IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220003005 APPLICANT REQUESTS: * removal of the general officer memorandum of reprimand (GOMOR), 15 February 2019, from his Army Military Human Resource Record (AMHRR) * alternatively, transfer of the GOMOR to his local personnel file or the restricted folder of his AMHRR or amendment of the GOMOR to remove the conclusion that he engaged in any sexual acts with a junior enlisted Soldier APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Counsel's Memorandum in Support of Application to Remove GOMOR from AMHRR, undated, with 13 enclosures consisting of – * DD Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States * DD Forms 214 (Certificate of Release or Discharge from Active Duty) * 11 Noncommissioned Officer (NCO) Evaluation Reports (NCOERs) * Civilian Education Certificate and Diplomas * National Guard Bureau Memorandum (Findings for Investigation Number and 10 December 2018 * DA Form 2823 (Sworn Statement), Command Sergeant Major (CSM) 17 July 2021 * County Public Safety Communications Incident Details, 11 June 2018 * DD Form 2910 (Victim Reporting Preference Statement) * District of Columbia Army National Guard (ARNG) Memorandum (GOMOR), 15 February 2019, with attachments * Department of the Army Suitability Evaluation Board (DASEB) Docket Number AR20210012480, 14 September 2021 * DA Forms 1059 (Service School Academic Evaluation Reports) * Enlisted Record Brief * Department of Veterans Affairs (VA) Rating Decision, 24 September 2020 * four Letters of Recommendation, 9 November 2022 through 22 November 2022 FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. The applicant is a National Guard Soldier with 20 years of service. He requests removal of a factually inaccurate GOMOR he received on 15 February 2019, which was not filed in his AMHRR until 29 March 2021. The GOMOR was filed more than 2 years after an investigation into the underlying facts and circumstances. The applicant recently obtained a sworn witness statement proving the inaccuracy of facts relied upon for the GOMOR. b. The inaccurate GOMOR has caused immense prejudice to the applicant because he was removed from an Active Guard Reserve status in the ARNG and has been unable to be promoted to master sergeant/E-8 despite his exceptional qualifications. c. He describes the applicant's two decades of National Guard service, prior assignments, civilian education, and current assignment as a senior evaluator for the U.S. Army Training and Doctrine Command. d. The GOMOR at issue resulted from events occurring the evening of 10 June 2018 and into the morning of 11 June 2018. The applicant was followed home by another ARNG Soldier after a Morale, Welfare, and Recreation event. In the early morning hours of 11 June 2018, the visiting Soldier became intoxicated while at his house. Around 0200 hours, the Soldier sexually assaulted him as he slept; he stopped the assault by threatening to call law enforcement. When the Soldier initially refused to leave his house, he called law enforcement. The call log from the emergency services dispatch center shows evidence of his call. Later that morning, he filed a restricted sexual assault report detailing the events. However, the Soldier who sexually assaulted him also filed assault allegations against him after he filed his report. e. From 17 to 21 September 2018, the Office of Complex Administrative Investigations (OCI) investigated both the reports from him as well as his assailant. Other ARNG Soldiers who were interviewed during the investigation described his assailant as a "pathological liar" and the investigative conclusion was consistent with that credibility assessment. Both sexual assault reports were unsubstantiated following the OCI investigation; however, the findings stated it was more likely than not that he and his assailant had sexual intercourse and acknowledged that there was no direct evidence. f. Instead, the "evidence" purportedly supporting that finding was OCI's misinterpretation of a statement from CSM . From this statement, the investigative findings claim that during the applicant's phone call on 11 June 2018, he admitted to having sexual intercourse that morning. However, new material evidence shows OCI's finding to be fundamentally inaccurate and a misinterpretation of the information given by CSM . CSM has provided his sworn statement, 17 July 2021, to refute this OCI finding. g. Leaving the inaccurate GOMOR permanently filed in the applicant's AMHRR is unjust considering his length and quality of service. The applicant asks that the Board recognize the inequity of reducing his service to an inaccurate GOMOR premised on an investigative finding proven to be false. He has served honorably for 20 years, as reflected in his NCOERs, impressive list of certificates from Army training courses, and awards and commendations. His selfless sacrifice has also resulted a VA disability rating of 50 percent for service-connected post-traumatic stress disorder. h. The GOMOR in his AMHRR resulted from material errors of fact, those errors have caused injustice because they discredited an otherwise stellar career and caused nearly irreparable harm to his potential for promotion to master sergeant/E-8. 3. National Guard Orders 029-016, 29 January 2018, ordered the applicant to Full-Time National Guard Duty in an Active Guard Reserve status with a reporting date of 1 February 2018. 4. The County Public Safety Communications Incident Details, 11 June 2018, shows that on or about 0300 hours 11 June 2018, the applicant called and stated: * he had a dispute with a co-worker and now needs police to come and take a report * he has been drinking and the female may have been drinking a little * the co-worker came to his house and she claims they had sexual intercourse * he wants to report this to police 5. The applicant's DD Form 2910 (Victim Reporting Preference Statement), 11 June 2018, he shows elected restricted reporting. He had decided to confidentially report that he is a victim of sexual assault. On 30 August 2018, he reconsidered his previous selection of restricted reporting and is now choosing to make an unrestricted report. 6. There is no evidence of the purported assailant's DD Form 2910 for review. 7. The National Guard Bureau memorandum (Findings for Investigation Number and, 10 December 2018, states the investigative team found the reports of sexual assault were not substantiated after carefully considering the evidence. 8. On 15 February 2019, the Commanding General, ARNG, reprimanded the applicant in writing, stating: a. The findings for Investigation Numbers and, conducted by the OCI, show the applicant engaged in fraternization; specifically, sexual intercourse, with a subordinate, Specialist (SPC) in violation of Army Regulation 600-20 (Army Command Policy). This conduct was prejudicial to the good order and discipline of his unit and brough discredit upon the service. b. On or about 10 June 2018, the evidence indicates the applicant engaged in sexual intercourse at his house with SPC . The applicant had dinner with her and invited her to his home, where they both became intoxicated and engaged in sexual intercourse. SPC was his subordinate at the time. He misused his position and professional relationship with SPC to obtain a sexual relationship with her. c. This reprimand is imposed as an administrative measure in accordance with Army Regulation 600-37 (Unfavorable Information). 9. The applicant's records contain no evidence of a rebuttal to the GOMOR. 10. The applicant's DA Form 2166-9-2 (NCOER) covering the period 1 February 2019 through 31 January 2020 shows in: a. Part IVg (Develops), his rater marked "MET STANDARD" and commented, in part: "compromised workplace cohesion by socializing with a subordinate Soldier in a less than professional manner"; b. Rater Overall Performance section, his rater marked "MET STANDARD" and commented, in part: "outperformed all of the E-7s in my current and past rated populations; while this rating period was not without blemish he consistently undertook multiple projects and still produced the top quality results and products"; and c. Part V (Senior Rater Overall Potential), his senior rater rated his overall potential as "QUALIFIED" and commented: "[Applicant's] potential is among the middle 50% of the 5 SFC's [sergeants first class] I senior rate based on an incident of fraternization. His exceptional performance and compliance following the incident demonstrates that he is committed to maintaining the Army values and his recommitment to the NCO creed. He has the potential to excel in the future, if provided the opportunity. Send to PME [Professional Military Education] opportunities and promote with peers." 11. On 18 July 2020, the applicant was awarded the Army Commendation Medal for exceptional achievement during two national-level emergencies from 1 June 2020 to 16 June 2020. 12. The applicant's VA Rating Decision, 24 September 2020, shows his disability rating for post-traumatic stress disorder increased from 30 percent to 50 percent effective 10 September 2020. 13. The applicant was honorably released from active duty on 3 January 2021. His DD Form 214 for this period shows in: * item 12c (Net Active Service This Period) – 2 years, 11 months, and 3 days * item 12d (Total Prior Active Service) – 12 years, 4 months, and 16 days * item 12e (Total Prior Inactive Service) – 4 years and 25 days * item 23 (Type of Separation) – Release from Active Duty * item 28 (Narrative Reason for Separation) – Completion of Required Active Service 14. On 29 March 2021, the Commanding General, District of Columbia ARNG, having reviewed the GOMOR, the circumstances of the misconduct, and all matters enclosed, directed permanently filing the GOMOR in the applicant's AMHRR. 15. On 18 May 2021, the DASEB denied the applicant's request for removal of the administrative GOMOR from his AMHRR or, in the alternative, transfer of the GOMOR to the restricted folder of his AMHRR. The DASEB determined: a. The issuing authority has the liberty to rely on any evidence he or she believed was relevant in the applicant's case. The issuing authority believed the preponderance of the evidence supported issuance of the GOMOR and permanent filing in the applicant's AMHRR. The issuing authority is not bound by an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation or the applicant's rebuttal statement. The applicant did not provide any proof or evidence of reaching out to the issuing authority in reference to his rebuttal statement. Therefore, there is no proof that the applicant's due process was violated. b. The GOMOR clearly states the allegations against the applicant and he accepted responsibility for his actions; therefore, filing of the GOMOR was not unjust. The applicant has not provided any evidence to show the GOMOR was improperly filed or that it was an injustice or that he should not be held liable for his misconduct. It is unknown why it took almost 2 years before the issuing authority's filing determination; however, this does not unsubstantiate the GOMOR. c. The governing regulation states the officer who directed filing of an administrative GOMOR, admonition, or censure in an AMHRR may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in part. The basis for such determination must be provided to the DASEB in sufficient detail so as to justify the request. The applicant did not provide a letter from the issuing authority stating the GOMOR is untrue or unjust or that new evidence was being considered. d. Careful consideration was given to the time period that had elapsed, the applicant's rank at the time of the misconduct, the seriousness of the incident, and the derogatory NCOER, and determined the applicant has not provided sufficient evidence to show the GOMOR had served its intended purpose and that it is in the best interest of the Army to transfer it at this time. e. The applicant's references to being removed from the promotion list and being removed from the Active Guard Reserve Program are considered to be a natural consequence of the GOMOR and not the "intent being served." 16. The DA Form 2823 (Sworn Statement) from CSM , 17 July 2021, states, in part: a. The purpose of this sworn statement is to clarify information in the applicant's OCI report. The OCI investigative report states he told the investigative team that the applicant told him that he had sex with the other party; however, this is not true. The applicant told him he called the police about the other party because she said they had sex. The applicant did not tell him they had sex. The investigative team seems to have misunderstood or misinterpreted his testimony. b. In reviewing the report, he observed that his testimony is the only mention of sexual intercourse and he is clarifying that the applicant did not tell him he had sexual contact or intercourse, and no other testimony says anything in the affirmative either. 17. His next three consecutive NCOERs covering the periods 1 February 2020 through 5 June 2022 show his senior raters rated his overall potential as "MOST QUALIFIED" and "HIGHLY QUALIFIED," and provided positive comments of his performance, potential, and recommendations for promotion and future leadership positions. 18. On 2 June 2022, he was awarded the Army Commendation Medal for exceptionally meritorious service while assigned as the Senior Advisor, Quality Assurance Office, from 3 January 2021 to 3 June 2022. 19. National Guard Bureau Order 199-36, 18 July 2022, ordered the applicant to active duty in an Active Guard Reserve status with a reporting date of 3 August 2022. 20. The four letters of recommendation attest to the applicant's character and unlimited potential, and recommend removal the GOMOR from the applicant's AMHRR. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The Board considered counsel’s and/or applicant’s contentions, the applicant's military records, and regulatory guidance. a. The applicant was reprimanded for misconduct after an investigation determined he engaged in fraternization; specifically, sexual intercourse, with a subordinate, in violation of Command Policy. He was afforded the opportunity to review all the evidence against him and to submit matters in his own behalf prior to a final filing decision. The imposing officer considered the circumstances surrounding the incident and all matters submitted by the applicant, along with the recommendations of subordinate commanders, and ordered the GOMOR be placed permanently in the applicant's AMHRR. b. The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate. Once the GOMOR was filed on his OMPF, it became a permanent record and will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his OMPF. There is no evidence of any violation of any of the applicant’s rights. He has provided insufficient evidence or argument to form a basis for removing or moving it to the restricted portion of his OMPF. c. The Army has an interest in maintaining the accuracy of its records. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. As required by the applicable regulation, the GOMOR is properly filed in the performance section of his OMPF. The GOMOR is an important entry that must serve to protect the integrity of the NCO and officer promotion system. Removing or transferring this document would give him an unwarranted and unfair advantage over thousands of other Soldiers who have served faithfully and without the blemish of a GOMOR. ? 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states investigating officers may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign Plan, military discipline and conduct, the Army Military Equal Opportunity Program, the Army Harassment Prevention and Response Program, and the Army Sexual Harassment/Assault Response and Prevention Program. a. Paragraph 4-4 (Soldier Conduct) states ensuring the proper conduct of Soldiers is a function of command. Commanders and leaders in the Army, whether on or off duty or in a leave status, will ensure all Soldiers present a neat, military appearance and take appropriate action consistent with Army regulations in any case where a Soldier's conduct violates good order and military discipline. b. Paragraph 4-14 (Relationships Between Soldiers of Different Grades) states the provisions of this paragraph apply to both relationships between Soldiers in the Regular Army and U.S. Army Reserve. Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier, or between an NCO and a junior enlisted Soldier. Examples of familiarity between Soldiers that may become "undue" can include repeated visits to bars, nightclubs, eating establishments, or homes between an officer and an enlisted Soldier or an NCO and a junior enlisted Soldier. All relationships between Soldiers of different grades are prohibited if they: (1) compromise, or appear to compromise, the integrity of supervisory authority or the chain of command;? (2) cause actual or perceived partiality or unfairness; (3) involve, or appear to involve, the improper use of grade or rank or position for personal gain; (4) are, or are perceived to be, exploitative or coercive in nature; or (5) create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. c. Paragraph 4-14c states certain types of personal relationships between officers and enlisted Soldiers or NCOs and junior enlisted Soldiers are prohibited. Prohibited relationships include dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships between officers and enlisted personnel or NCOs and junior enlisted Soldiers. d. Paragraph 4-14f states commander should seek to prevent inappropriate or unprofessional relationships through proper training and personal leadership. Commanders have a wide range of responses available should inappropriate relationships occur. These responses may include counseling, reprimand, order to cease, reassignment, or adverse action. Potential adverse action may include official reprimand, adverse evaluation report(s), nonjudicial punishment, separation, bar to continued service, promotion denial, demotions, and courts-martial. Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair. 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 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 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 (Appeals). c. Paragraph 7-2 (Policies and Standards) 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. Soldiers must have received at least one evaluation (other than academic) since imposition. d. 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. 4. 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 another authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003005 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1