MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 June 2002
         DOCKET NUMBER: AR2002073191

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Donald P. Hupman		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: The removal of a general officer memorandum of reprimand (GOMOR) from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that he was given a GOMOR after refusing to accept nonjudicial punishment. He goes on to state that he demanded trial by court-martial but it never materialized. He also states that he did not assault his wife, but simply had a discussion with her concerning an affair that she might be having with another soldier and the effect it would have on their marriage. He contends that at no point did he use foul language. In support of his application he submits 10 third party letters of support, copies of evaluation reports, and his rebuttal to the GOMOR.

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

He enlisted on 21 August 1984 for a period of 3 years and training as a multi-channel communications equipment operator. He reenlisted in November 1987 for training as an automated data telecommunications center operator and has remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 July 1997.

On 20 October 1999, the applicant’s wife (also a staff sergeant) filed a complaint with the military police (MP) alleging that the applicant had physically and verbally assaulted her on 4 October 1999, in that he grabbed her by the arm and continued to use profane language.

The applicant signed a sworn statement on the same day in which he acknowledged that he had grabbed his wife; however, he denied the use of profane language. He also indicated that his wife had filed the complaint 2 weeks after the incident as a means to help herself, should she be found guilty of adultery.

On 6 January 2000, the applicant’s commander notified him that he was considering whether to impose nonjudicial punishment against him for assaulting his wife on 4 October 1999, by grabbing her arm. After consulting with counsel, the applicant demanded trial by court-martial. There is no indication in the available records to show that trial by court-martial was ever pursued.

However, on 15 February 2000, he was given a GOMOR for assaulting his wife on 4 October 1999 and using obscene language in the parking lot. The GOMOR was imposed as an administrative measure and not as punishment. The imposing officer advised the applicant that he could submit matters in his own behalf that would be taken into consideration in regards to a filing decision of the GOMOR.

On 6 March 2000, he submitted a rebuttal of the GOMOR, contending that he had not assaulted his wife and that the facts in the GOMOR were incorrect. He went on to state that his wife filed the complaint 2 weeks after the incident, which was simply a mutual disagreement, and did so to hinder his career and influence the outcome of their ongoing divorce proceedings. He went on to state that there were security guards in the area of the scene and none gave statements to corroborate the accusations. In addition, there was no medical evidence or photographs to substantiate her claims, and she only filed the complaint after he had filed for custody of his child and filed for divorce because she was having an adulterous affair with another married soldier. He requested that the commanding general (CG) consider the lack of credible evidence in the case and withdraw the GOMOR.

The applicant’s company commander recommended that the GOMOR be filed in the performance fiche of the applicant’s OMPF. He further indicated that the applicant had received numerous counselings in regards to the issue and was given an order of no contact. However, there were several incidents of his disobeying that order. He also stated that the applicant shows a blatant disregard for rules and regulations and an inability to follow them. He deemed the applicant’s performance as below average and opined that he lags well behind his peers in all areas. He needs much more supervision to complete missions and often has to redo them. He opined that the applicant knew the difference between right and wrong and since he chose the wrong, he must deal with it.

The brigade commander at the time recommended that the GOMOR be filed in the performance fiche of his OMPF and opined that a noncommissioned officer (NCO) with as much experience (15 ½ years of service) should have been mature enough for the incident not to happen.

After reviewing the applicant’s rebuttal and comments from the chain of command, the CG directed that the GOMOR be filed in the applicant’s OMPF.

On 23 March 2000, he received a change of rater noncommissioned officer evaluation report (NCOER) for the period ending March 2000. In Part IVa, under Values/NCO Responsibilities, the applicant’s rater gave him a “No” rating under “Is disciplined and obedient to the spirit and letter of a lawful order.” The supporting comments indicate that the applicant defied legal orders given by company and field grade officers. In Part IVd, under “Leadership”, the supporting comments indicate that the applicant constantly strives to achieve the very minimum. The applicant refused to sign the report.

The supporting third party statements from both officers and NCO’s are all complimentary of the applicant’s performance of duty. A review of the applicant’s records fails to show that any of the individuals who submitted letters of support were in his chain of command at the time the GOMOR was imposed.
A review of the applicant’s OMPF also fails to show that he ever applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR transferred to the Restricted Fiche of his OMPF.

Army Regulation 27-10 provides the policies and procedures for administering military justice in the Army. It provides, in pertinent part, that nonpunitive measures, such as reprimands or admonitions, usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to military life and similar deficiencies. These are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.

Army Regulation 600-37 serves as the authority for filing unfavorable information in the OMPF. It states, in pertinent part, that a memorandum of reprimand may only be filed in the OMPF if it has been directed for such filing by the officer exercising general court-martial jurisdiction.

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 GOMOR was properly imposed as an administrative measure and was filed in the applicant’s OMPF in accordance with the filing instructions of the imposing officer and applicable regulations.

2. The Board has noted the applicant’s contentions as well as the supporting statements he has submitted with his application. However, the Board notes that he admitted in his sworn statement at the time that he did grab his wife’s arm during the incident in question. Regardless of any harm that did or did not occur, the applicant’s admitted conduct at the time, as well as the conduct documented by his chain of command, were sufficient in and of themselves to warrant the GOMOR. Accordingly, the Board finds no basis to remove a duly constituted and properly filed GOMOR from his record.

3. In order to justify correction of a military record the applicant must show to he 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.

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

__dh____ ___cla___ ___be___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073191
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/13
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 280	126.0300/rem repr
2.
3.
4.
5.
6.