RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060001276


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 removal of General Officer Memorandum of Record
(GOMOR) from his official military personnel file (OMPF) and
reconsideration by a Special Selection Board (SSB) for promotion
consideration to chief warrant officer three under the 2004 and 2005
criteria.  The applicant further requests extension of his 1 March 2006
involuntary separation.

2.  The applicant states that he has done everything possible to remedy his
situation which has plagued his career for over six years.  He continues
that every board that he has appealed to for removal of the GOMOR and
promotion reconsideration refused to look at the facts and that their
decisions have been based on their opinions and regulatory guidance which
caused them to ignore the facts.

3.  The applicant contends that he was given a GOMOR for the same charges
that were dismissed prior to court-martial proceedings.  The applicant
argues that he was given immunity and ordered to testify against a co-
defendant in the same case.

4.  The applicant states that all charges were dismissed because the
Government's prosecutors determined that the accusers were liars.

5.  The applicant argues that his entire chain of command recommended that
the GOMOR be filed locally and destroyed upon his PCS because of the
untruthfulness of the accusers.

6.  The applicant continues that, on 20 May 2003, a Board of Inquiry (BOI)
was convened and determined by the preponderance of evidence that he was
innocent of all of the allegations within the GOMOR and that he should be
retained.  The applicant contends that the General Court-Martial Convening
Authority agreed with the findings of the Board of Inquiry.

7.  The applicant continues that prior to consideration by the chief
warrant officer three promotion board, he requested the Department of the
Army Suitability Evaluation Board (DASEB) remove the GOMOR from his OMPF.

8.  The applicant contends that the DASEB denied his request for removal of
the GOMOR and that prior to his second consideration by the chief warrant
officer three promotion board he requested that the DASEB reconsider his
request.

9.  The applicant argues that his second request to the DASEB was
mishandled which resulted in his second nonselection for promotion to the
grade of chief warrant officer three.

10.  The applicant further argues that, on 5 January 2005, he requested a
SSB based on the mishandling of his DASEB request and that his SSB request
was denied.

11.  The applicant provides a copy of the dismissal of the court-martial
charges, recommendation for filing of the GOMOR, GOMOR rebuttal letter,
GOMOR removal request with two responses, involuntary separation notice,
Board of Inquiry findings, and a copy of an email in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  On 11 May 2001, the major general in command of the Headquarters, US
Army Infantry Center, Fort Benning, Georgia, imposed a reprimand for
unlawful fraternization with, and indecent assault against, two female
enlisted Air Force personnel on 29-30 October 1999, during Operation Bright
Star, in Cairo Egypt.

2.  The major general stated in his reprimand that the applicant was a
married man and that he accompanied two female enlisted Air Force personnel
to a Halloween party at the American Embassy.  The major general continued
that the applicant gave the Air Force personnel alcohol even though he knew
that they were underage and that he continued to fraternize with the
enlisted personnel by checking into a hotel with them.

3.  The major general stated that the applicant continued to provide the
enlisted females with alcohol in an effort to lower their defenses to his
sexual advances.  The major general then describes the sexual activity and
comments by the applicant.

4.  The major general stated that as a married Soldier and a warrant
officer, the applicant's behavior violated the Army's policy against
fraternization, and paired with the applicant's indecent assault against
both enlisted female personnel, he demonstrated a complete lack of moral
and ethical standards.  The major general continued that the applicant's
conduct reflects an egregious lack of judgment and raises serious questions
as to whether his continued service in the US Army was warranted.



5.  The major general directed that the reprimand be filed in the
applicant's OMPF.

6.  On 22 July 2003, a BOI was convened to determine if the applicant
should be retained on active duty or eliminated from the Army.

7.  The BOI found by a preponderance of the evidence that the applicant did
not participate in acts of misconduct and moral or professional dereliction
by unlawful  fraternization with two female enlisted Air Force personnel or
indecent assault against the two female enlisted personnel.  The BOI
determined that applicant should be retained in the US Army.

8.  On 20 February 2004, the applicant requested that the DASEB expunge the
letter of reprimand and all related documents from his OMPF.  The applicant
stated that the letter of reprimand that he received had been proven to be
untrue and that recommendation by his chain of command to file the letter
locally was grossly ignored.

9.  The applicant states that the false accusations that generated the
letter of reprimand occurred on 29 October 1999 and that since that day he
has been treated as though he was guilty.  The applicant argues that he had
continued to produce high quality results in every mission given, while
proving his innocence and fighting for his career.  The applicant requests
that the letter of reprimand be removed retroactive to a date prior to the
convening date of the promotion board on 4 May 2004.

10.  On 12 May 2004, the DASEB notified that applicant that his request for
removal of the GOMOR and related documentation was denied.  The DASEB
stated that after considering the applicant's appeal and overall record, it
was determined that it was in the best interest of the Army not to remove
the GOMOR as requested.

11.  On 31 March 2005, the applicant requested that the DASEB transfer the
GOMOR and related documentation to the Restricted portion of his OMPF.  At
that time he knew or should have known he was being considered by a second
board for promotion to the grade of chief warrant officer three on 19 May
2005.  This allowed the DASEB only 49 days to consider the applicant's
request and render a decision.



12.  On 19 September 2005, the applicant was notified by the US Army Human
Resources Command that he was to be released on 1 March 2006 from military
service based on the fact that he was twice not selected for promotion to
the next higher grade.

13.  On 1 December 2005, the DASEB notified the applicant that his petition
for transfer of the GOMOR to the Restricted portion of his OMPF was
approved.  The DASEB also notified the applicant that the transfer of the
GOMOR was not retroactive and did not constitute grounds for referral to a
Special Selection Board for a previous nonselection.

14.  On 5 January 2006, the applicant applied to the US Army Human
Resources Command for reconsideration for promotion to the grade of chief
warrant officer three based on the fact that the GOMOR was moved to the
restricted portion of his OMPF.  The applicant further argues that his
request for transfer of the GOMOR was misdirected and that this delay took
almost seven months to correct.

15.  On 20 January 2006, the applicant was notified by the US Army Human
Resources Command that his request for promotion reconsideration could not
be approved.  The applicant was advised that the movement of the GOMOR to
the restricted portion of the OMPF was not retroactive and did not
constitute grounds for consideration by a Special Selection Board.  The
applicant was further advised that the US Human Resources Command did not
have the authority to overturn the decision of the DASEB.

16.  Army Regulation 600-8-29 (Officer Promotions), currently in effect,
prescribes the policies and procedures for promotion of officers on active
duty.  Paragraph 7-11 specifies that officers who discover a material error
existed in their file at the time they were nonselected for promotion may
request reconsideration by a special selection board.  The regulation also
states requests for reconsideration will be forwarded to the Commander of
the Total Army Personnel Command (PERSCOM) and reconsideration will
normally not be granted when the error is minor or when the officer, by
exercising reasonable care, could have detected and corrected the error.
Further, officers being reconsidered are not afforded the opportunity to
correspond with the special selection board and their file will be
reconstructed as it should have appeared on the convening date of the
promotion board that failed to select the officer for promotion.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the GOMOR should be removed from his OMPF
because a BOI found by a preponderance of the evidence that he did not
commit the acts of misconduct cited in the GOMOR.  The applicant further
contends that his records should be considered by a SSB for promotion
consideration to chief warrant officer three under the 2004 and 2005
criteria.

2.  Although the BOI determined that the applicant should be retained in
the US Army and determined that he did not commit the acts of misconduct
that he was reprimanded for, the findings of the BOI did not upset the
decision of the applicant's commander to issue a GOMOR or place it on his
OMPF.  Additionally, the BOI had no jurisdiction over the issuance or
filing of the GOMOR.

3.  The applicant requested that the DASEB remove the GOMOR based on the
BOI results.  The DASEB denied the applicant's request to remove the GOMOR
and cited that the BOI's decision was subjective.  The applicant
subsequently requested that the DASEB move the GOMOR to the restricted
portion of his OMPF.

4.  It appears that the DASEB may not have acted in a timely manner in
processing the applicant's 31 March 2005 request to remove the GOMOR from
the OMPF.  However, this delay did not prejudice the applicant.  The
applicant allowed the DASEB only 49 days to process his application in time
for his 19 May 2005 promotion board.  By comparison, his original request
to the DASEB took almost 3 months to process, a fact also known to the
applicant.  Under these circumstances, the applicant's 31 March 2005
request was not timely if its intended purpose was to clear his record
prior to consideration by the promotion board.  Therefore, there is no
basis to grant the applicant's request for consideration by a SSB based on
the delay by the DASEB in processing his request for removal of the GOMOR.

5.  There is no evidence in the available record and the applicant has not
provided sufficient evidence showing that the GOMOR issued was in error or
was unjust.  Therefore, there is no basis to grant the applicant's request
for removal of the GOMOR from his OMPF.

6.  Additionally, the movement of the GOMOR is not a sufficient basis to
warrant consideration by a SSB in this case.  As a result, there is no
basis to extend the applicant's 1 March 2006 involuntary separation based
on his being twice
nonselected for promotion to chief warrant officer three.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JTM____  _LDS___  _JLP____  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 D. Simmons_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001276                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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