PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2003087117


         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. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Linda M. Barker		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) and all associated documents from his Official Military Personnel File (OMPF).

3. The applicant states, in effect, that he was issued a GOMOR for alleged acts, which he has continued to deny and for which all independent tribunals have concluded that he did not commit. He goes on to state that the imposing officer has now concluded that he is innocent and should not suffer further from the allegations that were made against him. His counsel contends, in effect, that the imposing officer at the time, an active duty major general, now concludes that his actions against the applicant were in error and he fully supports the applicant's request for removal of the GOMOR from the applicant's OMPF. He goes on to state that the charges against the applicant were dismissed when the allegations made against him were recanted. However, the staff judge advocate presented the commanding general at the time a GOMOR to be signed and placed in the applicant's OMPF. He continues by stating that the applicant appeared before a "show cause" board which determined that the applicant did not commit the offense for which he was charged and was not guilty of conduct unbecoming an officer. He also survived a promotion review board which was convened to determine if he should be removed from the chief warrant three (CW3) selection list. The board consisted of a major general, five colonels and a chief warrant officer five and they unanimously concluded that the GOMOR should be removed from his OMPF and he should be promoted to CW3. However, the GOMOR remains on his performance fiche and hinders his potential for further selection for promotion. In support of his application he submits a letter from the imposing officer, his current senior rater (SR), a copy of the actions by the promotion review board, numerous letters of support and a copy of his latest officer evaluation report (OER).

4. The applicant’s military records show that on 31 October 1988, while serving as a special operations weapons sergeant in the pay grade of E-6, the applicant was honorably discharged from the Florida Army National Guard after having served 5 years, 1 month and 19 days of total active service.

5. On 13 November 1989, he was appointed as a United States Army Reserve (USAR) warrant officer one, with a concurrent call to active duty as a rotary wing aviator. He was promoted to the rank of chief warrant officer two (CW2) on 30 November 1991 and on 12 November 1992, he completed the special forces warrant officer basic course. He was re-branched from aviation to special forces and has continued to serve as a special forces technician.

6. On 30 May 1996 charges were preferred against the applicant after the applicant's daughter made allegations that he had engaged in sexual relations with her. The applicant's daughter recanted her statement on 26 August 1996 indicating that she had made it all up.

7. The applicant underwent a Polygraph Examination on 28 August 1996 regarding his sexual contact with his daughter. The Polygraph Examiner concluded that the examination failed to reveal criteria to indicate deception and opined that the applicant was being truthful.

8. On 3 September 1996, the group commander withdrew and dismissed the charges against the applicant without prejudice.

9. On 23 September 1996, the Special Forces Command commanding general issued the applicant a GOMOR for having sexual relations with his daughter between June 1991 and November 1995.

10. The applicant submitted a response to the GOMOR on 29 October 1996 in which he informed the commanding general (CG) that he (the CG) had been misinformed and that he had not engaged in such conduct. He informed the CG that his innocence had been established and the charges dismissed. He also offered an explanation as to why his daughter made the charges and explained that his daughter had made the allegations in an attempt to cover up her having sexual relations with her boyfriend, which they feared had resulted in pregnancy. She and her boyfriend subsequently admitted it. He requested that the CG withdraw the GOMOR. However, the CG directed that the GOMOR be filed in the applicant's OMPF on 16 November 1996.

11. On 12 September 1997, a "Show Cause" board convened at Fort Campbell, Kentucky, determined that the applicant did not rape his daughter, did not commit the offense of carnal knowledge and did not commit an act of conduct unbecoming an officer. The board recommended that the applicant be retained in service, that he be reassigned to another unit and that his family continue to receive counseling services from the family advocacy and unit ministry team.

12. Meanwhile, the applicant was selected for promotion to the rank of CW3 on 18 September 1997. On 15 October 1998, a Department of the Army Promotion Review Board was convened to determine if the applicant should be removed from the promotion selection list. That board consisted of a major general, five colonels and a CW5 who unanimously recommended that he be retained on the CW3 Promotion Selection List and that the GOMOR be removed from the performance fiche of his OMPF. The applicant was promoted to the rank of CW3 on 1 December 1997, attended the warrant officer advanced course and was reassigned to another installation.

13. On 17 March 2003, the imposing officer of the GOMOR, who is currently a major general serving on active duty, authored a letter of support to the Board in which he asserts that he supports the removal of the GOMOR from the applicant's OMPF. He further states that he believes the action was in error and has resulted in a substantial injustice to the applicant. He goes on to state that at the time he signed the GOMOR, he believed the information to be accurate and signed it based solely on the advice of his Staff Judge Advocate (SJA). He also states that he has reviewed the events of the applicant's case and should not have accepted the advice of his SJA over the boards of senior officers who have reviewed the evidence of the case and determined that he did not commit the offense for which he gave the applicant a GOMOR.

14. The applicant has submitted numerous letters of support, which are included with the application for the Board's review and assessment.

15. Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. It states, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer or officer having general court-martial jurisdiction over the recipient. The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter. However, before a letter may be filed in the OMPF, it must be referred to the recipient concerned for comment, it must include reference to the intended filing of the letter, and must be signed by an officer authorized to direct such filing.

16. Army Regulation 600-37 also provides that an officer who directed the filing in the OMPF of an administrative letter of reprimand, admonition, or censure may request its revision, alteration, or removal, if later investigation determines that it was untrue or unjust, in part or in whole. The basis for such determination must be provided to the Department of the Army Suitability Evaluation Board (DASEB) in sufficient detail so as to justify the request. An officer who directed the filing of such a letter in the OMPF may not initiate an appeal on the basis that the letter has served its intended purpose. However, a letter of support may be submitted with the recipient's appeal.

CONCLUSIONS:

1. Although the primary basis for the applicant’s application to this Board is that he was not guilty of the offense for which he was accused and for which the GOMOR was imposed, the Board will not attempt to assess guilt or innocence in this matter.

2. However, the imposing general officer has made his current position a matter of record with the Board. He clearly states that he incorrectly relied on the advice of his SJA to sign the GOMOR and now knowing the specifics of the case, is convinced that he incorrectly relied on that advice to the detriment of the applicant.

3. The applicable regulation provides that an imposing officer may request or support the request for removal of a reprimand that is subsequently determined to be untrue or unjust. In doing so, the imposing officer must explain in sufficient detail why it should be removed. In this case, the imposing officer explains that he should have relied on the multiple boards of senior officers who reviewed the evidence and testimony of the case and determined that the applicant did not commit the offenses for which he was charged, rather than to rely on the advice of his SJA.

4. Given the serious implications attached to such a GOMOR in an individual's OMPF and the evidence in this case which suggests that the allegations made in the GOMOR were never proven, the Board finds it in the interest of justice to remove it and all supporting documents related thereto from his OMPF.

5. In the event the applicant is considered for promotion to the rank of CW4 while the GOMOR is in his OMPF, the applicant will be afforded promotion reconsideration (less below the zone considerations).

6. 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 from the OMPF of the individual concerned, the GOMOR dated 23 September 1996 and all related documents pertaining thereto.

2. In the event the applicant is considered for promotion to the rank of CW4 while the GOMOR is in his OMPF, the applicant will be afforded promotion reconsideration (less below the zone considerations).










3. 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:

__rjw ___ ___bje___ ___lb ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Raymond J. Wagner____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087117
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/04/08
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 328	134.0100/REM GOMOR
2.
3.
4.
5.
6.