RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040009539


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 expunged from his Official Military Personnel Record (OMPF).

2.  The applicant states the allegations made in the GOMOR are untrue and
never proven.

3.  The applicant provides

      .a  A 20 July 2004 personal letter.

      b.  A copy of his Resume of Service Career.

      c.  DA Forms 67-9 (Officer Evaluation Report) covering the period
from 6 January 2002 to 15 July 2004.

      d.  A copy of a 20 April 2002 memorandum from his commander to the
General Officer who imposed the GOMOR asking that the GOMOR be withdrawn or
filed on the Restricted Fiche in the applicant's OMPF.

      e.  A copy of the officer rating scheme for the period covered by the
GOMOR.  It shows the applicant did not rate a certain Lieutenant Colonel
(LTC) Mxxx.

      f.  A copy of a 5 April 2002 memorandum, Headquarters, 515th Military
Police Detachment (CID), 5th Military Police Battalion (CID), subject:
Results of Preliminary Investigation – Suspected Computer Intrusion.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Lieutenant Colonel, US Army Reserve (USAR).  At the
time of the issuance of the GOMOR, he was on active duty serving as the
Deputy Commander, Area Support Group Falcon, Camp Bondsteel, Kosovo.

2.  The applicant received the GOMOR from the Commanding General, 21st
Theater Support Command, Kaiserslautern, Germany.  Dated 5 April 2002, the
GOMOR reprimanded him for engaging in an "an improper superior subordinate
. . . adulterous sexual relationship" with LTC Mxxx, and sending sexually
explicit email messages over Government computers "graphically detailing .
. . sexual desires and sexual acts performed."

3.  The applicant rebutted the GOMOR on 16 April 2002.  In his rebuttal, he
stated that he did not have an improper superior subordinate relationship
with LTC Mxxx because she was senior to him and he did not rate her.  He
further stated that he is Catholic, married for more than 22 years, and
marital fidelity is not an issue, therefore he never committed adultery.
He added that he filed for divorce from his wife and he and LTC Mxxx are
waiting until the divorce before starting a "more serious relationship."

4.  The applicant rebutted the misuse of Government computers by
conjecturing that person(s) unknown accessed the computer system and
altered his emails.  He also stated that some of the so-called sexually
explicit emails were risqué jokes sent to him and which he merely passed on
to LTC Mxxx.

5.  Finally, the applicant rebutted the GOMOR by stating that a criminal
investigation completed by the US Army Criminal Investigation [Division]
Command, or CID, concluded that neither he nor LTC Mxxx participated in any
wrongdoing.  He provides a copy of the CID Results of Preliminary
Investigation. This investigation did not substantiate the offense of
computer intrusion in general, while confirming only that "person(s)
unknown, by undetermined means, accessed the e-mail account of LTC Mxxx in
an effort to expose an ongoing personal relationship between LTC Mxxx and
[the applicant]."

6.  As a part of the applicant's rebuttal to the GOMOR, his commander
provided a memorandum recommending withdrawal of the GOMOR or, in the
alternative, filing it on the applicant's restricted fiche.  The commander
stated that he worked with the applicant and LTC Mxxx for 4 months and
found them to be "persons of the highest integrity."  He added he is an
attorney in civilian life and he conducted his own investigation and was
also assured by two Judge Advocate officers that the "nature of the alleged
offenses did not rise to the level of criminal misconduct."

7.  Army Regulation (AR) 600-37 (Unfavorable Information) sets forth
policies and procedures to authorize placement of unfavorable information
about Army members in individual official personnel files, and ensure that
unfavorable information that is unsubstantiated, irrelevant, untimely, or
incomplete is not filed in individual official personnel files.  It states
nonpunitive administrative letters of reprimand, admonition, or censure may
be filed in official personnel files only upon the order of a general
officer (to include one frocked to the rank of brigadier general) senior to
the recipient or by direction of an officer having general court-martial
jurisdiction over the individual.  Letters filed in the OMPF will be filed
on the performance portion (P-fiche).

8.  The determination of whether or not to issue a GOMOR is at the
discretion of the general officer concerned.  After a thorough evaluation
of all facts and circumstances pertaining to the issue at hand, the general
officer will make a determination.  If the GOMOR is issued, the general
officer will state his/her filing intention and consider any matters in
rebuttal before effecting the action.  The timing of the issuance of the
GOMOR is at the discretion of the general officer.

DISCUSSION AND CONCLUSIONS:

1.  The Commanding General, 21st Theater Support Command, upon
investigation of sexually explicit email messages sent by the applicant
over Government computers graphically detailing sexual desires and sexual
acts with a female officer in his unit, issued a nonpunitive administrative
memorandum of reprimand to the applicant.  The GOMOR cited an improper
superior subordinate relationship, adultery, and misuse of Government
computers to send sexually explicit emails.  It was filed on the
Performance fiche in the applicant's OMPF.

2.  There is a presumption that what the Army did was proper; that the
Commanding General weighed all of the facts and circumstances, and that the
facts supported his issuance of the GOMOR.  It is the responsibility of the
applicant to present evidence sufficient to overcome this presumption of
regularity.  The applicant has not done this.

3.  The applicant has professed his innocence, and has offered the
following evidence to overcome the presumption that what the Commanding
General found during his review was sufficient to warrant the subject
GOMOR.

      a.  To rebut the improper superior subordinate relationship
allegation, he points out, even if he was the Deputy Commander, he was not
"superior" to LTC Mxxx and did not rate her.  This argument ignores the
command relationship that existed in the organization, and ignores the
damage to good order and discipline created when other Soldiers perceive a
special, personal relationship between a member of the chain of command and
a Soldier in the unit.  It also fails to refute the existence of a
"relationship."

      b.  To rebut the allegation of adultery, he uses his status as a
married Catholic, as if that somehow insures marital fidelity.  At the same
time, he states he has filed for divorce from his wife of 22 years and he
and LTC Mxxx will wait until his divorce is final before taking their
relationship further (i.e., engaging in a sexual relationship).  This
argument is not persuasive.

      c.  To rebut the allegation he transmitted sexually explicit emails
on Government computers, he contends that his emails were accessed and
modified to add sexual content; however, he provides no proof to support
this contention.  He admits retransmitting emails of a sexual nature which
he received from others.

4.  The applicant contends that he and LTC Mxxx were cleared of any
wrongdoing by a CID investigation.  The CID investigation was not conducted
to determine whether the applicant had committed adultery or misused
Government computers; it was conducted to investigate allegations of
computer intrusion.

5.  The GOMOR was properly issued and properly filed on the Performance
fiche in the applicant's OMPF.  There is no reason to remove it.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __jtm___  __ljo___  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.



                                        William D. Powers
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009539                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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