ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20180015584 APPLICANT REQUESTS: through counsel, removal of the general officer memorandum of reprimand (GOMOR), dated 30 November 2016, from his Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code Section 1552) * Brief in Support of Applicant for removal of Official Military Personnel File (OMPF) Entry, undated * Enclosure 1 – GOMOR, dated 30 November 2016 * Enclosure 2 – Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) Investigation package, dated 2-9 November 2016 * Enclosure 3 – Sworn Statement, First Lieutenant (1LT) M____ D. M____, dated 24 October 2016 * Enclosure 4 – Letter, R____ L. Y____ (father), undated * Enclosure 5 – Memorandum for Record, Captain (CPT) R____ D. B____, 561st Military Police Company, dated 6 April 2017, subject: (Applicant) * Enclosure 6 – Letter, S____ J. Y____ (spouse), undated * Enclosure 7 – Memorandum for Record, 1LT E____ A. N____, dated 13 December 2016, subject: Character Reference for (Applicant) * Enclosure 8 – Memorandum for Record, 1LT M____ T. P____, dated 14 December 2016, subject: Character Statement for (Applicant) * Enclosure 9 – Memorandum for Record, 1LT W____ J. G____, dated 11 December 2016, subject: Character Reference for (Applicant) * Enclosure 10 – Memorandum for Record, Master Sergeant (MSG) M____ G____, dated 11 December 2016, subject: Character Statement for (Applicant) * Enclosure 11 – Memorandum for Record, Sergeant First Class (SFC) F____ P. J____, subject: Statement by SFC F____ J____ for (Applicant) * Enclosure 12 – Memorandum for All Reviewing Authorities, Sergeant (SGT) R____ W. W____, dated 12 December 2016, subject: Character Statement for (Applicant) * Enclosure 13 – unidentified, not enclosed * Enclosure 14 – Self-authored Letter, dated 18 April 2017 FACTS: 1. Counsel states: a. While serving on active duty, the applicant sent a petition to the Department of the Army Suitability Evaluation Board (DASEB), which was received on 1 May 2017. The applicant received notice from the DASEB on 2 August 2018 that they were unable to act on his case since he had been eliminated from the U.S. Army while waiting for them to render a decision. b. On 30 November 2016, he received a memorandum of reprimand from Brigadier General (BG) S____ B____. The applicant was reprimanded for engaging in an inappropriate relationship with a fellow officer; specifically, for his "disturbing lack of self-control, judgement, maturity and professionalism." The applicant requests removal of this reprimand from his military records. c. The reprimand is unjust as it relies on third-party information to substantiate claims of an alleged inappropriate relationship with a fellow female officer. The reprimand is based on an Army Regulation 15-6 investigation, which based its findings and recommendations on hearsay and speculation. d. The applicant and his wife were having a difficult time in their marriage throughout 2016. His wife had started a new job and was unable to attend events with him. 1LT M____ would often attend events with the applicant when his spouse was unable to attend. 1LT M____ lived down the street from the applicant and carpooled with them to most events. e. The applicant's wife began to falsely claim that he and 1LT M____ were having an affair based on the fact that they continued to carpool to events together. This was based on pure speculation and nothing credible. His wife confronted her husband with these accusations, which he vehemently denied, asserting that his friendship with 1LT M____ was strictly the same as it always had been. f. During this time, the applicant's wife started taking prescription sleep medication that would cause her to have vivid dreams that often included her husband involved in some sexually explicit acts with 1LT M____. After the applicant returned from a party at a coworker's home in September 2016, his wife confronted him in anger with accusations. She alleged that the previous week when 1LT M____ had come to their home for dinner, the two of them "made out on the couch" after she went to bed. Out of anger, the applicant sarcastically said to his wife, "Yep, you're right! Congrats, you win! We made out the other night on the couch. Made out again tonight, too! Guess we can't stop, huh? What now?" The argument escalated and the applicant's wife left the home for a few hours. The next day they both apologized to one another and the applicant explained he was being sarcastic when saying he "made out" with 1LT M____. g. The relationship did not improve. Arguments about work and allegations of infidelity continued. In October 2016, the applicant told his wife he wanted a divorce. The same evening the applicant attended a party with other officers in the battalion. He arrived at the party with 1LT M____, as they carpooled together. Upon arrival, he learned his wife was there after being told she would not be present. This led to the applicant leaving the party and having a heated telephone conversation with his wife. His wife ended up in the hospital emergency room due to suicidal feelings. The applicant's wife went to stay with her family and he learned that he was being investigated for adultery and having an inappropriate relationship with 1LT M____ 3 days later. h. The Army Regulation 15-6 investigation was thorough; however, the findings and recommendations do not support the weight of the evidence. An overwhelming majority of the evidence used against the applicant in this investigation to justify issuance of a reprimand came from second and third-hand knowledge. The investigating officer relied on these second and third-hand statements to form the basis of his "facts" that he used against the applicant. i. The applicant regrets the public nature of his marital issues and challenges. He knows now that he should have handled them in a more sensitive manner to his wife. j. Both the company and battalion commanders recommended local filing of the reprimand. k. The applicant is an excellent officer and has great performance reviews. He learned a lot from this situation. His wife wrote a letter for the Board that states the situation was blown quickly out of hand to the point where she felt compelled to write a letter on her soon-to-be ex-husband's behalf. She describes him as an excellent individual and Soldier. l. The applicant respectfully requests removal of the GOMOR from his military records as it is based on hearsay evidence and nothing directly proven other than other people's perceptions and speculations. The only proven fact in the investigation was that 1LT M____ and the applicant spent time together and often carpooled to events together. m. As the reprimand was also the basis for his elimination, the applicant requests reinstatement. He had been selected for flight school and had a full military career ahead of him. He desires to serve his country and continue his military career. 2. The applicant was promoted to the grade/rank of 1LT/O-2 effective 30 November 2014. 3. On 21 October 2016, an investigating officer was appointed to conduct an administrative investigation pursuant to Army Regulation 15-6, chapter 5. The administrative investigation would focus on the facts and circumstances surrounding an allegation regarding the applicant, Executive Officer, 561st Military Police Company, and 1LT V____ M____, Executive Officer, 194th Military Police Company, engaging in an inappropriate relationship. 4. The memorandum from the investigating officer, 101st Airborne Division (Air Assault) Sustainment Brigade, dated 1 November 2016, subject: Findings and Recommendations – Army Regulation 15-6 Investigation – Allegation of an Inappropriate Relationship between (Applicant) and 1LT V____ M____, states: a. On 21 October 2016, he was appointed as an investigating officer to conduct an administrative investigation focusing on the facts and circumstances surrounding an allegation of an inappropriate relationship between the applicant and 1LT V___ pursuant to Army Regulation 15-6, chapter 5. b. The applicant is currently married to S____ Y____ and 1LT M____ is single and unmarried. The applicant, 1LT M____, and Mrs. Y____ were close friends in the past, enough so that the applicant and Mrs. Y____ pinned 1LT M____ during her promotion to 1LT. Per an admission from the applicant to 1LT B____, 1LT M____ once allowed the applicant to sleep over at her house when the applicant and Mrs. Y____ were having marital issues. c. Additionally, per an admission Mrs. Y____ received from the applicant, as communicated through Mr. J____ and Mrs. B____'s interviews, the applicant and 1LT M____ kissed on two separate occasions: once while he was with 1LT M____ at his residence after his wife went to bed, and once while he and 1LT M____ were in a vehicle together. d. On three occasions, several individuals witnessed 1LT M___ and the applicant arrive at and leave various functions in the same vehicle. A week before the party at 1LT B____'s residence, Mrs. Y____ caught the applicant staying at 1LT M___'s house without her knowledge. e. He found that the applicant, a married man, engaged in an inappropriate relationship with 1LT M____. The applicant's conduct was unbecoming of an officer and was prejudicial to good order and discipline, as it created a rift and a distraction within the 716th Military Police Battalion. f. The applicant had the responsibility to uphold the Army Values of Loyalty and Respect to his wife and her well-being, but he consistently and deliberately acted out against his wife, all while knowing it was negatively affecting her emotional stability and overall emotional sanity with no regard for her safety. g. Based on his findings, he recommended the applicant receive a GOMOR for his interactions with 1LT M____, be permanently removed from his leadership position as company executive officer, and be moved from the battalion and 1LT M____'s unit. h. He further recommended that 1LT M____ receive a GOMOR for her interactions with the applicant, be permanently removed from her leadership position as company executive officer, and be moved from the battalion and the applicant's unit. 5. On 2 November 2016, the Headquarters, 101st Airborne Division (Air Assault) Sustainment Brigade Judge Advocate found the Army Regulation 15-6 investigation legally sufficient. The Brigade Judge Advocate recommended approval of the findings and recommendation of the investigating officer and issuance of a GOMOR to the applicant and permanent removal of the applicant from his position with reassignment from the 716th Military Police Battalion, as well as issuance of a GOMOR to 1LT M____ and permanent removal of her from her position with reassignment from the 716th Military Police Battalion. 6. On 9 November 2016, the 101st Airborne Division (Air Assault) Sustainment Brigade Commander approved the findings and recommendations of the Army Regulation 15-6 investigating officer without amendment. The Brigade Commander requested issuance of a GOMOR to the applicant and permanent removal of the applicant from his position with reassignment within the 716th Military Police Battalion, as well as issuance of a GOMOR to 1LT M____ and permanent removal of her from her position with reassignment within the 716th Military Police Battalion. 7. On 30 November, BG S____ E. B____, Commander, Headquarters, Fort Campbell, issued the applicant a GOMOR wherein he stated: a. The applicant is reprimanded for conduct unbecoming of an officer in violation of Article 133, Uniform Code of Military Justice. While married, he engaged in inappropriate relationship with a fellow officer, which was prejudicial to good order and discipline. b. The applicant's actions are inexcusable as an officer and a leader who is expected to hold himself to a higher standard of conduct, both on and off duty. The applicant completely failed in this regard and his behavior displays a disturbing lack of self-control, judgement, maturity, and professionalism. c. This reprimand is imposed as an administrative measure and not as a punishment under Article 15 of the Uniform Code of Military Justice. 8. Counsel provided four memorandums/letters from the applicant's unit members, dated 11 December 2016 through 27 April 2017, attesting that the applicant is a hard- working professional, excellent officer, and a man of great character. 9. A letter from R____ L. Y____, the applicant's father, undated, states his son has always had a mature and professional attitude and his good character has been noticed, not only by him and the family, but by his co-workers, his teachers, and his friends. His hope is that the Army will look at the facts and not put more faith and trust into allegations made that have no proof or evidence that substantiates them and instead look at his son's character and service records, as these are based on facts. He hopes his son can continue to contribute to the Army like he has always done. 10. A letter from S____ J. Y____, the applicant's then-spouse, undated, states the applicant was not the greatest spouse, but he was and continues to be an excellent Soldier. He is extraordinarily talented when it comes to leading and inspiring people and his fellow Soldiers hold him high in that regard. He invested a great deal of time and energy into his military career, which over time became detrimental to their marriage. She continues to hope the applicant will be able to continue his career and ultimately attend flight school. 11. In a letter to the DASEB, dated 18 April 2017, the applicant stated: a. He would like to take the time and show the board that he is still very much part of the process and at least paint a picture of the person he is and has become as a result of the events of the recent past. b. He is truly sorry for the actions that resulted in his elimination action. He regrets his actions, which have caused undue distress on his unit. He learned from the events of the past and he will always keep these valuable lessons learned in his back pocket for the rest of his life, whether he continues his service in the Army or takes on a new career outside of the Army. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s counsel contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed the AR 15-6 investigation was thoroughly completed, and recommends the GOMOR is retained in the applicant’s OMPF. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court- martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. a. A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7. b. Paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Table B-1 states a memorandum of reprimand is filed in the performance folder of the AMHRR unless directed otherwise by an appropriate authority (DASEB or the Army Board for Correction of Military Records). 3. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of Army officer personnel. Paragraph 4-2b states misconduct, moral or professional dereliction or in the interest of national security to include conduct unbecoming of an officer. Paragraph 4-2c states derogatory information require an officer's record to be reviewed for consideration of terminating appointment. Standing alone, one of these conditions may not support elimination, however, this derogatory information combined with other known deficiencies form a pattern that, when reviewed in conjunction with the officer's overall record, requires elimination. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015584 4 1