MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2001064536

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Richard T. Dunbar		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: That the memorandum of reprimand (MOR) dated 14 February 2001, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that he was not given due process in the administration of the MOR; his brigade commander did not properly consider all of the facts, evidence, and witness statements in arriving at her decision to give him the MOR; that another noncommissioned officer in a different brigade received a lesser punishment. In support of his application, he submits a binder with 30 tabs. On 28 January 2002, he also submitted documentation to show that the Department of the Army Suitability Evaluation Board (DASEB) denied his request to transfer the GOMOR (sic) from his OMPF.

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

He is a master sergeant (MSG/E-8). At the time he received the MOR, he was a first sergeant (promotable) assigned to the Johnson City (Tennessee) Recruiting Company, Beckley (West Virginia) Recruiting Battalion, 1st Recruiting Brigade, Fort Meade, Maryland.

On an unknown date in 2000, a female applicant was enlisted in the Delayed Enlistment Program (DEP) by a recruiter assigned to a station in the applicant's company. On or about 8 November 2000, she was separated from the DEP, enlisted in the Regular Army, and assigned to Fort Leonard Wood, Missouri, for training. While at Fort Leonard Wood, the female soldier made allegations about inappropriate conduct against several recruiters, including the applicant. While it is unclear from the record whether she made her allegations in an effort to gain release from her enlistment, she was ultimately separated from the Army on or about 5 December 2000.

As a result of the female soldier's allegations, the US Army Criminal Investigation (Division) Command (CID) opened an investigation. The investigation concluded that the female DEP soldier and the applicant had dinner together in a restaurant, were present together in a liquor store, and that the female DEP spent the night at the applicant's home. It also concluded that a staff sergeant recruiter in the applicant's company had sexual relations with the female DEP.

On an unknown date in January 2001, the 1st Recruiting Brigade commander directed that the applicant be relieved of his duties as a company first sergeant and that he receive a relief-for-cause noncommissioned officer evaluation report (NCOER). On 14 February 2001, he received the subject MOR. It accused him of engaging in " . . . numerous acts of misconduct with [the female DEP].

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Specifically, you were involved in a prohibited relationship which included kissing, social activities, and consuming alcohol with an eighteen year old female DEP. Furthermore, you allowed this DEP, while she was drunk, to visit and spend the night at your residence." The brigade commander indicated her intent to file the MOR in the applicant's OMPF.

The applicant hired civilian legal counsel and rebutted the MOR. In his rebuttal, he stated that he never had a prohibited relationship with the female DEP. He stated that the DEP showed up uninvited at his home. She was "frantic, hysterical, crying, drunk, and causing a scene." He let her in and she attempted to kiss him, but he rebuffed her attempts and let her "sleep it off" in his bedroom while he slept on the living room couch. He explained his lapse of good judgment by stating that he, himself, was drunk that evening.

The applicant further explained that the female DEP had not filed any complaints with anyone prior to shipping to Fort Leonard Wood for training and that the entire matter was, in effect, a ploy to get out of her enlistment. He pointed out that the applicant gave conflicting statements to the CID on 17 November 2000, and on 4 and 12 December 2000. He added that the CID agent who interviewed him conducted a half-hearted investigation, and that the statement he took from the applicant contained snide remarks and editorialized comments. He ended by pointing out his 19 years of exemplary service, 6 of which were served in US Army Recruiting Command.

On 24 March 2001, the Commanding General, US Army Recruiting Command, responded to the applicant's rebuttal of his brigade commander's MOR and directed that the MOR be filed in the applicant's OMPF

On 8 March 2001, the applicant's battalion commander relieved the applicant of his duties as a recruiter. On 19 March 2001, he was notified that action was being initiated to separate him for misconduct under the provisions of chapter 14, Army Regulation 635-200. The result of this action is not a matter of record; however the applicant was not separated under the provisions of chapter 14.

On 20 March 2001, the applicant was flagged and removed from the promotion list for promotion to the rank of sergeant major (SGM/E-9).

On 10 April 2001, the applicant requested a commander's inquiry into the relief-for-cause NCOER. On 10 July 2001, he requested that the flag be lifted, and on 10 August 2001, he requested that the Commanding General, US Army Recruiting Command, review his case with fairness and objectivity.

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On 15 November 2001, the applicant appealed to the DASEB requesting that the MOR be removed from his OMPF. On 24 January 2002, the DASEB denied the applicant's request and "voted to deny the transfer of the GOMOR (sic)."

Army Regulation 600-37 (Unfavorable Information) sets forth the policies and procedures authorizing placement of unfavorable information about Army members in individual official personnel files. It states, in pertinent part, that unfavorable information will not be filed in an official personnel file unless the recipient has been given the 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. This statement may include evidence that rebuts, explains, or mitigates the unfavorable information. The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files

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 Board has reviewed the circumstances surrounding the issuance of the MOR and its ultimate inclusion in the applicant's OMPF. The proceedings were conducted in accordance with law and regulations, with no indication that the applicant was denied due process.

2. The female DEP's claim of an improper relation with the applicant and other recruiters is not without merit (one recruiter admitted to the CID that he had a sexual relationship with the young woman). Regardless of what happened in the applicant's home in September 2000, he displayed extremely poor judgment in admitting an intoxicated, 18-year old female DEP and allowing her to spend the night. The fact that he had dinner with her and was seen in a liquor store with her weakens his protestations that nothing improper occurred.

3. Given the facts of the case, and considering the arguments presented in the applicant's rebuttal, the Board concludes that the brigade commander was correct in issuing an MOR to the applicant and that the Commanding General, US Army Recruiting Command, was correct in directing that it be filed in the applicant's OMPF.

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

__inw___ __kan___ __rtd___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064536
SUFFIX
RECON
DATE BOARDED	20020627
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.0100
2.
3.
4.
5.
6.