IN THE CASE OF: BOARD DATE: 28 April 2021 DOCKET NUMBER: AR20200005885 APPLICANT REQUESTS: removal of the general officer memorandum of reprimand (GOMOR), 23 July 2018, from his Army Military Human Resource Record (AMHRR). 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 Attorney for the Applicant, 10 March 2020 * Enclosure 1 – GOMOR, 8 June 2016 * Enclosure 2 – Response to Request for Redress and Request for Commander's Inquiry, 1 December 2016 * Enclosure 3 – Department of the Army Suitability Evaluation Board (DASEB) Docket Number AR20190005877, 14 August 2019 * Enclosure 4 – Findings and Recommendations for Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation, 28 April 2016 * Enclosure 5 – Legal Review, 6 May 2016 * Enclosure 6 – Inspector General (IG) Letter, 8 June 2016 * Enclosure 7 – * Board of Inquiry (BOI) Results, 26 February 2019 * DA Form 1574-2 (Report of Proceedings by Board of Officers), 7 January 2019 * Findings and Recommendations * Enclosure 8 – United States v. G____, Volume 27, West's Military Justice Reporter 268 (27 M.J. 268) (1988) * Enclosure 9 – Request for Release of Jurisdiction, 18 May 2018 FACTS: 1. The applicant states the GOMOR he received was based on misconduct allegations that have been repeatedly investigated and found to be unsubstantiated. His actions in joining a website did not rise to the level of being a violation of Article 133 (Conduct Unbecoming an Officer and Gentleman), Uniform Code of Military Justice (UCMJ). 2. The memorandum from the applicant's counsel (Appeal to Army Board for Correction of Military Records (ABCMR) for Removal of GOMOR dated 8 June 2016, (Applicant), 10 March 2020, states: a. The applicant received a GOMOR on 8 June 2016, which was permanently filed in his AMHRR over his objection. The applicant filed appeals with the DASEB in 2016 and 2019 to remove this GOMOR. The first appeal was denied and the second appeal resulted in moving the GOMOR to the applicant's restricted folder on 14 August 2019. b. The applicant received a GOMOR because he joined a website and communicated with a woman who was not his wife, all while he was separated from his wife and pending divorce. Multiple investigations have proven the applicant did not commit any misconduct, did not commit adultery, and did not have physical relationships with any other women while he was still married. Nevertheless, the issuing authority refused to rescind the GOMOR or file it locally, despite contrary recommendations from virtually every other commander and advisor involved. After the applicant's latest appeal, the DASEB moved the GOMOR to the restricted folder of his AMHRR on or about 14 August 2019, but would not remove the GOMOR from his file entirely. The applicant requests removal of the unsubstantiated, unjust, and untrue GOMOR from his records in its entirety. c. While pending divorce in 2016, the applicant's ex-wife alleged to his command that he had been engaged in an inappropriate romantic relationship outside of their marriage. An Army Regulation 15-6 investigation was completed and found the allegations unsubstantiated. Nevertheless, the Fort Stewart Commanding General issued the applicant a permanently filed GOMOR based on "conduct unbecoming an officer and a gentleman in violation of Article 133, UCMJ," ostensibly because the applicant had "inappropriate relationships with several partners" while still married. The issuing authority later informed the applicant the "inappropriate relationships" consisted of meeting at least one woman on a "dating" website while he was still married and talking to the woman on the telephone. Despite multiple attempts to remove this reprimand from his military files through the issuing authority and the DASEB, the applicant has only been successful in recently having it moved to the restricted folder of his AMHRR. d. Army Regulation 600-37 (Unfavorable Information), paragraph 6-3b(1)(a) requires that "[d]ocuments that contain unfavorable information submitted for filing considerations have sufficient credible evidence to support a finding, by preponderance of the evidence, that the unfavorable information is valid." A general officer's authority to issue a reprimand is admittedly very wide-ranging, but it does have limits and the reprimand ultimately must be supported by credible evidence. e. This GOMOR should be removed from the applicant's military records because multiple investigations have concluded the applicant did not engage in misconduct; the alleged conduct does not rise to the level of conduct unbecoming under Article 133, UCMJ, regardless; and the issuing authority was under the mistaken impression that the applicant's actions required a permanent filing under Army Regulation 600-37, paragraph 3-4 (Filing of Information on Sex-Related Offenses). f. Four separate Army reviews/investigations of these allegations have been completed by independent, impartial officers and all four reviews/investigations have found the allegations unsubstantiated or without evidentiary support. (1) First, the April 2016 Army Regulation 15-6 investigation found the evidence did not support the allegation that the applicant maintained inappropriate relationships while married and did not support the allegation of adultery. (2) Second, the May 2016 legal review of the Army Regulation 15-6 investigation found the investigation and findings legally sufficient. (3) Third, the June 2016 IG's investigative inquiry into whether the applicant established an inappropriate relationship with a woman other than his wife concluded the allegations were "Not Substantiated." (4) Finally, the January 2019 BOI determined all of the allegations against the applicant were unsubstantiated (including the allegations in the GOMOR) and voted to retain the applicant, which findings and recommendation the Fort Gordon Commanding General approved. g. The ABCMR should consider the many hours of research and investigation that led to all of these conclusions and give significant weight to the previous investigative findings, especially the findings of the BOI which was the most recent and most comprehensive review of all of the evidence in this case. h. The issuing authority seemingly ignored the investigative and legal findings and issued the GOMOR because he concluded the applicant's membership in a website and platonic friendship and telephone contact with at least one female he met on the website while he was pending divorce was so egregious that it amounted to a violation of Article 133, UCMJ. i. However, the BOI more recently concluded that the specific Article 133, UCMJ, misconduct allegations in the GOMOR were unsubstantiated. j. Additionally, consider the case of United States v. G____, 27 M.J. 268 (1988). In that case, First Lieutenant (1LT) G____'s court-martial conviction for conduct unbecoming an officer (Article 133, UCMJ) was reversed. The evidence in that case showed 1LT G____ went to a legal brothel in Germany with enlisted personnel, but he did not solicit, pay for, or attempt to have sex with anyone. The evidence at trial suggested that he was just curious and went to look around. Nevertheless, he was convicted at court-martial for conduct unbecoming an officer under Article 133, UCMJ. 1LT G____'s conviction on that count was overturned by the appeals court and the appeals court noted that not every "misstep warrants punishment under Article 133," but instead noted the conduct "must be so disgraceful as to render an officer unfit for service." The appeals court went on to note that many senior members of 1LT G____'s chain of command didn't believe his conduct rose to the level of unbecoming misconduct, even if it showed poor judgment. k. In the present case, the applicant admitted to joining the website while pending divorce and admitted to having telephone contact with a female member of the website. Similar to the chain of command support in the G____ case, the applicant's brigade commander did not believe the applicant's actions rose to the level of misconduct and recommended against issuing a GOMOR. l. If 1LT G____'s in-person visit to a brothel with enlisted personnel was deemed to be just "poor judgment" and not conduct unbecoming, it is hard to imagine a scenario where the applicant's actions in this case would be considered so disgraceful as to render him unfit for service, which is the standard for conduct unbecoming an officer under Article 133, UCMJ. The GOMOR issuing authority does not have the authority to redefine what constitutes an Article 133, UCMJ, violation just because this is a reprimand rather than a court-martial. For illustration, if a Soldier punched someone else in the face really hard but that person did not die, the commanding general could not give the Soldier a GOMOR for murder because the Soldier's actions did not meet the definition of murder. The applicant's conduct in this case simply does not meet the standards set forth by the UCMJ and the U.S. Court of Military Appeals for what constitutes Article 133, UCMJ, misconduct. m. The issuing authority in this case was under the mistaken impression the alleged misconduct could be considered a "sex-related" offense that required permanent filing. In the GOMOR, the issuing authority stated the GOMOR could be permanently filed under "AR [Army Regulation] 600-37, paragraph 3-4b." That paragraph of the regulation covers filing of information on sex-related offenses, and requires that information to be filed in the permanent folder of the AMHRR. There is no evidence of any kind that the applicant committed a sex-related offense as defined under paragraph 3-4b. The issuing authority either mistakenly believed the applicant had committed a sex crime by joining this website, or the issuing authority sought to severely reprimand the applicant for the relatively innocuous behavior of joining a website in the same manner as if the applicant had committed a sex crime. Therefore, the issuing authority's actions were either misinformed or grossly disproportionate to the alleged misconduct. 3. On 13 April 2016, the Headquarters, 3rd Infantry Division and Fort Stewart, Office of the IG received a complaint against the applicant for an allegation that he established an inappropriate relationship with a woman, not his wife, which was conduct of a nature to bring discredit upon the Armed Forces in violation of Article 134 (General Article), UCMJ, and requested an investigation into the allegation be conducted. 4. On 14 April 2016, the Commander, Headquarters, 2nd Infantry Brigade Combat Team, 3rd Infantry Division, appointed an IO to conduct an informal investigation into the facts and circumstances surrounding an allegation the applicant had an inappropriate relationship with at least one woman, not his wife. On 19 April 2016, an assistant IO was appointed. 5. On 28 April 2016, the IO found the evidence did not support the following allegations against the applicant. Further, the IO recommended no further action against the applicant as there was not enough evidence to support the allegations leveled against him: * maintained inappropriate relationships with other women while married * engaged in an adulterous relationship with any woman that was not his wife * resided with any other woman, not his wife, at any point during his marriage 6. On 6 May 2016, a legal review of the Army Regulation 15-6 investigation was conducted and was found to be legally sufficient. However, the brigade administrative law attorney advised that "a letter of concern may be appropriate for [Applicant] to advise him of the potential perception issues associated with his participation in an online dating site while he was still married." 7. On 18 May 2016, the brigade commander requested that the division commander release jurisdiction over the applicant. There was insufficient evidence to substantiate the allegations leveled against the applicant. However, the IO discovered evidence which suggested the applicant met a woman through a dating website. Regardless that nothing adulterous or otherwise inappropriate resulted between the applicant and the woman, the brigade commander was concerned about potential perception issues. Since the applicant's behavior did not rise to the level of misconduct, he felt a letter of concern was an appropriate remedial action. On 31 May 2016, the division commander disapproved the brigade commander's request to release jurisdiction over the applicant. 8. On 8 June 2016, the IG informed the applicant that they had completed the investigative inquiry into the allegation that he established an inappropriate relationship with a woman, not his wife, which is conduct of a nature to bring discredit upon the Armed Forces in violation of Article 134, UCMJ. The allegations were not substantiated and the case was closed. 9. On 8 June 2016, the applicant received a GOMOR for conduct unbecoming an officer and gentleman in violation of Article 133, UCMJ, for having several inappropriate relationships between 2015 and 2016 while he was married. On 13 June 2016, the applicant acknowledged receipt and elected to submit written matters in extenuation, mitigation, or rebuttal. 10. On 15 June 2016, the applicant submitted his GOMOR rebuttal matters. He requested locally filing the GOMOR in his unit file or Army Human Resource Record file. He expressed his concern at receiving a GOMOR despite the unsubstantiated IO findings and subsequent legal review and IG findings, which exonerated him of wrongdoing. The response to the GOMOR from his attorney, 20 June 2016, reiterates the applicant's in that there was nothing in either investigation to substantiate the allegation that the applicant engaged in an inappropriate relationship or relationships. 11. His company and battalion commanders recommended filing the GOMOR in his local unit file. His brigade commander recommended filing the GOMOR in his AMHRR. 12. On 13 July 2016, the division commander directed permanently filing the GOMOR in the applicant's AMHRR. 13. On 1 December 2016 in response to the applicant's request for redress and for his request for a Commander's Inquiry, the Commander, Headquarters, Fort Stewart and 3d Infantry Division, directed appointment of an IO to examine his complaints. With respect to his redress of the GOMOR, the commander explained why he issued the GOMOR and stated he would take no further action regarding the applicant's request for redress. 14. On 15 August 2017, the DASEB denied the applicant's request for removal of the GOMOR from hos AMHRR. The DASEB determined the evidence presented did not provide substantial evidence that the GOMOR served its intended purpose or was untrue or unjust, and that its removal or transfer would be in the best interest of the Army. 15. On 5 December 2017, the applicant was notified that he was identified by the Director, Officer Personnel Management Directorate, to show cause for retention on active duty because of misconduct, moral or professional dereliction, and derogatory information filed in his AMHRR. Specifically, for "Substantiated derogatory activity resulting in a General Officer Memorandum of Reprimand 8 June 2016…and a referred Officer Evaluation Report for the period 16 April 2016 – 16 November 2016…which were filed in your Army Military Human Resource Record." In addition, for "Conduct unbecoming an officer as indicated by the above-referenced items." 16. On 12 February 2018, the applicant elected to submit a rebuttal or written statement or document on his behalf to the general officer show-cause authority (GOSCA) for consideration. His rebuttal matters reiterated his contention the allegations were not substantiated. The attorney for the applicant submitted a memorandum (Legal Basis to Justify Retention of (Applicant) in the U.S. Army), 12 February 2018, outlining the legal basis to justify his retention, which further supported the basis of legal insufficiency. 17. The applicant's chain of command recommended closure of the elimination case against him and his retention on active duty. 18. On 5 October 2018 after careful consideration of all matters pertaining to the applicant's case and the GOSCA's recommendation, the Commander, U.S. Army Human Resources Command, decided to return the case to the GOSCA for conduct of a BOI. 19. On 7 January 2019, the BOI appointed as the GOSCA "did not find by a preponderance of the evidence [Applicant] committed misconduct, moral or professional dereliction, or had derogatory information filed in his Army Military Human Resource Record (AMHRR) in accordance with Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, para[graph]s 4-2b and c. The BOI specifically found [Applicant] did not engage in inappropriate relationships with several partners while married, did not have substantiated derogatory activity resulting in an AMHRR-filed General Officer Memorandum of Reprimand and a referred Officer Evaluation Report, and did not exhibit conduct unbecoming an officer and gentleman. The BOI recommended [Applicant] be retained on active duty in the U.S. Army." The findings were approved by the Commander, Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon on 26 February 2019. 20. On or about 14 August 2019 after careful reconsideration, the DASEB voted to approve transfer of the GOMOR, 8 June 2016, and all related documents from the performance folder of the applicant's AMHRR to the restricted folder as the intended purpose of the GOMOR was served and it would be in the best interest of the Army. The DASEB further requested placement of the DASEB Decision Memorandum, 15 August 2017, and all allied documents; a copy of this memorandum; the enclosed record of proceedings; and the enclosed appeal correspondence in the restricted folder of the applicant's AMHRR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and regulatory guidance. The Board considered the applicant's statement, his record of service and documents provided by the applicant. The applicant provided evidence that clearly exonerates him or shows that there was a clear injustice. The Board determined based on the evidence in the military records the punishment received was harsh and unjust. The evidence shows the applicant was retained by the BOI and after further investigations all counts of the alleged misconduct were found to be not substantiated. After reviewing the facts and circumstances, the Board found that all due process protections were not afforded the applicant and that the processing of his GOMOR was unjust. For that reason, the Board determined that the GOMOR should be removed from the applicant’s AMHRR. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX XXX XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removal of the general officer memorandum of reprimand (GOMOR), dated 23 July 2018, from his Army Military Human Resource Record (AMHRR). 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 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensured that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensured that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 3 (Unfavorable Information in Official Personnel Files) states 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. Paragraph 3-4 states non-punitive administrative letters of reprimand, admonition, or censure in official personnel files, such as 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) states 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. 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribed policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. 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 Army Board for Correction of Military Records or other authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200005885 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1