ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20180015188 APPLICANT REQUESTS: * transfer of the DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 31 January 2016 through 1 June 2017 from the performance folder of his Army Military Human Resource Record (AMHRR) to the restricted folder * transfer of the general officer memorandum of reprimand (GOMOR) from the performance folder of his AMHRR to the restricted folder 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 67-10-1 covering the period 31 January 2016 through 1 June 2017 * Memorandum, Headquarters, 1st Special Forces Command (Airborne), dated 31 October 2017, subject: Board of Inquiry (BOI) Report of Proceedings FACTS: 1. The applicant states he received a relief-for-cause OER and a GOMOR. A BOI later ruled that he did not do any of the things for which he received the relief-for-cause OER and GOMOR. The board cleared him and recommended his retention. Nonetheless, the relief-for-cause OER and GOMOR are still filed in his AMHRR. He requests transfer of the derogatory documents to the restricted folder of his AMHRR. 2. He was promoted to the rank of captain effective 1 May 2011. 3. On 28 July 2016, the Commander, Headquarters, 4th Military Information Support Group (Airborne), appointed an investigating officer (IO) pursuant to Army Regulation 15-6 (Procedures for Administrative Investigation and Boards of Officers) to investigate the accusations of conduct unbecoming of an officer, failure to obey a regulation, unreported foreign contact that was more than casual, and inappropriate relationship with a foreign contractor against the applicant. 4. On 20 January 2017, the Army Regulation 15-6 IO submitted his findings and recommendations to the Commander, 4th Military Information Support Group (Airborne), wherein he stated: a. Master Sergeant X____ and Specialist X____ observed the applicant engage in a kiss and hold hands with a foreign contractor, not his wife, in or about late March 2016. b. Staff SergeantX____ observed texts between the applicant and an unidentifiable female that were of a personal and inappropriate nature. c. The applicant violated Army Regulation 380-67 (Personnel Security Program), paragraphs 3-30j and I-4b by engaging in a relationship with a foreign national to whom he was "bound by affection" and not reporting the relationship. The applicant is married to another woman. His actions put him at risk for being blackmailed as a result of an inappropriate relationship with a woman not his wife. His behavior put him at risk for foreign exploitation, inducement, manipulation, pressure, or coercion. c. The Counselor for Management Affairs at the U.S. Embassy stated the applicant was not a contracting officer. He was the team leader for a group that interacted with multiple vendors used by the U.S. Government. As such, he was expected and authorized to issue directions to these vendors, inform the embassy regarding these projects, and request payments. The contract in question was awarded prior to the applicant's arrival. d. The applicant's actions, as a married man and a Government representative who was responsible for issuing payments for contract services rendered, created the appearance of impropriety. e. Master Sergeant X____ reported the applicant to his chain of command approximately 60 days after he first observed the incident. Master Sergeant X____ was unaware that withholding information regarding the alleged offenses was either illegal, unethical, or immoral. f. The applicant's team had knowledge of the alleged offense. g. He concluded the applicant was indeed in a relationship with X____ X____, a contracted entity of the team at the U.S. Embassy during the applicant's most recent deployment. h. The applicant was in a relationship with Ms. X____ that was more than casual. In or about March 2016, he was observed by two members of his team engaged in a kiss and embrace with Ms.X___ followed by them walking away holding hands. Furthermore, there were texts of a personal and intimate nature between the applicant and an unknown individual, not his spouse, while he was deployed. Finally, when confronted about his relationship with Ms. X____, he replied, "It's complicated." A friendship alone would not be complicated. i. Regardless of the degree of intimacy involved, the applicant violated Army Regulation 380-67, paragraph 3-30(j), by engaging in a relationship with a foreign national to whom he was "bound by affection" and not reporting the relationship. Furthermore, by pursuing a casual relationship with a contractor to a company that relies on the team's endorsement, regardless of the level of intimacy, he created an appearance of impropriety which has had a long-lasting, detrimental impact on the Military Information Support Team mission. Furthermore, in his official capacity as team leader he did attempt to promote a sole-source media contract with X____ X____'s employer, despite there being more than one company capable of providing the service. j. The applicant's relationship, irrespective of the level of intimacy, constituted conduct unbecoming an officer. His actions, both risking his security clearance and acting inappropriately in regard to Government contracting, negatively affected the good order and discipline of his unit as well as hazarded the reputation of his unit and jeopardized the mission of his company. k. He recommended Uniform Code of Military Justice proceedings and/or administrative actions against the applicant for conduct unbecoming an officer. 5. On 16 February 2017, the Commanding General, Headquarters, 1st Special Forces Command (Airborne), reprimanded the applicant in writing for engaging in an inappropriate relationship while deployed, jeopardizing the mission of his unit in Ukraine. He further stated: a. During the applicant's deployment, his team members observed him kissing, embracing, and holding the hand of Ms. X____ X___, a local national contractor for the U.S. Government. When confronted about the relationship, he classified his relationship with Ms. X____ as "complicated" and "only for deployment." As a result of his relationship, the Embassy discontinued the Government program he was participating in. b. The applicant's behavior in this matter demonstrated a complete lack of judgement and responsibility. He discredited himself, the 1st Special Forces Command (Airborne), and the U.S. Army. His conduct constituted a serious departure from the high standards of integrity and professionalism expected of a commissioned officer of this command. This behavior cannot and will not be tolerated, and forces him to seriously consider his suitability for continued service as a commissioned officer in the U.S. Army. c. This reprimand is administrative in nature and is not imposed as punishment under the Uniform Code of Military Justice. d. The applicant was given 7 calendar days to submit a written rebuttal prior to making a filing decision. 6. On 22 February 2017, the applicant acknowledged receipt of the GOMOR and the opportunity to respond by submitting matters in extenuation, mitigation, or rebuttal. He elected to submit written matters within 7 calendar days. 7. On 15 March 2017, the applicant's legal assistance attorney submitted a rebuttal to the GOMOR wherein she stated: a. The applicant submits he was not having an inappropriate relationship and his actions were not the cause for the termination of the program. b. The applicant admits there was an incident of an improper physical contact with X____ X____, a foreign national, around the end of March 2016 while he was deployed. However, he did not have an inappropriate relationship with her. c. The applicant's friendship with Ms. X____ did not violate the Special Operations Command Europe policies or "rules of the road" for deployed forces given to him prior to deployment. There was no policy in place forbidding friendships with foreign nationals. d. The investigation ignores seriously conflicting information provided in the statements from Staff Sergeant X____, Master Sergeant X____, and SergeantX____. These statements are simply rumors and conjectures and are ultimately not credible. e. For these reasons, the applicant submits that he was not having an inappropriate relationship and that his actions were not the reason for termination of the Government program that he was involved with. Therefore, the applicant requested local filing of the GOMOR. 8. On 3 April 2017, the Commanding General, Headquarters, 1st Special Forces Command (Airborne), directed filing the GOMOR in the applicant's AMHRR. 9. His OER covering the period 31 January 2016 through 1 June 2017 shows in: a. Part I (Administrative), item i (Reason for Submission), the reason as "Relief for Cause"; b. Part IV (Performance Evaluation – Professionalism, Competencies and Attributes): (1) item b (This Officer's Overall Performance is Rated as), he was rated "Unsatisfactory" with the following comments: "[Applicant was found to have engaged in an inappropriate relationship with a local-national contractor for the US government while deployed, for which he received a GOMOR filed in his AMHRR and was relieved of his command. As a result of his actions, the US Embassy discontinued at least one government program costing both time and valuable resources, placing his team, the mission, and his unit at serious risk"; (2) item c(1) (Character), his rater commented, in part: "[Applicant's] actions while deployed are a serious departure from the standards of integrity and professionalism expected of a commissioned officer"; (3) item c(2) (Presence), his rater commented, in part: "[Applicant] maintained military bearing and portrayed confidence throughout his investigation, and exhibited genuine remorse for his actions"; (4) item c(3) (Intellect), his rater commented, in part: "[Applicant] demonstrated the ability to find unique solutions to complex problem sets; however, he also requires significant improvement in his demonstrated decision making ability"; (5) item c(4) (Leads), his rater commented: "[Applicant] let down his team as he needlessly placed himself, his team, the unit, and the mission at great risk. He lost the confidence of the US Embassy, supported Special Operations Command Forward, team, and his peers"; (6) item c(5) (Develops), his rater commented: "[Applicant's] actions directly or indirectly contributed to a command climate within his detachment that resulted in an overall lack of military discipline and the personal injury of at least one team member"; and (5) item c(6) (Achieves), his rater commented: "[Applicant] failed to achieve desired endstates, and set the mission back as the unit and future teams were required to repair damaged relationships and redo contracts and programs that should have already been completed"; c. Part VI (Senior Rater): (1) item a (Potential Compared with Officers Senior Rated in Same Grade), he was rated "Not Qualified"; and (2) item c (Comments on Potential), ), his rater commented: "[Applicant] failed to meet the expectations of MISO [Military Information Support Operations] Detachment Commander by making poor decisions and not maintaining good order and discipline on his team. If selected for retention, [Applicant] would best serve the Army in a conventional, non-SOF [special operations forces] unit, utilizing his linguistic skills. [Applicant] does not display potential to serve in leadership positions, but could be part of a staff team if properly supervised." 10. On 31 October 2017, the Commanding General, Headquarters, 1st Special Forces Command (Airborne), approved the findings and recommendations of the Army Regulation 15-6 BOI and informed the applicant that: a. On 11 August 2017, a BOI found, by a preponderance of the evidence, that he did not engage in an inappropriate relationship while deployed, jeopardizing the mission of his unit in Ukraine. b. He received a GOMOR that was filed in his AMHRR and he was relieved from command as a result of his conduct. c. He did not exhibit conduct unbecoming an officer as indicated in the above referenced misconduct. d. The BOI recommended his retention. 11. On 27 February 2018, the Department of the Army Suitability Evaluation Board (DASEB) denied his request for removal of the GOMOR from his AMHRR. The DASEB determined the evidence presented did not clearly and convincingly establish that the GOMOR was untrue or unjust and the presumption of regularity applied. 12. A review of his AMHRR in the interactive Personnel Electronic Records Management System shows the contested OER is filed in the performance folder. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief is warranted. 2. The Board agreed that the approved recommendation of the BOI to retain him supports a recommendation to transfer the GOMOR and related OER to the restricted portion of his AMHRR. The documents will remain in his record, thereby maintaining a record of the incident for which he was reprimanded, but will not be readily accessible. 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 transferring the following documents to the restricted folder of his Army Military Human Resource Record: * DA Form 67-10-1 covering the period 31 January 2016 through 1 June 2017 * general officer memorandum of reprimand (GOMOR), DATED 16 February 2017 and any allied documents 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 380-67 (Personnel Security Program) establishs policies and procedures to ensure that acceptance and retention of personnel in the Armed Forces and U.S. Army, acceptance and retention of civilian employees in the Department of Defense (DOD) and Department of the Army (DA), and granting members of the Armed Forces, Army, DA and DOD civilian employees, DA and DOD contractors, and other affiliated persons access to classified information and assignment to sensitive positions are clearly consistent with the interests of national security. Paragraph 3-30(j) states a person who establishes a close and continuous contact with a foreign national will have their Sensitive Compartmented Information access suspended if there is reason to believe that the foreign national is involved with hostile intelligence, has connections in a country listed in appendix H, or is working for a foreign government in some capacity that may present a security threat. In the absence of those conditions, suspension may not be appropriate. 2. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-36 (Modifications to Previously Submitted Evaluation Reports) stated an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct; have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and represent the considered opinions and objective judgment of the rating officials at the time of preparation. For evaluation reports that have been completed and filed in a Soldier's AMHRR, substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. An exception is granted for evaluation reports when information is so significant that it would have resulted in a different evaluation of the rated Soldier. b. Paragraph 3-54 (Relief for Cause) stated a relief-for-cause OER is required when an officer is relieved for cause, regardless of the rating period involved (for example, information pertaining to a previous reporting period that did not come to light until a later rating period). "Relief for Cause" is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty. In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards consisting of attributes and competencies as part of the Leadership Requirements Model. c. Paragraph 4-4 (Commander's or Commandant's Inquiry) stated alleged errors and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to report. The primary purpose of a Commander's or Commandant's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at Headquarters, Department of the Army. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record (paragraph 3-36 provides restrictions on modifications to previously submitted evaluations already accepted by Headquarters, Department of the Army). The provisions of Army Regulation 15-6 do not normally apply to inquiries of this type. However, the commander or commandant may determine that the provisions of Army Regulation 15-6 apply in specific instances 3. 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. a. Paragraph 3-6 (Authority for Filing or Removing Documents in the AMHRR Folders) states once properly filed in the AMHRR, the document will not be removed from the record unless directed by boards of the Army Review Boards Agency (such as the Army Board for Correction of Military Records and DASEB). b. Paragraph 3-10 (Document Masking in the Interactive Personnel Electronic Records Management System) states document masking is the act of moving specifically identified documentation from the performance folder to the restricted folder within the AMHRR. c. Table 3-1 (Official Military Personnel File Folders in the AMHRR) shows the performance folder contains performance-related information, to include evaluations, commendatory documents, specific disciplinary information, and training/education documents. The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty. This folder populates various board-related applications (for example, Army Selection Board System). The restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers. Includes masked documents defined in paragraph 3-10. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015188 7 1