroborate" portions of Mrs. R____'s story (Tab B). CW2 P____ clearly states all of his information regarding the alleged affair was "second hand information" (likely sourced from Mrs. R____) and was, therefore, not corroborating at all (Tab B). Given Mrs. R____'s clear motive to fabricate, her demonstrable lies, and the lack of any true corroborating evidence, there is absolutely no reason to believe anything Mrs. R____ told the IO or anyone else during the course of the investigation. q. The weight of the evidence suggests the applicant maintained a platonic relationship with CW2 R____ and while CW2 R____ may have, at one point, thought of the applicant romantically, the applicant went out of her way to prevent the relationship from taking a romantic turn while CW2 R____ was married. The Army Regulation 15-6 investigation is entirely lacking proof by a preponderance of the evidence of anything other than a friendly relationship, notwithstanding Mrs. R____'s criminal attempts to convince the command otherwise. Accordingly, there was insufficient evidence to conclude the applicant engaged in an inappropriate and/or adulterous relationship with CW2 R____. Given that the GOMOR was based on the Army Regulation 15-6 findings, the GOMOR should have never been issued at all. r. As noted above, the applicant was selected for promotion to CW3 on the Fiscal Year 2015 promotion list (Tab E). She was, however, removed from that promotion list on 11 April 2017 because of the GOMOR at issue. The applicant is entitled to retroactive promotion because, but for the erroneous GOMOR, she would have been promoted to CW3 in 2015. 2. Having prior honorable enlisted service in the Regular Army, the applicant was appointed as a Reserve warrant officer one on 29 May 2009. 3. U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Rucker, AL, Orders 149-359-A-714, dated 29 May 2009, ordered her to active duty for a 6-year commitment. 4. On 20 June 2015, police at Joint Base Lewis-McChord were notified of an assault after the fact. The police report shows the applicant was kicked in the chest by an individual whom she refused to name. Further, while providing a sworn statement to Joint Base Lewis-McChord police, the applicant refused to cooperate. Her DA Form 2823 (Sworn Statement), dated 20 June 2015, shows she indicated she recognized the female who assaulted her "as the soon to be ex-wife" of an individual she knew. The form also shows the entry, "victim decided to not complete statement and not to inform military police of who made the assault." The applicant was advised that based on her withholding of information, Joint Base Lewis-McChord police could not generate a police report. 5. On 18 July 2015, an Army Regulation 15-6 IO was appointed to conduct a formal investigation into allegations that CW2 W____ R____, husband of Mrs. G____ R____, and the applicant committed adultery with one another. 6. On 4 August 2015, Captain (CPT) C____ J. K____ provided a sworn statement in which he stated: a. He was assigned as the Army Regulation 15-6 IO on 29 July 2015 to investigate the alleged adultery between CW2 R____ and the applicant. He made initial contact with Mrs. G____ R____ on 31 July 2015 and he was in contact with Mrs. R____ through 2 August 2015, exchanging information, which included text messages from Mrs. R____ requesting cancellation of the investigation, although this decision was later changed, as Mrs. R____ visited the DAIG's office (local) on 4 August 2015. b. He made contact with several involved parties before being told to cease action on the investigation by the 17th Field Artillery Battalion Deputy Chief of Operations. Information collected was transferred to Major C____. 7. On 6 August and 10 August 2015, Mrs. R____ provided DA Forms 2823 which appear to have been typed by the IO. These forms show: a. She met the applicant at a warrant officer picnic at Fort Bliss in July 2013. The applicant introduced herself as a friend and co-worker of her husband. b. Her first indication that something was not normal occurred in April 2015 when she came up to Joint Base Lewis-McChord to visit CW2 R____ and he behaved strangely. Mrs. R____ thought the abnormal behavior may have been a medical issue. These indicators were further exacerbated when Mrs. R____ flew up to Joint Base Lewis-McChord on 22 May 2015. CW2 R____ picked her up at the airport late in the evening and left for a weekend trip on 23 May for which he would not provide any explanation, leaving Mrs. R____ in the house for the weekend. Mrs. R____ thought CW2 R____ was not truthful and the abnormal behavior may have been stress from work or due to a medical issue. c. Mrs. R____ gained visibility of a situation and suspected an inappropriate relationship between CW2 R____ and the applicant on 20 June 2015. There was no clear indication why CW2 R____ asked that his family be at their house at a specific time, although he was not there at that time. Mrs. R____ left to conduct other personal business and returned to the house later. CW2 R____ seemed to be flustered and left the house to go to the gym. Mrs. R____ felt the situation was strange and looked on CW2 R____'s computer where she discovered information suspecting an inappropriate relationship. d. Mrs. R____ provided a timeline of events and information she obtained. e. She reported information she had discovered, alleging adultery, to the chain of command, CPT W____, on 21 July 2015 and to the DAIG on 23 July 2015. 8. On 11 August 2015, the applicant provided a sworn statement, wherein she identified Mrs. G____ R____ as the individual who assaulted her on 20 June 2015. 9. On 14 August 2014, the applicant obtained a Temporary Anti-Harassment Protection Order against Mrs. G____ R____ from the Pierce County District Court, Tacoma, WA, and had Mrs. G____ R____ served on 18 August 2015. 10. On 25 August 2015, the IO submitted findings and recommendations of the Army Regulation 15-6 investigation into allegations of adultery between CW2 R____ and the applicant. a. The findings were presented as follows: (1) A preponderance of evidence supports that CW2 R____ and the applicant had wrongful sexual intercourse. This finding is supported by the fact that CW2 R____ purchased novelties from Castle Megastore with Discover Card XXX immediately preceding a trip where CW2 R____ and the applicant stayed together in the same room with one king-sized bed at Salish Lodge and Spa for at least one night during the period 23 to 25 May 2015. The applicant was at Joint Base Lewis-McChord on permanent change of station leave during the period 23 to 25 May 2015. (2) A preponderance of the evidence supports that the applicant knew CW2 R____ was married to Mrs. R____. This finding is supported by the fact that CW2 R____ and Mrs. R____ have been married for almost 19 years and the applicant was aware of this, having introduced herself to Mrs. R____ at a picnic at Fort Bliss in either 2012 or 2013. (3) A preponderance of the evidence supports that CW2 R____ and the applicant had an inappropriate relationship prejudicial to good order and discipline in the Armed Forces and this was service discrediting. (4) CW2 R____ (a married officer) sent flowers to another officer who was not his wife (applicant) on multiple occasions, especially since flowers were sent to his wife on the same occasions. (5) CW2 R____ (a married officer) purchased novelties and spent the night in the same hotel room with another officer who was not his wife (applicant) while Mrs. R____ stayed at CW2 R____'s residence. (6) The effects of this relationship were extremely detrimental to the R____ family and their children, as CW2 R____ was discussing divorce for 6 to 8 months, changing his mind frequently, and CW2 R____ had yet to actually file for divorce. (7) The relationship spanned multiple installations, units, and involved two senior leaders. From distributed locations, CW5 M____ and CW2 P____ were both aware that an inappropriate relationship may have occurred and attempted to intervene to maintain good order and discipline. (8) The relationship between CW2 R____ and the applicant had minimal effects on their units until the chains of command were notified and an investigation was initiated. CW2 R____ kept most of his personal business to himself, he did not have many social acquaintances in his unit, and the applicant was a new arrival to the unit. (9) There is no evidence to support the applicant lived together with CW2 R____ prior to Mrs. R____ joining CW2 R____ at Joint Base Lewis-McChord. (10) Mrs. R____ provided a number of exhibits supporting that CW2 R____ and the applicant committed adultery with one another. All of this information was specific and consistent and Mrs. R____ continued to provide the IO information that she discovered or remembered about the alleged relationship. This included information that CW2 R____ had previously told both Mrs. R____ and CW2 R____'s successor at Fort Bliss (CW2 P____) that he was having an affair. Mrs. R____ also continued to harass and confront the applicant, attempting to get her to admit to having an affair with CW2 R____. (11) CW2 R____ and the applicant both had responses consistent with each other when interviewed about the alleged relationship and some of this information directly conflicted with Mrs. R____'s statement. However, the information provided by CW2 R____ and the applicant did not seem as credible or consistent as the information provided by Mrs. R____. b. The IO recommended nonjudicial administrative action for CW2 R____ and the applicant based on the determination that a preponderance of the evidence supports that CW2 R____ and the applicant committed adultery with one another, violation of Article 134, UCMJ. 11. Counsel provided a Declaration from G____ R____ before the District Court of, dated, in which she declared from her own personal knowledge that the applicant and her husband, CW2 W____ R____, had been involved in an affair for at least 1 year; the applicant had her car shipped to her husband; and the applicant had mail coming to their residence. She also provided statements about her interactions with the applicant, to include going to the applicant's home and making phone calls to her. She further stated: a. The DAIG investigation was initiated on 23 July 2015. On 11 August 2015, the applicant was notified and interviewed by a military IO that she was under investigation for adultery. The applicant's request for an anti-harassment order was in retaliation for the investigation that was underway. b. The applicant spoke with her on numerous occasions, but she never advised her to stop contacting her, nor did she notify any military police that she felt she was in danger. Only when the applicant was exposed and her job was threatened did the applicant file her petition for an anti-harassment order. c. She had no desire to have further contact with the applicant since 24 July 2015, which was 3 weeks before she filed her petition and 3 weeks after the investigation was started with the Inspector General. d. She could not speak of the grief the applicant caused her and her family, as she still had two children at home who had not completed high school and she had two children in college. She had no desire to have any further contact with the applicant and she had not contacted her since the investigation started with the Inspector General. 12. On 28 August 2015 after review of the file and testimony of the parties, the Pierce County District Court dismissed the applicant's petition for Order for Protection and closed the case. 13. On 17 September 2015 in response to her registered complaint through the HIPPA Privacy Officer, Madigan Army Medical Center, the applicant was advised that an audit of her records from 1 January 2015 until present substantiated her claim and showed Mrs. G____ R____ had read her medical records, to include a previous encounter as well as her laboratory results, radiology report, and demographics. However, in attempts to contact Mrs. G____ R____ for an interview and sworn statement, it was confirmed on 16 September 2015 that she was no longer an employee of William Beaumont Army Medical Center. Additionally, she was advised her the next course of action would be civil litigation. 14. On 21 September 2015, the applicant received a GOMOR for engaging in an inappropriate relationship with CW2 W____ R____. An Army Regulation 15-6 investigation substantiated complaints made by his wife, Mrs. R____, that she engaged in an adulterous affair with CW2 R____ when he reserved a hotel room under both their names, purchased two "sex toys" prior to the check-in, and slept in the same room together. The applicant did all this while he was still married and while his wife and children were located at or near Fort Bliss, TX. 15. On 1 October 2015, the applicant submitted a response to the GOMOR in which she requested destruction of the GOMOR. She stated: a. It was a big misunderstanding as she was caring for a fellow Soldier and taking the "high road" and showing great restraint with his vindictive wife (Mrs. R____) when she was assaulting, stalking, and harassing her, often with her son present. She was the victim of an extortion game and if it ruined her career it would be an injustice. She offered her apologies for the perception of an inappropriate relationship or adulterous affair that Mrs. R____ believed existed. b. She understood she was not as cautious about the perceptions surrounding her friendship with CW2 R____; however, they did not engage in an adulterous affair. She challenged the allegations of adultery according to the Article 134, UCMJ, and stated there was only reference to one incident and the conclusion that sex occurred is pure speculation as it did not. c. The GOMOR references a receipt for the purchase of "sex toys"; however, Mrs. R____'s allegations in an email on 21 July 2015 was the first time she heard of this. The receipt does not indicate her name as the purchaser, as she was not the purchaser of the toys; it does not indicate she had them in her possession, as she does not; and there is nothing on the receipt that would indicate her presence in the store that night, as she was not at or around the area that night. Furthermore, the GOMOR references the fact that a hotel room reservation under both of their names indicates an adulterous affair existed. d. She understood this created the perception of an inappropriate relationship, but she was not aware that her name was listed on the hotel reservation, she did not book the hotel herself, nor did she plan the trip. e. The IO did not consider pertinent information that would otherwise be relevant to the allegation, including but not limited to the context and surrounding circumstances of the motive behind Mrs. R____ and her threats to ruin her career in the Army. (1) In May 2015, CW2 R____ sent her flowers for Mother's Day in a box, but she never received a card and she did not know there was a card with the flowers until the investigation noted there was a card that stated, "Happy Mother's Day, Start picking names for 2017." It is speculation, but she assumed based on his statement, he was referencing her goal to compete in a fitness competition in 2017 and needed to pick a stage name. On 19 May 2015, she received an email from CW2 R____ stating he missed their friendship and asked if it was okay to "woo her" since he was getting a divorce. She responded that she could only be his friend while he was married. It was her intent to maintain only a friendship with CW2 R____. Mrs. R____ was aware of this email as she hacked into CW2 R____'s email on his phone and responded to her on 24 May 2015. (2) Since 24 May 2015, she continuously received harassing emails, text messages, missed calls, uninvited visits to her home, and voicemails from Mrs. R____ threatening to provide information that she believed to be true. She had unceasingly informed Mrs. R____ that she and CW2 R____ were strictly friends and that no sexual relationship occurred. (3) She provided arguments surrounding the conduct and actions of Mrs. R____ and the thoroughness of the IO during the investigation. 16. On 1 October 2015, counsel for the applicant submitted a rebuttal to the GOMOR on behalf of the applicant. Counsel stated: a. Military leadership was being manipulated and used to empower and support unlawful extortion, harassment, threats, and violence against the applicant and collaterally, CW2 R____, by the criminally vindictive future ex-wife of CW2 R____, named G____ R____. The Army Regulation 15-6 investigation was fatally flawed and invalid for a number of reasons. The allegations by Mrs. R____ are baseless and the facts have been wholly twisted, misconstrued, and otherwise manipulated by a desperate soon-to-be ex-wife in her attempt to destroy her husband's career and his friend's. This is a case where the wrong conclusions were drawn over his client's sincere and honest mutual acts of support between platonic friends and fellow Soldiers, which upon critical review are clearly misguided and innocent efforts of support and friendship. Counsel requested permanent destruction of the GOMOR so it would not taint the applicant's untarnished lengthy career and future aspirations to continue to proudly wear the uniform and serve the United States. b. The Army Regulation 15-6 investigation was not followed in law or spirit, the alleged facts are unreliable, and the findings and recommendations are unsupported by any reliable evidence. This investigation should have never passed legal review. The IO summarized interview statements by key witnesses with some being summarized and not in the words of the witness, inherently inaccurate, and with nearly illegible handwriting. The IO relied upon unreliable typed Word documents, receipts, and other emails and documents easily forged of dubious origin largely from a biased source, Mrs. R____, who had clear motives and lied in her statements. c. The IO failed to conduct an unbiased interview and was being led by Mrs. R____ and her manipulation, making the common mistake of relying on the "squeaky wheel." Mrs. R____ was involved nearly daily in the investigation and sought the final investigation on 26 August 2015, presumably to use in her 28 August 2015 court hearing, and it was then that the IO finally told her he could not provide her any more information. Yet during the investigation, he was manipulated and placed too much emphasis on unreliable evidence, hearsay, and the source of same without a fair balance of the source against the impeccable service records of the two warrant officers with a combined approximately 32 years in service. d. The IO failed to also identify or weigh the motivations and other frequent illegal and unethical activities committed against the applicant by Mrs. R____ in her attempts to ruin the applicant at all costs. Mrs. R____ admitted to trying to extort money, assaulting, battery, stalking, harassing, and other crimes and she was also determined by the El Paso Hospital to have violated HIPPA laws by illegally accessing the applicant's privileged medical file. Thus, she repeatedly victimized the applicant and it should have been evident she was trying to further victimize the applicant through this false allegation. Mrs. R____ was also engaged in witness tampering by appearing to manipulate CW2 P____ and CW5 M____ to make statements. It was after this that CW2 P____ provided his 17 August statement. A Soldier behaving like Mrs. R____ would be facing severe punishment. Mrs. R____ was an unreliable source of information and her hearsay through these other sources was also unreliable. e. There are key details the IO overlooked or did not give adequate weight. It must be noted the applicant did nothing unethical, illegal, or that would warrant victimization at the hands of Mrs. R____, and she frequently asked her to stop harassing her, sought a protective order, repeatedly took measures to block phone numbers and email addresses, deactivated her social media, and turned off her phone to end the harassment, and commendably maintained her professional bearing and restraint even when she was physically assaulted by being unexpectedly kicked in the chest at the gym, causing injury as documented by military police. Counsel provided a timeline of events for the period 19 May 2015 through 28 August 2018. f. There was a poorly substantiated finding of adultery, unsupported by the evidence. Article 134, UCMJ, requires evidence that sex occurred. In this case, there is no such evidence. There is mere speculation based on dubious information. There was no sufficient reliable evidence to sustain such an important consequential finding. g. Among the IO's other mistakes, he incorrectly stated Mrs. R____ provided "specific and consistent" exhibits supporting the allegation. This is a materially incorrect finding, which was the basis of the incorrect overall findings and recommendations. She repeatedly provided false and inconsistent information and much of the "evidence" was hearsay. Further, the bulk of the "specific" information was useless in determining whether an inappropriate relationship existed. Performing physical fitness at the gym together, or distributing protein shakes to a fellow Soldier, or having a Soldier peer assist with brief possession of car and mail makes it no more or less likely that adultery was occurring. h. The IO failed to identify the lack of character, credibility, and the clear motives and serious illegal conduct committed by Mrs. R____. In multiple communications, she directly and indirectly committed extortion and solicited conspiracy to commit extortion against her husband and the applicant, demanding cash payments and threatening to report allegations to ruin their careers, "I'm gonna make sure that either you two lose everything you have or you're gonna come to me today and tell me the truth." Much of the "evidence" is easily fabricated and many of her statements contain material inconsistencies or clear attempts at manipulation. After facing the prospect of divorce and seeing her "cash cow" slipping away before his retirement in 3 years, she did everything within her power to prevent and delay a divorce and demand and extort cash payments against her husband and the applicant, who share a friendship. Counsel provided instances for reasons to question the credibility of Mrs. R____. 17. On 12 October 2015, the applicant's company commander recommended temporarily filing the GOMOR in her unit file for a period of 3 years or until she was reassigned outside the general court-martial convening authority jurisdiction. 18. On 22 October 2015, the applicant's battalion commander recommended permanently filing the GOMOR in her OMPF. 19. On 4 November 2015, the applicant's brigade commander recommended permanently filing the GOMOR in her OMPF. 20. On 2 December 2015, counsel provided an addendum to his 1 October 2015 rebuttal on behalf of the applicant. He stated that while employed at an El Paso, TX, hospital, Mrs. R____ had a substantiated HIPPA violation for having wrongfully accessed the applicant's protected medical records on or about 29 May 2015. a. Mrs. R____ quit her job, presumably to avoid administrative action against her. On or about 1 December 2015, the applicant was notified by a HIPPA representative that Mrs. R____ applied for and was recently hired by Madigan Hospital at Joint Base Lewis-McChord. The applicant sought a more thorough review of her records and learned that Mrs. R____ had more HIPPA violations to her credit. According to the new records obtained on 1 December 2015, Mrs. R____ illegally and unethically violated HIPPA by accessing both the medical records of the applicant and her son on 18 April 2013. This illegal snooping occurred when the applicant was new to the unit, prior to having met Mrs. R____ on or about May 2013. The implication is that Mrs. R____ snooped into the records of many Soldiers. b. From being assaulted, stalked, harassed, threatened, and extorted, the applicant's rights and those of her son were violated repeatedly by the unstable and irrational Mrs. R____. While the applicant weighed her options about her next legal course of action against Mrs. R____, she felt it important to raise this to the attention of the staff judge advocate and commanding general while awaiting the decision on her pending reprimand. Mrs. R____ was clearly unsuited to serve in any medical capacity, having violated HIPPA records as she had. 21. On 15 December 2015 after carefully considering all matters available and the recommendations by the applicant's chain of command, the commanding general directed permanently filing the GOMOR in the applicant's OMPF. 22. On 25 March 2017, the applicant appealed to the DASEB through counsel and requested removal of the GOMOR or, in the alternative, transfer of the GOMOR to the restricted folder of her OMPF. 23. On 5 April 2018, the DASEB voted to grant partial relief by directing transfer of the applicant's GOMOR to the restricted folder of her OMPF as well as the DASEB's decision memorandum and allied documents. The DASEB determined this action was not retroactive; therefore, it did not constitute grounds for promotion reconsideration if previously not selected.? BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was/was not warranted. 2. AR 15-6 Investigation. The 15-6 investigation is legally sufficient and was conducted in accordance with applicable regulation, AR 15-6, Procedures for Investigating Officers and Boards of Officers (2 October 2006). a. The appointing authority, the Commanding General (CG), 7th Infantry Division, Joint Base Lewis-McChord, Washington, appointed the IO in writing to conduct the investigation. AR 15-6, para. 2-1. The IO gathered evidence and interviewed and took statements from witnesses (Id., paras. 3-7 and 3-8). The IO made findings based on, and supported by, a preponderance of the evidence (Id., para. 3-10). The recommendations are consistent with the findings (Id., para. 3-11). A legal review of the 15-6 investigation was conducted in August 2015 (Id., para. 2-3b) and found to be conducted in accordance with AR 15-6 and to not contain any legally error. b. The applicant was notified of the proposed adverse administrative action – the GOMOR – in writing as well as provided the findings and recommendations and supporting evidence on which the adverse action was based. She was given a reasonable opportunity to reply and submit relevant rebuttal matters, which she did. The rebuttal/response documents were received and evaluated by the CG prior to issuance of the GOMOR (AR 15-6, para. 1-9c). The CG reviewed the reprimand, rebuttal matters, and chain of command recommendations and directed the reprimand be filed in the performance section of the OMPF. See generally AR 600-37, Unfavorable Information (19 December 1986), chapter 3 (unfavorable information in official personnel files). The GOMOR was moved to the restricted section of her OMPF pursuant to an April 2018 Department of Army Suitability Evaluation Board (DASEB) decision. c. There are no substantial defects in the proceedings, to include any errors that would have an adverse effect on the substantive or procedural rights of the applicant (Id., para. 2-3c). Fundamentally, as discussed below, the applicant and counsel dispute the weight assigned by the IO when evaluating the evidence and rendering findings and recommendations. The arguments from counsel are summarized from the 22 October 2018 brief submitted with the DD Form 149 to the ABCMR, the 25 March 2017 and 6 March 2018 briefs submitted to the DASEB, and briefs submitted in rebuttal to the GOMOR in 2015. The contentions across these briefs largely overlap. (1) Counsel asserts the frequency and content of the communications between the IO and Ms. R_ (the married CW2’s spouse) indicates the IO was unduly influenced, tainted Ms. R_ as a witness, and call into question the neutrality of the investigation. Counsel’s position is that Ms. R_ is a manipulative liar and little, if any, weight should have been assigned to her statements. Review of investigation does not reflect that the IO acted improperly or was otherwise biased against the applicant. The IO gathered evidence and interviewed witnesses. Gathering information from relevant parties, to include the spouse of a CW2 who allegedly committed adultery, is not improper. AR 15-6 investigations are not bound by the rules of evidence for trials by court-martial – to include the admission of hearsay evidence. Anything that, in the minds of reasonable persons, is relevant and material to an issue may be accepted as evidence. AR 15-6, para. 3-7a. Despite counsel’s contentions, the record does not reflect that the IO “coached” Ms. R_ in her statements or otherwise manipulated the evidence. The IO evaluated her statements along with the other evidence collected during the investigation, including the applicant’s own statements. The IO’s determination that the applicant and the other CW2’s statements were less credible and consistent when compared with what was provided by Ms. R_ does not represent error. (2) Counsel asserts as error the IO’s summarization of content of multiple witnesses. Counsel claims this was inappropriate and “highly suspect.” Counsel further contends that some hand written answers are illegible. Verbatim statements are not required in AR 15-6 investigations. Rather the IO is directed to assist the witness in preparing a written statement to avoid inclusion of irrelevant material or the omission of important facts and circumstances. Each witness in this case signed the DA Form 2823 attesting to the accuracy of the statement provided. See AR 15-6, para. 3-8. Further, review of the handwritten statements reflects they are legible. (3) Counsel contends the IO failed to weigh the applicant’s statements denying misconduct. The applicant waived her Article 31 rights and submitted a statement during the course of the investigation. It was considered along with the other evidence of record by the IO. Counsel’s disagreement with the weight assigned by the IO to the evidence does not mean it was not considered and does not reflect error in the investigation. d. The due process rights of the applicant were protected during the investigation and subsequent adverse administrative action. The procedures for conducting an investigation and for issuance and filing a GOMOR were followed. 3. GOMOR. The Board noted that a Department of the Army Inspector General (DAIG) investigation was conducted regarding the allegations against the applicant. As detailed in a 13 September 2016 letter, the DAIG determined there was substantive evidence to modify the original allegation – that the applicant engaged in adultery in violation of Article 134, UCMJ – based on mistake of law. The DAIG amended the findings to read that the allegation the applicant engaged in an inappropriate relationship with another officer in violation of Article 133 (conduct unbecoming an officer), UCMJ, which was substantiated and will remain substantiated in the IGARS database. The DAIG decision to unsubstantiated the adultery finding in their database is some evidence that the GOMOR may be untrue with respect to the adultery finding but does not negate the finding that the applicant engaged in an inappropriate relationship with another officer in violation of Article 133 which would justify the GOMOR with a possible amendment of the second sentence of the first paragraph. While the standard of proof required by the DASEB on which is acted was that of clear and convincing evidence, the ABCMR operates under a requirement for a preponderance of the evidence standard. In this case, there was a relationship between the applicant and a married CW2. The evidence collected during the investigation reflects interactions that can be determined to be inappropriate between the two including spending the night in a hotel room together and the flowers sent the applicant, among others. Counsel, in the 22 October 2018 brief and elsewhere through the file, focuses on the platonic nature of the relationship. However, that does not equate to the relationship being otherwise appropriate. The IO evaluated and weighed the evidence of record and found a preponderance of the evidence supported a finding that the applicant engaged in an inappropriate relationship with a married CW2. The appointing authority was not bound or limited by the findings or recommendations and, upon consideration of the evidence, decided to take adverse administrative action against the applicant. The Board did not find a preponderance of the evidence to justify removing the GOMOR. 4. ELIMINATION ACTION. The recommendation to close the elimination action and retain the applicant does provide evidence that unsubstantiated the misconduct. An elimination action is an administrative process separate and distinct from the GOMOR process. 5. RETROACTIVE PROMOTION TO CW3. Reinstatement on the FY15 CW3 Promotion List is not warranted. Following a Promotion Review Board (PRB) for the FY18 CW3, Technical Services, Promotion Selection Board, the Assistant Secretary of the Army (Manpower & Reserve Affairs) retained the applicant on the FY18 CW3 Promotion List. ? 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. 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. ? 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. a. 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. b. 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 chapter 7. c. 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. d. Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder. Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. The above 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. Appeals approved under this provision will result in transfer of the document from the performance folder to the restricted folder of the OMPF. e. Appeals submitted under this provision will normally be returned without action unless at least 1 year has elapsed since imposition of the memorandum and at least one evaluation report, other than academic, has been received in the interim. 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 Army Military Human Resource Record, including 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.? 3. Army Regulation 135-155 (Army National Guard and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard, U.S. Army Reserve, and warrant officers of the U.S. Army Reserve. Paragraph 3-8 states Commanders and Commander, U.S. Army Human Resources Command, Office of Promotions, will continuously review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally, or professionally disqualified after being selected. Commanders and Commander, U.S. Army Human Resources Command, Office of Promotions, may recommend an officer for removal for a GOMOR placed in the OMPF or any adverse documentation placed in the OMPF. // NOTHING FOLLOWS // ABCMR Record of Proceedings (cont) AR20180014911 18 1