MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 15 January 2002
         DOCKET NUMBER: AR2001060691

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that a general officer memorandum of reprimand (GOMOR), dated 5 September 1997, and all other documents pertaining to the GOMOR be transferred from his Official Military Personnel File (OMPF) to his restricted fiche (R-Fiche).

APPLICANT STATES: In effect, that the GOMOR had several administrative errors in it associated with the alleged incident, to include the time period of the alleged incident, the timing of the appeal process, his marital status at the time of the incident, and the actual filing date of the GOMOR in his OMPF.

In support of his application, the applicant submitted a letter in his own behalf and allied documents pertaining to the GOMOR, Bar to reenlistment under the Department of the Army Qualitative Management Program (DA QMP), and appeals to the Department of Army Suitability Evaluation Board (DASEB).

EVIDENCE OF RECORD: The applicant's military records show:

He is currently serving on active duty in the rank of master sergeant/E-8 (MSG).

On 5 September 1997, the applicant received a GOMOR from the Commanding General (CG), Brooke Army Medical Center, Fort Sam Houston, Texas. The GOMOR noted that the applicant was being reprimanded for committing adultery with a woman, not his wife, who was married to an Army staff sergeant/E-6. The GOMOR states that the applicant’s misconduct reflected poorly upon his maturity and self-discipline. The GOMOR was imposed as an administrative disciplinary measure and not as nonjudicial punishment under Article 15, Uniform Code of Military Justice.

On 11 September 1997, the applicant submitted a memorandum to the CG, Brooke Army Medical Center, admitting to the adultery and requesting that the GOMOR be filed in his Military Personnel Records Jacket (MPRJ), not his OMPF.

On 24 September 1997, the CG, Brooke Army Medical Center, directed that the GOMOR be filed in the applicant’s OMPF.

On 3 December 1998, the applicant was barred from reenlisting under the DA QMP. On 30 December 1998, he was counseled on his Bar to Reenlistment.

On 4 January 1999, the applicant elected to submit an appeal of the DA QMP. He provided many letters from his chain of command as well as the CG, Brooke Army Medical Center.

On 24 August 1999, the applicant’s appeal of the DA-imposed bar to reenlistment was approved. It was noted that removal of this bar did not preclude future imposition of local or DA-imposed bars to reenlistment.

On 11 October 1999, the applicant initiated an appeal to the DASEB to have the GOMOR removed from the performance section of his OMPF and transferred to his R-Fiche. He stated that the GOMOR had served its intended purpose, and that he had, in effect, successfully soldiered through the incident.

On 11 January 2000, the DASEB denied the applicant’s petition to transfer the GOMOR to his R-Fiche. The DASEB opined that sufficient time had not elapsed, and the applicant provided no support from the imposing authority. The DASEB opined that the applicant’s performance had been commendable since the GOMOR; however, due to the seriousness of the offense, the elapsed time, the applicant’s rank and time-in-service, transfer of the GOMOR was not justified at this time.

On 26 May 2000, the applicant again appealed to the DASEB for transfer of the GOMOR to his R-Fiche.

On 19 September 2000, the DASEB again denied the applicant’s petition to transfer the GOMOR to his R-Fiche. The applicant was advised he could reapply to the DASEB if he had new substantive evidence. He was also advised that, under the Privacy Act, he was authorized to request a copy of the DASEB case summary. If after reviewing the case summary, he was unable to provide any new evidence to sway the DASEB, he could apply to the Army Board for Correction of Military Records (ABCMR).

Army Regulation 600-37 (unfavorable information) provides, in pertinent part, that only material that a soldier has been provided an opportunity to review and provide written comment upon may be filed in the OMPF. Once filed in the OMPF, such material becomes permanent unless removed in accordance with chapter 7. Chapter 7 of the regulation provides that, once filed in an OMPF, a document is presumed to have been administratively correct. Appeals to the DASEB to relocate derogatory information are to be based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army. If an appeal is denied, the DASEB letter of denial will be filed on the performance fiche, the appeal itself and any associated documents will be filed on the restricted fiche.

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DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

2. The Board noted the applicant’s contentions and concluded that the GOMOR was administered in accordance with applicable regulations and was justified based upon the offense committed. Although there may be minor discrepancies in the GOMOR as relate to the start and end dates of the adulterous relationship, these do not alter the basic facts of the case or the validity of the GOMOR. Furthermore, there is no indication of any substantive violation of the applicant’s rights.

3. The applicant's marital status -- separated or divorced -- at the time of the adulterous relationship is immaterial to the facts of this case since the woman with whom he had the relationship was, in fact, married (to a staff sergeant) at the time of the relationship. According to the Manual for Courts-Martial, the elements of the offense of adultery are: that the accused wrongfully had sexual intercourse; that the accused or the other person was married to someone else; and that the conduct of the accused was prejudicial to good order and discipline or was of a nature to bring discredit upon the armed forces.

4. The Commanding General, after reviewing the applicant’s request to have the GOMOR filed in his MPRJ, deemed it appropriate to file the memorandum in the applicant’s OMPF. This decision was within his realm of the CG's authority. The applicant has not shown that the filing decision was in error, or unjust, or that, with any more information at hand, the CG would have made a different decision.

5. Given the applicant's senior rank and length of service at the time of the adulterous relationship, his actions cast serious doubt on his maturity, judgment, and self-discipline. The Board, therefore, believes that the GOMOR should remain properly filed in the applicant's OMPF and not be moved to his restricted fiche.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_INW____ __HIOF__ __DPH_ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001060691
SUFFIX
RECON
DATE BOARDED	20020115
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	134.0400
2.
3.
4.
5.
6.