RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 June 2004
      DOCKET NUMBER:   AR2004105845

      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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 removal of the general officer memorandum of
reprimand (GOMOR), dated 30 May 2002.

2.  The applicant states that the GOMOR was a one-sided version of the
facts and that there are inaccurate, false, and misleading statements
contained in the GOMOR that are not true and were never proven or
justified.

3.  The applicant continues that the officer filing the GOMOR stated that
it would be placed in his local file.

4.  The applicant provides a memorandum from his Trial Defense Service
counsel regarding inaccuracies in the GOMOR, letters of recommendation from
his chain of command, the 21 June 2002 filing memorandum, and copies of his
Department of the Army Suitability Evaluation Board (DASEB) appeal.

CONSIDERATION OF EVIDENCE:

1.  The applicant served a period of enlisted service on active duty prior
to his appointment as a reserve commissioned officer in the grade of second
lieutenant on 16 August 1991.  The applicant was promoted to first
lieutenant on 16 August 1993 and was promoted to captain on 1 September
1995.  The applicant is currently serving in the grade of captain on active
duty.

2.  On 3 April 2002, an investigation was initiated under the provisions of
Army Regulation 15-6 [hereafter identified as the 15-6 investigation] to
determine if the applicant had violated Article 92 (Failure to obey an
order or regulation), Article 133 (Conduct unbecoming an officer and a
gentleman), and Article 134 (Adultery) of the Uniform Code of Military
Justice (UCMJ).

3.  On 10 April 2002, the investigating officer found that the
preponderance of the evidence showed the applicant violated Articles 92,
133, and 134 of the UCMJ and recommended adverse action.

4.  The investigating officer stated that the applicant should not be
promoted to major and that, while the violations are serious, in his
opinion, they did not warrant elimination from the service.

5.  The investigating officer recommended that "somewhere between a General
letter of reprimand, potentially filed in the officer's performance fiche
and a General Article 15" would be appropriate consequences for the
applicant's violations.

6.  The investigating officer continued that he strongly recommended a
formal written order be issued to the applicant from a general officer
which states the applicant is to have no contact in any form with the
female party [hereafter referred to as Mrs. G] and her family.  The
investigating officer also recommended the applicant be informed that
should any future contact with Mrs. G and her family occur, the 85th
Division will collect and forward evidence to wherever his chain of command
is located.

7.  Evidence of record shows that the applicant sent obscene email messages
to Mrs. G and her family and made numerous phone calls to Mrs. G and her
family.

8.  Evidence of record shows that the applicant used a government computer
to send obscene emails to his home email account.

9.  Evidence of record shows that the applicant also sent Mrs. G. a fax
apologizing for any "wrong doings" that may have been perceived by Mrs. G
and/or her family.  In this fax, the applicant agreed not to have any
contact with Mrs. G by phone, email or US mail.

10.  On 26 April 2002, the major general in command of the Headquarters,
85th Division (Training Support) requested that the Commanding General of
the First United States Army waive his UCMJ authority in order to allow him
to issue the applicant a GOMOR for two specifications of failure to obey an
order or regulation, one specification of conduct unbecoming an officer,
and one specification of adultery.

11.  The Commanding General of the 85th Division (Training Support) further
stated that the offenses "stem" from an affair that the applicant was
having with a married woman and that the applicant continued to have sexual
relations with the woman after learning that she was married.  In addition,
he stated that after the affair ended, the applicant harassed the woman,
her family and friends and that the applicant violated an order from his
supervisor not to have any further contact with the woman or her family.

12.  The Commanding General of the 85th Division (Training Support)
concluded that the applicant used his government computer and fax to send
obscene messages to the woman and her family.

13.  Records show that the lieutenant general in command of the First
United States Army tendered the applicant a GOMOR on 30 May 2002.  The
Commanding General of First Army essentially reprimanded the applicant for
beginning and continuing a sexual relationship with a married woman and
that, after that relationship ended, the applicant continued to harass the
woman and her family.

14.  The Commanding General of the First Army stated in the GOMOR that it
was his intention to direct the permanent filing of the GOMOR in the
applicant's official military personnel file (OMPF).  The Commanding
General further stated that he would consider any matters that the
applicant decided to submit in response to this GOMOR prior to making his
decision.

15.  The Commanding General concluded the GOMOR by stating that the
applicant must acknowledge receipt of the GOMOR within five days of the
receipt date and that any matters in extenuation, mitigation or rebuttal
that the applicant wished to submit must accompany the acknowledgement.

16.  On 5 June 2002, the applicant acknowledged that he received the GOMOR
and initialed the portion of the form which stated: "The following
statement or document are submitted on my behalf."

17.  In a 6 June 2002 memorandum through the Commanding General of the 85th
Division (Training Support) to the Commanding General First Army, the
applicant responded to the GOMOR.  The applicant apologized for his
inappropriate conduct and for the fact that senior officers had to expend
valuable time on this issue.

18.  The applicant continued that he truly regrets the expenditure of time
and the hardship imposed on my family as well as [Mrs. G] and her family.

19.  In his rebuttal the applicant stated that although he sincerely
regrets his actions and he should have exercised better judgment, he needed
to rebut numerous false sworn statements that he discovered after reviewing
the
15-6 investigation.

20.  The applicant stated that Mrs. G did not tell him that she was married
and that Mrs. G stated in her sworn statement that she "always wore her
wedding band."  The applicant continued that he attached photographs which
clearly show that Mrs. G did not always wear her wedding band.  He
continued that photographs show that he took Mrs. G to a military ball and
that he would not have done so if he had known that she was married.

21.  The applicant stated that, after the relationship developed, Mrs. G
introduced him to her mother and her daughter as well as co-workers and
friends in Hilton Head, South Carolina.

22.  The applicant stated that Mrs. G told him that she was married but was
getting a divorce and that she wanted to marry him.  He further stated that
he enclosed an email from Mrs. G that stated that she "will be the best
wife."

23.  The applicant contends in his statement that when he found out that
Mrs. G was married, he told her that he could not see her until she was
divorced.  He continued that, after about a year with no finalized divorce,
he decided to break off the relationship.  He also stated that his
relationship to Mrs. G was confusing to his two daughters ages 6 and 10 and
that he thought that Mrs. G was going to be a stepmother to his daughters
and planned accordingly.

24.  The applicant noted his reprimand asserted that he called Mrs. G 15-20
times an hour at her work place and home.  The applicant argued that these
statements are untrue.  The applicant further argued that he provided
copies of instant message traffic between himself and Mrs. G's sister-in-
law which shows that he did not harass her in any way as alleged by the
other party's husband [hereafter referred to as Mr. G].  The applicant
stated that the 15-6 investigation does not accurately depict what occurred
and admits that he should have ended the relationship after "the situation"
changed, but his expectation of marriage and a good stepmother for his
children severely clouded his judgment.

25.  The applicant contends that he was the first to raise the situation to
his chain of command and that he did this after Mrs. G contacted the FBI
and erroneously told them that he was threatening her life and the life of
her daughter.  He contends that he did not try to hide or evade the issue
and that, because Mrs. G lied, the FBI never contacted the Army.

26.  The applicant contends that Mrs. G intended to ruin his military
career and that a sworn statement provided by the applicant's immediate
supervisor showed that Mrs. G "seemed to be enjoying the situation."  The
applicant claims that Mrs. G harassed him by "phone hang up calls" in the
middle of the night and by repeatedly calling his chain of command.

27.  The applicant stated that Mrs. G's mother harassed his step-father by
twice calling him stating that her daughter was on suicide watch.

28.  The applicant claimed that his contact with Mrs. G's family was not
designed to "tout" his affair as the GOMOR stated but was a misguided
effort to let the people around Mrs. G know that she was lying about her
role in the situation.

29.  The applicant admits that he used bad judgment when he sent
correspondence from his military email account to his home email account
and when he sent emails from his home email account to members of Mrs. G's
family.
However, he claims that he did not send anything from his military computer
to a computer other than his home computer and that none of the individuals
involved ever received an email that could be identified as coming from a
government computer or a government email account.

30.  The applicant continued that he did not intend to harass anyone, just
inform them of what Mrs. G did to my daughters, her family and me.  He
further contends that the "Priceless" email was never sent to anyone, in
any form and that he created it and sent it from home to office as he
attempted to work through his feelings of betrayal.

31.  The applicant stated that he looked upon this incident as a "lesson
learned" on trust and judgment and that he should have known better than to
trust and believe Mrs. G when she told him that she wanted to marry him.
He continued that he trusted someone and thought they were someone that
they were not and that he exercised poor judgment.

32.  The applicant concluded his statement by stating that he feels that
his character and fitness as a Christian officer did not dishonor the
United States Army, that he has worn his uniform for over 16 years, and
that he hopes and prays that this isolated incident does not hinder his
future promotion and service to this great nation.  He further concluded
that he requested reconsideration of placement of the GOMOR in his local
military personnel file.

33.  On 10 June 2002, the Commanding General of the 85th Division (Training
Support) recommended to the Commander First Army that the GOMOR issued to
the applicant on "5 June 2002" be filed in the applicant's local military
personnel file.  The Commanding General of the 85th Division (Training
Support) stated that the applicant's performance and professionalism have
been impeccable.  He further stated that the applicant's bad judgment in
this incident should not diminish his future promotion and potential career
in the military.  He continues that the applicant deserves the reprimand,
but this isolated incident does not warrant being filed in his official
military personnel file (OMPF).

34.  The Commanding General of the 85th Division (Training Support)
concluded that based on the applicant's 16 years of outstanding service,
the applicant has "much more to offer the field grade level ranks", that he
has personally counseled the applicant, and that the applicant understands
the bad judgment and mistakes that he has made.

35.  The Commanding General of the 85th Division (Training Support) stated
that without reservation, "this is a closed lesson learned case and that
the GOMOR letter of reprimand should be placed in his local military
personnel file."

36.  On 21 June 2002, the Commanding General First Army directed that the
memorandum of reprimand for the applicant be filed in the performance
portion of the applicant's OMPF.  He further directed that the memorandum
be placed in his local unit file as long as it remained in the performance
section of the applicant's OMPF.

37.  In a 7 June 2002 memorandum, the Division Training Officer of the
Headquarters 85th Division (Exercise) recommended that the applicant be
allowed to remain in good standing on the FY 2001 Army Competitive Category
Majors Promotion List.

38.  In a 28 June 2002 memorandum, the Commanding General of the 85th
Division (Training Support) recommended to the President of Promotion
Review Boards that the applicant be allowed to remain in good standing on
the Fiscal Year (FY) 2001 Army Competitive Category Majors Promotion List.

39.  In a 28 June 2002 memorandum, the Chief of Staff of the 85th Division
(Exercise) recommended to the President of Promotion Review Boards that the
applicant be allowed to remain in good standing on the FY 2001 Army
Competitive Category Majors Promotion List.

40.  In a 28 June 2002 memorandum, the Commander of the Headquarters and
Headquarters Detachment of the 85th Division (Training Support) recommended
to the President of Promotion Review Boards that the applicant be allowed
to remain in good standing on the FY 2001 Army Competitive Category Majors
Promotion List.

41.  In a 28 June 2002 memorandum, the Deputy G-3 of the 85th Division
(Exercise) recommended to the President of Promotion Review Boards that the
applicant be allowed to remain in good standing on the FY 2001 Army
Competitive Category Majors Promotion List.

42.  In a 1 July 2002 memorandum, the G-3 Plans Officer of the 85th
Division (Exercise) recommended to the President of Promotion Review Boards
that the applicant be allowed to remain in good standing on the FY 2001
Army Competitive Category Majors Promotion List.

43.  In an undated memorandum, a lieutenant colonel from the North American
Defense Command recommended to the President of Promotion Review Boards
that the applicant be allowed to remain in good standing on the FY 2001
Army Competitive Category Majors Promotion List.

44.  On 28 June 2002, the G-3 Administrative Sergeant of the 85th Division
(Training Support) recommended to the President of Promotion Review Boards
that the applicant be allowed to remain in good standing on the FY 2001
Army Competitive Category Majors Promotion List.

45.  Records show that the on 30 May 2002, the acting commander of the 85th
Division (Training Support) initiated a suspension of favorable personnel
actions (flag) to the applicant's records based on the applicant's removal
from the selection list.
46.  Records show that on 13 February 2003, the applicant applied to the
DASEB wherein he requested removal of the GOMOR from his OMPF.

47.  The DASEB case summary identifies the applicant's request as a first
appeal of a GOMOR wherein he requested removal of the GOMOR from his OMPF
or, in the alternative, transfer of the GOMOR from the performance portion
to the restricted portion of his OMPF.

48.  In a case summary dated 21 June 2002, the DASEB considered the
applicant's request for removal of the GOMOR from his OMPF.

49.  The DASEB case summary stated that the paragraph 7-2 of Army
Regulation 600-37 (Unfavorable Information) allows for a properly filed
document in the OMPF to be removed upon providing evidence of a clear and
convincing nature that the document is untrue or unjust in whole or in
part, thereby warranting its alteration or removal from the OMPF.

50.  The DASEB determined that the applicant failed to provide evidence
that the GOMOR was either unjust or incorrect.

51.  The DASEB considered the applicant's request for transferring the
GOMOR from the performance portion of his OMPF to the restricted portion of
his OMPF.

52.  The DASEB case summary stated that paragraph 7-2 of Army Regulation
600-37 allows for derogatory documents to be transferred to the restricted
portion of the OMPF on the basis of proof that the filing in the
performance portion of the OMPF has served its intended purpose and that it
would be in the best interest of the Army to transfer the document to the
restricted portion of the OMPF.

53.  In conclusion, the DASEB determined that:

      a.  the applicant failed to indicate remorse for the misconduct in
his appeal;

      b.  the applicant failed to provide any letters of support for this
appeal from the issuing chain of command or his current chain of command;

      c.  the contentions that the applicant raised were previously
considered by the Issuing Officer prior to his decision to issue the GOMOR
and file it on his OMPF; and

      d.  the incident occurred less than 3 years ago which was
insufficient time to prove that the incident was a single lapse in
character and judgment.
54.  By letter dated 1 May 2003, the applicant was notified in writing that
the DASEB denied his request to remove the GOMOR from his OMPF and to have
the GOMOR transferred to the restricted portion of his OMPF.

55.  Paragraph 7-2a of Army Regulation 600-37 (Unfavorable Information)
provides that once an official document has been properly filed in the
OMPF, it is presumed to be administratively correct and to have been filed
pursuant to an objective decision by competent authority. Thereafter, the
burden of proof rests with the individual concerned to provide evidence of
a clear and convincing nature that the document is untrue or unjust, in
whole or in part, thereby warranting its alteration or removal from the
OMPF.  Appeals that merely allege an injustice or error without supporting
evidence are not acceptable and will not be considered.

56.  Paragraph 7-2b of Army Regulation 600-37 provides that only letters of
reprimand, admonition, or censure may be the subject of an appeal for
transfer to the restricted fiche.  In addition such documents may be
appealed on the basis of proof that their intended purpose has been served
and that their transfer would be in the best interest of the Army. The
burden of proof rests with the recipient to provide substantial evidence
that these conditions have been met.  This regulation further provides that
in the cases where the appeal is denied, a copy of the letter of
notification regarding this outcome will be placed in the commendatory and
disciplinary portion of the performance record. The appeal will be placed
in the restricted portion of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested removal of the GOMOR, dated 30 May 2002.

2.  The applicant contends that the GOMOR was a one-sided version of the
facts and that there are inaccurate, false and misleading statements
contained in the GOMOR that are not true and were never proven or
justified.

3.  Evidence of record shows that the results of a 15-6 investigation found
that the applicant violated Article 92 (Failure to obey order or
regulation, Article 133 (Conduct unbecoming an officer and a gentleman),
and Article 134 (Adultery) of the UCMJ.

4.  The 15-6 investigation recommended that based on the results of the
investigation that the applicant be issued a GOMOR.

5.  There is no evidence and the applicant has failed to provide evidence
which shows that the GOMOR was based on inaccurate, false, or misleading
statements.

6.  The applicant contends the officer that directed the filing of the
GOMOR intended it to be placed in his local file.

7.   Evidence of record shows that the general officer who issued the GOMOR
clearly stated that applicant's GOMOR should be filed in the performance
portion of the applicant's OMPF.

8.  Evidence of record shows that the issuing authority further directed
that the memorandum of reprimand be placed in his local unit file as long
as it remained in the performance section of the applicant's OMPF.

9.  There is no evidence and the applicant has failed to provide evidence
that shows that the issuing authority directed that the GOMOR be filed only
in the applicant's local personnel file.  Therefore, the applicant's
contention is contrary to the GOMOR issuing authority's filing
instructions.

10.  In the absence of evidence to the contrary, there is no basis to
remove the GOMOR from the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE___  __ECP___  __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.





                    Fred N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105845                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/06/15                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |