MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2002071093

         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:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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, removal of his name from the US Army Central Registry (ACR) of Child and Spouse Abuse and that his Officer Evaluation Report for the period 1 August 2000-18 June 2001 be nullified.

APPLICANT STATES: In effect, he is an active duty officer who suffered an injustice while assigned to the Heidelberg (Germany) US Army Medical Activity (HMEDDAC) during 2000-2001. He is listed in the ACR for allegedly having verbally abused his wife. He is innocent of this charge and has sought unsuccessfully to have his name removed from the spouse abuse data bank. He fears that his being labeled as a spouse abuser will adversely affect his career as an ophthalmologist in the Medical Corps.

In support of his case, he submits; a 4-page letter to the Board outlining his request and his arguments for relief; and 10 folders detailing his personal and marital histories, the basic allegation, the investigation by the Family Advocacy Case Review Committee (CRC), his efforts to have his name removed from the ACR, and his unit's and the Army Medical Corps' response to those efforts.

In one of the folders (Folder 4), the applicant provides information detailing the abuse allegations and his refutation of them. The applicant characterizes his wife's allegations as follows: he called her psychotic, evil, a mental health case and a lesbian; he played mind games on her by unplugging the telephone; he spread vicious rumors about her mental well-being to friends; he filed charges against her to inflict pain; he is using their daughter as a weapon against her; he called her sexually dysfunctional; and he criticized her reading habits. He responds by stating he never called her psychotic in her presence; he recounts her history of post-partum depression and professional care; he did not call her a lesbian, but asked whether she had changed sexual orientation for refusing sexual relations with him; he unplugged the phone because he was on the internet and he laughed at her when she threw the phone, but believes her anger was in response to his having "confiscated" the passport; he did tell the neighbors that she had mental health problems, but only so that they could "check up on her" because of her "suicidal ideations;" he took his wife to German court not to hurt her, but because he valued his relationship with his daughter; he did criticize his wife's choice of reading self-help books, but she criticized his reading of war books and German books.

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

He is a Lieutenant Colonel serving on active duty in the Regular Army as an ophthalmologist in the Medical Corps (MC). At the time of the subject incident, he was a Major, MC.

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The applicant and his wife were married in Colorado on 29 October 1993 and their only child, a daughter, was born on 9 February 1995. On/about July 1998, the applicant was transferred to Germany on an accompanied tour of duty. In February 1999, he was stationed in Heidelberg where he served as the Chief, Ophthalmology Service, HMEDDAC. He resided in quarters in Heidelberg with his wife and daughter.

The applicant and his wife experienced marital problems and, for several months, underwent counseling with their Chaplain. In March 2000, the applicant's wife informed the applicant that she wanted to dissolve their marriage. She then sought legal assistance from the Mannheim Legal Assistance Office and other military community legal assistance centers. At some point, she also contacted Social Work Services (SWS) in the Heidelberg area, at which time she made allegations of spouse emotional abuse against her husband.

On 30 October 2000, the applicant's wife, accompanied by two SWS staff, met the applicant's commander to request permission for her and her daughter to return to the Continental United States (CONUS) before their scheduled eligibility date. She told the commander that the applicant was mentally and emotionally abusive toward her and that his abuse of her had escalated since March 2000 when she had asked for a divorce.

The applicant's commander, after listening to the applicant's wife and consulting with, among others, SWS staff and the couple's Chaplain, recommended the return of the applicant's family to CONUS in advance of their scheduled return date. The request was approved. The commander, on 2 November 2000, also ordered the applicant to have no unsupervised contact with his wife and to move out of the family quarters. The applicant's wife and child remained in quarters and the applicant was given quarters elsewhere.

In response to his command's approval of his family's early return to CONUS, the applicant sought intervention through the German courts to force his family to remain in Germany and to gain custody of his daughter. On 7 November 2000, a German court granted his request. In a subsequent ruling on 17 November 2000, the German court expanded its ruling to require the applicant's wife and daughter to remain in Germany through July 2001, with the daughter remaining in the wife's custody. Thereafter, the family was free to return to CONUS and pursue the child's custody issue in the US courts.

Concurrent with the above activities and his command-directed separation from his family, the applicant filed a complaint with SWS stating that his wife was guilty of child neglect for his daughter's "failure to thrive." On 15 November 2000, the Heidelberg CRC determined the complaint to be unsubstantiated.

The applicant next filed a complaint of alleged spouse emotional abuse against his wife and listing himself as the victim. On 6 December 2000, the CRC found that complaint to be unsubstantiated. On the same date, however, the CRC substantiated his wife's earlier complaint of spouse emotional abuse, finding her to be the victim of abuse and the applicant to be the offender. As a result of that determination, the Heidelberg CRC forwarded a data entry to the ACR listing the applicant as the subject of a confirmed incident of spouse abuse.

In January 2001, the applicant filed a complaint with SWS and the German court charging his wife with child sexual abuse. The Heidelberg CRC heard the complaint and, on 7 February 2001, determined it to be unsubstantiated. The German court refused to hear the case.

Also in early 2001, the applicant filed a formal request with his commander for redress of the alleged wrong against him, that of his being named as a spouse abuser. His request was approved and a formal review of the initial Heidelberg CRC case substantiating him as a spouse abuser was undertaken. That review was concluded in June 2001 with no change in the original finding.

The applicant next filed a complaint against his commander under Article 138, Uniform Code of Military Justice. The complaint was forwarded to the Article 138 authority, the Commander, US Army Medical Command, Fort Sam Houston, Texas. The complaint alleged that the applicant's commander wrongfully ordered him to stay away from his family; that the commander wrongfully recommended approval for the applicant's family to return to CONUS in advance of their normal return date; that the CRC wrongfully substantiated, on two occasions, an allegation of spouse emotional abuse against him; and that all of the above caused him monetary and property losses.

In addressing the applicant's Article 138 complaint, the Commander, US Army Medical Command, investigated the entire matter. As a part of that investigation, the Chaplain who provided pastoral counseling to the applicant and his wife stated for the record that he found the applicant's wife to be "a rationale (sic) and mature adult [who] perceived a very real threat of harm from [applicant]." The Article 138 authority found the applicant's complaint, in part, deficient and without merit and, in part, inappropriate for review under the provisions of Article 138.

The applicant's Article 138 complaint was next reviewed by the Office of The Judge Advocate General (OTJAG). Following a thorough review of all matters, OTJAG determined that the Article 138 authority reached the proper conclusions concerning the applicant's complaint and that no further action was required. The applicant was so notified on 17 December 2001.

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Upon completion of his tour of duty in Germany, the applicant and his family were returned to CONUS and the applicant was assigned to Fort Meade, Maryland. In Maryland, the applicant and his wife took their issues of divorce, child custody and support before the Circuit Court for Montgomery County. In an affidavit dated 16 March 2002, the applicant's civilian attorney stated that the court-appointed social worker who conducted an independent investigation on behalf of the court found "no evidence to suggest the existence of physical or verbal abuse."

In the CONSENT CUSTODY ORDER issued by The Circuit Court for Montgomery County on 1 February 2002, the court directed rules for the custody of the applicant's child. The court also ordered the applicant to immediately enroll in, and participate in professional anger-management counseling. No such order was made with respect to the applicant's wife.

The applicant was selected for promotion to Lieutenant Colonel by the Fiscal Year 2002 (FY02) Lieutenant Colonel, Medical Corps, Promotion Board. The applicant has been promoted to Lieutenant Colonel.

In the processing of this case, an advisory opinion was obtained from the Chief, Health Policy and Services Division, Office of The Surgeon General (OTSG) which states that the applicant was the subject of a substantiated case of spouse abuse and, as such, his name was provided to the ACR. The opinion stated that the applicant's case was well known and that numerous responses had been made to the applicant and to a Member of Congress inquiring on the applicant's behalf. The OTSG, in effect, recommended that the applicant's request for removal of his name from the ACR database be denied.

The applicant was provided an opportunity to respond to the advisory opinion and did so on two separate occasions. On 1 April 2003, he argued that the advisory opinion improperly stated who chaired what committee in Heidelberg during 2000, or who was or was not present at a meeting. He argues that his being substantiated as a spouse abuser will harm his career and has already tarnished his reputation. He contends that a physician unqualified to make the medical determination [a dermatologist] unsubstantiated his complaint against his
wife that she was responsible for their daughter's failure to thrive. He stated that his request for a statistical analysis of Heidelberg SWS cases for the purpose of showing "male bias" has not been honored. He adds that the OTSG advisory opinion "quibbles" over definitions in the CRC process. He complains that two employees of Heidelberg SWS wrote a letter to the German courts stating that the applicant's wife was not suffering from serious mental depression [as alleged

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by the applicant in his complaint to the German courts]. He complained that the
Commander, US Army Medical Command, "refused to answer the Article 138 complaint." He concludes by alluding that Montgomery County (Maryland) officials have supported his version of events relative to his legal battles with his wife over divorce and custody. He concludes by stating that the entire affair is Kafkaesque

On 18 July 2003, the applicant submitted a second rebuttal to the OTSG advisory opinion wherein he takes exception to the characterization of the ACR as a medical registry not accessible to individuals in a position to influence his career. He provides a copy of a memorandum dated 6 March 2002, subject: Results of Case Review Committee on 6 March 2002. The memorandum states that the applicant's case is closed and that the ACR will be so notified. It is signed by the co-chairpersons of the Heidelberg CRC and annotated "CF: [applicant]. It was forwarded to the applicant through command channels to him at his new duty station, Fort Meade, Maryland.

Paragraph 2-5, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any issue if it is determined that all administrative remedies have not been exhausted. Information received from the Office of the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB) indicates the applicant has not appealed his OER for the period 1 August 2000-18 June 2001 to that Board.

Army Regulation (AR) 608-18, The Army Family Advocacy Program, establishes Department of the Army (DA) policy on the prevention, identification, reporting, investigation, and treatment of spouse and child abuse. It provides, in pertinent part, that the U.S. Army Patient Administration Systems and Biostatistics Activity (PASBA), Fort Sam Houston, Texas, maintain an Army-wide, centralized data bank [the ACR] containing a confidential index of reported spouse and child abuse cases to be used to assist in the early identification, verification, and retrieval of reported cases of spouse and child abuse.

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

1. The applicant and his wife had a poor marriage. The applicant's wife felt that the applicant was emotionally abusive. When she made her allegations known to SWS Heidelberg, the command's Family Advocacy Program initiated actions to investigate the allegations. The appropriate venue for that investigation was the CRC.

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2. The applicant's wife sought to separate from the applicant, leave Germany and return to CONUS. In order to do so, she required command approval to ship her household goods and obtain travel authorization. Accompanied by two staff of SWS Heidelberg, she met with the applicant's commander to plead her case. After listening to the applicant's wife, the SWS staff, and the command Chaplain, the commander recommended approval of the request.

3. The applicant, after learning of his wife's desire to leave Germany, filed suit in German court to block the departure of his daughter; confiscated his daughter's passport; filed a complaint against his wife for emotionally abusing him; filed a complaint of child neglect against his wife, alleging that his daughter was a victim of "failure to thrive;" and filed a complaint of sexual abuse against his wife.

4. The CRC reviewed all of the complaints lodged by the applicant and his wife. The CRC unsubstantiated all of the applicant's complaints, but founded his wife's complaint of spouse emotional abuse with the applicant as the subject. The Board finds no error or injustice in the CRC's actions. The Board notes that the applicant's timing for the filing of the child neglect complaint is such that he, himself, would have been equally responsible for such neglect, had it occurred, because the complaint was made upon his removal from the quarters. Thus, he would have been present over the period of time during which the child "failed to thrive."

5. The Board also finds that the applicant's flurry of complaints, occurring immediately after his wife went to SWS and his commander, smack of retaliation rather than genuine complaints of abuse.

6. Subsequent to his being identified as a spouse abuser and the CRC report being made to the ACR, the applicant embarked on a campaign to reverse the CRC finding and the expunction of his name from the ACR database. The Board notes that his request for a local review of the CRC findings, a second, informal review under the provisions of Article 138, a third review under a formal Article 138 complaint, and a review by OTJAG of the Article 138 proceedings all failed to support his request for relief.

7. The Board notes the applicant's recounting of the emotional abuse allegations leveled against him and his response to those allegations found in Folder 4 of his submission to the Board. The applicant states he never called his wife psychotic in her presence [emphasis added]; that he never called her a lesbian, but simply questioned her sexual orientation [emphasis added]; and that he told friends and neighbors that she had mental problems so that they might look after her. The Board does not accept this rationalization as a refutation of the allegations.

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8. The Board also notes that the Circuit Court for Montgomery County, Maryland, while permitting the applicant to have joint custody of his daughter, placed a condition on him that he undergo professional anger-management therapy. This suggests to the Board that, in the eyes of the court, the applicant's response to the dissolution of his marriage and the allegations of his wife were, and continue to be, far less modulated than would be expected of a person of his age and stature.

9. The Army Central Registry of Child and Spouse Abuse is a federally mandated, victim-driven system of information used to provide local and worldwide information for data reports, research, planning, treatment, individual background investigations, and management and evaluation of the Army Family Advocacy Program. The major purpose of the ACR is to assist in the early identification, verification, and retrieval of reported cases of child and spouse abuse. As such, the Army has an interest in maintaining the integrity of the data stored therein. Expunction of offender data should only be accomplished when it is absolutely certain that the information is incorrect. Absent a clear showing of error or injustice by the applicant, society's interest in preventing spouse and child abuse dictates maintaining the existing data.

10. 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 this requirement. Specially, the applicant has failed to show his listing in the ACR constitutes an error or has resulted in some harm that constitutes an injustice.

11. The applicant has not shown that the inclusion of his name in the ACR database has resulted in any harm to his career. The Board notes that the applicant successfully competed for, and was promoted to, the rank of Lieutenant Colonel. In similar cases, the Board has elected to deny requests where an applicant cannot show actual harm as a result of the contested action. Specifically, the applicant has failed to show his listing in the ACR constitutes an error or has resulted in some harm that constitutes an injustice.

12. The Board did not address the applicant's OER. He may reapply to this Board after he has exhaust all administrative remedies concerning the OER.

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13. 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

__rvo___ __jea___ __lmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071093
SUFFIX
RECON
DATE BOARDED	20030814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.0200
2.
3.
4.
5.
6.