ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20170017675 APPLICANT REQUESTS: through counsel, reconsideration of his request for: * removal of a general officer memorandum of reprimand (GOMOR), dated 25 October 2013, from his official military personnel file (OMPF) * reversal of his involuntary retirement on 19 June 2014 and his reduction in grade from the rank of captain (CPT)/O-3 to first lieutenant (1LT)/O-2 * a personal appearance hearing before the Board 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) * Letter from H Law Firm, dated 29 October 2017, reference: (Applicant), AR20150013839 – Request for Reconsideration of Army Board for Correction of Military Records (ABCMR) Decision * Enclosure 1 – Letter, ABCMR, dated 1 November 2016 * Enclosure 2 – Letter, H Law Firm, dated 8 July 2015, reference: Memorandum of Facts, Law, and Argument, in Support of the Application of Former U.S. Army Captain (O-3) (Applicant) * Exhibit 1 – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit 2 – Letter, U.S. Army Human Resources Command (HRC), dated 19 June 2014 * Exhibit 3 – Orders 090-0006, Directorate of Human Resources, U.S. Army Garrison Hawaii, Schofield Barracks, HI, dated 31 March 2015 * Exhibit 4 – Officer Record Brief (ORB) * Exhibit 5 – six DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER) and DA Forms 2166-8 (NCOER) covering the periods September 1998 through 30 September 2006 * Exhibit 6 – six DA Forms 67-9 (Officer Evaluation Report (OER)) covering the periods 15 March 2007 through 31 January 2013 * Exhibit 7 – Bachelor of Arts and Sciences Diploma, Dallas Baptist University, dated 7 August 2009 * Exhibit 8 – four Certificates of Training, Achievement, and Appreciation * Exhibit 9 – Memorandum from Lieutenant Colonel (LTC) J P. B , Commander, Headquarters and Headquarters Battalion (HHB), U.S. Army Pacific (USARPAC), Fort Shafter, HI, dated 27 March 2013, subject: Appointment as Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigating Officer (IO) – Allegations of Impropriety against (Applicant) * Exhibit 10 – Memorandum from Major General (MG) S R. L , Commander, Headquarters (HQ), 8th Theater Sustainment Command (TSC), Fort Shafter, HI, dated 25 October 2013, subject: GOMOR * Exhibit 11 – Memorandum from the applicant, HQ, USARPAC, Fort Shafter, HI, dated 3 November 2013, subject: (Applicant) Rebuttal Memorandum * Exhibit 12 – DA Form 2823 (Sworn Statement) from CPT C D P , dated 30 October 2013 * Exhibit 13 – Letter, Webb Consulting and Training, Limited Liability Company, Dunn, NC, dated 9 June 2015 * Exhibit 14 – Professional Vitae, dated Winter 2015 * Exhibit 15 – DA Form 2823 from 1LT W S. C , dated 4 November 2013 * Exhibit 16 – Memorandum from MG J T. W , Commander, HQ, 311th Signal Command (Theater), Fort Shafter, HI, undated, subject: (Applicant) GOMOR Filing * Exhibit 17 – Memorandum from Colonel M P. B , Assistant Chief of Staff, G-6, HQ, USARPAC, Fort Shafter, HI, undated, subject: (Applicant) GOMOR Filing * Exhibit 18 – Memorandum from LTC A J. R , G-6 Operations Chief, HQ, USARPAC, Fort Shafter, HI, undated, subject: (Applicant) GOMOR Filing * Exhibit 19 – Memorandum from CPT H J. R , Commander, Operations Company, HHB, USARPAC, Fort Shafter, HI, dated 5 November 2013, subject: (Applicant) * Exhibit 20 – Memorandum from LTC J R. B , Commander, HHB, USARPAC, Fort Shafter, HI, dated 5 November 2013, subject: GOMOR – (Applicant), HHB, Fort Shafter, HI * Exhibit 21 – Letter from Colonel T E. C , Office of the Inspector General (IG), Washington, DC, dated 30 December 2014 * Enclosure 3 – ABCMR Record of Proceedings Docket Number AR2015001XXXX, dated 27 October 2016 * Enclosure 4 – Memorandum from LTC J R. B , Commander, HHB, USARPAC, Fort Shafter, HI, dated 27 March 2013, subject: Appointment as Army Regulation 15-6 IO – Allegations of Impropriety against (Applicant) * Enclosure 5 – Memorandum for Record (MFR) from MAJ B S , IO, HQ, USARPAC, Fort Shafter, HI, dated 17 June 2013, subject: Refusal to Sign Sworn Statement (Logistic Specialist 1 (LS1) V B ) * Enclosure 6 – MFR from MAJ B S , IO, HQ, USARPAC, Fort Shafter, HI, dated 17 June 2013, subject: Refusal to Sign Sworn Statement (Applicant) * Enclosure 7 – MFR from MAJ B S , IO, HQ, USARPAC, Fort Shafter, HI, dated 27 June 2013, subject: Sworn Statement of Mr. B * Enclosure 8 – Memorandum from W D. M. L , Attorney-Advisor, dated 9 July 2013, subject: Legal Review – Report of Investigation Regarding Allegations of Impropriety Attributed to (Applicant) * Enclosure 9 – MFR from LTC J R. B , Commander, HHB, USARPAC, Fort Shafter, HI, undated, subject: Appointing Authority Action – Report of Investigation (ROI) Regarding Allegations of Impropriety Attributed to (Applicant) * Enclosure 10 – Memorandum from LTC J R. B , Commander, HHB, USARPAC, Fort Shafter, HI, dated 26 September 2013, subject Transmittal of ROI Pertaining to Allegations of Impropriety against (Applicant) * Enclosure 11 – MFR from CPT B A. C , Trial Counsel, Office of the Staff Judge Advocate, Fort Shafter, HI, dated 6 September 2013, subject: Interview of (Applicant) * Enclosure 12 – Memorandum from MAJ B S. S , IO, HQ, USARPAC, Fort Shafter, HI, dated 20 June 2013, subject: ROI – Allegations of a Prohibited Relationship and Related Misconduct by (Applicant) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2015001XXXX, dated 27 October 20XX. 2. The applicant defers to counsel. 3. Counsel states: a. In accordance with Army Regulation 15-185 (Army Board on Correction of Military Records) and the letter, dated 1 November 2016, with regard to ABCMR Docket Number AR20150013839 (enclosure 1), the applicant requests reconsideration of the Board's previous decision. b. This firm originally filed the appeal with the ABCMR on 8 July 2015 (see enclosure 2) and has represented the applicant since 5 May 2015. The ABCMR's decision was not properly served on either him or the applicant; neither he nor the applicant received the ABCMR's decision until 28 March 2017. The information was not sent to the proper address, which was at the top of his letterhead and found on the DD Form 149 submitted by the applicant. c. The ABCMR convened on 27 October 2016 and considered the following evidence: * DD Form 149 with supporting documents (see enclosure 2) * military personnel records and advisory opinions (if any) d. According to the final paragraph of the ABCMR Record of Proceedings, there was "no clear and convincing evidence that the applicant was not afforded his due process during the AR [Army Regulation] 15-6 investigation or that the findings were in error or unjust." He and the applicant disagree and request reconsideration. e. The applicant was not afforded the due process he was entitled to receive under the provisions of Army Regulation 15-6 for the following reasons: (1) The applicant received a GOMOR on 31 October 2013. (2) The basis for the GOMOR was an investigation conducted by the IO; however, when the GOMOR was read/served to the applicant, the ROI itself was not part of the GOMOR, nor was the applicant provided a copy of the ROI. (3) The applicant was denied due process because he didn't receive a copy of the ROI that was the basis for the GOMOR. According to the memorandum appointing the IO, it stated, "you will conduct your investigation in accordance with the informal procedures of Chapter 4, AR [Army Regulation] 15-6" (see enclosure 4). (4) Unfavorable information should not be filed in a Soldier's OMPF "unless the recipient has been given a chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement" per Army Regulation 600-37 (Unfavorable Information), paragraph 3-2a. Exceptions to the general rule are found in paragraph 3-3. Paragraph 3-3f applies because of the investigation being informal. Paragraph 3-3f states filing of other unfavorable information is allowed if "the recipient had prior official knowledge and an adequate chance to refute." (5) The applicant did have knowledge of the investigation; however, he did not have an adequate chance to refute the GOMOR based on the investigation because of receiving it months later. (6) The GOMOR was issued to the applicant on 25 October 2013 and he was only given 7 days to respond to the GOMOR, not the document that served as the basis for the allegations contained in the GOMOR (i.e., the ROI). (7) If the applicant been given a copy of the ROI upon which the GOMOR was based and adequate time to review and respond to the inaccuracies contained in the investigation, there is little doubt that MG L would have reopened the investigation or directed filing the GOMOR locally. f. The filing authority's decision to file the GOMOR is predicated on a flawed investigation. (1) The IO's finding and recommendations were forwarded to the appointing authority on or about 20 June 2013. On 17 June 2013, the IO executed three memoranda for record which were included as exhibits D1-D3 of the investigation. (2) The memoranda of record (see exhibits 5-7) all purport to document conversations the IO had with the applicant, LS1 B , and Mr. B more than 2 months after they took place. The IO should have immediately executed the memorandum after questioning a witness and, given the lack of specific facts discussed with each witness, the statement should be viewed with skepticism. (3) On 9 July 2013, a legal review of the investigation was conducted (see exhibit 8). (4) After 9 July 2013 on an unknown date, the appointing authority executed an MFR, approving the ROI (see exhibit 9); however, he did not forward the IO's ROI to MG L , Commander, 8th TSC, until 26 September 2013. (5) On 6 September 2013, CPT C executed an MFR that detailed "his" findings and recommendations regarding the applicant's relationship with LS1 B (see exhibit 11). (6) In reference to the GOMOR, the investigation was completed on 26 September 2013 (see exhibit 10). CPT C 's memorandum of 6 September 2016 was made part of, or supplemented, the IO's findings and recommendations, dated 20 June 2013. The entire investigation did not undergo a legal review as mandated by the appointing authority and in accordance with Army Regulation 15-6, paragraph 2-3b, dated 2 October 2006, in effect at the time. (7) The language contained in Army Regulation 15-6 that is currently in effect further illustrates the filing authority, and possibly the appointing authority, based his decision on a flawed investigation, as the current regulation calls for a legal review of the completed investigation before the approval authority takes action (see Army Regulation 15-6, paragraph 2-6c, dated 1 April 2016). (8) This calls into question on which investigation MG L based his decision, the one completed on 20 June 2013 or the one he referenced in his GOMOR, dated 26 September 2013. (9) Neither investigation was presented to the applicant prior to December 2013. g. The IO's impartiality is questionable given the IO's comments in his ROI, dated 20 June 2013 (see exhibit 12). The applicant denies that an incident occurred as alleged in Mr. B 's statement concerning the applicant's conduct during the funeral service for LS1 B (see paragraph 2g of the ROI). The IO did not call the appropriate local law enforcement agency to confirm Mr. B 's story. h. Other arguments that justify reconsideration of the ABCMR's prior decision and granting relief are: (1) The relationship between the applicant and LS1 B was between two consenting adults from different services and at no time involved a professional working relationship. It did not compromise or appear to compromise any supervisory authority or the chain of command. (2) There was no evidence of aggravating factors that normally accompany this type of alleged misconduct, namely sexual harassment or drug abuse. (3) The relationship had not threatened military order because they never worked together and never had a role in evaluating each other's work or job performance. (4) The fact that LS1 B admitted that she misled the applicant as to her marital status, which was confirmed by third parties and through the results of the applicant's polygraph examination, was not given due significance. (5) The IO, appointing authority, and filing authority all commented either directly or indirectly that the applicant knew LS1 B was still married and still in the U.S. Navy Reserve (USNR) when the evidence showed the applicant did not know she was still married. Based on the deception of LS1 B , the applicant did not know she was still in the USNR and therefore he did not know the relationship was prohibited by Army regulations. i. Army Regulation 600-20, paragraph 2a, concludes with the admonition to commanders that after careful consideration of all the facts and circumstances in a particular case, they "should take the minimum action necessary to ensure that the needs of good order and discipline are satisfied." Filing of the GOMOR in the applicant's OMPF does not constitute "the minimum action necessary to ensure that the needs of good order and discipline are satisfied." In effect, filing the document in the applicant's OMPF was a death sentence to his military career. It is common knowledge of those who have served in the military know that receipt of a GOMOR filed in the OMPF will be evaluated for promotion, separation from service or similar actions, and could be a discriminator for nonselection of promotion and/or selection for separation. 4. After having prior enlisted service in the Regular Army, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 9 September 2006 with concurrent orders to active duty. 5. The applicant was promoted to the rank of CPT on 1 April 2010. 6. On 27 March 2013, an IO was appointed to conduct an informal investigation into the allegations of impropriety pertaining to the applicant. Specifically, the IO was required to determine the facts and circumstances pertaining to the allegations that the applicant: * had a prohibited relationship with a USNR noncommissioned officer (NCO) * fraternized with the USNR NCO * had a financial relationship with the USNR NCO * sent elicit pictures to the USNR NCO 7. On 22 April 2013, the IO returned a call to the spouse of the USNR NCO who informed the IO that the USNR NCO was found dead in her apartment and appeared to be by suicide by drinking bleach. 8. On 20 June 2013, the IO rendered the results of the investigation in the four allegations of misconduct by the applicant. The IO stated: a. The allegations against the applicant of prohibited relationship and fraternization were substantiated. The applicant had a prohibited relationship with a USNR NCO in violation of Army Regulation 600-20, paragraph 4-14. The applicant had an intimate relationship with an enlisted sailor. They appeared posing in photographs together while in uniform. This created a logical inference that the applicant knew the USNR NCO was enlisted. Given the nature of their attendance at social gatherings, plans to marry, and joint finances, the applicant was dealing with the USNR NCO on terms of military equality. b. The allegation of a prohibited financial relationship was substantiated. The applicant maintained and contributed to a joint checking account with the USNR NCO, helped her buy a new car, and paid for a hotel room. None of these transactions had any basis in duty assignments or professional interaction. c. The allegation of sending illicit photographs was substantiated. The applicant sent three pictures of his genitals to the USNR NCO. d. The IO recommended forwarding the ROI to the Commander, 8th TSC, for appropriate action against the applicant. In addition, he also recommended appropriate counseling for the surviving family members of the USNR NCO due to the emotional trauma of her suicide. 9. On 9 July 2013, a legal review was conducted of the Army Regulation 15-6 investigation and determined the investigation complied with legal requirements. There were no procedural errors or irregularities that invalidated the investigation. There was sufficient evidence that supported the IO's findings and were consistent with his recommendation. 10. On an unknown date, the battalion commander reviewed the ROI and the legal review. He approved the ROI regarding allegations of impropriety attributed to the applicant. He approved the recommendations to take appropriate disciplinary action against the applicant and to close the investigation. 11. The applicant received a GOMOR for misconduct on 25 October 2013. a. The imposing authority stated he reviewed the results of the Army Regulation 15-6 investigation into the allegations of a prohibited relationship and fraternizing with an enlisted member of the Naval Reserve, which commenced while she was serving on active duty. He stated the IO specifically concluded that the applicant knew the woman was an enlisted service member and the relationship was prohibited. The investigation also revealed that the applicant sent obscene photos to and engaged in an improper financial relationship with this woman openly. b. The imposing authority stated that as an officer in the U.S. Army, the applicant was required to adhere to the high standards expected of a member of their profession. Rather than meeting those standards, he chose to violate the law, Army regulations, and the trust of his office by engaging in a prohibited relationship with an enlisted member of the Naval Reserve. His misconduct indicated he lacked self-control, personal responsibility, and good judgment expected of an officer. The imposing authority stated he had serious reservations regarding the applicant's continued service in the U.S. Army. 12. On 3 November 2013, the applicant responded to the GOMOR. He stated that while certain acts upon which the allegation were based did occur, the specifics as to his intent or actual knowledge of the USNR NCO's status were not accurate. He stated that when he first met the USNR NCO, who later became his fiancιe, she told him she was divorced and getting out of the Navy because she did not make chief (E-7). He added that when he first met the USNR NCO, he thought God was showing him his future wife. All he had to do was wait for her deployment to end. During their deployment, they expressed an emotional connection to each other but never any physical intimate contact. a. After his deployment, they continued to communicate as friends. She was a schoolteacher in New York and he was accepted to teach by three departments at the U.S. Military Academy at West Point. He knew he could not maintain a relationship with an NCO, but not wanting to lose her, he decided to maintain contact until she redeployed and left the Reserve, and they could determine if their connection still existed. He felt this would not violate the principles of the Army's fraternization policy. b. He continued the communication as friends and tried only to focus on her well- being. He never intentionally meant to cause harm or disrespect to the Army or his status as an officer; he considered it to be an acceptable very low risk. After her return, they confirmed their emotional connection and fell in love. In November 2013, he proposed to her and she accepted. The marriage was scheduled for June 2014. He had plans to continue his military service with her by his side. He reiterated that he believed she was single and had exited the military. He lost his future wife and regrets that she did not disclose the truth about her status as a wife and a sailor. c. He cited his contributions to the Army and pled for local filing of the GOMOR due to the unique circumstances, career performance, acknowledgement, understanding, and emotional hardship felt by both families. His contributions to the Army are still unfinished. He learned an important lesson and is now a better and wiser leader. 13. The applicant submitted two sworn statements and five supporting statements with his response to the GOMOR. The sworn statements submitted by a 1LT and a CPT stated that when they first met the USNR NCO, as far as they knew she was a schoolteacher who lived in New York. A fellow CPT and four senior officers he worked for and/or who observed him during his daily duties expounded on his accomplishments and selfless service in their statements. These officers recommended locally filing the GOMOR so as not to affect the applicant's future in the Army. 14. On 3 January 2014, the imposing authority stated he carefully reviewed the case file, the GOMOR, and matters in rebuttal submitted by the applicant. He directed filing the reprimand in the applicant's Army Military Human Resource Record (which contains the OMPF). 15. On 19 June 2014, the Director, Officer Personnel Management Directorate, HRC, notified the applicant that based on the Army restructuring into a smaller force, several of their most experienced and professional officers would be required to separate early and that he was selected for involuntary separation under the provisions of Title 10, U.S. Code, section 638a. 16. On 13 August 2014, he appealed to the Department of the Army Suitability Evaluation Board to have the GOMOR removed from his OMPF. His request to remove the GOMOR was denied on 8 January 2015 on the basis that he failed to provide evidence showing the GOMOR was untrue or unjust or any new evidence for the board to consider that substantially negated the proceedings of the Army Regulation 15-6 investigation and subsequent administrative action. 17. On 23 November 2014, he requested voluntary retirement under the Temporary Early Retirement Authority. On 8 January 2015, the Chief Retirement Service Officer, Headquarters, U.S. Army Garrison, HI, recommended approval. 18. On 30 December 2014, the Department of Army IG conducted a thorough review of the case in which the applicant was named as the subject. After a thorough review, the IG directed amending the allegations in the Inspector General Action Request (IGAR) because they were multiplicious. The results are as follows: a. The allegation that the applicant had a prohibited intimate relationship with a married female USNR NCO in violation of Army Regulation 600-20 was originally substantiated; however, the allegation has been removed from the IGAR database. b. The allegation that the applicant had a prohibited financial relationship with a female USNR NCO in violation of Army Regulation 600-20 and Article 134 of the Uniform Code of Military Justice, was originally substantiated; however, the allegation has been removed from the IGAR database. c. The allegation that the applicant sent illicit photographs to a female USNR NCO in violation of Article 133 of the Uniform Code of Military Justice was originally substantiated; however, the allegation has been removed from the IGAR database. d. The allegation that the applicant fraternized with a female USNR NCO in violation of Army Regulation 600-20 was substantiated and remains substantiated. 19. Orders 027-005, Directorate of Human Resources, U.S. Army Garrison, HI, dated 27 January 2015, reassigned the applicant for separation processing with a retirement date of 31 March 2015. In reference to the entry concerning his retired grade/date of rank, the orders state, "SEE REMARKS" which states that his final grade determination is subject to the outcome of the Army Grade Determination Review Board (AGDRB). 20. On 9 February 2015, the applicant was notified that his request for retirement and OMPF, to include the GOMOR and ORB, would be forwarded to the AGDRB. The AGDRB would recommend the highest grade in which he served satisfactorily for retirement purposes to the Deputy Assistant Secretary of the Army who would make a final determination. The applicant was advised he could not appear before the AGDRB, but he could submit any written material he wished the board to consider. 21. On 10 March 2015, the applicant submitted his written statement to the AGDRB. He stated the IG reviewed the GOMOR and removed all items from the record except one. He submitted statements from fellow officers who believed the USNR NCO was divorced and out of the Navy. Additionally, his chain of command wrote statements on his behalf requesting that the GOMOR not be issued because of the circumstances behind his decision. He reiterated his accomplishments and requested consideration of all the evidence. He was successful in his duties and performance as a CPT and asked to be retired as such. 22. On 30 March 2015, the AGDRB reviewed the applicant's request for voluntary retirement. The Deputy Assistant Secretary of the Army (Review Boards) directed the applicant's placement on the Retired List in the grade of 1LT/O-2E if his retirement were approved and determined his service in the grade of CPT/O-3E was not satisfactory. 23. His DD Form 214 shows he honorably retired on 31 March 2015 in the grade of CPT/O-3 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 6. The narrative reason for separation is listed as "Voluntary Early Retirement." 24. U.S. Army Garrison, HI, Orders 090-XXXX, dated 31 March 2015, amended Orders 027-005, dated 27 January 2015, to show his retired grade/date of rank as 1LT with an effective date of rank of 8 September 2008. 25. On 8 July 2015, the applicant's counsel requested, in effect, voidance of his selection for early retirement on 19 June 2014 and reduction to 1LT effective 31 March 2015. He further requested removal of the GOMOR from the applicant's OMPF. 26. On 6 October 2015, the applicant was administered a polygraph test to examine his truthfulness as to whether the USNR NCO told him she was divorced prior to entering into a relationship with him and upon termination of their deployment in Afghanistan. The examiner stated the applicant, a divorcee and an officer on active duty in the U.S. Army at the time stationed in Hawaii, was accused of engaging in an improper relationship with a person who was married at the time of the relationship. The applicant stated he was told by the USNR NCO that she was divorced prior to initiation of the relationship. The examiner opined that there was "no deception indicated" to the questions asked. The applicant was asked and answered the following two questions: a. Are you lying about that woman (i.e., Ms. B ) telling you she was divorced? Answer: "No." b. Are you lying about that woman (i.e., Ms. B ) telling you she was divorced before you started that relationship with her? Answer: "No." 27. On 27 October 2016, the ABCMR denied the applicant's request for removal of the GOMOR, dated 23 October 2013, from his OMPF as well as voidance of his selection for early retirement and reduction to 1LT. a. The Board determined there was no evidence of record and neither the applicant nor his counsel provided any evidence to refute the information contained in the GOMOR. b. The Board further determined neither he nor his counsel provided any evidence to substantiate his claim or show his selection for involuntary retirement and subsequent reduction in grade was in error or unjust. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered that results of the investigation, the GOMOR, the applicant’s rebuttal, the determinations of the IG, his request for early retirement and the outcome of the Army Grade Determination Review Board. The Board considered the process by which he was issued the GOMOR and the majority of Board members recommended that the GOMOR be removed from his record as having served its purpose. One Board member recommended transferring the GOMOR to the applicant’s restricted file. The Board found insufficient evidence to recommend reversing his voluntary retirement or the AGDRB decision. 3. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the contested GOMOR and associated documents from his OMPF. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any further relief. X CHAIRPERSON 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 600-20 (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 Equal Opportunity Program, and the Army Sexual Harassment/Assault Response and Prevention Program. a. Paragraph 4-14a states the term "officer" used in this paragraph includes both commissioned and warrant officers unless otherwise stated. The term "NCO" refers to a Soldier in the grades of corporal to command sergeant major/sergeant major. The term "junior enlisted Soldier" refers to Soldiers in the grades of private to specialist. The provisions of this paragraph apply to both relationships between Soldiers in the Active and Reserve Components and between Soldiers and personnel of other military services. b. Paragraph 4-14b states 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, except for social gatherings that involve an entire unit, office, or work section. All relationships between Soldiers of different grade 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 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 the following: (1) ongoing business relationships between officers and enlisted personnel or NCOs and junior enlisted Soldiers. This prohibition does not apply to landlord/tenant relationships or to one-time transactions, such as the sale of an automobile or house, but does apply to borrowing or lending money, commercial solicitation, and any other type of ongoing financial or business relationship; and (2) 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. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive. a. Paragraph 1-9c states that except as provided in paragraph 1-9d, when adverse administrative action is contemplated against an individual including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual: (1) notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based; (2) give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material; and (3) review and evaluate the person's response. b. Paragraph 2-3b states other directives that authorize investigations or boards may require the appointing authority to refer the report of proceedings to the servicing judge advocate for legal review. The appointing authority will also seek legal review of all cases involving serious or complex matters, such as where the incident being investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in adverse administrative action (see paragraph 1-9) or will be relied upon in actions by higher headquarters. The judge advocate's review will determine: (1) whether the proceedings comply with legal requirements, (2) what effects any errors would have, (3) whether sufficient evidence supports the findings of the investigation or board or those substituted or added by the appointing authority (see paragraph 3-10b), and (4) whether the recommendations are consistent with the findings. c. Paragraph 2-6c, dated 1 April 2016, states a military or Department of the Army civilian attorney will conduct a legal review of completed investigations and boards in accordance with paragraph 2-7. d. Paragraph 2-7, dated 1 April 2016, states: (1) The approval authority will obtain a legal review of all investigations and boards directed under this regulation from his or her servicing staff judge advocate or legal advisor. (2) The legal review should only be completed after a comprehensive review of the ROI by the IO's legal advisor and it should ensure that the investigation does not raise questions that it leaves unanswered; anticipates future uses of the investigation; resolves internal inconsistencies; makes appropriate findings; and makes recommendations that are feasible, acceptable, and suitable. Specifically, the legal advisor performing the legal review will determine: (a) whether the proceedings complied with legal requirements, including the requirements established in the appointing memorandum; (b) whether there are errors and, if so, whether the errors are substantial or harmless; the effect, if any, that the errors had on the proceedings; and, what action, if any, is recommended to remediate the errors; (c) whether the findings of the investigation or board, or those substituted or added by the approval authority, are supported by a greater weight of the evidence than supports a contrary conclusion; and (d) whether the recommendations are consistent with the findings. 3. Army Regulation 600-37 (Unfavorable Information), in effect at the time, set forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Paragraph 3-2a stated that except as indicated in paragraph 3-3, unfavorable information would not be filed in an official personnel file unless the recipient had been given the chance to review the documentation that served as the basis for the proposed filing and make a written statement or to decline, in writing, to make such a statement. This statement may include evidence that rebuts, explains, or mitigates the unfavorable information (see paragraph 3-6). The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files. b. Paragraph 3-3 stated the following information may be filed in the performance folder of the OMPF without further referral to the recipient: (1) proceedings of boards of officers, if it is clear that the recipient has been given a chance to present evidence and cross-examine witnesses in his or her own behalf; and (2) completed investigative reports. These include criminal investigation reports (or authenticated extracts) that have resulted in elimination or disciplinary action against the person concerned. When it is not practical to include the entire report (or an extract), the investigative report will be referenced. c. Paragraph 3-4 stated 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. d. Paragraph 6-3 stated the Department of the Army Suitability Evaluation Board would review and evaluate the records of each case referred to the board to determine if the unfavorable information is of such a serious nature as to apparently warrant, unless adequately explained or rebutted, filing in a recipient's OMPF. In such cases, a notification letter will be sent to the recipient, in which his or her rights are explained. The letter will include the unfavorable information proposed for filing in the AMHRR. The recipient must be given a chance to review the evidence against him or her and to submit a written rebuttal or explanation for the board's consideration before any adverse finding or recommendation is made. e. Paragraph 7-2 stated 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 object 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. 4. Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-1g, states all retirements, except for disability separations, involving commissioned and warrant officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to the Assistant Secretary of the Army (Manpower and Reserve Affairs) in accordance with Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF. Examples of such findings or conclusions include, but are not limited to, a memorandum of reprimand; nonjudicial punishment under Article 15, Uniform Code of Military Justice; court-martial; or civilian conviction. Even if the information described above is not required to be filed in the officer's OMPF, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to determination of retired grade. 5. Title 10, U.S. Code, section 638a, provides that Regular officers on the Active Duty List may be considered for early retirement by a selection board in the case of officers holding a Regular grade below the grade of colonel or who, after 2 additional years or less of active service, would be eligible for retirement and whose names are not on a list of officers recommended for promotion. 6. 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 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//