ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF: 

		BOARD DATE:  21 June 2019

		DOCKET NUMBER:  AR20190006736


APPLICANT REQUESTS:  through counsel, removal of the Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation with adverse findings and a general officer memorandum of reprimand (GOMOR) from his Official Military Personnel File (OMPF).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* Memorandum, Office of the Judge Advocate General, Fort Belvoir, VA, dated 21 May 2019, subject:  Cover Memorandum – Request to Expedite Processing of Application for Correction of Military Record – Request to Remove GOMOR of (Applicant)
* Memorandum, U.S. Army Trial Defense Service, Atlantic Region, Fort Meade, MD, dated 15 May 2019, subject:  Application for Correction of Military Record – Request to Remove GOMOR of (Applicant)

FACTS:

1.  Counsel states:

* the applicant was deprived of his due process rights under Army Regulation 
600-200 (Army Command Policy) in that he was not afforded an opportunity to appeal to the next higher command the approved finding that he engaged in sexual harassment
* the applicant was deprived of his due process rights under Army Regulation 
600-37 (Unfavorable Information) in that he was denied an opportunity to respond to all pertinent unfavorable information
* the investigating officer (IO) for the Army Regulation 15-6 investigation impermissibly tainted the witnesses' testimony by providing uncorroborated and inaccurate information
* Ms. A____ noted that offensive comments made to her were not considered sexual harassment and did not meet the required elements of sexual harassment
* Ms. M____'s own words indicated she did not consider the offensive comments made to her as sexual harassment and thus a required element of sexual harassment was not present
* the offensive comments did not unreasonably interfere with work performance nor did they create an intimidating, hostile, or offensive working environment
* the convening authority previously appropriately dealt with the two allegations of offensive comments through verbal and written counseling – this is akin to administrative double jeopardy
* there is no credible evidence that the applicant inappropriately touched Specialist (SPC) L____'s boot
* SPC L____'s sworn statement states "in no way perceived it to be sexual in nature nor did I feel offended/violated"
* SPC L____'s multiple statements showing inappropriate touching did not occur and that Major (MAJ) E____'s memorandum was inaccurate
* had MAJ E____ not provided an inaccurate memorandum articulating a false allegation, the Army Regulation 15-6 investigation would not have been initiated
* letters of support written by senior legal advisors with significant expertise and experience support the conclusion that the investigation and reprimand are fatally flawed, unjust, and should be removed from the applicant's OMPF

2.  The applicant was serving in the Regular Army in the rank/grade of MAJ/O-4 as the Chief, Military Justice Division, at the time he became the subject of an Army Regulation 15-6 investigation and received a GOMOR.

3.  On 14 December 2016, the applicant received developmental counseling for two separate episodes of inappropriate remarks made to two different civilian employees.  The civilian employees elected not to file Equal Employment Opportunity complaints.  The applicant was required to exhibit exemplary conduct and to have no contact with one of the civilian employees at all times and under all conditions.  He was advised that failure to adhere to this requirement might result in the imposition of adverse administrative action, nonjudicial punishment, and/or prosecution under the Uniform Code of Military Justice (UCMJ).

4.  On 10 February 2017, the IO completed an Army Regulation 15-6 investigation and found the applicant spoke inappropriately to two female Department of the Army civilians, touched a junior enlisted Soldier's boot unnecessarily, his conduct violated Article 133 (Conduct Unbecoming of an Officer and a Gentleman) of the UCMJ, and he was derelict in the performance of his duty to prevent sexual harassment per Army command policy.  The IO concluded by stating, "I do not believe his conduct is intentional or malicious.  Instead, I believe – and the facts demonstrate – that (Applicant) lacks social awareness and an appreciation of military custom and etiquette commensurate to his rank, position, and experience."

5.  On 27 March 2017, the U.S. Army Europe legal review of the Army Regulation 15-6 investigation concerning allegations the applicant inappropriately touched a junior Soldier and made offensive verbal comments to two female Department of the Army civilians determined the investigation was legally sufficient.  The finding that the applicant's conduct violated Article 133 of the UCMJ was sufficiently supported by the evidence.  The finding that the applicant's conduct did not violate Army Regulation 27-1 (Judge Advocate Legal Services) or Army Regulation 27-26 (Rules of Professional Conduct for Lawyers) was sufficiently supported by the evidence.

6.  On 7 April 2017 the Commanding General, 7th Army Training Command, reprimanded the applicant in writing for inappropriate and unprofessional behavior.  He stated the applicant created a hostile work environment for female co-workers by making sexually inappropriate comments to two separate female Department of the Army employees.  Additionally, he inappropriately touched the leg of a female junior Soldier.  The Commanding General further stated:

	a.  It was a matter of serious concern that the applicant failed to uphold the standard expected of a commissioned officer and specifically a leader in the Office of the Staff Judge Advocate.  As a commissioned officer and a member of the Army's Judge Advocate General's Corps, his actions should be beyond reproach.

	b.  The reprimand is imposed as an administrative measure under the provisions of Army Regulation 600-37 and not as punishment under Article 15 (Nonjudicial Punishment) of the UMCJ.

7.  On 10 April 2017, a supplemental legal review of the Army Regulation 15-6 investigation by the Headquarters, U.S. Army Europe and 7th Army Judge Advocate recommended disapproval of the IO's findings that the applicant's misconduct did not violate Army Regulation 27-1 or Army Regulation 27-26.  She stated the determination on the conduct of a Judge Advocate with respect to the practice of law or fitness as a lawyer rests solely with The Judge Advocate General.

8.  The applicant responded to the GOMOR on 14 April 2017 and stated he took responsibility for creating an unprofessional environment.  He requested reconsideration of the finding that his conduct violated Army Regulation 600-20, paragraph 7-4a(3), and rescission of the portion of the reprimand that stated he engaged in sexual harassment, and amendment of the finding to state his conduct created an "unprofessional environment."  He further requested removal of the portion of the reprimand concerning touching SPC L____'s boot.  He requested local filing of the GOMOR.

9.  On 19 April 2017, the Commanding General, 7th Army Training Command, directed permanently filing the GOMOR in the applicant's OMPF.

10.  The GOMOR and Army Regulation 15-6 investigation with adverse findings are currently filed in the performance folder of the applicant's OMPF.

11.  Counsel provided the applicant's DA Form 1059 (Service School Academic Evaluation Report), dated 17 August 2017, covering his attendance at the U.S. Army Command and General Staff Officer Course.  The academic evaluation report shows he achieved course standards and he was rated "SUPERIOR" for Written Communication, Oral Communication, Leadership Skills, and Contribution to Group Work.  His rater commented:  "Officer fostered a climate of dignity and respect and adhered to the Sexual Harassment/Assault Response and Prevention (SHARP) Program."

12.  Counsel provided a memorandum for record from SPC L____, dated 28 August 2018, wherein she stated:

	a.  despite her multiple statements describing her interaction with the applicant, the investigation and commander's conclusions that he "inappropriately" touched her were not true;

	b.  The Regimental Judge Advocate perverted the truth, which led to severe, unjust consequences for the applicant; and

	c.  she interpreted the applicant's gesture of grabbing her boot as a silent hello.  This was nothing noteworthy, nor did she find it odd, offensive, inappropriate, or unprofessional.

13.  On 12 October 2018 through counsel, the applicant requested to the Department of the Army Suitability Evaluation Board (DASEB) to remove both Army Regulation 15-6 investigation with adverse findings and a GOMOR from his OMPF based on both legal error and injustice.

14.  On 16 April 2019, the DASEB denied the applicant's request for removal of the GOMOR from his OMPF.  The DASEB determined the applicant and counsel did not provide clear and convincing evidence to support removal of the GOMOR.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request through counsel, supporting documents and the evidence in the records.  The Board reviewed and discussed the 15-6 investigation, the applicant’s and counsel’s statements pertaining to the investigation and the applicant’s due process rights as well as the supplemental review conclusions.  The Board reviewed the resulting GOMOR and the applicant’s response.  The Board determined that no error or injustice had occurred and that relief for the requested corrections was not supported by the preponderance of evidence.

2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted.
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 15-6 (Procedures for Administrative Investigations and Boards of Officers) establishes procedures for investigations and boards not specifically authorized by any other regulation or directive.

2.  Army Regulation 27-1 (Judge Advocate Legal Services) contains essential information concerning the Judge Advocate Legal Service and the Judge Advocate General's Corps.  It defines the professional standards and procedures for processing alleged violations of professional standards.

3.  Army Regulation 27-26 (Rules of Professional Conduct for Lawyers) provides comprehensive rules governing the ethical conduct of Army lawyers.

4.  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 Army Military Human Resource Record (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 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.  Paragraph 7-2 provides that 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 letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

5.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  Paragraph 3-6 provides that once a document is placed in the AMHRR, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the ABCMR or other authorized agency.

6.  Army Regulation 600-200 (Army Command Policy) prescribes the policy and responsibility of command, which includes readiness and resiliency of the force military and personal discipline and conduct, the Army Equal Opportunity Program, Prevention of Sexual Harassment, the Army Sexual Assault Prevention and Response Program, and the Sexual Harassment/Assault Response and Prevention Program.

	a.  Paragraph 7-4 (Definition) provides that sexual harassment is a form of gender discrimination that involves unwelcomed sexual advance, requests for sexual favors, and other verbal or physical conduct of a sexual nature between the same or opposite genders when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment.

	b.  Paragraph 7-5 (Categories of Sexual Harassment) provides that examples of verbal sexual harassment may include telling sexual jokes and/or using sexually explicit profanity, threats, sexually oriented cadences, or sexual comments.

	c.  Paragraph 7-6 (Types of Sexual Harassment) provides that a hostile environment occurs when Soldiers or civilians are subjected to offensive, unwanted, and unsolicited comments or behaviors of sexual nature.
ABCMR Record of Proceedings (cont)	AR20190006736



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