MEMORANDUM OF CONSIDERATION


         IN THE CASE OF: .
        


         BOARD DATE: 7 February 2002
         DOCKET NUMBER: AR2001062869

         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
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Ms. Margaret K. Patterson		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 Letter of Reprimand (GOMOR) and a referred Officer Evaluation Report (OER) be removed from his record, and that he be restored to active duty.

APPLICANT STATES: In effect, that the GOMOR and referred OER resulted in his non-selection for promotion to major (MAJ). He provides a five page statement to this Board that presents, in effect, his contentions: that he did not have an inappropriate relationship with a woman, not his wife, nor did he commit an act of assault on his wife; that the GOMOR and referred OER are based on misconstrued circumstances and evidence; and that the evidence provided by the woman, not his wife, with whom he is alleged to have had an intimate relationship, was false. He contends that he was not ordered by the deputy commanding officer to have no contact with the woman, not his wife, and that this charge on his notification of elimination is false. He contends that he was ordered to complete his request for resignation in lieu of elimination by a suspense date prior to convening of a Board of Inquiry (BOI). He contends that his resignation in lieu of elimination is cruel and unusual punishment and that he was denied due process.

He provides an unsworn, undated copy of a statement from the woman, not his wife, who states that she never had a ”sex relationship” with the applicant; that the applicant did not do the things that she stated on her sworn statement; that she did not understand some of the words on the statement (she indicated that she did not understand the words “stunk” and “intimidated” on the sworn statement); that she did not want to go to the BOI; and that she had to say what was on the statement or lose her job. He provides a copy of the 29 May 1998 sworn statement made to an investigator by the woman, not his wife, wherein she states that she and the applicant had sexual intercourse. He provides a copy of a 10 March 2000, unsigned and unsworn email from the woman, not his wife, addressed to himself, in which she says that the applicant did not do what her sworn statement said. He provides a copy of a sworn statement by his wife, dated 28 February 2001, in which she states, in effect, that the incident was not an assault but only accidental, and that the investigator was trying to prove that the applicant had an affair with a local national woman and that he wanted the wife to help him prove such.

He provides copies of: 1) his 11 June 1998 GOMOR; 2) his 7 December 1998,
U. S. Total Army Personnel Command (PERSCOM), notification of initiation of elimination memorandum; 3) his unsigned, undated, unaddressed written correspondence to a Senator; 4) a PERSCOM letter to a Senator concerning his separation; 5) correspondence with the Department of the Army Suitability Board (DASEB) to include their last response of 17 August 2001, returning his appeal without action for lack of disinterested, independent, objective evidence; and
6) 13 August 2001 correspondence from the PERSCOM Officer Special Review Board (OSRB) returning his appeal of his referred OER without action for lack of sufficient new evidence.

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

That he was a U. S. Army Reserve (USAR) captain (CPT) on active duty assigned in Japan on 23 January 1998. He had been promoted to CPT on
1 June 1994. He had been commissioned as a second lieutenant in the USAR on 1 March 1990, and had served on active duty since that date. Prior to commissioning, he had served as an enlisted member in the Regular Army
from 25 June 1975 through 19 Sep 1979, for which he received an honorable discharge as a specialist four (SP4); a member of the Ready Reserve from
20 September through 24 June 1981, for which he received an honorable discharge; and in the Regular Army from 12 November 1985 through
28 February 1990, for which he received an honorable discharge as a
sergeant (SGT).

On 11 June 1998, the applicant received a GOMOR imposed by the major general commander of Headquarters, U. S. Army Japan Command (USARJ)
and the 9^th Theater Army Area Command. The GOMOR was for conduct unbecoming an officer and extremely poor judgment in assaulting his wife during a domestic dispute and being under the influence of alcohol on 24 May 1998, and for having an intimate relationship with a local national woman, not his wife, who admitted that the applicant and she had sexual relations during March and April 1998. These allegations were confirmed by an investigation. On 29 May 1998, the woman, not his wife, provided a signed, sworn statement to investigators that between 9 March and 16 April 1998, she had sex with the applicant in his barracks room approximately two times a week . The applicant responded in writing on 17 June 1998, offering mitigating explanation for the assault and intoxication, and denying having any sexual relationship outside of marriage. The commander considered the applicant’s response and directed that the GOMOR be filed in the applicant’s Official Military Personnel File (OMPF).

On 10 September 1998, the applicant received a “below center of mass – retain”, referred OER, due to the above events. The rater marked “No” for “Honor” and “Integrity” (moral standards) in the professionalism section and marked “Unsatisfactory Performance, Do Not Promote,” in the performance and potential section. The rater wrote, “(The applicant) received a Memorandum of Reprimand from the Commanding General, U. S. Army Japan & 9^th Theater Army Area command for assaulting his wife and having an intimate relationship with a woman, not his wife. These actions are not in keeping with the Department of the Army values. …I have serious concerns about his potential for continued

service.” The senior rater, a colonel, also marked “Do Not Promote” and wrote, “His (the applicant’s) future potential is limited.” The applicant provided comment, “I did not have an adulterous relationship. I did not commit adultery.
I did not assault my wife. The aforementioned report is an accumulation of manipulated facts, fabrication, prevarication, and inattention to detail. I make no apology for things that I did not do.”

By a PERSCOM memorandum, dated 7 December 1998, the applicant was notified that he was identified by a MAJ promotion selection board to show cause for retention on active duty because of misconduct, moral and professional dereliction, and conduct unbecoming an officer. The letter notified him that if separated for these reasons, the most favorable discharge he would receive would be under other than honorable conditions. He was advised of his rights, including the right to counsel, and informed of his options to submit a statement on his own behalf and that he could submit a resignation in lieu of elimination. He submitted statements to the effect that: 1) “There was no touching; there was no intimacy (only conversation). There was nothing else.”; 2) his referred OER was erroneous; and 3) he requested a field BOI. He submitted as evidence a copy on an unsigned, unsworn email, dated 10 March 2000, from the woman,
not his wife, to himself, wherein she stated, “I told what I said because I thought
I was going to lose my job. …When I was told to make statement and that’s why I can not feel at ease because you did not do what my statement said.”

On 29 June 2000, a BOI was conducted. On 30 July 2000, the USARJ commander reviewed the findings of the board, the board’s recommendation
to eliminate the applicant with an honorable discharge, the applicant’s
appellate brief, and recommended that the applicant be so discharged.
The recommendation was forwarded to the commander, U. S. Army Pacific.
The commander, U. S. Army Pacific, returned the BOI without action finding
that a USAR officer had not been included as a BOI board member as required
by regulation since the applicant was a USAR officer.

On 20 September 2000, the USARJ commander informed the applicant by memorandum that he was initiating a new BOI in accordance with instructions from the commander, U. S. Army Pacific. The applicant was required to show cause for retention on active duty because of misconduct, conduct unbecoming an officer, and moral and professional dereliction, based on the GOMOR. The applicant was also informed that the BOI would consider additional allegations:
1) intentional omission or misstatement of fact in official statements or records
for the purpose of misrepresentation based upon the false statements that he made on 17 June 1998, to the USARJ commander in response to the 11 June 1998 GOMOR and that he made on 14 January 2000, to the PERSCOM commander in response to the 7 December 1999 notification of initiation of


elimination; 2) disobeying an order from his deputy commander not to have contact with the woman, not his wife; and 3) disrespectful conduct unbecoming an officer toward the deputy commander. The applicant was advised of his right, to include the right to counsel, and informed of his options to submit a statement on his own behalf and that he could submit a resignation in lieu of elimination.

On 27 October 2000, the applicant voluntarily and in writing requested resignation in lieu of elimination proceedings. He stated that he had been provided legal counsel and that he fully understood the implication of his voluntary action. He waived his right to appear before a board of officers or to submit matters in explanation, rebuttal, or defense concerning the allegations in his case upon condition of being granted an honorable discharge. If less than an honorable discharge was intended, he requested that his case be heard by an appropriate officer elimination board. His chain of command recommended approval and elimination with an honorable discharge. On 22 November 2000, the Department of the Army Ad Hoc Review Board reviewed the applicant’s request for resignation in lieu of elimination based on misconduct, moral or professional dereliction, and recommended elimination with an honorable discharge. On 27 November 2000, the Deputy Assistant Secretary of the Army accepted the applicant’s resignation and directed that he be discharged with an honorable discharge. The applicant was so discharged on 27 December 2000.

The applicant appealed his 971001 – 980710 referred OER to the PERSCOM OSRB. On 15 September 2000, the OSRB determined that there was insufficient evidence of error or injustice concerning his OER and the board returned his appeal without action. The applicant again appealed and on 17 August 2001, the OSRB returned his appeal without action finding no new evidence to support the applicant’s contentions. The letter informed the applicant that the OSRB does not consider statements from his former spouse or the woman he was reported to have had an intimate relationship with, to be disinterested, independent, objective evidence.

The applicant appealed his elimination to the DASEB. On 13 December 2000, the DASEB returned his appeal without action. On 27 November 2000, he again corresponded with the DASEB. On 17 August 2001, the DASEB returned this correspondence without action, stating for the third time, that the DASEB does not consider statements from his former spouse or the woman he was reported to have had an intimate relationship with, to be disinterested, independent, objective evidence. The DASEB would not accept his case for review without independent, objective evidence such as a letter of support from the USARJ commander who issued the GOMOR, a commander’s inquiry, or an Inspector General investigation which shows that the facts of the GOMOR were untrue or unjust and/or that the chain of command was biased or treated the applicant unfairly.

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. The record shows that the applicant was provided counsel and that his legal rights were protected. The applicant voluntarily requested resignation in lieu of elimination proceedings. He stated that he fully understood the implications of his voluntary action. Upon condition of being granted an honorable discharge, he waived, in writing, his right to appear before a board of officers or submit matters in explanation, rebuttal, or defense concerning the allegations in his case. His request was properly approved by the Deputy Assistant Secretary of the Army. He voluntarily waived his opportunity to present his evidence to prove that the allegations against him and those made in his GOMOR and referred OER were false.

2. The DASEB and the OSRB did not find evidence of error or injustice in the applicant’s GOMOR, referred OER, or elimination process. The applicant provided the same evidence to this Board.

3. This Board does not find the evidence presented by the applicant consisting of an unsworn, undated, statement and the unsigned, unsworn email from the woman, not his wife, convincing evidence that the original sworn statement by this women is not in essence true, nor does the Board find that this evidence substantiates error or injustice in the GOMOR, referred OER, or elimination process. The Board does not find that the evidence presented by the applicant consisting of a sworn statement by his wife substantiates error or injustice in the GOMOR, referred OER, or elimination process.

4. 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

__fe___ ___le___ __mp______ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062869
SUFFIX
RECON
DATE BOARDED	20020207
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111 – Efficiency/Effectiveness Reporting
2.	126.03 – Reprimand Removal
3.
4.
5.
6.