RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 MAY 2004
      DOCKET NUMBER:   AR2003096660


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Regan Smith                   |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant defers to counsel to articulate her request.

2.  The applicant defers to counsel to make her argument.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, that a January 2001 GOMOR (General Officer Memorandum
of Reprimand), and all associated documents, be expunged from the
applicant’s Official Military Personnel File (OMPF).  He also asks that an
evaluation report for the rating period ending in December 2000 be expunged
and that the Board “grant other and further relief as may in the
circumstances be just and proper.”

2.  Counsel states that the reprimand was inaccurate and unfair and based
on misleading and conflicting orders.  He states that the “conflicting
orders cannot form [the] basis of orders violation.”

3.  Counsel states that the reprimand cannot be placed in the applicant’s
file because the “Army violated her procedural rights” and that a
subsequent statement by the imposing general officer, following the
applicant’s appeal of the reprimand, was “pure speculation and post hoc
rationalization raised only in response to the command’s violation of [the
applicant’s] procedural rights.”

4.  Counsel states, in effect, that the applicant was and is an outstanding
Soldier who paved the way for military women in a variety of duty
assignments.  He states that in “spring of 2000” the applicant and a
warrant officer “dated…for several weeks” and in early July of that year
“terminated the relationship when it became clear that he [the warrant
officer] had a drinking and anger management problem.”  He notes that in
spite of the break up the applicant attempted to maintain a professional
working relationship with the warrant officer.

5.  Counsel related that on 18 August 2000 the applicant “agreed to drive
[the warrant officer] home from a party because he had been drinking.”
Ultimately the warrant officer assaulted the applicant by hitting and
grabbing her arm and then attempted to break into her house after she had
dropped him off at his own house.  The police were called and the warrant
officer was charged.

6.  The applicant’s chain of command got involved on 20 August 2000 and
ultimately instructed both the applicant and the warrant officer not to
have any contact with each other.  Other members of the command were also
instructed not to have contact with the warrant officer.

7.  Counsel states that the warrant officer contacted the applicant several
times in early September 2000, but she “refused to answer or return his
calls.”  He states the applicant ultimately took leave for 22 consecutive
days in September in order to avoid the ongoing harassment.

9.  When the applicant returned from leave the calls resumed, including a
call in which the warrant officer told the applicant he would kill himself
if she did not speak to him or if she reported him to their chain of
command.  Counsel states that the applicant informed her platoon leader,
who downplayed the situation, and persuaded her not to report this to the
commanding officer.  In spite of also being under an order not to have
contact with the warrant officer, the platoon leader contacted the warrant
officer and then rationalized his behavior by stating that he “needed to
violate the no contact order in order to assess the situation and determine
whether it should be brought to the attention of his commanding officer.”

10.  Two days later, on 5 October 2000, the warrant officer again contacted
the applicant and threatened to take his life if she refused to speak to
him.  The applicant again reported the incident to her platoon leader who
at that “point specifically instructed her to call [the warrant officer]
and try to ascertain his whereabouts.”  The platoon leader then decided to
notify his commander, (Major G), and arranged a meeting.

11.  The applicant and several other individuals, including the applicant’s
platoon leader met at “Major G’s” house, however, the platoon leader failed
to mention that he had told the applicant to contact the warrant officer
earlier.  Eventually all but the applicant departed the commander’s house.

12.  When the applicant and her commander were alone the warrant officer
called the applicant’s cell phone.  Counsel notes that instead of taking
the phone from the applicant, “Major G” instructed the applicant on what to
say and passed her written notes.  During the subsequent Army Regulation 15-
6 investigation “Major G” stated that the applicant answered her cell phone
“in a manner which indicated to me that they had spoken before this call,”
because he was unaware that the applicant’s platoon leader had instructed
her to call the warrant officer.  The commander also neglected to state
that he had allowed the applicant to talk to the warrant officer on 5
October 2000 when he and the applicant were discussing the warrant
officer’s situation.

13.  Counsel states that ultimately the applicant was given a memorandum of
reprimand.  He states that the applicant, on the advice of her legal
counsel, accepted responsibility rather than challenging the action.  He
states that as it turned out the applicant was not provided the
“opportunity to respond to all of the alleged adverse information that was
submitted to the GOMOR authority.”

14.  Counsel states that the brigade commander’s endorsement to the
applicant’s statement, which was addressed to the GOMOR authority,
“included new adverse information” but the applicant was never provided a
copy of that information for comment.

15.  When the applicant appealed the reprimand via the DASEB (Department of
the Army Suitability Board) the GOMOR authority rationalized the command’s
error in due process by stating that the brigade commander’s endorsement
did not influence his decision to file the reprimand in the applicant’s
OMPF.

16.  Counsel also argues that the ex parte communication between the GOMOR
authority as part of the DASEB evaluation process, without referral of the
communication to the applicant, also violated her due process.

17.  Counsel also argues, in effect, that this is a case where the “victim”
has been victimized and that gender bias is evident in the handling of the
applicant’s case.

18.  Counsel provides a multitude of documents which detail the applicant’s
career, documents associated with the arrest of the warrant officer for the
domestic incident, statements from various individuals included as part of
the Army Regulation 15-6 investigation, documents associated with the
warrant officer’s Flight Evaluation Board which support his contention that
the applicant contacted the warrant officer on the advice of her platoon
leader and “Major G,” and a copy of the applicant’s appeal to the DASEB.

19.  Included with counsel’s documents is a “detailed chronology” of the
events associated with the applicant’s situation.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant initially
entered active duty as an enlisted Soldier in January 1991 and was
discharged in February 1992 to accept an appointment as a United States
Army Reserve warrant officer, with concurrent call to active duty.  In
September 1999 she was commissioned as a United States Army second
lieutenant with concurrent call to active duty.

2.  The applicant’s records contain numerous accolades in the form of
multiple awards and complimentary performance evaluation reports.  Prior to
the memorandum of reprimand, the applicant consistently was rated at or
above center of mass by her senior raters.




3.  In an 18 August 2000 statement, rendered as part of the investigation
into the warrant officer’s assault on the applicant, she [the applicant]
related that she and the warrant officer “have been dating for 4 months
[she subsequently amended that statement to indicate that she and the
warrant officer began dating the last weekend in May]” and stated that “we
went to a party at our company commander’s home.”  Other documents provided
by counsel indicate that the applicant and the warrant officer arrived at
the party in the warrant officer’s vehicle and that in her statement she
indicated that because the warrant officer had been drinking she drove him
home.  In some statements the applicant was referred to as the warrant
officer’s “DD” (designated driver).  It was during the ride home that the
warrant officer assaulted her by hitting her “on the right side of the face
and ear with an open hand.”  Ultimately the applicant arrived with the
warrant officer at his home, told him she never wanted to see him again,
retrieved her car, and went home.  Later that evening the warrant officer
appeared at her door and attempted to break in, leaving only when he heard
her tell her friend on the phone to call the police and when he heard her
call them as well.

4.  As a result of the altercation the warrant officer was arrested and the
applicant was told not to have contact with the warrant officer.  The
warrant officer was also instructed not to contact the applicant.

5.  In a 5 October 2000 statement the applicant indicated that she did not
want to make any other statements until after the warrant officer’s civil
case was completed.  She also indicated that the warrant officer “may have
acted in a manner uncharacteristic for him due to mitigating factors from
work.  I do not expect this behavior to be repeated and he has already
sought assistance through military sources to ensure as such.  Any further
punishment would be excessive.”

6.  In a 9 October 2000 statement from the applicant’s brigade commander to
the commander of the 25th Infantry Division the brigade commander stated
that the applicant “stated that she has had daily contacts with (the
warrant officer) since the incident on 18 August 2000.”  There is no
evidence, in documents available to the Board, which refutes the
information in the brigade commander’s statement.

7.  In a 16 October 2000 statement by the applicant’s platoon leader
(Captain B) he related that on 4 October 2000 he had a conversation with
the applicant in which she “stated that she had been in constant contact
with (the warrant officer) and was bound to that action by a moral
responsibility.”  There is also no evidence which refutes the information
in that statement.



8.  The three foregoing statements were rendered as part of the command’s
15-6 investigation.

9.  The January 2001 GOMOR reprimanded the applicant for “violating the
direct orders of two of your superior commissioned officers not to have any
direct contact with” the warrant officer who assaulted her.  The reprimand
noted that on 22 August 2000 the applicant was given a direct order by her
brigade commander to have no further contact with the warrant officer and
on 30 August 2000 she was again given an order by her company commander
(Major G) to have no contact of any kind with the warrant officer “until
all investigations were complete.”  The reprimand indicated that the
applicant disregarded “both orders repeatedly by being in constant contact
telephonically and personally” with the warrant officer.

10.  In the applicant’s rebuttal to the reprimand she stated that she was
“truly remorseful for violating the orders of my superior commissioned
officers to have no contact with” the named warrant officer.  She noted
that her relationship with the warrant officer “altered” her judgment and
that she “violated the order because of [her] concern….”  She stated that
the warrant officer was “emotionally unstable” and that her concern for his
“mental and physical well-being caused [her] lapse in judgment.”  She
stated that she did not feel she could go to her command as in so doing it
would make the situation worse.  She indicated that she realized “now” that
the warrant officer was manipulating her by using her “concern for him as a
leverage.”  The applicant’s rebuttal was authored on
25 January 2001.

11.  In a 26 January 2001 memorandum from the applicant’s brigade commander
to the GOMOR issuing authority, the brigade commander stated that the
“recent actions clearly contradict her statement in her rebuttal that she
understands now that her past actions were inappropriate and unacceptable.”
 The brigade commander cited a counseling session on 18 January 2001 that
the “original no contact order [was] still in effect” and that the
applicant’s company commander had “discovered” that the applicant
“continued to have contact with [the warrant officer] as recent as 19
January 2001.”

12.  The memorandum from the brigade commander to the GOMOR issuing
authority was not referred to the applicant and was not filed in her OMPF.

13.  On 28 February 2001 the GOMOR issuing authority, the 25th Infantry
Division Assistant Division Commander for Support, directed that the
reprimand be filed in the applicant’s OMPF.




14.  In April 2001 a “change of rater” performance evaluation report was
completed on the applicant for the period 15 April 2000 through 12 December
2000.  The applicant’s rater noted that the applicant was a “capable
officer that continues to excel” and that she “has unlimited potential and
will surely excel in any position.”  Her intermediate rater, also her
company commander, noted that she was a “proficient aviator” but that she
“demonstrated extremely poor judgment by disobeying a direct order from her
superiors.”  Her senior rater, also her brigade commander, stated that the
applicant “demonstrated that she was willing to allow her personal life to
affect her professional duty.”  He stated that during the rating period the
applicant “willfully disobeyed a direct order, impacting on the good order
and discipline of her unit…and…her potential for continued service is
limited.”

15.  The performance evaluation report was provided to the applicant for
comment.  In her comments the applicant stated that she “did not allow
[her] personal life to affect [her] professional duty” and that she “did
not willfully disobey a direct order.”  The applicant also cited the
contradiction in ratings between her rater and senior raters, that she was
never counseled about her performance being inadequate and maintained that
the report was in violation of the regulation because it was “based on an
isolated incident.”

16.  There is no indication in available records that the applicant has
ever appealed that performance evaluation report.

17.  In December 2001 the applicant submitted an appeal to the Department
of the Army Suitability Evaluation Board (DASEB) requesting that the GOMOR
be removed from her records.  In her appeal she stated that she had been
assaulted by the warrant officer in question on 18 August 2000 and that she
had ended her relationship with the warrant officer “over a month before
this assault when [she] became aware of his instability and alcohol
dependency.”  She stated that she “did not want any contact with him” and
that she “was afraid of his inability to control his emotions and his anger
towards [her].”

18.  The applicant argued that the decision to file the GOMOR in her OMPF
was based on the 26 January 2001 statement from her brigade commander to
the GOMOR issuing authority.  She states that she was not aware of that
statement until several months after the GOMOR was issued and indicated
that it contained false information.

19.  The applicant stated that she wrote her rebuttal to the GOMOR on the
advice of her legal counsel who “was not familiar with the misinformation




surrounding this case.”  She indicated that she “originally believed his
[the warrant officer] contacting [her] was not [her] disobeying an order”
but “learned when [she] received the LOR that [she] was accountable for
[the warrant officer’s] offenses, in spite of [her] efforts through [her]
company commander to stop him.”

20.  In evaluating the applicant’s appeal, the DASEB contacted the GOMOR
issuing authority who stated on 5 February 2001 that he was not aware “at
the time that the forwarding memorandum from [the applicant’s brigade
commander] constituted potentially new adverse information.”  However, he
noted that his decision to file the GOMOR was “based upon the incident in
early October 2000 where she wrongfully disregarded orders to have no
contact with [the warrant officer].”  He states that the January 2001
contact “did not serve as part of [his] decision” and that his filing
determination would have been the same without that information.

21.  In October 2000, prior to receiving the GOMOR, the applicant filed a
complaint against her company commander for gender discrimination.  The
investigating officer concluded the basis for the “informal complaint
(gender discrimination/disparate treatment) to be unsubstantiated.”

22.  Subsequent to the GOMOR action, the applicant was awarded an Army
Achievement Medal in July 2001, promoted to the rank of first lieutenant in
September 2001, awarded an Army Commendation Medal in April 2002, and
received a complimentary performance evaluation report in April 2002.

23.  Telephonic information provided by the applicant’s legal counsel
indicated that she was released from active duty in July 2003.

24.  The “detailed chronology” of the applicant’s situation, which was
provided by her legal counsel in support of the applicant’s petition
included the following statements:

      a.  that the applicant and warrant officer dated “for a few weeks in
June and early July.”

      b.  that she ended the relationship in early July when she discovered
that he had a drinking and anger management problem.

      c.  that she “agreed to drive [the warrant officer] home from a
party” at the company commander’s house on 18 August 2000 because he had
been drinking.




      d.  that the warrant officer called the applicant “several times [in
early September 2000] but she refused to answer or return his calls.”

      e.  that the warrant officer contacted the applicant on 3 October
2000 and that she “immediately notified her chain of command….”

      f.  that the warrant officer contacted the applicant again on 5
October 2000 and threatened to take his life if she refused to speak to him
and that she reported the contact to her platoon leader (Captain B) who
“instructed” her to contact the applicant.

      g.  that on that same date (5 October 2000) the applicant’s company
commander permitted the applicant to speak to the warrant officer in his
presence while he “passed written notes…instructing her what to say.”

25.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent
part, that only information that the individual has been provided an
opportunity to review and offer a written response to may be filed in a
soldier's OMPF.  It states that only a general officer senior to the
recipient, or by direction of an officer having general court-martial
jurisdiction over the individual, regardless of the issuing authority, may
direct filing of a reprimand in the OMPF.  Once filed in the OMPF such
documents are permanent unless removed in accordance with chapter 7.
Chapter 7 of the regulation provides that once filed in an OMPF a document
is presumed to have been administratively correct.

26.  Army Regulation 623-105 states that an evaluation report accepted by
Headquarters Department of the Army and included in the official record of
an officer is presumed to be administratively correct, prepared by the
proper rating officials, and represent the considered opinions and
objective judgment of the rating officials at the time of preparation.
Requests that an accepted report be altered, withdrawn, or replaced with
another report will not be honored unless information that was unknown or
unverified when the report was prepared is brought to light or verified and
this information is so significant that it would have resulted in a higher
or lower evaluation had it been known or verified when the report was
prepared.  The regulation notes specifically that verified derogatory
information may be entered on an evaluation report and that this is true
whether the officer is under investigation, flagged, or awaiting trial.

27.  Army Regulation 623-105 also states that any report with negative
remarks about the rated officer’s values or leader attributes, skills, or
action in the rating official’s narrative evaluations, must be referred to
the individual for acknowledgement and comment before the report is
forwarded to Headquarters, Department of the Army.


DISCUSSION AND CONCLUSIONS:

1.  Information contained in counsel’s argument and in various statements
authored by the applicant as part of various investigations appear to be
contradictory.

2.  In one instance counsel argues that the applicant “dated” the warrant
for “a few weeks in June and early July.”  However, in statements rendered
by the applicant in August 2000, after the assault, she indicates that she
and the warrant officer began dating the “last weekend in May.”

3.  Counsel states that the applicant “ended the relationship” in early
July “when she discovered that he had a drinking and anger management
problem.”  However, in statements rendered after the 18 August 2000 assault
the applicant related that she and the warrant officer “have been dating.”
She did not use the past tense.  She also stated that she and the warrant
officer had gone to the commander’s party on 18 August 2000 and indicated
that she was driving the warrant officer’s car and that her car was parked
at the warrant officer’s residence.

4.  The applicant’s 5 October 2000 statement that the warrant officer “may
have acted in a manner uncharacteristic for him due to mitigating factors
from work.  I do not expect this behavior to be repeated and he has already
sought assistance through military sources to ensure as such.  Any further
punishment would be excessive” is hardly a statement an individual who now
states that she ended the relationship because of an individual’s drinking
problem and anger management issues, would have made.  The current
statement is clearly inconsistent with a statement the applicant rendered
in October 2000.

5.  Counsel and the applicant appear to argue that the GOMOR was based
solely on the two instances where she contacted the warrant officer; once
at the direction of her platoon leader (Captain B), and once in the
presence of her company commander (Major G), both which occurred on 5
October 2000.  However, in statements by members of her chain of command,
rendered in October 2000 as part of the 15-6 investigation, it was reported
that the applicant had stated that she had been in “daily contact” with the
warrant officer since the incident on 18 August 2000, and that she was
“bound to that action by a moral responsibility.”  Such statements clearly
imply that she had been in contact with the warrant officer even while on
leave during the month of September.  There is no evidence which rebuts the
information contained in those statements by her chain of command.




6.  The applicant’s argument that she authored her rebuttal statement at
the urging of her legal counsel and to “admit responsibility” to
information she knew to be false or misleading is without foundation.  The
statements in her rebuttal that because of her “altered” judgment and that
she “violated the order because of [her] concern” for the warrant officer
is consistent with other information contained in documents provided to the
Board.  She stated that she did not feel she could go to her command
because by doing so it could make the situation worse is consistent with
her having had previous contact with the warrant officer, prior to the 3
October 2000 call, which she states she reported to her platoon leader.

7.  The applicant was an 11-year, veteran Soldier, by the time she was
issued the GOMOR in January 2001.  She was not a young, inexperienced
Soldier, in spite of her grade.  She would have, or surely should have,
been well aware of the ramifications of a GOMOR in an individual’s OMPF and
as such it would have been more reasonable for her to fight the GOMOR,
rather than follow the “advice” of her legal counsel knowing full well the
impact of such a decision, unless she were in fact at fault and the GOMOR
based on truth.

8.  However, notwithstanding that neither the applicant nor her counsel has
put forth a convincing argument that the applicant did not in fact violate
the “no contact” order, the fact remains that additional derogatory
information, contained in the brigade commander’s memorandum to the GOMOR
issuing authority on 26 January 2001, was not provided to the applicant for
rebuttal.  This oversight on the part of the command is a violation of the
applicant’s due process; even though the GOMOR issuing authority now states
that the memorandum did not influence his filing decision.  As such, in the
interest of justice and equity, the GOMOR and associated documents should
not have been placed in the applicant’s file.

9.  However, there is no evidence that the performance evaluation report
for the rating period ending in December 2000 was processed inappropriately
or that the applicant’s due process rights were violated in any way during
the processing of that report.  The report does not refer to any
“unverified” derogatory information and was referred to the applicant as
appropriate.  As such, there is no basis for expunging that report from the
applicant’s file.

10.  Beyond expunging the GOMOR and associated documents, there is no
compelling evidence which would warrant any further relief undefined by the
applicant and her counsel.

BOARD VOTE:

__MM___  __RS ___  __TO ___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by expunging the January 2000 GOMOR and all
associated documents from the applicant’s OMPF.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
expunging the performance evaluation report for the period ending in
December 2000 or any “further relief” undefined by the applicant or her
counsel.





            _____Melvin Meyer________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096660                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040527                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |111.01                                  |
|2.                      |134.01                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |