ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20190006731 APPLICANT REQUESTS: * removal of the general officer memorandum of reprimand (GOMOR), dated 21 January 2015, from his military records * restoration of his original date of rank of 24 February 2016 with back pay and allowances 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) * Memorandum, (Applicant), Brooke Army Medical Center, Fort Sam Houston, TX, dated 6 March 2019, subject: Request for Removal of GOMOR * Memorandum, Headquarters, U.S. Army Medical Department Center and School, Fort Sam Houston, TX, dated 21 January 2015, subject: Memorandum of Reprimand * GOMOR Filing Transmittal, undated * Memorandum, Secretary of the Army, Washington, DC, dated 10 January 2017, subject: Promotion Review Board (PRB), Fiscal Year 2015 Promotion Eligibility to First Lieutenant (1LT) * Memorandum, U.S. Human Resources Command (HRC), Fort Knox, KY, dated 22 February 2017, subject: PRB Results * five DA Forms 67-10-1 (Company Grade Plate (O1 - O3, WO1 - CW2) Officer Evaluation Report (OER)) covering the periods 24 August 2014 through 7 December 2015, 8 December 2015 through 15 July 2016, 16 July 2016 through 9 June 2017, 10 June 2017 through 1 January 2018, and 2 January 2018 through 1 January 2019 * DA Form 638 (Recommendation for Award), dated 13 November 2017, with accompanying Army Commendation Medal Certificate * Memorandum, Army Review Boards Agency, Arlington, VA, dated 31 May 2018, subject: Resolution of Unfavorable Information for (Applicant), Case Number AR20180001356 * Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings Docket Number AR20180001356, dated 30 March 2018 * DASEB Record of Proceedings Docket Number AR20190003419, dated 16 April 2019 * Memorandum, Army Review Boards Agency, Arlington, VA, dated 17 April 2019, subject: Resolution of Unfavorable Information for (Applicant), Case Number AR20190003419 * Letter, Imposing Authority, dated 22 April 2019 * Memorandum, Department of the Army Office of the Assistant Deputy Chief of Staff, G-1, dated 28 May 2019, subject: Information Concerning (Applicant's) Request of the Army Board for Correction of Military Records (ABCMR) * 12 Letters of Recommendation FACTS: 1. The applicant states: * the situation was based on "he said, he said" evidence * no physical evidence was presented * the accusations were made out of hate and discrimination toward his sexual orientation * his chain of command, to include his company commander, battalion commander, and brigade commander, all recommended filing the GOMOR locally * the GOMOR was placed in his official file due to Military Personnel Message Number 15-052 (Revision of Inclusion and Command Review of Information on Sex-Related Offenses in the Army Military Human Resource Record (AMHRR)), which directed that all sexual-related issues could not be filed in the restricted folder or filed locally and must be placed in the AMHRR * he has suffered and will continue to suffer from life-changing physical/ physiological, mental, and spiritual distress that requires counseling and lifelong care * he provided letters of support and character-reference letters from people he knows who have known him over the years and can attest to his character and values * during his time at the Brooke Army Medical Center, he has earned the respect, trust, and confidence of his peers and leaders because of his performance as both an Army officer and dedicated clinician 2. The applicant was serving as an Army nurse in the Regular Army as a newly commissioned second lieutenant (2LT)/O-1 at the time he became the subject of a U.S. Army Criminal Investigation Command (CID) investigation. 3. The CID Report of Investigation, dated 4 November 2014, named the applicant as the subject in violation of Article 120 (Abusive Sexual Contact), Uniform Code of Military Justice (UCMJ). The investigation established probable cause to believe the applicant committed the offense of abusive sexual contact when he touched 2LT W____'s genitals without his consent. Trial counsel concurred that probable cause existed to believe the applicant committed the offense of abusive sexual contact. 4. On 21 January 2015, the Commanding General, Headquarters, U.S. Army Medical Department Center and School, reprimanded the applicant in writing for inappropriate conduct with another Soldier. He stated: a. On 28 August 2014, the applicant asked another officer to "battle buddy" him to his hotel room to change clothes. In the hotel room, the applicant asked this Soldier about his sexual orientation and he informed the applicant that he had never been involved with or wanted to be involved in a homosexual experience. Despite this, the applicant lifted the other Soldier's shirt and commented on his physique. The applicant then unzipped the other Soldier's pants and touched his genitals. b. The applicant displayed misconduct that is inconsistent with the role and behavior expected of an officer. The applicant showed poor judgement and, as a result, he questioned the applicant's decision making, integrity, and ability to lead Soldiers. c. The reprimand was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15 (Nonjudicial Punishment) of the UCMJ. 5. The applicant responded to the GOMOR in writing on 26 January 2015, wherein he stated: * he did not touch 2LT W____ as described in the GOMOR or in any other way * 2LT W____ and he are the only ones who know what truly happened * he did not do anything * he would never violate the dignity or respect of anyone, as a nurse or Soldier 6. The GOMOR Filing Transmittal shows the applicant's company commander, battalion commander, and brigade commander recommended not filing the GOMOR. a. His company commander commented, "(Applicant) states in his rebuttal that he did not touch or do anything to the accuser, but given the accuser's emotional response and his subsequent notification of his wife, father, and two other students, this does not seem to be true. (Applicant) is a good Soldier but his decision to take a "buzzed" comrade back to his room after receiving Sexual Harassment/Assault Response and Prevention training the day prior raises serious concerns about his judgement." b. His battalion commander commented, "My intent was never for this GOMOR recommendation to be a part of this Soldier's file. The new MILPER Message would force a local GOMOR to be filed in the Soldier's record." c. His brigade commander commented, "...this appears to be an incident of one Soldier's word against another's with alcohol misuse and poor judgement."? 7. On 25 February 2015, the Commanding General, Headquarters, U.S. Army Medical Department Center and School, considered the circumstances of the misconduct and all matters submitted by the applicant in defense, extenuation, or mitigation, if any, along with the recommendation of subordinate commander, and directed permanently filing the GOMOR in the applicant's AMHRR. 8. On 19 May 2015, the Staff Judge Advocate, Headquarters, U.S. Army Medical Department Center and School, forwarded documentation of a sex-related offense for filing in the performance-disciplinary folder of the applicant's AMHRR. The Staff Judge Advocate reviewed the documents and determined they included an offense meeting the criterial for a sex-related offense, that the applicant received adverse administrative action as a result of the offense, and that the applicant was given notice and the opportunity to respond. He also requested updating the applicant's records with the assignment consideration code of "L3 – Documented Sex-Related Offense" in the appropriate human resource systems. 9. On 22 February 2017, HRC notified the applicant of his referral to the Department of the Army PRB and of the Secretary of the Army's decision to retain his name on the promotion list for 1LT. He was promoted to 1LT with an effective date of 7 February 2017. 10. On 24 May 2017, the applicant submitted a request to the DASEB for removal of the GOMOR from his records, stating Army Regulation 600-37 (Unfavorable Information) allows such transfer or removal when the GOMOR has served its intended purpose, has been in the AMHRR for at least 1 year since imposition of the GOMOR, the recipient is at least a staff sergeant, and the recipient has received at least one OER since filing of the GOMOR 11. On 30 May 2018, the DASEB denied the applicant's request for removal of the GOMOR from his AMHRR. The board determined the evidence presented did not provide substantial evidence that GOMOR in question has served its intended purpose or is untrue or unjust, and that its transfer or removal would be in the best interest of the Army. 12. On 28 March 2019, he submitted a request to the DASEB for reconsideration of removal of the GOMOR and provided the following new evidence: * a self-authored statement * a statement of recommendation from the imposing authority * three character references * his OER for the period 2 January 2018 through 1 January 2019 13. On 16 April 2019, the DASEB denied the applicant's request for removal of the GOMOR from his AMHRR. The board again determined the evidence presented did not provide substantial evidence that GOMOR in question has served its intended purpose or is untrue or unjust, and that its transfer or removal would be in the best interest of the Army. 14. The applicant provided a letter from the GOMOR-imposing authority, dated 22 April 2019, strongly recommending removal of the GOMOR from the applicant's AMHRR. He noted the recommendation of the applicant's entire chain of command was for not filing the GOMOR. He believes it is unjust to maintain the GOMOR concerning an incident that occurred within a few weeks of the applicant's initial entry on active duty in his records. 15. The applicant provided 12 additional letters of recommendation, attesting to his character, values, and his outstanding duty performance. 16. The applicant provided all of his OERs, showing his outstanding duty performance since his commissioning as an Army nurse. His senior raters consistently rated him as "HIGHLY QUALIFIED" or "MOST QUALIFIED'" and made positive comments, to include: * place in positions of increased responsibility * send to advanced military schooling * promote to captain 17. The memorandum from the Department of the Army Assistant Deputy Chief of Staff, G-1, dated 28 May 2019, regarding information concerning the applicant's request before the ABCMR states: * the applicant's case was forwarded through channels to the Secretary of the Army for decision as part of the PRB process * the case file contained the CID report and GOMOR with supporting documents * the Secretary of the Army approved the applicant's promotion to 1LT * the CID report states there was "probable cause" * the bar to establish probable cause in sexual cases is set extremely low * there was no evidence besides the statement from the accuser * the case comes down to a "he said, he said" discussion – there were no eyewitnesses or physical evidence * there was alcohol involved – the accuser consumed seven drinks and would likely exhibit severely impaired judgment * applicant's entire chain of command recommended not filing the GOMOR * the battalion and brigade commanders stated the facts were not clear enough to warrant the applicant's removal from the Army – which would be the inevitable outcome of being a two time non-select for promotion * MILPER Message Number 15-052 left the imposing authority no other options but to file the GOMOR in the applicant's AMHRR * the intelligence community decided to revoke his clearance based on the CID report – the Personnel Security Appeals Board determined the applicant would retain his security clearance * derogatory action should not be considered by the next board if an incident is over 10 years old or has been considered by a previous board where a retention decision was made * the GOMOR should never had been issued because the evidence did not support such action * the applicant has had an exemplary record since issuance of the GOMOR and is an exceptional Soldier 18. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. Paragraph 3-4 i. Appeal of filing, states “A Soldier may appeal the placement of the information in their AMHRR to the Army Board for Correction of Military Records (ABCMR).” BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the record of investigation, the filing recommendations of the chain of command, Army filing guidance for sex-related offenses, his retention on the 1st Lieutenant promotion list by the Secretary of the Army and previous ARBA considerations. The Board considered the length of time since the issuance of the GOMOR, the applicant’s documented performance since the GOMOR, the numerous letters of support, the statement of the imposing authority and the impact of the document on the applicant’s career. Based on a preponderance of evidence, the Board determined that the GOMOR had served it’s purpose and that it remaining in the applicant’s AMHRR is an injustice. 2. The Board considered the applicant’s request to change his date of rank to 1st Lieutenant from 7 February 2017 to 24 February 2016. The Board found that as a result of the Promotion Review Board, his promotion was delayed more than a year from his promotion eligibility date (24 February 2016). Considering the Board’s recommendation to remove the GOMOR from his AMHRR, understanding the impact of the GOMOR on the applicant’s promotion consideration and the ultimate decision by the Secretary of the Army to retain him on the promotion list, the Board determined there was sufficient evidence to change his date of rank to 1st Lieutenant to reflect a date 18 months after his 2d Lieutenant date of rank. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. ? 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: 1. Removing the Headquarters, U.S. Army Medical Department Center and School memorandum, SUBJECT: Memorandum of Reprimand, dated 21 January 2015 from his AMHRR; 2. Changing his Date of Rank and Effective Date of Promotion to 1LT from 7 February 2017 to 24 February 2016 and paying him back pay and allowances as a result of this change, and; 3. Submitting his records for consideration by a Special Selection Board for Captain, Army Medical Department in accordance with his eligibility based on the change to his date of rank and effective date of promotion. 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 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. a. Chapter 7 (Special Selection Boards) provides that SSB are governed by the same instructions provided to the boards that considered or should have considered an office for promotion. Officers who discover that material error existed in their file at the time they were nonselected for promotion may request reconsideration. b. Chapter 8 (Promotion Review Boards) provides that the President or his designee may remove the name of an officer in a grade above 2LT from a list of officers recommended for promotion by a selection board. This authority has been delegated to the Secretary of the Army. c. Paragraph 8-2 (Basis for Referral) provides that Headquarters, Department of the Army, will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. An officer may be referred to a PRB for a referred OER or a memorandum of reprimand filed in the AMHRR. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. 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. b. A memorandum of reprimand may be filed in a Soldier's AHMRR 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 AHMRR, the recipient's submissions are to be attached. Once filed in the AHMRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7. c. Paragraph 3-4 (Filing of Information on Sex-Related Offenses) provides that commanders will ensure that a Soldier's performance-disciplinary folder is annotated when a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense is received. Punitive administrative action means any adverse administrative action initiated as a result of the sex-related offenses identified, this includes aggravated sexual contact and includes, but is not limited to, memoranda of reprimand, admonishment, or censure from all levels of command. d. Paragraph 3-4(g) (Coding Record) provides that the Commander, HRC, will designate and implement an appropriate assignment consideration code for use on Soldier's record briefs to identify those Soldiers with a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. e. Paragraph 7-2 provides that once an official document has been properly filed in the AHMRR, 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 AHMRR. f. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AHMRR. 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. g. Paragraph 3-4 i. Appeal of filing. A Soldier may appeal the placement of the information in their AMHRR to the Army Board for Correction of Military Records (ABCMR). 2. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious incident reporting within the Army; for reporting to the Department of Defense and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigation's National Crime Information Center, the Department of Justice's Criminal Justice Information System, the National Law Enforcement Telecommunications System, and State criminal justice systems. Paragraph 3-6 (Amendment of Records) provides that amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. a. Amendment procedures are not intended to permit challenging an event that actually occurred. Requests to amend reports will be granted only if the individual submits new, relevant, and material facts that are determined to warrant their inclusion in or revision of the police report. The burden of proof is on the individual to substantiate the request. b. Requests to delete a person's name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, nonjudicial, or administrative action is taken against the individual. In compliance with Department of Defense policy, an individual will still remain entered in the Defense Clearance Investigations Index to track all reports of investigation. 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. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 4. 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 UCMJ. 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, memoranda 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, HRC, 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 ABCMR. 5. Military Personnel Message Number 15-052 (Revision of Inclusion and Command Review of Information on Sex-Related Offenses in the AMHRR), issued 19 February 2015, provided that any court-martial conviction, nonjudicial punishment, or punitive administrative action for sex-related offense outlined in paragraph 3 will be filed as a sex-related offense in the performance-disciplinary folder of the AMHRR. Commanders do not have the authority to designate any of these documents be filed locally or in the restricted folder of the AMHRR. Paragraph 3 provides that sex-related offenses include violation of any offense under the following sections or subsections of Title 10, U.S. Code, and equivalent articles of the UCMJ: * Section 920 – Article 120 (Rape and Sexual Assault) – this includes rape, sexual assault, aggravated sexual contact, and proof of threat * Section 920a – Article 120a (Stalking) * Section 920b – Article 120b (Rape and Sexual Assault of a Child) – this includes rape, sexual assault, sexual abuse of a child, and proof of threat * Section 920c – Article 120c (Other Sexual Misconduct) – this includes indecent viewing, visual recording, or broadcasting * Section 925 – Article 125 (Forcible Sodomy, Bestiality) * Section 880 – Article 80 (Attempt) – any attempt to commit these offenses ABCMR Record of Proceedings (cont) AR20190006731 2 1