RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                            20 OCTOBER 2005
      DOCKET NUMBER:                    AR20050009379


      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. Ronald DeNoia                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Jeanette McCants              |     |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), dated 5 November 2002, be removed from his Official Military
Personnel File (OMPF).

2.  The applicant’s contentions, arguments and evidence are presented by
his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that a GOMOR be removed from the
applicant’s OMPF, or in the alternative that it be transferred to the
restricted portion (R-Fiche) of the applicant’s OMPF.

2.  Counsel states that the applicant is an outstanding officer, who
throughout his career has never received anything but outstanding Officer
Evaluation Reports (OERs).  Counsel further presents the applicant’s
version of the facts and circumstances surrounding what is described as an
innocent vacation trip with a fellow officer (friend), with whom he had a
platonic and non-physical relationship.

3.  Counsel states that a friend of the applicant, a female officer,
informed the applicant that her sister could not go on the trip they had
planned together and no other family or friends were available to take her
place.  She was distraught about losing her deposit and asked the applicant
if he would be interested in a vacation.  She did not inform the applicant
of the destination, as this was an old family tradition of the female
officer. The applicant accepted the offer and not knowing where the
vacation would take him, put his brother's address and phone number on the
leave form as the best way to contact him.

4.  Counsel further explains that the applicant and the female officer both
agreed that he would pay his share of the vacation.  When they arrived in
the Caribbean the applicant inquired about accommodations and requested his
own room, only to find out that the cost was exorbitant.  After trying to
utilize a chaise lounge and finding that the room would not accommodate it,
they agreed to share the room using a head to toe sleeping arrangement.

5.  Counsel continues that the applicant states that while in the process
of updating his security clearance, he notified the CID of the trip he had
been on with the applicant.  Unknown to him, the CID passed the information
to his chain of command.  In response to this information the unit
conducted an informal 15-6 investigation.  The investigation found no
foundation to support the allegations against him and the female officer.
However, the investigation still resulted in a GOMOR for both officers in
November 2002.

6.  Counsel contends the Board should uphold a modern view of how
professional men and women interact and that the GOMOR was based on an
outdated view of dealings between officers.  Counsel states that plainly
speaking; the GOMOR is premised upon an old-fashioned concept that a man
and a woman cannot be friends without sexual activity.

7.  Counsel states that both the applicant and female officer forthrightly
responded with no dissembling when asked about the vacation.  The applicant
had nothing to hide and his candor and full responses speak volumes for
him.  Further, he claims the bottom-line is that these two officers
responded with honor, refusing to quibble when questioned.  He further
states that no violation of Article 133 of the Uniform Code of Military
Justice (UCMJ) occurred, and the UCMJ makes clear when a relationship
involves inappropriate conduct.  Even adultery, which is not present in
this case, must prejudice good order and discipline before the Army acts.

8.  Counsel also claims that any possible prejudice to a disciplined
military force in this case came from authorities churning up this matter,
not as a result of the actions of the two officers involved.

9.  Counsel further contends the Army sanctioned this friendship under the
“Buddy System.”  Counsel states if the decision to travel together was not
prudent, the Army itself must share some responsibility.  He states when
deployed in Hungary, Bosnia, Croatia, Afghanistan and Iraq, officers,
noncommissioned officers and enlisted soldiers (even those of different
sexes) utilized a measured system of responsibility by always traveling
with a partner.  The chain of command had full knowledge and sanctioned
official and unofficial travel of the applicant and the female officer and
the two officers always regarded each other as respected peers and not
objects of desire.

10.  Counsel states that despite the applicant’s impressive accomplishments
and selfless service, his realistic chances for promotion have been wiped
out by what is at the very worst, a single error in judgment.  He states
the proper remedy in this case is to remove the GOMOR from the OMPF as
requested by the applicant.  However, in the alternative, he requests the
GOMOR be filed in the  R-Fiche of his OMPF.  Counsel further states that
careers should not be ended over such matters.  This is particularly so
when there’s absolutely no damage to Army discipline and the applicant’s
record is so highly exemplary.

11.  Counsel concludes by stating that the female officer applied to this
board and was granted relief based on the evidence she presented.  The
board found there was no evidence to support a sexual relationship and
voted to move the GOMOR to the applicants R-fiche.  Counsel asks for the
same redress concerning his client.

CONSIDERATION OF EVIDENCE:

1.  The applicant was promoted to his current rank, lieutenant colonel
(LTC), on 1 February 2001.  During his 26 year career he has served in
Germany, Ecuador and Hungary-Croatia.  Among his accomplishments he lists
the fact that he rose from the lowest rank, private E1 to his present rank
and he is currently assigned as commander to over 250 Soldiers and
civilians.  The applicant states he has been officially recognized for
meritorious service in Hungary and received the third highest military
award from the Ecuadorian government for his service in Ecuador.  He has
also served, simultaneously, as the Senior Operations Officer for the 10th
Mountain Division and as the Fort Drum Director of Plans and Operations in
support of the initial deployments to Afghanistan.

2.  The applicant’s OER history as a LTC includes five reports.  In four of
these OERs he received “center of mass” senior rater evaluations.  On one
report he received an “above center of mass” senior rater evaluation.  All
the reports contain 1st Block (Outstanding Performance Must Promote)
evaluations from the rater and are supported by glowing rater comments
regarding his performance and potential.  All the reports in question
contain 1st Block (Promotion Potential) evaluations from the senior rater
and are supported by similar glowing senior rater comments.

3.  On 5 November 2002, the applicant received a GOMOR for committing acts
unbecoming an officer by traveling and sleeping in the same bed with a
female officer.  The reprimand indicated the applicant failed to maintain a
professional relationship and he engaged in conduct that created the
appearance of an improper relationship.

4.  On 19 December 2002, after reviewing the case file, the GOMOR, the
rebuttal matters submitted by the applicant and the filing recommendation
of the applicant’s chain of command, the GOMOR issuing general officer
directed the applicant’s GOMOR be filed in his OMPF.

5.  The applicant provides a sworn statement from the female officer
involved.  She states that her relationship with the applicant was a
platonic friendship.  She emphatically denied a romantic/sexual
relationship with the applicant.
6.  Records show that the female officer was administered a polygraph
examination on 4 August 2003.  The summation of this report shows that
there was no deception on the part of the female officer.  The results
supported a conclusion that the female officer was being truthful when she
stated she had no sexual relations with the applicant.

7.  Records also show that the female officer submitted third party
statements from her two sisters and a friend in support of her application
to the board.  These statements corroborate the testimony of the female
officer and the applicant concerning the sequence of events which led up to
the vacation.

8.  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, to ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files, and to 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.

9.  Chapter 7 of the unfavorable information regulation provides guidance
on appeals and petitions for the removal of unfavorable information from
official personnel files.  It further assigns responsibility to the DASEB
to act on appeals and petitions for removal or transfer of unfavorable
information.

10.  Paragraph 7-2 of the same regulation contains guidance on appeals for
removal of OMPF entries.  It states 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.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant’s failure to exhaust administrative
remedies through application to the DASEB, and given the nature of the
arguments presented by counsel and the harm the applicant could suffer by
extending the period of time it would take to resolve this issue, the Board
elected to review the merits of the case.


2.  The applicant’s request and the supporting counsel brief and
documentary evidence provided were carefully considered.  However, by
regulation, in order to support removal of a document properly filed in the
OMPF there must be clear and convincing evidence presented that shows that
the document is untrue or unjust, in whole or in part, thereby warranting
its alteration or removal from the OMPF.

3.  Although there is no evidence confirming a sexual relationship between
the applicant and the female officer, vacationing together and sleeping in
the same bed clearly created a perception of an improper relationship,
which was the basis for the GOMOR.

4.  Further, the evidence of record confirms the GOMOR was issued and filed
in the OMPF in accordance with the applicable regulation.  All requirements
of law and regulation were met and the rights of the applicant were fully
protected throughout the GOMOR process.  Therefore, the regulatory burden
of proof necessary to support removal of the GOMOR from the OMPF has not
been satisfied in this case.

5.  It is evident that this incident was the result of a mistake in
judgment that is not likely to be repeated.  Therefore, based on the
applicant’s dedicated service and potential to serve the Army at higher
levels and given the GOMOR has served its purpose, it would be appropriate
and serve the interest of equity to transfer the GOMOR to the R-Fiche of
the applicant’s OMPF at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JM __  ____JG  _  ___JM __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

1.  Contrary to the discussion and conclusions above the Board determined
that the individual concerned knew that the DA Form 31 he submitted
contained false information concerning his leave address.  As a result, the
majority of the Board determined that the GOMOR should not be transferred
to the restricted portion (R-Fiche) of his Official Military Personnel
File.

2.  Furthermore, the Board unanimously determined that the evidence
presented is insufficient to warrant removal of the General Officer
Memorandum of Reprimand from his Official Military Personnel File.




                                  _____John Meixell__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |N/A AD (AC) Soldier                     |
|DATE OF DISCHARGE       |N/A AD (AC) Soldier                     |
|DISCHARGE AUTHORITY     |N/A AD (AC) Soldier                     |
|DISCHARGE REASON        |N/A AD (AC) Soldier                     |
|BOARD DECISION          |(GRANT-PARTIAL)                         |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |GOMOR to R-Fiche                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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