RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 MAY 2005
      DOCKET NUMBER:  AR20040004764


      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. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Leonard Hassell               |     |Member               |
|     |Ms. Laverne Berry                 |     |Member               |

      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 General Officer Memorandum of Reprimand
(GOMOR) be removed from his Official Military Personnel File (OMPF).

2.  The applicant made no statement but deferred to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the GOMOR and all references thereto be removed
from the applicant’s OMPF.

2.  Counsel states that the basis for the request and the evidence is the
            7 November 2003 memorandum from counsel to the Department of
the Army Suitability Evaluation Board (DASEB).  He states that the DASEB
provided no rationale for denial of the requested relief and failed to
address the applicant’s contentions.  In his memorandum to the DASEB
counsel stated:

      a.  The procedural due process of the governing regulation was not
complied with, and the GOMOR was substantively inaccurate because material
factual information favorable to the applicant that was known to the
command and that undermined the accuracy of the GOMOR was intentionally
ignored.  The GOMOR failed to include the factual basis for the reprimand,
and was materially altered (by blacking out information) without further
being referred to the applicant for possible rebuttal.

      b.  The information relied upon by the commander who issued the GOMOR
was substantially erroneous and inaccurate.  There was no sexual
relationship between the applicant and Sergeant (SGT) “C.”  Both agreed
that there was a single act of sexual intercourse that occurred in May
2001, a year and a half before the GOMOR was issued.

      c.  There is no prohibition against private consensual sexual
intercourse between military personnel when such a relationship does not
constitute fraternization.  Relationships between enlisted personnel
require more than simply a difference in rank to violate policy.  Such
relationships are prohibited only if they actually or create the perception
of a compromise of supervisory authority, cause partiality or unfairness,
involve the improper use of rank for personal gain, are exploitive or
coercive, or create an adverse impact on good order and discipline.  None
of these applied to the single sex act between the applicant and SGT “C,”
and did not come to the attention of the command until more than a year
later when SGT “C” attempted to extort child support for her child from the
applicant by leveraging command attention.  At the time of the incident,
the applicant had been transferred from his duties and was performing
nonsupervisory duties without any responsibility for SGT “C.”

      d.  According to the GOMOR the applicant was alleged to have fathered
a child with SGT “C.”  The allegation has been proven to be false and the
command knew it at the time the GOMOR was written.  DNA testing
scientifically excluded the applicant as the father.  The paternity
allegation in the GOMOR, which is refuted by DNA evidence, establishes that
the GOMOR is false.

      e.  SGT “C” acknowledged that she engaged in entirely consensual
relations with the applicant; however, she was not disciplined.  She was
not a victim, although she has been portrayed as such because of her
gender, and because of the unfortunate circumstances that she was unable to
identify the father of her child.  The disparate treatment accorded to the
applicant, based on gender alone, is a violation of the equal protection
clause contained in the Constitution.  The disparate treatment based on
gender is wrong and in itself violates Army Regulation 600-20 and provides
an independent basis for removal of the GOMOR from the applicant’s OMPF.

3.  Counsel provides a copy of the GOMOR and allied documents, depicted
herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Marine Corps prior to his enlistment in the
Army for three years on 1 April 1992.  He has served on continuous active
duty since that time.  The applicant has completed numerous military
courses of instruction, and has received a variety of certificates of
commendation and appreciation.  He has received multiple awards of the Army
Achievement Medal, the Army Commendation Medal, and the Army Good Conduct
Medal.  The applicant has been awarded the Joint Service Commendation Medal
and the Joint Service Achiement Medal.

2.  The applicant’s NCOER’s show that his supervisors regarded him as an
outstanding noncommissioned officer who, while being rated as a sergeant
and then a staff sergeant, should be promoted immediately.  His NCOER for
the period August 2000 through July 2001 shows that he was a
telecommunications section sergeant with Company B, 1111th Army Signal
Battalion at Fort Detrick, Maryland, responsible for supervising eight
military personnel.  His report for the period August 2001 through March
2002 shows that he was a platoon sergeant with that same unit, responsible
for supervising 53 military, civilian, and contractor personnel.  The
ensuing report, covering the period April 2002 through October 2002, shows
that he was relieved for cause because of his sexual relationship with a
subordinate.  His reports thereafter, during his assignment in Korea, show
that his supervisors regarded him as an outstanding NCO.

3.  In a 17 October 2002 memorandum to her commanding officer, Captain “B”
(the applicant’s company commander) reported her findings of the informal
investigation into the possible violation of Army Regulation 600-20,
“Relationships between Soldiers of Different Ranks,” involving the
applicant and the now Sergeant “C.”  She interviewed and obtained sworn
statements from Sergeant “C,” the applicant’s former company commander and
first sergeant, the applicant’s replacement, Sergeant First Class (SFC)
“G,” and the applicant’s first sergeant.  She included copies of two
counseling forms.

      a.  In her 31 July 2002 sworn statement, Sergeant “C” stated that the
applicant made advances to her, at the same time assuring her that he was
not her supervisor, and that he would be assuming the position of platoon
sergeant soon.  She consented to the sexual act and became pregnant.  She
wanted an abortion, and the applicant agreed to pay half of the cost for an
abortion; however, she had to cancel appointments for the procedure because
the applicant was not ready [to take her to the clinic].  In the middle of
August 2001 she told her new NCOIC (noncommissioned officer in charge),
Sergeant “H,” “ she was pregnant and he told the applicant.  When she told
the applicant that she would have the baby, the applicant pleaded with her
to change her mind, stating that he would pay for the entire cost of the
abortion.  She did not have an abortion, but eventually told five Soldiers,
to include her new NCOIC, about her pregnancy and that the applicant was
the father.  She asked them not to say anything because she was afraid that
the applicant would approach her for ruining his career.  She had no
relationship with the applicant while she was pregnant.  When she returned
to work, the applicant placed her in the position of a training NCO
(noncommissioned officer).  She told the applicant that she needed help to
pay for day care.  He told her not to expect much help from him because she
should have had the abortion - because she already had two children.  She
asked him for help with buying formula and diapers; however, he was
reluctant to help because he stated he did not have the money.  She told
the first sergeant about her problem.  He informed the company commander
and they talked with the applicant.  The company commander gave them the
option of going to a clinic for a paternity test.  The applicant decided to
pay for the testing privately.  She knew that to do otherwise would affect
the applicant’s career and her career.  The company commander stated that
he was concerned about her son’s welfare and the applicant’s ability to
take care of him.  She stated that she was waiting for the results of the
paternity testing.  During the testing she watched the applicant do the
cheek swab on himself.  She did the check swab on her son.  She watched the
applicant seal the envelope with the swabs inside.  They had their first
visit to a child support agency on 30 July 2002 and have an appointment for
9 August 2002.

      b.  In his 5 August 2002 sworn statement the applicant’s former first
sergeant stated that Sergeant “C” informed him that she was having a
problem getting consistent child support from the applicant.  He informed
the company commander, and they discussed the consequences of punitive
actions against both individuals and the effect on the ability of both of
them to support the child. As best as they could determine nobody else was
aware of the incident.  He did not feel comfortable with not addressing the
fraternization issue, but agreed with the company commander that the bigger
issue was the well being of the child.  When some of the problems, e.g.,
paternity, arose the company commander contacted the Fort Detrick Judge
Advocate General office.  The company commander told him that he (the
company commander) had discretion in the matter as long as it did not
affect the health and welfare of the unit.  The matter still seemed to be a
private matter between two individuals, so he stopped pursuing the
fraternization issue.  Several meetings took place and he discussed the
matter with both individuals.  The applicant stated that it was a one time
mistake and that it never happened before.  Sergeant “C” did not report any
other problems between herself and the applicant.

      c.  In his 13 August 2002 sworn statement, the applicant’s former
company commander stated that the first sergeant informed him of the
incident in March 2002.  He talked with Sergeant “C,” who informed him that
she was pursuing a paternity suit in the state of Pennsylvania.  He talked
with the applicant, who agreed to a paternity test.  Later, he informed
both the applicant and Sergeant “C” that he did not intend to prosecute
potential fraternization charges unless the two Soldiers were not able to
work out paternity and child support payments, and that it was his goal to
ensure that the child was properly taken care of.  He stated that a few
weeks later the applicant provided him with a notarized affidavit
indicating that both he and Sergeant “C” agreed that if the     paternity
test was positive and that the applicant was the father then he would agree
to pay child support until the child turned 18 years of age, and that if
negative, Sergeant “C” would agree to discontinue any type of paternity
suit against the applicant.  The paternity suit results had not yet
arrived.

      d.  In his 3 October 2002 sworn statement, SFC “G” stated that
Sergeant “C” informed him in July that the applicant, the father of her
child, was not providing child support and refused to participate in a
paternity test.  He told the outgoing first sergeant, who stated that he
was aware of the situation, and that the applicant had agreed to pay child
support and have the paternity testing done.  He (SFC “G”) stated that they
(the first sergeant and company commander) should have informed the
battalion commander and the command sergeant major because it was an issue
of fraternization.  The [former] first sergeant stated that he talked with
the applicant who produced a receipt showing that paternity testing had
been done.  He (the applicant) also resumed payments to Sergeant “C.”  A
week later a new company commander and first sergeant came aboard.  The new
first sergeant talked with the applicant, who admitted to a one time sexual
encounter with Sergeant “C” and who stated that she was not in his
immediate supervision during the sexual act.  The applicant also stated
that the previous command knew of the situation.

      e.  The [new] first sergeant, in his 3 October 2002 sworn statement
stated that he and Sergeant “G” confronted the applicant, who admitted to
the sexual encounter, but stated that he was not her supervisor at the
time.  He stated that if Sergeant “C’s” version of the events were the
same, there would not be an issue. The first sergeant stated, however, that
Sergeant “C” contradicted what the applicant had stated, and he also
learned that the applicant served in a supervisory position over Sergeant
“C.”  He talked with the command sergeant major, who informed the battalion
commander.  That officer directed the company commander to conduct an
inquiry.  The applicant was read his rights, but refused to answer any
questions and requested to speak with an attorney.

      g.  On 8 August 2002 the applicant’s first sergeant counseled the
applicant and stated that he had been flagged so that an informal
investigation could be conducted into several incidents of misconduct.  He
stated that it was alleged that he entered into a sexual relationship with
a subordinate member of his platoon, who became pregnant, that he
encouraged her to have an abortion to conceal his involvement with her, and
that it was alleged that when she had her baby, he began giving her money
to support her child in return for her silence about the alleged
relationship.

      h.  On 3 October 2002 the applicant’s company commander notified him
that the battalion commander had ordered her to conduct an informal
investigation concerning the relationship between him and Sergeant  “C.”
She informed the applicant that she had conducted the investigation, had
weighed all the evidence, and determined that the applicant was in a
supervisory position over Sergeant “C” based on his noncommissioned officer
evaluation reports (NCOERs), and that he did have a sexual relationship
with Sergeant “C.”  She directed that the applicant be relieved for cause.


4.  The investigating officer, Captain “B,” stated that based on a
preponderance of evidence, the applicant did have a sexual relationship
with Sergeant “C” and that he was serving in a supervisory capacity over
her.  She stated that his actions compromised the integrity of supervisory
authority and created an adverse impact on discipline, morale, and the
ability of the unit to accomplish its mission.

      a.  She stated that SFC “G” brought the issue to light, notifying the
first sergeant on or about 29 July 2002.  He in turn questioned the
applicant and Sergeant “C,” who complained that she was having problems
getting monetary assistance from the applicant.  The first sergeant
discussed the situation with the command sergeant major, resulting in the
battalion commander’s order to conduct the informal investigation.

      b.  The company was alerted for an exercise on 5 August 2002.  The
applicant failed to report due to a sudden illness.  Several attempts were
made to contact him so that he could be counseled for flagging action.

      c.  On or about 6 August 2002 the unit received a message from the Red
Cross concerning the applicant’s father.  After platoon shift schedules
were reworked, the applicant was granted ordinary leave to visit his
father.  He was told to attend a scheduled court date on 9 August 2002
prior to departing on leave.

      d.  On 7 August 2002 the applicant was contacted and told to report
in to work on 8 August 2002.  He did report and was counseled on the
flagging action and informed that the action could delay his PCS (permanent
change of station) from the unit.  He refused to sign the counseling form.
On 7 August 2002 the unit received a fax from the applicant with paternity
test results indicating that he was not the father.  He also left a contact
number with the Chambersburg [Pennsylvania] court.  The court
representative informed her that the test results were not acceptable
because the standards for chain of custody of the DNA samples were not met.
 She stated that on 9 August 2002 the applicant failed to make his civil
court appearance as directed, and that the unit received word that he was
involved in a vehicle accident on his way to court.

      e.  She recounted the testimony of the applicant’s former company
commander and first sergeant, who indicated that the decision was made not
to enforce standards [fraternization], but to approach the issue to ensure
support was provided to the child.  She stated that the most troubling
portion of the investigation was that Sergeant “C” was left to work with
the applicant after she had the baby.
      f.  She stated that the applicant sent several fax messages while he
as on leave, trying to point out that he was not Sergeant “’C’s”
supervisor.  His NCOER’s show that he was Sergeant “C’s” section sergeant,
and that at some point he was taken off shift to take over as platoon
sergeant, and that the applicant somehow believed that because he was not
physically holding the position of section sergeant, and had not yet
officially assumed the duties as platoon sergeant, he had a brief period of
time where a physical relationship between his former and soon to be
subordinates, would be acceptable.

      g.  On 22 August 2002 a woman complained that the applicant had
attacked her at her residence and tried to forcefully engage in a sexual
encounter.  The complaint was investigated and was unfounded due to
inconsistencies in subsequent statements and the lapse in time before it
was officially reported.  The investigation was closed.

      h.  She stated that she received notification from the Franklin
County Court that the applicant was to appear in court on 19 September 2002
in order to provide a DNA sample for paternity resolution.  The applicant,
however, had no intention of complying with the court order, but had
scheduled another court appearance for matters associated with his vehicle
accident.  An NCO escorted him to the Franklin County court; however, he
had purposely left his identification badge on site, discarding his site
badge in the latrine prior to leaving the site.  Consequently, the Franklin
County court could not take a DNA sample.  The escort NCO brought the
applicant back to the site.  The military police found his site badge in
the latrine, and the NCO escorted the applicant back to the court; however,
he refused to provide the sample, signing a statement that his attorney
advised him not to comply.  The court then advised him that his failure to
comply with the court order would result in a judgment officially naming
him the father of Sergeant “C’s” child.  The court ordered him to appear on
22 October 2002 to discuss the amount of child support he would be required
to pay.

      i.  The investigating officer stated that the applicant was counseled
by t he first sergeant for disrespect.

      j.  She stated that she found the applicant’s behavior to very
unprofessional during the course of the investigation.  She stated that
Sergeant  “C” voluntarily made her statement at the risk of being punished
or admonished for her involvement in the relationship.  She stated that the
possibility existed that the applicant could have fabricated a vehicle
accident to avoid going to court and that he could have provided false DNA
evidence.  She stated that it appeared that once the applicant knew that
the fraternization issue would not be addressed, he made every effort to
avoid his responsibilities regardless of whether or not he was the father
of the child.

      k.  The investigating officer stated that the fact that the former
chain of command did not address the violation of Army Regulation 600-20
should not be a determining factor in deciding whether or not to proceed
with further action.  She stated that prior to and during the course of the
investigation, the applicant violated the Army values.  She stated that on
9 October 2002 she informed the applicant that her portion of the
investigation was complete and that he was relieved for cause from his
position as platoon sergeant.  She stated that he was aware that the
information obtained during the investigation would be used to complete his
evaluation report.  She recommended that the applicant be punished to the
extent possible under the Uniform Code of Military Justice.

5.  On 1 November 2002 the applicant’s battalion commander requested that a
GOMOR be issued to the applicant for misconduct involving a lower enlisted
female Soldier in his unit.  He stated that the applicant’s conduct eroded
the trust,
morale, and discipline of his company and the battalion.

6.  On 26 November 2002 the applicant received a memorandum of reprimand
from the Commanding General of the Army Medical Research and Materiel
Command at Fort Detrick because of his sexual relationship in May 2001 with
a Specialist “C.”  That officer stated that his sexual relationship with a
military subordinate was contrary to Army policy and the good order and
discipline in the command.  He stated that the applicant compromised the
trust of the leaders and subordinates in his company.

7.  On 4 December 2002 the applicant submitted a rebuttal to the memorandum
of reprimand, providing some of the same arguments put forth by counsel in
his request to this Board.  Additionally, he provided a statement from now
Sergeant “C, ” attesting to a one time sexual encounter, but not a “sexual
relationship” per se.  He stated that at the time of the alleged liaison,
based on the relevant duty, he was not in a supervisory role over Sergeant
“C,” was not in her chain of command, and had no responsibility for her at
all.  He stated that relationships between enlisted personnel required more
than simply a difference in rank to run afoul of Army Regulation 600-20.
At the time of the alleged sexual liaison he had been transferred and was
performing non-supervisory duties without any responsibility for Sergeant
“C.”  He provided a duty roster to support his position. He also stated
that Sergeant “C” witnessed DNA testing and that he was scientifically
excluded as the father of her child, and that his chain of command was in
possession of the document verifying that he was not the father.  He stated
that Sergeant “C” acknowledged that she engaged in entirely consensual
relations with him; however, she received no disciplinary action for her
own conduct, and the disparate treatment accorded to him was a violation of
his right to equal protection of the law.

      a.  In a 2 May 2003 statement, Sergeant “C” affirmed that she and the
applicant engaged in a single act of consensual sexual intercourse in May
2001.  She stated that the applicant did not use his rank to intimidate or
force her in any way, and that beginning in May 2001 the applicant was
performing non-supervisory duties within Bravo Company when the sexual
intercourse occurred. She stated that they had no relationship whatsoever,
except for the one-time act of sexual intercourse, and she did not receive
any special treatment or favors from the applicant.  Their act did not
damage the good order and discipline of the unit and was not disclosed
until long after the occurrence.

      b.  A document titled “MID SHIFT FOR ALPHA SHIFT – MAY 2001       (29
APR – 26 MAY)” shows that the applicant was a member of “TEAM A,” whose
supervisor was a Department of the Army civilian, and that Specialist “C”
was a member of “TEAM B,” supervised by a Corporal “C.”

      c.  A document from “LABCORP,” dated 26 July 2002, indicates that the
results of DNA analysis indicated that the applicant was not the biological
father of Specialist “C’s” child.  That corporation did issue a disclaimer
stating that the persons tested collected their own specimens and that it
was not involved in any way in the collection or the confirmations of the
identity of the persons tested.

8.  A document titled “DAY SHIFT FOR ALPHA SHIFT-SEPTEMBER 2001” shows that
the applicant was the platoon sergeant, that a Sergeant “H” was a member of
Team A, whose supervisor was the same above-mentioned Department of the
Army civilian, and that Specialist “C” was a member of Team B, supervised
by a Sergeant “D.”  A document showing the swing shift for October 2001 for
the Alpha Shift reflects the same supervisory relationship between the
applicant, Specialist “C,” and Sergeant .”””H.”

9.  In a 20 December 2002 memorandum to the Army Personnel Command, the
Commanding General of the Medical Research and Materiel Command stated that
he had reviewed the memorandum of reprimand and the applicant’s rebuttal,
and that the applicant received a complete copy of the same documents that
were available when he initially issued the reprimand.  He determined that
the reprimand, as modified, will be permanently placed in the applicant’s
Official Military Personnel File (OMPF).

10.  On 26 February 2004 the applicant was notified that the Department of
the Army Suitability Evaluation Board (DASEB) denied his request to remove
the GOMOR from his OMPF.  The DASEB decision summary indicated:

      a.   that the applicant was aware of the findings of a Commander’s
Inquiry dated 17 October 2002, and that he participated in the inquiry, and
that despite his contention, he was aware of the factual basis for the
GOMOR.


      b.  that the redaction to the GOMOR was a result of his rebuttal
statement, and that the redaction did not add new derogatory information,
but removed a statement contested by the applicant, and consequently
regulatory due process was afforded the applicant prior to the filing
decision made on 20 December 2002.


      c.  that the GOMOR was not inaccurate and did not rely upon
information that was erroneous and not substantiated.  The DASEB opined
that the applicant’s disagreement with the reference to the word
“relationship” because of the single sexual encounter was a contention
regarding semantics and was without merit.  It noted that the findings of
the Commander’s Inquiry contradicted the applicant’s contention that the
sexual relationship was not contrary to fraternization policy.  The DASEB
noted that the GOMOR removed reference to the paternity issue due to the
lack of usable evidence and the applicant’s rebuttal statement;
consequently, the applicant’s contention concerning the paternity issue was
without merit.  The DASEB discounted the applicant’s argument that the
GOMOR was unjust/incorrect because the sexual action was consensual and the
other member did not receive any administrative or disciplinary action,
stating that the GOMOR issuing authority acted with authorized prerogative
in determining the course of action to take.


11.  Army Regulation 600-20 prescribes the policies and responsibilities of
command, which includes military discipline and conduct, and states in
pertinent part that the commander is responsible for establishing
leadership climate of the
unit and developing disciplined and cohesive units . This sets the
parameters within which command will be exercised and, therefore, sets the
tone for social and duty relationships within the command.  It goes on to
state that integrity is a way of life.  Demonstrated integrity is the basis
for dependable, consistent information, decision making, and delegation of
authority.

12.  Paragraph 4-1 of that regulation states that military discipline is
founded upon self-discipline, respect for properly constituted authority,
and the embracing
of the professional Army ethic with its supporting individual values.
Military discipline will be developed by individual and group training to
create a mental attitude resulting in proper conduct and prompt obedience
to lawful military
authority.  It states in pertinent part that military discipline is
affected by every feature of military life.  It is manifested by deference
to seniors and mutual respect between senior and subordinate personnel.
Commanders and other leaders will maintain discipline according to the
policies of this chapter       [chapter 4], applicable laws and
regulations, and the orders of seniors.

13.  Paragraph 4-4 states in pertinent part that ensuring the proper
conduct of Soldiers is a function of command.  Commanders and leaders in
the Army, whether on or off duty or in a leave status, will take action
consistent with Army regulations in any case where a Soldier’s conduct
violates good order and
military discipline.

14.  Paragraph 4-14 talks about the relationships between Soldiers of
different rank and states that relationships between Soldiers of different
rank are prohibited if they: (1) compromise, or appear to compromise, the
integrity of supervisory authority or the chain of command; (2) cause
actual or perceived partiality or unfairness; (3) involve, or appear to
involve, the improper use of rank or position for personal gain; (4) are,
or are perceived to be, exploitative or coercive in nature; (5) create an
actual or clearly predictable adverse impact on discipline, authority,
morale, or the ability of the command to accomplish its mission.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the GOMOR was substantively inaccurate because
material factual information favorable to the applicant – that was known to
the command and that undermined the accuracy of the GOMOR, was
intentionally ignored.  The evidence suggests that counsel’s factual
information was the DNA results, indicated herein, which absolved the
applicant of paternity.  It appears that the GOMOR might have initially
contained the paternity information, but then that information was blacked
out, an action favorable to the applicant.  The command was aware of that
DNA information.  The GOMOR issued did not rest upon that information, but
upon the applicant’s sexual relationship with a military subordinate.

2.  Notwithstanding the arguments presented by counsel in his appeal to the
DASEB and the applicant in his rebuttal to the GOMOR, the evidence shows
that the applicant was in a supervisory position over Sergeant “C,” despite
her contention to the contrary in her 2 May 2003 statement on behalf of the
applicant. She herself indicated in her 31 July 2002 sworn statement that
she told her new NCOIC, Sergeant “H,” about her predicament in August 2001.
 Copies of shift schedules for “ALPHA SHIFT” show that Sergeant “H”
occupied the same supervisory relationship in that shift as did the
applicant in May 2001 when he had the sexual encounter with Sergeant “C.”
The applicant’s NCOER for the period August 2000 through July 2001 shows
that he supervised eight military personnel – the eight Soldiers indicated
on the mid shift for the Alpha shift in May 2001.  Thus, despite the
nuances contained in the arguments offered by the applicant and counsel, a
supervisory relationship did exist.

3.  The investigating officer determined that the applicant did have a
sexual encounter in May 2001, and that relationship was with a subordinate
member of his unit, and that he was serving in a supervisory capacity over
her.

4.  Sergeant “C” indicated that during her pregnancy she informed Soldiers
in her unit of her pregnancy and that the applicant was the prospective
father.  Thus, in all probability there existed in the unit the appearance
of impropriety, whether or not Sergeant “C” benefited from her relationship
with the applicant.  Perceived favoritism is as damaging to unit morale and
cohesion as actual partiality.  In this case, the perception was more
pronounced in view of Sergeant “C’s” duty assignment with the applicant
after her pregnancy.  The effect on unit discipline cannot be appraised;
however, the applicant did compromise the trust of his superiors and
subordinates in his company, as indicated in the GOMOR.

5.  Consequently, the GOMOR issued to the applicant was proper.  The
information contained therein was substantiated, complete, and accurate,
notwithstanding counsel’s arguments to the contrary.  The decision made to
place the GOMOR in the applicant’s OMPF was in accordance with the
governing Army Regulation.

6.  Therefore, the applicant’s request to remove the 26 November 2002 GOMOR
and all documents related to the issuance of the GOMOR from his OMPF is not
warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___LH___  ___LB __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  ____James Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004764                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050505                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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