RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            18 NOVEMBER 2003
      DOCKET NUMBER:   AR2003085356


      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           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Mark D. Manning               |     |Member               |
|     |Ms. Barbara J. Ellis              |     |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 requests that a February 2001 general officer memorandum
of reprimand (GOMOR) be removed from the performance portion of his
Official Military Personnel File (OMPF).

2.  The applicant states that while his conduct was “certainly poor
judgment,” it “was not proven to violate the Uniform Code of Military
Justice” (UCMJ).  He contends that the Department of the Army Suitability
Evaluation Board (DASEB) “failed to fully take into account the
recommendations and findings of not only the investigating officer but also
[his] battalion and brigade commander” that the reprimand be filed “in the
local portion of [his] OMPF.”  The applicant states that his relationship
with another woman was not “prejudicial to the good order and discipline in
the armed forces” and was not the type to “bring discredit upon the armed
forces.”  He notes that the findings of the investigating officer “clearly
stress that neither element was found” and as such there was no violation
of the UCMJ.  He maintains that the imposing general officer’s “arbitrary
finding of such is improper and is not based on the UCMJ or the
investigating officer’s findings.”

3.  The applicant also argues there was no “willful” violation of the UCMJ.
 He states that he did not engage “in any sexual or romantic activity with
someone other than [his] wife until a divorce was imminent and a legal
separation from [his] wife was drawn up…and until [his] wife and [he] had
come to an agreement on such activity.”  He further cites his separation
agreement, which stated that they were “free from interference, authority
and control, direct or indirect, by the other as fully as if he or she were
single and unmarried.”  He states that this led him “to believe that [he]
could engage legally and morally in romantic and sexual relationships with
someone other than [his] wife during the separation period.”

4.  The applicant states that the recommendations of the investigating
officer and chain of command should have been taken into account and that
while the imposing general officer “had discretion in determining where to
place my GOMOR, he cannot fairly utilize that discretion based on erroneous
and inaccurate information.”

5.  The applicant argues that the GOMOR in his OMPF “will wreck undue
destruction on [his] military career far in excess of the severity of [his]
actions.”  He argues that “because of my misunderstanding of what
constituted adultery” he might be separated from the Army, in spite of his
excellent record.  He states that his performance over these years has been
strong, that he would like to continue to serve his country as an officer
in the United States Army, and that his mistake does not rise to the level
that would suggest that he can no longer serve in such a capacity.

6.  The applicant provides his self-authored statement in support of his
request.


CONSIDERATION OF EVIDENCE:

1.  The applicant spent approximately 16 months as a cadet at the United
States Air Force Academy before voluntarily resigning.  In October 1986 he
enlisted in the United States Army Reserve under the delayed enlistment
program and in February 1987 entered active duty.  By 1989 he had been
promoted to pay grade E-5.

2.  On 29 January 1992 the applicant was honorably discharged from his
enlisted status, after completion of OCS (Officer Candidate School) and
accepted a commission as a United States Army Reserve officer the following
day, 30 January 1992.  He was ordered to active duty as a Reserve officer
that same day.  The applicant was promoted to captain in February 1996.
His performance evaluations since being promoted to captain were divided
between center of mass and above center of mass ratings.  He received
several personal decorations as an enlisted Soldier and his records
indicate that he has been awarded an Army Achievement Medal and two Army
Commendation Medals since receiving his commission.

3.  In May 1999 the applicant assumed responsibility as a company commander
at Fort Bragg, North Carolina, and remained in that capacity until he was
reassigned to duties as Recruiting Group Company Command in March 2001.

4.  According to documents contained in the applicant’s OMPF, he and his
spouse signed a separation agreement in August 1995.  The applicant noted
in a statement, issued as part of the investigation leading up to his
reprimand, that following the separation, his spouse relocated to another
state.  However, following some issue relating to his son by a former
marriage, the applicant and his spouse “discussed combining our households
primarily” so that his spouse could help care for his son.  He noted that
they “also felt that by combining our assets, we would benefit financially
and such a move would at least put us in an environment to possible work
out our own personal differences.”  He indicated that his spouse joined him
in Fayetteville, North Carolina in June 1999.

5.  The applicant indicated in that same statement that his son did not
initially join them in Fayetteville, but did so in the summer of 2000.  He
indicated that even though his son did not join him and his spouse, that
his spouse remained in Fayetteville because “any subsequent move, would
have created a financial hardship for both of us.”

6.  The applicant admitted in other documents that he commenced a sexual
relationship with another woman in July 1999 and that it continued until
July 2000.





7.  When the relationship ended the other woman sent a letter to the
applicant’s brigade commander, and furnished a copy of the letter to the
Fort Bragg, North Carolina garrison commander and post provost marshal.
The letter reported the adulterous affair, in addition to allegations
regarding release of military information by the applicant relating to
“missions, training exercises and of past military involvements.”

8.  As a result of the letter, an investigation was initiated.  The
investigating officer concluded that the “evidence shows that [the
applicant] had an adulterous affair” although he and his spouse “had agreed
that they could have relationships with other people….”  The investigating
officer concluded that although the applicant did have an adulterous affair
“his conduct was not to the prejudice of good order and discipline” in his
unit, “nor did it bring discredit upon” his unit or the armed forces.  He
did note that the applicant exercised poor judgment.  The investigating
officer found that he did not provide any classified or sensitive
information to the woman which would constitute a security violation.

9.  The investigating officer, who was also the applicant’s battalion
commander, recommended “administrative action” but not “punitive action.
He recommended a reprimand and that it be “filed locally in the unit
file….”

10.  Following completion of the investigation, the applicant’s brigade
commander, a colonel, requested that the Commander, XVIII Airborne Corps
and Fort Bragg, delegate authority to him (the brigade commander) for
administrative action against the applicant.  In spite of the fact that the
XVIII Airborne Corps and Fort Bragg Staff Judge Advocate recommended that
the commander’s request be granted the XVIII Airborne Corps and Fort Bragg
Commander, a lieutenant general, elected to delegate authority to the
deputy commanding general, a major general, to “dispose” of the action “as
he deems fit.”

11.  On 28 February 2001 the deputy commanding general, XVIII Airborne
Corps and Fort Bragg issued the applicant a memorandum of reprimand.  The
reprimand did state that a commander’s inquiry “substantiated allegations
that you engaged in an adulterous affair from July 1999 through July 2000.
It also, as the applicant has noted, contained the statement “you have
behaved in a manner contrary to law, regulation, and the ethical standards
of our profession” and that “you have willfully violated the Uniform Code
of Military Justice….”

12.  The applicant was advised in the memorandum that the imposing officer
was considering filing the reprimand in the applicant’s OMPF, and that he
would consider any matter the applicant wished to submit in rebuttal before
final action was taken.




13.  In the applicant’s rebuttal he acknowledged his involvement with the
other woman, but argued that he believed his separation agreement allowed
him, and his spouse, to “act as if we were no longer married.”  He stated
that he was a good soldier and officer and “that any violation of the
Uniform Code of Military Justice (UCMJ) on [his] part was by no means
calculated or willful.”  He stated that he did not realize that his
separation agreement and personal arrangement between he and his spouse,
regarding their personal lives “was incompatible with the military
standards until the investigation into [his] relationship with [the other
woman] began.”  He noted that in retrospect he recognized his involvement
“was inconsistent with expectations of an officer and could have caused
harm.”  He stated that he wished to continue serving his country and asked
that the reprimand be withdrawn or filed locally.

14.  The applicant’s battalion commander, who was also the investigating
officer, and his brigade commander recommended the reprimand be filed
locally.

15.  On 5 April 2001 the imposing general officer indicated that he had
reviewed the documents submitted by the applicant, and considered “the
circumstances surrounding the incident for which [the applicant] was
reprimanded.”  He determined that the reprimand should be permanently filed
in the officer’s OMPF.

16.  On 1 February 2002 the applicant submitted an appeal to the Department
of the Army Suitability Evaluation Board (DASEB).  He indicated that he had
not received any acknowledgement of an earlier appeal submitted in November
2001.  In his appeal, the applicant stated that his “appeals are based on
the accusatory language of the reprimand, which, is in part untrue, and
either contradictory to or unsupported by findings of the investigation.”
He argued that the statement that he “willfully violated the UCMJ” was
“completely unsupported by the findings of the investigation.”  He
indicated that the statement that he “caused harm to the United States
Army” was also contrary to the findings of the investigation.  He argued
that the statement was “completely untrue, contradictory to findings” and
that he resented “this misrepresentation.”

17.  The applicant also stated, in his appeal, that he believed the
imposing general officer did not handle the disposition of his case in a
timely and fully attentive manner, and that in his opinion, the lack of
“timelines could indicate either a deliberate act to sabotage the chances
of an appeal prior to the April 2002 promotion board, or simply because of
a lack of appropriate attention to a career-influencing decision regarding
a faithful and dedicated soldier.”

18.  The applicant reemphasize the issues surrounding his understanding of
his separation agreement, that his chain of command had supported filing of
the reprimand locally, and that the reprimand was “not representative of
the soldier that [he] truly” was and that he “deeply” resented its
characterization.

19.  His appeal was denied.  The DASEB Decision Summary notes that the
applicant’s was “not coerced to have the affair, but chose to do so of his
own free will” and as such his contention that he did not “willfully
violated the UCMJ” was “unproven.”  The DASEB also noted that the applicant
misquoted the reprimand when arguing that the statement “caused harm to the
United States Army” was incorrect.  The DASEB noted that the actual wording
of the reprimand was “caused harm to the reputation of the United States
Army.”  The DASEB concluded that the applicant’s “arguments/contentions in
this appeal were considered by the imposing Authority prior to the decision
to file” and as such, concluded that the reprimand was properly filed
pursuant to an objective decision by a competent authority.”

20.  The applicant’s performance evaluations received in August 2002 and
February 2003, in his capacity as a company commander of a recruiting
company, were center of mass and above center of mass, respectively.

21.  Information obtained from the United States Army Human Resources
Command-Alexandria, Promotions Branch indicated that the applicant was not
selected for promotion to the rank of major by the 2002 and 2003 promotion
boards and was denied selective continuation by the 2003 promotion
selection board.  The applicant’s scheduled separation date is 1 March
2004.

22.  An October 2003 letter to the Board from the general officer who
imposed the 2001 reprimand asked, on behalf of the applicant, that the
reprimand be moved to the restricted section of the applicant’s OMPF.  He
noted that filing the reprimand in the applicant’s performance section of
the OMPF “was the appropriate punishment for [the applicant] at the time”
but believes the reprimand has now fully served the purpose he intended.

23.  Army Regulation 27-10 (Military Justice) states that commanders have
authority to give admonitions or reprimands either as an administrative
measure or as nonjudicial punishment.  It notes that a written
administrative admonition or reprimand will contain a statement that it has
been imposed as an administrative measure and not as punishment under
Article 15.  The applicant’s reprimand did contain that required statement.

24.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent
part, that only information that the individual has been provided an
opportunity to review and offered 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.  Appeals to the
DASEB to relocate derogatory information are to be 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.  If an 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.

25.  Webster’s II, New Riverside University Dictionary defines adultery as
“voluntary sexual intercourse between a married person and a partner other
than the lawful spouse.”

26.  A 4 November 2003 Officer Record Brief shows that the applicant is
still married.

27.  Section 3258, title 10, USC states that any former enlisted member of
the Regular Army who has served on active duty as a Reserve officer of the
Army, or who was discharged as an enlisted member to accept a temporary
appointment as an officer of the Army, is entitled to be reenlisted in the
Regular Army in the enlisted grade that he held before his service as an
officer, without loss of seniority or credit for service, regardless of the
existence of a vacancy in his grade or of a physical disability incurred or
having its inception in line of duty, if (1) his service as an officer is
terminated by an honorable discharge or he is relieved from active duty for
a purpose other than to await appellate review of a sentence that includes
dismissal or dishonorable discharge, and (2) he applies for reenlistment
within six months (or such other period as the Secretary of the Army
prescribes for exceptional circumstances) after termination of that
service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows, and the applicant admits that he had a sexual
relationship with another woman, not his spouse, while his spouse was
residing with him.  He admits that his conduct was “certainly poor
judgment” and that it “was inconsistent with expectations of an officer and
could have caused harm.”

2.  His argument that the wording of his separation agreement that he and
his spouse were “free from interference, authority and control, direct or
indirect, by the other as fully as if he or she were single and unmarried,”
was authorization for engaging in adultery is





not sufficiently compelling.  The agreement did not indicate that the
applicant could engage in sexual activities as though he were single or
unmarried, only that he and his spouse “were free from interference,
authority and control, direct or indirect, by the other….”  The evidence
indicates that the applicant’s conduct was appropriately dealt with via the
reprimand he received.

3.  The reprimand was administered in accordance with applicable
regulations and was not disproportionate to the offense.  His contention
that he did not violate the Uniform Code of Military Justice, and that
there was no “willful” violation of the Uniform Code of Military Justice,
is not evidence of any substantive violation of the applicant’s rights.

4.  The evidence shows that the reprimand contained the required statement
that the reprimand was imposed as an administrative action and not
punishment under the Uniform Code of Military Justice.  Deleting words that
he contends were not true (willfully violated the Uniform Code of Military
Justice) would not negate the purpose for which the reprimand was imposed,
nor lessen its impact on the applicant’s career.

5.  After reviewing the applicant’s rebuttal, the general officer who
imposed the reprimand, deemed it appropriate to file the reprimand in the
applicant’s OMPF, which was within his realm of authority.  The applicant
has not shown that the general officer’s decision was in error or unjust.

6.  The evidence shows that the general officer, in October 2003, still
maintained that the reprimand was appropriately filed at the time he
rendered his original decision.  The fact that he now supports moving the
reprimand is not sufficiently compelling to conclude that such an action
would be appropriate.

7.  The applicant’s argument that the DASEB did not fully evaluate his
appeal in light of his argument and that they failed to take into account
the severe penalty resulting from retaining the reprimand in his file,
appears to be without foundation.

BOARD VOTE:

__JNS __  __MDM__  __BJE __  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the discussion and conclusions in the case, the Board
determined that there is sufficient evidence presented to demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are sufficient as a basis
for correction of the records of the individual concerned:


      a.  by expunging the February 2001 general officer memorandum of
reprimand and all associated documents from his OMPF, including documents
associated with the applicant’s appeal of the reprimand contained in his
performance and restricted fiche;


      b.  by referring his records to a standby advisory board for
consideration for promotion to major under the appropriate criteria for
those years that he was eligible to be considered, and if not selected for
promotion by referring his record for reconsideration for selective
continuation; and


      c.  following completion of the actions directed herein, the
proceedings of the Board and all documents related to this case be returned
to the Board for permanent filing.





            _____John N. Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003085356                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20031118                                |
|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.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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