IN THE CASE OF: BOARD DATE: 6 July 2023 DOCKET NUMBER: AR20220011454 APPLICANT REQUESTS: the General Officer Memorandum of Reprimand (GOMOR) be removed from his records. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 5016 (Chronological Statement of Retirement Points) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect: a. He believes the permanently filed General Officer Memorandum of Reprimand (GOMOR) is too severe of a punishment when considering all factors that took place before, during and after the investigation. This GOMOR ended his career. He should have been allowed to continue. b. In October of 2020, he was informed he was being investigated for Sexual Harassment/Assault Response and Prevention (SHARP) matters. He denied and challenged the allegations and retained legal counsel. He was counseled, reprimanded with a letter of concern and removed from command while responding with his attorney to the 15-6/CID investigation. He was flagged, which prevented him from submitting his documents for promotion to captain (CPT) after he had successfully made the promotion list. c. His removal from command did not count as a removal, since he was in command for 2.5 years and was leaving command before any allegations. His departure was paused as the flag issued was non-transferable. His battalion commander informed him that he would not be removed from command since he completed well over his expected command time. During this lengthy process, he was awaiting disposition of the investigation. By April 2021, he was informed the allegations were insufficient/unfounded. He also learned a GOMOR was initiated from the 79th Theater Sustainment Command. He had 30 days to reply, and the commanding general (CG) was "considering" filing in his permanent file. He received nearly 50 letters of character on his behalf from civilians, law enforcement, officers, enlisted, including senior enlisted and Generals. Both he and his attorney wrote rebuttals because the allegations against him presented a distorted perception that took away from the absolute truth. He is not a saint and admits to fraternization; however, he does not believe his career should have ended as no UCMJ was issued, no conviction, no charge, no arrest. d. He was accused of trying to date a lower enlisted Soldier and touching another Soldier’s buttocks when he attempted to catch her when she jumped from a lifted vehicle the year prior. He’s convinced the two Soldiers were coached by their platoon sergeant, who has a vendetta against him due to the platoon sergeant’s failed urinalysis years prior. He learned that one of the two Soldiers never filed a complaint. The complaint was filed by the platoon sergeant and staff sergeant (SSG) W.M. Both admitted to not witnessing firsthand, but believed one occurred. The second Soldier withdrew her participation from Criminal Investigations Division (CID). e. He was administratively punished by both his battalion and brigade, so why was he punished again with a permanently filed GOMOR? In late Summer/early Fall of 2021, he was informed that his rebuttal did not convince the CG to file locally or reduce to a letter of reprimand. He was also informed the CG did not have the ability to direct the GOMOR to be filed locally, due to a recent change in the law/policy. So what was the point of fighting the GOMOR, if he was guaranteed to lose? f. He continued to accrue solid Officer Evaluation Reports (OERs); he wanted to continue to fight. When served with the Notification of Sourcing (NOS) packet in the Winter of 2021, it stated he had the following choices - go before the board in person, not in person or elect to retire. With the exception of retirement, the other two options ran the risk of receiving an "other than honorable discharge". With the advice of his attorney, he elected retirement. He wanted to go before the board in person with his rebuttal packet in hand; however, he did not want to risk receiving an under other than honorable condition discharge. His effective date of transfer is 3 June 2022, which will total out to be 22 years and 3 months in service. g. While he is not perfect, he has served his country well. Before he was commissioned as an officer, he was a master sergeant (promotable). He loves the Army and has sacrificed much of his civilian career to stay in the Reserve. He has been in law enforcement over 20 years and could have been promoted in the Sheriff's department; however, decided to focus his energy in the Army. He gave so much to the Army, even put his family on the line and sacrificed his marriage, which later resulted in divorce. He feels robbed. He’s had overwhelming support during this process from his unit, friends and close ones. Yet, when he submitted his rebuttal packet, it felt as though it wasn't even considered. 3. The applicant listed multiple supporting documents; however, the only document that was uploaded with the application was the DA Form 5016 (Chronological Statement of Retirement Points), dated 2 February 2023. The DA Form 5016 reflects the applicant has a total of 22 years, 2 months, and 2 days qualifying for retirement and 3056 total points creditable. 4. A review of the applicant’s service record shows: a. He took the Oath of Office on 11 January 2016 as a Reserve Commissioned Officer. b. GOMOR, dated 10 April 2021, reflects the applicant was reprimanded for multiple incidents of conduct unbecoming an officer, fraternization, and unprofessional behavior. Specifically, and Army CID investigation determined that on or about 7 December 2019, [the applicant] invited multiple enlisted Soldiers first to a restaurant or bar and then to his home after a unit dining out event to socialize, consume alcoholic beverages, and play alcoholic drinking games, even though at least one of the enlisted Soldiers at his home was under the legal age to consume alcohol. Subsequently, on or about 13 August 2020, he made multiple inappropriate comments to a junior female enlisted soldier who recently graduated initial entry training during a closed door meeting in his office. His actions created a perception of undue familiarity within the unit that compromised the integrity of his supervisory authority in violation of Army Regulation 600-20. Furthermore, his behavior has caused members of the unit to question his leadership and judgement, especially his behavior with junior female enlisted Soldiers. c. On 19 April 2021, the applicant acknowledged receipt of the GOMOR, read, and understood the reprimand. He also elected to submit written matters within 30 calendar days. d. On 21 May 2021, the applicant’s defense counsel submitted a memorandum, subject: Rebuttal of GOMOR and Request for Rescission or in the alternative request for a local filing. In summary, the factors used as the basis for the request are as follows: * [Applicant] has been serving honorably in the military for 21 years, while also serving as a sworn peace officer wherein he is a Deputy Sheriff for 18 years * The AR 15-6 was legally insufficient and more so there is a strong indication this entire accusation was the doing of SSG . and motivated by his animus towards [applicant] * The AR 15-6 investigation was appointed by the 371st CSSB commander, who saw the investigation to conclusions and signed the DA Form 1574-1 on 9 November 2020 and issued [applicant] a counseling statement on 2 December 2020 * The 304th SBDE commander also issued [applicant] a letter of concern on 12 November 2020 * An administrative investigation “must be supported by a greater weight of evidence than supports a contrary conclusion” * A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record; it is directly established by evidence in the record, or it is a conclusion of fact by the investigating officer or board supportable by the evidence in the record” * The concept of hearsay is extremely problematic and prejudicial to the ends of justice, and therefore, is heavily scrutinized and guarded against in a court of law * Double hearsay is what person “C” says he heard person “B” say that he heard person “A” say without the benefit of hearing any of this directly from person “A;” even without malice or animus towards the accused, double hearsay testimony inherently lacks reliability * Double hearsay in this investigation does not rise to the level of “preponderance of evidence” as required by AR 15-6 * The investigating officer’s conclusions and findings are neither “readily deduced from evidence in the record” nor “directly established by evidence in the record” * The fact that SSG seems to be in a relationship with PV2 C as indicated by some of the support letters and the fact of SSG .’s animus towards the applicant and law enforcement officers generally all strongly indicates and point to SSG fabricating or at least manipulating what PV2 C may or may not have said to him in order harm the applicant e. On 10 June 2021, the imposing General Office carefully considered the reprimand, the circumstances of the misconduct and recommendation of the chain of command, The imposing officer ordered the GOMOR be permanently filed in the applicant’s AMHRR. f. The applicant submitted his retirement and alluded to, in his application, being transferred with an effective date of 3 June 2022. However, his service record found in the Interact Personnel Electronic Records Management System (iPERMS) is void of any separation/retirement orders. 5. Army Regulation (AR) 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). BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The available evidence shows, following an investigation, the applicant was reprimanded for multiple incidents of conduct unbecoming an officer, fraternization, and unprofessional behavior. He was afforded the opportunity to review the evidence against him and to submit matters in his own behalf prior to a final filing decision, and he did so. After careful consideration of the applicant's case and his rebuttal, the imposing general officer ordered the filing of the GOMOR in the applicant's AMHRR. The GOMOR is currently filed in the performance folder of his AMHRR. b. Among the purposes of filing unfavorable information is protection, not only of the Soldier's interests but for the Army's interests as well. According to the reprimand, his conduct was inexcusable, and his actions brought discredit upon himself and the Army. The applicant has not shown his GOMOR to be either untrue or unjust. Based on a preponderance of evidence, the Board determined that the GOMOR filing in his AMHRR was not in error or unjust. ? 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. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 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. Paragraph 6-2e states, the DASEB makes determinations upon appeal of unfavorable information filed in a Soldier’s AMHRR. The DASEB may determine to revise, alter, or remove such unfavorable information if it is determined to be untrue or unjust, in whole or in part (see chap 7). b. Paragraph 6-2f states, the DASEB makes determinations, upon appeal, on requests to transfer unfavorable information from the performance to the restricted portion of the AMHRR (see chap 7). The DASEB may recommend the transfer of those administrative memoranda of reprimand when such transfer would be in the best interest of the Army. Transfer of such memoranda is further subject to the stipulations stated in paragraph 6–1d, paragraph 6–1e, and chapter 7. c. Paragraph 7 states, The DASEB is the initial appeal authority and makes recommendations for removal, alteration, or transfer of unfavorable information entered in the AMHRR. This chapter sets forth the policies and procedures whereby a person may seek removal of unfavorable information from his or her AMHRR, or transfer of unfavorable information from the performance file to the restricted file of his or her AMHRR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011454 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1