RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20060008362 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 the General Officer Memorandum of Reprimand (GOMOR) in his Official Military Personnel File (OMPF), dated 14 February 2001, be permanently removed.  

2.  The applicant states, in effect, that the major general in command of the 1st Cavalry Division, Fort Hood, Texas, informed him that his relationship with a female senior officer [hereby referred to as Second Lieutenant J] was adulterous.  
3.  The applicant contends that his rights were violated because the investigation did not comply with the provisions under Article 31 (Compulsory Self-Incrimination prohibited) of the Uniform Code of Military Justice and because there was insufficient corroborating evidence.  

4.  The applicant further contends that under Article 31a of the Uniform Code of Military Justice (UCMJ), no person subject to this chapter may compel any person to incriminate himself without receiving their rights under the Fifth Amendment to the Constitution.  

5.  The applicant provides copies of two continuation pages of further details, dated 4 June 2006; two DA Forms 3881 (Rights Warning Procedure/Waiver Certificate); four DA Forms 2823 (Sworn Statement); the General Officer Memorandum of Reprimand, dated 14 February 2001; his rebuttal of the General Officer Memorandum of Reprimand, dated 4 March 2001; the applicant's appeal to the Department of the Army Suitability Evaluation Board (DASEB), dated 4 December 2002; the Department of the Army Suitability Evaluation Board's Resolution of Unfavorable Information, dated 1 May 2003; email excerpts; excerpts from the Manual for Courts-Martial United States 2005 Edition; and a blank DA Form 3881 (Rights Warning Procedure/Waiver Certificate), in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he has 15 years, 2 months and 1 day of prior active service, and 1 year, 2 months, and 1 day of inactive military service.  The applicant's record shows he reenlisted in the Regular Army on 5 June 2003 and is currently serving in the rank of sergeant first class/pay grade E-7.  




2.  On 29 December 2000, 2LT J's husband contacted her company commander and talked about her relationship with the applicant.  On 30 December 2000, 
2LT J and her husband met with the company commander [hereby referred to as Captain B] to discuss whether 2LT J would face any charges based on her actions.  

3.  On 30 December 2000, 2LT J admitted in her sworn statement that she was involved in a personal relationship with the applicant.  The sworn statement shows that 2LT J on several occasions spoke on the telephone with the applicant, visited the applicant's home after work at least on three occasions between the months of November 2000 and mid-December 2000, and they were involved in at least three sexual encounters.  The sworn statement by 2LT J also shows that on 28 December 2000, she told her husband about her relationship with the applicant.  

4.  On 30 December 2000, the applicant stopped by CPT B's house unexpectedly.  The applicant and CPT B went to the clothing sales store on post. After leaving the store, CPT B confronted the applicant about his relationship with 2LT J.  CPT B did not advise the applicant of his rights under Article 31, UCMJ, before questioning the applicant.  The applicant admitted that he had engaged in sexual intercourse with 2LT J. 

5.  On 30 December 2000, the sworn statement submitted by CPT B shows he briefed the battalion commander, and updated the battalion XO and the command's Staff Judge Advocate.  The sworn statement shows that CPT B met with 2LT J and her husband as witnessed by a first sergeant.  The sworn statement continues that CPT B read 2LT J her rights which she waived and informed her of the charges she faced.  The sworn statement continues that 
CPT B also ordered 2LT J to cease any and all contact with the applicant and refrain from discussing the incident with anyone.  The sworn statement continues that CPT B was also informed by the 2LT J's husband that the applicant had borrowed $800.00 from her because he needed the money after recently filing bankruptcy and for Christmas presents for his sons.  

6.  On 1 January 2001, the sworn statement from CPT B shows that he received a call from the applicant inquiring about the status of his situation.  The sworn statement shows that the applicant was informed of 2LT J’s statement, the charges he faced, and asked if he wished to render a statement of acknowledgment.  The applicant elected to provide a statement in his behalf.  The sworn statement shows that CPT B verbally advised the applicant of his rights and told him to report to his office on 2 January 2001.  

7.  On 2 January 2001, the applicant admitted in a sworn statement that he did in fact fraternize with 2LT J, a member of his unit.  The sworn statement shows the applicant wrote the following statement in which he admitted he "committed adultery with 2LT J."  Prior to making the statement CPT B advised the applicant of his rights, which the applicant acknowledged and waived in writing.  CPT B did not provide the applicant a rights warning "cleansing statement" before questioning him.  The applicant's signed Rights Warning Procedure/Waiver Certificate shows he waived his rights under Article 31 of the UCMJ.  The waiver also shows that the applicant agreed to be questioned by the investigators about fraternization, adultery, and conduct unbecoming a noncommissioned officer.  

8.  On 2 January 2001, CPT B acknowledged in a sworn statement that he was contacted by 2LT J and her husband on 30 December 2000.  CPT B states that the husband informed him of his wife's affair with the applicant.  CPT B informed them both that he was obligated to notify certain parties within their chain of command and take appropriate action as necessary.  CPT B further states, in his sworn statement that the applicant stopped by his house unexpectedly on 30 December 2000, and he and the applicant went to the clothing sales store on post.  CPT B continues that after leaving the store, he confronted the applicant about his relationship with 2LT J.  CPT B continues that he did not advise the applicant of his rights under Article 31, UCMJ, before questioning him.  CPT B concludes that the applicant admitted that he had engaged in sexual intercourse with 2LT J.

9.  On 14 February 2001, the major general in command of 1st Cavalry Division, Fort Hood, Texas, issued the applicant a GOMOR for engaging in an adulterous relationship with 2LT J of the same company as he was assigned.  The GOMOR continues that the applicant, as a senior noncommissioned officer, pursued an inappropriate relationship with a married lieutenant by inviting her into his house on several occasions, and having sexual relations with her.  The GOMOR continues that the applicant obtained a loan of a substantial sum of money from 2LT J, and socialized with her on terms of social equality.

10.  The GOMOR states that any one of these actions would constitute a serious violation of accepted standards of conduct for an Army noncommissioned officer. The GOMOR continues that, the violations taken together indicate a near-total disregard for some of the most basic values of the Army, and severely compromises the applicant's ability to lead Soldiers.  The GOMOR continues that, the character and integrity of a noncommissioned officer must be beyond reproach and the applicant's actions have caused serious question as to his fitness as a leader.  
11.  The GOMOR concludes that the reprimand is administrative in nature, and is not imposed as punishment under Article 15 of the Uniform Code of Military Justice.  

12.  On 14 February 2001, the applicant acknowledged receipt of the GOMOR.   The applicant also indicated that he understood the unfavorable information presented against him and elected to submit statements in his own behalf.  

13.  On 4 March 2001, the applicant submitted a statement in which he requested that the GOMOR be kept out of his permanent file because he desired to continue his service and considered the military his career.  

14.  On 30 March 2001, the major general directed the GOMOR be filed in the performance section of the applicant's OMPF.  

15.  The applicant applied to the DASEB for removal of the GOMOR on 4 December 2002.  

16.  The applicant provided a copy of the DASEB Decision Summary which identified his request as a first appeal for removal of the GOMOR.  The DASEB Decision Summary states that the applicant provided a self-authored statement with four letters of support from his Company Commanders and copies of several noncommissioned officer evaluation records in support of his request for removal of the GOMOR.  The documents referred to above are not included in the applicant's records.

17.  Paragraph 7-2b of Army Regulation 600-37 (Unfavorable Information) allows for derogatory documents to be transferred to the restricted section on the basis of proof that the filing in the performance section has served its intended purpose and it would be in the interest of the Army to transfer the document to the restricted section.  The DASEB stated that the offense occurred two years ago and a review of the appellant's record revealed no subsequent disciplinary action. However, the DASEB stated that based on the severity of the incident, the DASEB is not convinced the intent of the GOMOR has served its intended purpose.  

18.  On 1 May 2003, the DASEB denied the applicant's request for transfer of the GOMOR to the restricted portion of his OMPF.  The applicant continues that the DASEB failed to respond to his claims concerning the violation of his rights or insufficient corroborating evidence.


19.  The applicant provided a DA Form 2823 (Sworn Statement), dated 4 June 2006, which shows that the applicant met an Operational Law Attorney during his transition overseas to Iraq.  In a sworn statement the attorney essentially states that he reviewed all of the applicant's documentary evidence and it appears to him that the GOMOR was entirely based on an investigation conducted by the applicant's company commander.  

20.  The attorney in his sworn statement makes reference to email exchanges with CPT B who is now referred to as Major B.  The attorney points out that there were no other statements that constituted the results of MAJ B's investigation except the applicant's sworn statement. 

21.  The attorney in his sworn statement continues that MAJ B failed to read the applicant his rights when he confronted him in the clothing sales store because he believed the matter would be handled at the Battalion level.  He did not define the terms sexual encounter or adultery because he believed the applicant understood the meaning of each word.  The attorney states that MAJ B failed to provide the applicant a cleansing statement, before the applicant provided his written statement.  

22.  The attorney concluded in his sworn statement that his opportunity to speak with MAJ B had been limited to emails and therefore minimized his ability to obtain additional sworn statements on behalf of the applicant.

23.  Army Regulation 600-8-104 prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  

24.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records (ABCMR); the DASEB; the Army Appeals Board; Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command; the OMPF custodian when documents have been improperly filed; Commander, U.S. Army Human Resources Command (HRC); Chief of the Appeals Branch of the U.S. Army HRC – St. Louis; and Chief of the Appeals Branch of the National Guard Personnel Center.

25.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Paragraph 3-4 applies to filing of non-punitive administrative letters of reprimand or censure in official personnel files.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed in the performance section.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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.  Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

26.  Article 31, Uniform Code of Military Justice provides that: (a). No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.  (b). No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.  (c). No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.  (d). No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the GOMOR currently filed in the performance section of his OMPF should be removed or transferred to the restricted section of his OMPF because it has served its intended purpose.

2.  Evidence of record shows the applicant was issued a GOMOR on 14 February 2001, and on 4 March 2001, he requested that the GOMOR be placed in his local file.



3.  On 30 March 2001, the Commanding General, 1st Cavalry Division, Fort Hood, Texas, after review of all submitted material directed that the administrative memorandum of reprimand and allied documents be filed in the Soldier's OMPF. 

4.  On 1 May 2003, the DASEB voted not to transfer the GOMOR to the restricted portion of the applicant's OMPF, based on the severity of the incident the DASEB was not convinced the intent of the GOMOR has served its intended purpose.   

5.  The applicant also contends that his rights were violated.  Evidence of record shows that the results of an investigation found that the applicant engaged in an adulterous relationship with a 2LT J of the same company as he was assigned, as a senior noncommissioned officer he pursued an inappropriate relationship with a married second lieutenant, obtained a loan of a substantial sum of money from the 2LT J, and socialized with a 2LT J on terms of social equality.  The GOMOR states that any one of these actions would constitute a serious violation of accepted standards of conduct for an Army noncommissioned officer.

6.  Article 31 of the UCMJ does not preclude a commander from considering an unwarned statement from a Soldier when considering whether to take an adverse administrative action even though such statement could not be considered by a court-martial.  Provided the Soldier was not coerced into making the statement and made the statement voluntarily it may be considered as evidence for a GOMOR.

7.  The applicant’s argument concerning his rights was considered but found to be without merit.  The applicant's initial verbal statement to CPT B was not coerced or otherwise involuntary.  As a result the applicant's command was not prohibited from considering the statement in an administrative setting.  Consequently, the failure to provide the applicant a cleansing statement before making a written, sworn statement is moot.  In any event, it appears that the statement also was freely given and voluntary.  Even if the applicant's statement had been improperly considered, it would have been a harmless error.  2LT J's statement constituted independent evidence to support the GOMOR.

8.  The applicant's claim that CPT B did not advise the applicant of the definition of adultery lacks merit as well.  The overriding purpose of the GOMOR was to correct the applicant on engaging in an inappropriate, unprofessional relationship. The applicant does not dispute the existence of such an inappropriate relationship.

9.  The applicant's claims that there is insufficient corroborating evidence of adultery was considered and found to lack merit.  The applicant admitted to CPT B that he had sexual intercourse with 2LT J.  This is corroborated by 2LT J's statement that she had two "sexual encounters" with the applicant.

10.  The applicant has failed to produce sufficient evidence or justification to warrant removal of the GOMOR from the performance section of his OMPF. 

11.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LMD__  _DKH___  _JS_____  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.




_John N. Slone__
          CHAIRPERSON


INDEX

CASE ID
AR20060008362
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.