PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 September 2003
         DOCKET NUMBER: AR2003084597


         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Regan K. Smith		Member
Ms. Linda D. Simmons		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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests the removal of a general officer memorandum of reprimand (GOMOR) from his Official Military Personnel File (OMPF) or as an alternative, transferring it from the performance fiche to the restricted fiche of his OMPF.

3. The applicant states, in effect, that he received a GOMOR which originally stated that he had assaulted and threatened his wife; however, a show-cause board determined that the allegations against him were unfounded. He goes on to state that the Department of the Army Suitability Evaluation Board (DASEB) redacted the GOMOR; however, it still states that he threatened his wife, which again was unfounded and shows that the DASEB did not in fact review all of the information in the file when it rendered its decision. His counsel contends, in effect, that based on the results of the Article 32 investigation, the command opted to drop the charges against the applicant and proceed with a GOMOR and show-cause board. The GOMOR was filed on 13 April 2001 and the show-cause board was conducted on 22 May 2001, which found that the applicant did not assault or threaten his wife, and contradicted the allegations in the GOMOR. She further states that the DASEB redacted the assault portion of the GOMOR, but left the death threat allegation in the redacted GOMOR and did not transfer it to the restricted fiche. She goes on to contend that the GOMOR was issued prematurely, without all of the facts being known and that the show-cause board had the benefit of reviewing all of the facts and testimony when it found that he that he was not guilty of the allegations against him. Additionally, his wife recanted her earlier statement and the allegations of a threat to his wife do not meet the proper definition of a threat within the meaning of the law.

4. The applicant’s military records show that he enlisted in Boston, Massachusetts, on 5 January 1994 for training as a medical specialist. He successfully completed his training and remained on active duty through continuous reenlistments. He was promoted to the pay grade of E-6 on 22 October 1998. He continued to serve in that capacity until he was discharged on 24 May 2000, when he graduated from Officer Candidate School (Distinguished Military Graduate) and was commissioned as a United States Army Reserve (USAR) second lieutenant, with a concurrent call to active duty. He had served 6 years, 4 months and 20 days of total active service and was detailed to the Military Intelligence (MI) Branch.

5. On 12 February 2001, while attending the MI Officer Basic Course (OBC), he received a GOMOR indicating that he was being reprimanded for threatening to kill his wife and assaulting her by striking her in the face and head and slamming her head against a door on 28 October 2000. The applicant submitted a rebuttal to the GOMOR on 20 March 2001 in which he accepted responsibility for not managing his personal affairs adequately, but denied assaulting or threatening his wife. He requested that the commanding general (CG) review his response to the show-cause board before making a filing decision.

6. On 15 March 2001, the applicant's wife dispatched a letter to the CG in which she recanted her previous statement and explained that she suffered from a mental illness that requires medication and that she had ceased taking her medication when she became pregnant. She further explained that her mental state was terrible at the time, that her husband had very little time for his family while undergoing his training and that he did not understand the mood swings she was experiencing; however, he did not hit her and he told her that he wanted a divorce before one of us kills the other. She indicated that in her state of mind at the time, she let the investigator blow it out of proportion.

7. On 13 April 2001, the CG directed that the GOMOR be filed in the applicant's OMPF.

8. On 22 May 2001, the applicant appeared before a show-cause board consisting of three colonels and was represented by counsel. After hearing testimony and reviewing the evidence presented, the show-cause board members found that the applicant did not assault his wife and that he did not threaten his wife. However, the board did find that he displayed poor judgment and that he failed to maintain good order and discipline and was derelict in the performance of his duties, which resulted in an altercation in his quarters. The board recommended that he be retained on active duty.

9. The applicant graduated from the OBC course with a grade point average of 95.6 (ranked 4^th in the class) and was transferred to Fort Bragg, North Carolina. He was promoted to the rank of first lieutenant on 25 November 2001.

10. The applicant applied to the DASEB on 10 October 2002, requesting that the GOMOR be transferred to the restricted fiche of his OMPF based on the fact that the accusations against him were disproven by the show-cause board. The DASEB agreed that the accusations of assault were disproved; however, it was established that he entered the military police station and stated words to the effect of "Take these keys from me before I go home and kill my wife", which could be construed by the chain of command as a threat to kill his wife.

11. The DASEB contacted the CG who issued the GOMOR, who recalled the incident and stated that he did not consider the impact of approving the show-cause board results upon the previously issued GOMOR, since he felt that the board proved that an altercation did occur and that he did threaten his wife. He did not concur with removal or transfer of the GOMOR; however, he agreed that the statement regarding the applicant striking his wife in the head and face should be removed. He did not agree with the applicant's contention that the show-cause board proved that he did not threaten his wife.

12. The DASEB opined that the applicant had failed to indicate remorse or accept responsibility for the misconduct and given the short amount of time that had elapsed, there was insufficient proof that the GOMOR had served its purpose. The DASEB recommended that the words "and assaulted her by striking her head and face, and by slamming her head against a door" be deleted from the first sentence of the GOMOR and that the words "assaulting your spouse and threatening her life" be deleted from the first sentence of paragraph two of the GOMOR. The DASEB directed that the GOMOR remain on the performance fiche of his OMPF.

13. Army Regulation 600-37 serves as the authority for filing of unfavorable information in the OMPF. It states, in pertinent part, that a nonpunitive memorandum of reprimand or admonition will be filed in the OMPF only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient. Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

14. The Manual for Courts Martial (MCM), Part IV, Punitive Articles, Section 110, article 134 (threat communicating), subsection c. states in explanations, in pertinent part "a declaration made . . . which contradict[s] the express intent to commit the act, does not constitute this offense."

CONCLUSIONS:

1. The Board notes that the show-cause board, who had the benefit of reviewing the facts in the case as well as hearing testimony, did in fact make findings that the applicant did not assault his wife or threaten his wife. The CG who imposed the GOMOR approved those findings and recommendations as submitted; therefore, the Board finds that the CG's most current statement to the DASEB, that the show-cause board proved that the applicant threatened his wife, is invalid.

2. The Board also notes that the DASEB deleted from paragraph two the words "assaulting your spouse and threatening her life" but did not remove from paragraph one, the words "you threatened to kill your wife." The Board finds that if there is cause to remove the threat in the second paragraph there is also cause to remove it from the first paragraph. The Board also notes that the applicant has in fact accepted responsibility for the incident from the very beginning.

3. However, given all of the facts and circumstances in this case, as well as the applicant's overall service record, the Board finds that by allowing the applicant to remain on active duty and at the same time allowing the GOMOR to remain in the performance fiche of his OMPF, the applicant has been destined for failure and ultimately separation from the service.

4. While the Board does not condone such conduct and will not attempt to assess guilt or innocence in this case, the Board finds that the circumstances in this case warrant that the applicant be afforded any benefit of the doubt that exists.

5. In that regard, the Board does find that given the explanation of what constitutes communicating a threat that is outlined in the MCM, sufficient doubt exists in this case to support permanent removal of the GOMOR from his OMPF.

6. Therefore, the Board finds that the GOMOR and all supporting documents related to the GOMOR should be removed from of his OMPF.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by removing the 12 February 2001, GOMOR and all supporting documents from the OMPF of the individual concerned.

2. That following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:

___js ___ ___lds___ __rks ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

                  _____John N. Slone______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002084597
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/25
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 329	134.0100/GOMOR
2.
3.
4.
5.
6.