RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 14 October 2004
DOCKET NUMBER: AR2004100142
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. Fred Eichorn | |Chairperson |
| |Mr. Richard T. Dunbar | |Member |
| |Ms. Linda D. Simmons | |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 7 August 2003 General Officer Memorandum
of Reprimand (GOMOR) be removed from his Official Military Personnel File
(OMPF).
2. The applicant states that the GOMOR was issued before the [Criminal
Investigation Division, or CID] investigation was completed; that no Army
Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of
Officers) was ever conducted; and that the GOMOR is not supported by the
investigation.
3. The applicant provides
a. A copy of the GOMOR.
b. A copy of the filing determination.
c. A copy of pages 2-4 of CID Report of Investigation (ROI) – Final,
#0150-03-CIDC022-4XXX5-6C1/9T2.
CONSIDERATION OF EVIDENCE:
1. The applicant is a Regular Army Staff Sergeant serving on active duty
since 28 September 1990. In November 2002, he was assigned to Fort Lee,
Virginia as an instructor/writer in the Quartermaster Center and School.
2. On 7 August 2003, he received the subject GOMOR for "making sexual
advances toward and sexually assaulting an Initial Entry Training (IET)
soldier" while he was performing duties as Battalion Staff Duty NCO
(noncommissioned officer) on 14 July 2003 and the IET soldier was his
runner. He was also issued a relief-for-cause NCO Evaluation Report.
3. The incomplete CID ROI provided by the applicant is a final report
dated 25 September 2003. The applicant is listed as the subject. He is
charged with committing indecent assault. The report states:
"Investigation did not develop sufficient evidence to prove or disprove
[victim's] allegation that she was indecently assaulted by [applicant].
Investigation did not identify any witnesses to the incident and no
physical evidence exist[s]."
4. Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files; ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files; and ensure that the best
interests of both the Army and the soldiers are served by authorizing
unfavorable information to be placed in, and when appropriate, removed from
official personnel files. It states that any general officer is authorized
to issue and direct the filing of reprimands in a soldier's OMPF.
5. 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. There is no information in the record concerning the circumstances
behind the issuance of the subject GOMOR. Likewise, the CID investigation
did not uncover enough evidence to prove or disprove the IET soldier's
accusations.
2. In situations like this, there is a presumption that what the Army did
was proper; that the general officer reviewed all of the facts and
circumstances, and that the facts supported the issuance of the GOMOR. It
is the responsibility of the applicant to present evidence sufficient to
overcome this presumption of regularity.
3. The applicant has professed his innocence, but has offered no evidence
to overcome the presumption that what the general officer found during his
review was sufficient to warrant the subject GOMOR.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__fe____ __rtd___ __lds___ 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.
Fred Eichorn
______________________
CHAIRPERSON
INDEX
|CASE ID |AR2004100142 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20041014 |
|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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