MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2002081516

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr . Roger W. Able		Chairperson
Mr. Larry C. Bergquist		Member
Mr. Barbara J. Ellis		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 a 22 December 1998 memorandum of reprimand (MOR) be removed from the performance portion of her Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that the MOR should be removed because the dates are wrong. She notes that her commanding officer issued a "No Contact Order" on 29 October 1998 and that there is no evidence that she violated that order.

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

She was a sergeant first class with approximately 19 years of continuous active duty when she was accused of having an extramarital affair with a master sergeant (MSG). The MSG's wife reported that she had discovered email messages on the MSG's home computer. An investigation ensued, but a complete investigation file is not of record. During the investigation process, the MSG's wife vacillated between reporting alleged misconduct and refusing to cooperate with the investigators.

A 26 November 1998 endorsement to the revised report of investigation was completed by the Chief, Administrative Law Division. This officer, a lieutenant colonel and a member of the Judge Advocate General's Corps (JAG), stated that she concurred with the finding that there had been an inappropriate relationship within the meaning of Army Regulation 600-20, but that she non-concurred with the finding of adultery because there was no evidence that anyone in either workplace had been aware of the situation and thus the alleged sexual intercourse had not been prejudicial to good order and discipline.

On 22 December 1998 the applicant was issued the subject MOR, which states that an investigation had disclosed that during the months of September through November 1998 she had "an inappropriate relationship with [a Master Sergeant].

The applicant acknowledged the MOR. On 15 January 1999, she offered in rebuttal that there was no independent evidence to support the accusation, that the investigating officer had not interviewed any members of either party's organization. She complained that the investigator had asked general, rather than probing questions and that this resulted in an investigation that, upon review, an experienced, but unidentified, investigator had found insufficient. She stated that the accusation that she and the MSG had planned to live together in Korea was overcome by evidence that her orders had been changed. She challenged the assertion that she and the MSG had communicated via cell phone by submitting a receipt for a cell phone given to her for Christmas 1998 by her husband. She claimed that she had never had any other cell phone except for those issued to her briefly. The applicant implied that the email messages could have been fabricated by the MSG's wife and that three email messages had not been made available to her to examine and thus she was denied the chance to make a rebuttal. The applicant also submitted several character references from various individuals, including her husband, a general officer, and a command sergeant major. Finally, she maintained that the investigation showed nothing wrong and sought to demonstrate this by taking sentences and phrases out of context. For example, she cited, "The investigation does not contain sufficient evidence to support that their conduct was prejudicial to good order and discipline" to support the conclusion that, "the investigating officer recommends that no adverse administrative or punitive action be taken…." She claimed, in effect, that the only communications between her and the master sergeant had concerned the counseling of another soldier who was having marital troubles.

The commanding general considered the entire case and directed that the MOR be filed in the applicant's OMPF.

On 22 January 2002 the DASEB denied the applicant's request to relocate the MOR to the restricted portion of her OMPF.

Army Regulation 600-37 (unfavorable information) provides, in pertinent part, that an administrative letter 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 Records) provides, in pertinent part, that a properly prepared administrative 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. There is no convincing evidence that the MOR should be removed from the applicant's performance fiche because the dates are wrong.

2. While the Board notes that the "No Contact Order" was issued in October, the dates stated in the MOR are clearly inclusive. There is no finding reflecting whether or not both sides obeyed the “No Contact Order”. Furthermore, the Board notes that the applicant did not question the dates in her original rebuttal of the MOR.

3. 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.

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

__RWA__ __LCB __ __BJE DENY APPLICATION

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

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INDEX

CASE ID	AR2002081516
SUFFIX
RECON
DATE BOARDED	20030710
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.01
2.
3.
4.
5.
6.