RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 JANUARY 2006
      DOCKET NUMBER:  AR20050005913


      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             |
|     |Ms. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Rodney Barber                 |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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 his general officer memorandum of reprimand
(GOMOR) be removed.

2.  The applicant states that he was exonerated at an Article 32 hearing.

3.  The applicant provides a copy of his GOMOR, the Article 32
investigation, his rebuttal to the letter of reprimand, Department of the
Army Special Enlisted Board (DASEB), and a Transportation Motor Pool (TMP)
Management Survey.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he originally enlisted in
the Army Reserve for 3 years on 7 July 1982.  Since his enlistment in 1982,
he has served in the active Army, as well as the Active Guard Reserve
(AGR).

2.  The applicant provided a TMP survey of Fort Hunter Liggett (FHL), dated
     15 July 1997.  This document verified that the TMP underwent a survey
from    11-13 February 1997.  The applicant circled excerpts from the
results of the survey that he felt was relevant to his case.  “Vehicles
assigned to LEA do not have the proper General Service Administration (GSA)
identification stickers indicating the vehicle is a government vehicle; for
official use only”; “During our visit of the installation, vehicles were
observed at the PX, commissary and the post snack bar.  This is considered
personal use”; and “LEA vehicles do not have the ‘OFFICIAL USE ONLY’
identification sticker (furnished by GSA) in the rear window of their
vehicles.  This is a required marking by regulation.”

3.  On 3 March 1999, an Article 32 investigation was conducted to ascertain
if the charges preferred against the applicant warranted a court-martial.
The investigation made reference to two series of charges.  The first
series revolved around the applicant’s alleged harassment of a female
dependent and the second series consisted of his misappropriation of a
government vehicle.  The Article 32 investigation officer recommended that
the government not pursue a court martial.

4.  The investigating officer verified that the relationship between the
applicant and the dependent was non-sexual.  He relayed testimony from the
dependent and stated that there were several times when the honesty and
accuracy of the dependent was in question.  The investigating officer said
the significance of the events that took place on the evening of 3 July
1997 was questionable and because of mitigating and extenuating
circumstances did not warrant court-martial offenses.

5.  In reference to the applicant’s misappropriation of a government
vehicle, the investigating officer said that because of the mission of FHL,
all the on-post military used government vehicles on a regular basis.
According to the testimony of the TMP Dispatcher, misappropriation of
government vehicle offenses involving PX runs, trips to the commissary, and
other inappropriate uses, occurred daily.

6.  On 15 March 1999, the court-martial charges against the applicant were
dismissed.

7.  On 13 April 1999, the applicant received a memorandum of reprimand.
The memo makes reference to the applicant’s development of a strong
friendship with a female dependent beginning in August 1997, that later
deteriorated.  According to the imposing authority, the applicant’s conduct
towards the dependent became increasingly inappropriate.  The applicant
harassed her, called her names, uttered obscenities towards her in public,
and periodically followed her around.

8.  The imposing authority also stated that the applicant attempted to make
uninvited visits to the dependent while she was attending college.  On at
least some of the applicant’s visits to the dependent, he improperly used
his government vehicle.  The harassment of the dependent culminated on
          3 July 1998, when the dependent refused to speak to the
applicant.  The applicant became verbally abusive and left; only to return
later that night.  He banged on the door and continued the verbal abuse by
yelling obscenities outside the home.

9.  For the applicant’s misconduct he was reprimanded.  The imposing
authority stated that the applicant’s conduct was thoroughly unacceptable
and demonstrated a complete lack of good judgment and maturity.
Additionally, the applicant’s use of a government vehicle to visit the
dependent was unquestionably an unauthorized use of government property for
his personal interest and was a blatant violation of clear ethical
standards.  The reprimand was referred to the applicant for his
acknowledgement.

10.  On 16 April 1999, the applicant provided his response to the
memorandum of reprimand.  The applicant stated that the memo was based upon
false allegations that were dismissed by the court-martial imposing
authority.  He continued by reiterating the information contained in the
Article 32 investigation. The applicant stated that he vehemently denied
harassing the dependent in the manner alleged.  He also denied using a
government vehicle to visit the dependent at college.  He argues that the
investigation documented the misuse of government vehicles as a problem at
FHL, that he is being singled out, and no other Soldiers were charged with
misuse of government property.  The applicant stated that the evidence does
not support that he is guilty of the alleged crimes listed in the
memorandum of reprimand.

11.  On 21 April 1999, the imposing authority of the memorandum of
reprimand forwarded his recommendation to have the reprimand filed in the
applicant’s official military personnel file (OMPF).  The author stated
that the applicant alludes to a GSA Report documenting misuse of government
vehicles which were condoned and practiced by the highest levels of
leadership at FHL.  He stated that to the best of his knowledge, no such
report exists.  The imposing authority stated that his policy is that he
only allows GSA vehicles to be used for official use only.  He maintains
that the applicant’s behavior is documented by the FHL Federal Police and
by the TMP on his use of vehicles.

12.  On 9 May 1999, the commanding general stated that he had considered
the circumstances surrounding the applicant’s reprimand and the
recommendation of the chain of command and directed that the memo to be
filed in the applicant’s OMPF.

13.  The applicant appealed his case through DASEB and that board denied
his request to remove his GOMOR from his official military personnel file
(OMPF). The DASEB cited that the applicant had failed to provide evidence
of a clear and convincing nature that proved that the GOMOR was untrue or
unjust in whole or part.  However, the Board elected to transfer the GOMOR
from the applicant’s OMPF to his restricted fiche on the basis of “intent
served.”

14.  Army Regulation 27-10 (Military Justice) provides policy for the
administration of military justice.  Chapter 3 provides that nonjudicial
punishment (NJP) is appropriate in all cases involving minor offenses in
which punitive measures are considered inadequate or inappropriate.  It is
a tool available to commanders to correct, educate and reform offenders
whom the commander determines cannot benefit from less stringent measures;
to preserve a member's record of service from unnecessary stigma by record
of court-martial conviction; and to further military efficiency by
disposing of minor offenses in a manner requiring fewer resources than
trial by court-martial.  It also provided that the officer imposing NJP
determines whether the report of NJP (letter of reprimand) is to be filed
on the individual's restricted or performance fiche.


15.  Army Regulation 600-37 (unfavorable information) provides in pertinent
part, that administrative letters of reprimand may be issued by an
individual's commander, by superiors in the chain of command, and by any
general officer or officer exercising general court-martial jurisdiction
over the soldier.  The letter must be referred to the recipient. 
Statements or other evidence furnished by the recipient must be reviewed
and considered before filing determination is made.  Letters of reprimand
may be filed in a soldier's OMPF only upon the order of a general officer
level authority and are to be filed on the performance fiche.  The
direction for filing is to be contained in an endorsement or addendum to
the letter. 

16.  Paragraph 7-2, of the same regulation, establishes the policies and
procedures for the removal of documents from an individual OMPF.  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.

17.  Army Regulation 600-8-104 (Military Personnel Information
Management/Records) also states that the restricted portion of the OMPF is
for historical data that may normally be improper for viewing by selection
boards or career managers.  The release of information on this fiche is
controlled.  Documents on this fiche are those that must be permanently
kept to maintain an unbroken, historical record of a member's service,
conduct, duty performance, and evaluation periods and are intended to
protect the interest of the Soldier and the Army.  Once placed in the OMPF,
the document becomes a permanent part of that file.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues the fact that the Article 32 investigating officer
recommended that the government not pursue a court-martial and the charges
preferred against him were subsequently dismissed indicates that he was
exonerated of the offenses of “misconduct and inappropriate use of a
government vehicle.”




2.  Nowhere in the Article 32 investigation does the investigating officer
state that the applicant is innocent of misconduct as stated in the GOMOR.
The investigating officer merely stated that there were several times when
the honesty and accuracy of the dependent’s testimony was questionable.
Based upon the facts of the case, he could not recommend a court-martial.

3.  In reference to the applicant’s misuse of a government vehicle, the
investigating officer offered that testimony from the TMP Dispatcher
verified that misappropriation of government vehicle offenses involving PX
runs, trips to the commissary, and other inappropriate uses occurred daily.
 The investigating officer statement does not exonerate the applicant of
the offense.

4.  Additionally, the applicant provided a copy of a survey that was
conducted in July 1997, to prove that there was a problem with the
inappropriate use of government vehicles in at FHL.  However, the reprimand
imposing authority stated that he had no knowledge of the existence of a
report and that his policy was to allow GSA vehicles to be used for
official use only.  He said the applicant’s behavior is documented by the
FHL Federal Police and by the TMP on his use of vehicles.

5.  The Board acknowledges there may have been a problem with the
misappropriation of government vehicles as documented in the July 1997
survey and verified by the TMP Dispatcher.  Nevertheless, this does not
excuse the applicant’s misuse of the vehicle by visiting the dependent at
college.  Furthermore, he has not provided any evidence to prove that he
did not misuse the government vehicle as stated in the GOMOR.

6.  The evidence shows that the reprimand was administered in accordance
with applicable regulations and was not disproportionate to the offense.
The applicant was afforded the opportunity to submit his rebuttal to the
reprimand, including the Article 32 investigation which spelled out the
facts in the case.  The general officer, after reviewing the applicant’s
rebuttal and the Article 32 investigation, deemed it appropriate to file
the letter in the applicant’s OMPF, which was within his realm of
authority.  The applicant has not shown that the general officer’s decision
was in error or unjust or that with any more information he would have made
a different decision.

7.  Additionally, the DASEB reviewed the applicant’s request for removal
and elected to transfer the GOMOR instead.  This Board agrees with their
decision.  In order to justify correction of a military record the
applicant must show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit evidence
that would satisfy that requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LS____  ___RB __  __RN ___  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.





                                  _____ Linda Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005913                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060112                                |
|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.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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