MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2002080532

         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. W. W. Osborn, Jr.		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, that a 20 March 1998 general officer memorandum of reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, the applicant defers to his counsel.

COUNSEL CONTENDS: The applicant's appeal to the Department of the Army Suitability Evaluation Board (DASEB) provided clear and convincing proof that the intended purpose had been served and that it was in the best interests of the Army for it to be transferred to the restricted portion of the applicant's OMPF.

Counsel contends that the applicant was and is happily married and that his accuser was unhappily married. Second Lieutenant (2LT) H____ accused the applicant of an indecent assault because he rebuffed her advances. 2LT H____, not the applicant, arranged her "farewell function" which no one else attended. The applicant had told his wife about 2LT H____'s farewell and if his wife could have been there she would have been. The applicant had forgotten the going away/thank-you gift that he wanted to give 2LT H____ and together they decided to go to his quarters to get it. He gave her one of the sarongs he had purchased together with his wife for the purpose of thank-you gifts and 2LT H____ removed her trousers and asked him to tie the sarong around her waist, which he did. At that point, the applicant noticed his wife's picture and retreated to his bedroom because of chagrin from putting himself in such a compromising position. When he came out, 2LT H____ was fully dressed. He recalls her apologizing by saying that she had ruined her own marriage and did not want to ruin his. At no time did he attempt to keep her in his quarters, or try to persuade her to spend the night. A few days after this event he sent her an email to apologize for letting the situation develop. It was not an apology for an assault, because that never happened.

The applicant submits a copy of an email that 2LT H____ sent 2 days before her sworn complaint. Counsel suggests that the words, "Just be sure before you end up in another incident like ours" implies that she felt rejected because he was not "more sure" he wanted a relationship with her. This rejection, counsel contends was the motivation for her false report of an indecent assault.

Counsel contends that the chain of command found the accusation groundless and supported the applicant's retention. Counsel faults the DASEB's logic concerning the absence of any reference to the incident in the applicant's Officer Evaluation Report (OER). Counsel interprets that absence to mean that his rater and senior rater gave no credence in the accusation. Counsel contends that the numerous character references contained in record demonstrate that the applicant's character is above reproach, which effectively impeaches the character and therefore it also impeachers the accusation made by 2LT H___.

An 8 April 2003 memorandum to this Board from the deputy commander, Army Armor Center and Fort Knox, Kentucky, a brigadier general, supports the removal of the GOMOR from the performance portion of the applicant's OMPF. He reports that, despite the incident, the applicant had performed superbly as his brigade adjutant. The general reports that he had commanded the 1^st Brigade, 2^nd Infantry Division at that time. He believes that the GOMOR has served its purpose because, the applicant is a better, husband, father, and leader as a result of the GOMOR

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

He had enlisted in the Regular Army in January 1988 and was discharged in August 1990 as a sergeant. He completed Reserve Officer Training Corps (ROTC) requirements and was appointed an Army Reserve 2LT on May 1992. He entered continuous active duty in May 1993 and was promoted to captain (CPT) on 1 October 1996.

On 18 February 1998, 2LT H____ provided a Criminal Investigation Division (CID) special agent with a sworn statement to the effect that she had met the applicant through work. She had been helpful to him and he indicated that he wanted to thank her with a small going-away celebration. She had invited several female friends because she didn't want to be the only female present, but only one could attend. On 7 February 1998, she met the applicant at his quarters, they had a couple of beers and gone to dinner to celebrate her going away. Her friend, CPT H____ was the only other person present. After dinner she accompanied the applicant back to his quarters in order to receive her going-away present. Immediately upon closing the door, the applicant had kissed her, fondled her breasts and tried to remove her slacks. She reported that she said something to the effect of, "No, no, no! We need to think about this!" She then told him she needed to go to the bathroom. In the bathroom she composed herself while she recalled a college friend who had endured a date rape. The police had told her friend that her own panic had possibly reduced her chances of gaining control of the situation.

When 2LT H____ came out of the bathroom, the applicant tried to tie a wrap [the sarong that was her going-away present] around her waist. She removed it and said that they needed to talk, that she had no idea that he intended anything like this. He reportedly responded that after her email, which said she was "up for whatever" , he had assumed that she felt the same way he did. She kept insisting that she had to leave and eventually was able to leave after 30 or 40 minutes.

2LT H____ told her roommate about the incident that night and as the days passed she explored her options with various people. Everyone was shocked because the applicant was considered so professional. She did not intend to report the incident but eventually became concerned that if she did not the same kind of thing might happen to someone else. She gave the impression that the applicant's 11 February email message had been crucial to her decision.

The CID agent mentioned the email messages, which she had provided [the applicant also provided them with this application], and asked what she had meant by writing that she was "up for whatever." She indicated that she had meant that she did not care where they went or what they did so far as eating, etc. When asked if the applicant's rank had been a factor in this incident she indicated that it had in that, "…Had this been a fellow lieutenant, I would not have gone to his room at night. I thought I would be safe with a future company commander.…"

On 11 February 1998 the applicant had written:

Evi,
I am sorry about the misunderstanding Saturday and I am sorry. I am grateful to you for all the help/OPDs you gave me during the last 8=months, and I wish you success at Campbell and all your future endeavors. I know that you will succeed wherever you go –Campbell, AOC, command and life. I wish you the best and hope to be able to say goodbye in person before you return to the land of the big PX.
Thanks,

2LT H____'s 17 February 1998 reply reads

         Sir,
         I have to admit that the whole incident took me by surprise. You made me very uncomfortable. I partly blame myself but I am from a small town and I am very trusting. I now know that I must keep my guard up at all times. I enjoyed working with you but I have to say that I am disappointed in you because I thought you were different. Thank you for the gift and enjoy the rest of your tour just remember to be sure before you end up in another incident like ours that may end up a lot differently.
V/R

On 20 March 1998 the Commander, 2^nd Infantry Division issued a MOR to the applicant for indecently assaulting a female lieutenant. The applicant was informed that the documents that formed a basis for the reprimand were enclosed. The general stated his preliminary intention to file the MOR in the applicant's OMPF, but that the applicant had 7 days in which to offer a rebuttal before the final filing decision would be made.

The applicant acknowledged the MOR on 24 March 1998. There is no rebuttal of record. On 1 June 1998 the commanding general directed that the MOR be filed in the applicant's OMPF.

On 6 November 1998 the Total Army Personnel Command initiated elimination action because of the GOMOR. The deputy commander at Fort Carson, Colorado, and the applicant's battalion, regiment, brigade commander and division commanders at the 82^nd Airborne Division supported his retention and on 12 March 1999 the elimination action was favorably terminated by the Commanding General, Total Army Personnel Command.

In October 2001 the DASEB considered the applicant's appeal to relocate the GOMOR to the restricted portion of his OMPF. His appeal consisted of 41 enclosures, including approximately 35 statements attesting to the applicant's professionalism and character. These statements emanated from the applicant's wife, a brigadier general, three colonels, two command sergeants major and numerous lieutenant colonels, majors and captains, including several female officers. The DASEB noted that there was no support from the imposing authority and that none of the writers had reported being in a position to impeach the testimony of the applicant's victim. A 29 October 2001 memorandum from the DASEB informed the applicant that his request had been denied.

On his OERs the applicant's raters have consistently rated the applicant as outstanding. The vast majority of his senior raters have rated him as above center of mass and even those who ranked him at the center of mass have described him in glowing terms as being an outstanding officer. He was awarded the Meritorious Service Medal for his performance as a company commander with the 504^th Parachute Infantry Regiment, 82nd Airborne Division from July 1998 to May 2001.

The applicant was considered and recommended for promotion by the Fiscal Year (FY) 02 major promotion selection board.

Army Regulation 600-37 (unfavorable information) provides in pertinent part, that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the soldier. The letter must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made. Letters of reprimand may be filed in a soldier's OMPF only upon the order of a general officer level authority and are to be filed on the performance fiche. The direction for filing is to be contained in an endorsement or addendum to the letter. If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached. Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7. Letters of reprimand intended for filing in the Military Personnel Records Jacket (MPRJ) may be retained for no more than 3 years and must state the length of time they are to be retained. 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 a reprimand, admonition or censure (normally for soldiers in pay grade E-6 and above) are 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. The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed. If the 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. Otherwise this Board may act in accordance with Army Regulation 15-185 and the soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.
 
Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides, in pertinent part, that a properly prepared administrative letter of reprimand is to be filed on the performance fiche of the individual's OMPF along with any referral correspondence and the member's reply. All other associated documents are to be filed on the restricted fiche.

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 notes the applicant's commendable performance during the past several years, and considers the applicant's retention on active duty to have been in the best interest of service.

2. The GOMOR was imposed and filed in compliance with regulations and the Board notes that there is no available evidence that the applicant offered any rebuttal at the time. There is no convincing evidence that it was either unjust or unfounded.

3. The submissions and arguments of counsel have been noted, but there is no convincing evidence that the GOMOR was based on a false or groundless report. The Board notes that the most recent support available, the 8 April 2003 letter from the applicant's brigade commander at the time of the incident, did not state or infer the alleged assault did not occur or that the accusation was groundless.

4. In view of the nature of the offense and the current argument, which constitutes blaming the victim, this Board concludes that the subject reprimand has not yet served the intended purpose.

5. 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.

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

__RVO__ _JEA____ __LMB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080532
SUFFIX
RECON
DATE BOARDED	20030814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	. . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	126.03
2.
3.
4.
5.
6.