RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      15 August 2006
      DOCKET NUMBER:  AR20060010271


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 a letter of reprimand (LOR) issued on
8 September 2004 from the restricted (R-fiche) portion of his official
military personnel file (OMPF).

2.  The applicant states that this reprimand was an error and unjust
because the alleged offense did not occur nor was there any evidence that
supports the allegations.  He also states that he submits his appeal based
on the fact that the allegation of adultery being assumed from the
unfounded charge of rape brought against him was unsubstantiated and
completely untrue.  Furthermore, a LOR for this presumption of adultery was
unjust and undeserved.  He further states that the LOR was given based on
opinion and not based on the facts that support the elements of proof for
the crime.  To tarnish and significantly impact a soldier with 16 years of
service for an offense he did not commit based on opinion is tragic.

3.  The applicant also states that accordingly, after discussing the
situation with Brigadier General (BG) _______ over 18 months after the
reprimand was initially issued, BG _________ agreed to submit a memorandum
on his behalf to the Department of the Army Suitability Board (DASEB), in
accordance with his authority under Army Regular 600-37.  Since BG
___________ initially issued the reprimand, it is his hope that the Board
would consider his most recent memorandum in addition to all other
statements on his behalf in coming to a decision.

4.  The applicant provides copies of a DA Form 2823 (Sworn Statement),
seven memoranda of support requesting removal of the LOR, and a letter from
Retired BG _______ requesting removal of the LOR, in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United
States Army Reserve, as a second lieutenant, effective 10 April 1997, with
prior enlisted service and entered on active duty.  He was promoted to
captain effective 1 November 2000.

2.  On 9 June 2004, he was issued an administrative reprimand for adultery
and conduct unbecoming an officer and gentleman.  Specifically, an
investigation conducted by the Criminal Investigation Command (CID)
revealed that in July 2002 he had inappropriate personal and sexual contact
with then Reserve Officers Training Corps (ROTC) Cadet _______, while he
was assigned to the 728th MP Battalion, Camp Walker, Republic of Korea.  On
30 June 2004, he acknowledged receipt of the reprimand and elected to
submit statements in his own behalf.

3.  In his rebuttal, dated 19 July 2004, the applicant stated that he
accepted complete responsibility for his actions and made no excuse for his
poor decision-making.  He pointed out that the LOR stated "an investigation
conducted by the CID revealed that in July 2002 he had had inappropriate
personal and sexual contact with ROTC Cadet _______," this statement was
inaccurate.  The CID investigation did not reveal that nor did it state
anything about adultery or inappropriate personnel or sexual contact.  If
this letter was to be filed, he asked that that statement be removed.  In
conclusion, he stated he did not commit adultery nor did he have
inappropriate personal or sexual contact with Cadet _____.  He did use poor
judgment by putting himself in that situation.

4.  On 8 September 2004, he was issued a general officer Memorandum of
Reprimand (MOR) for conduct unbecoming an officer and gentleman.
Specifically, an investigation revealed that in July 2004 he had
inappropriate personal contact with then ROTC Cadet ________, while he was
assigned to the 728th MP Battalion, Camp Walker, Republic of Korea.

5.  On 9 September 2004, after review of the MOR, supporting documentation,
and the soldier's rebuttal and the filing recommendations of the chain of
command, the Commander, Headquarters, US Army Medical Department Center and
School and Fort Sam Houston, Fort Sam Houston, Texas, directed the MOR,
with supporting documents, be filed permanently in the applicant's OMPF.

6.  In a memorandum to the DASEB, dated 5 April 2006, the applicant's
former commander (BG ______) and the general officer who imposed the MOR,
requested transfer of the MOR.  He stated that the MOR issued to the
applicant on 8 September 2004 should be transferred to the R-fiche on the
grounds that the intended purpose of the letter had been served and that
the transfer would be in the best interest of the Army.  He also stated
that he had reviewed the letters of the applicant's former and current
supervisors recently submitted on the applicant's behalf.  Those letters
demonstrated that the applicant had presented himself to be an outstanding
performer who had impressed his supervisors with his professionalism and
his potential for continued service and had performed his duties in a way
that had brought credit to the Army and the values it represents.

7.  The DASEB Decision Summary, dated 12 April 2006, stated that the
applicant requested the removal of the MOR from his OMPF or its transfer to
the R-fiche.  The applicant provided a self-authored statement with copies
of three witness statements, copies of six letters of support, and a copy
of letter of support for transfer from the issuing authority of the MOR.
The DASEB commented that Paragraph 7-2b, Army Regulation 600-37 allows for
derogatory documents to be transferred to the R-fiche on the basis of proof
that the filing in the performance (P-fiche) had served its intended
purpose and that it would be in the best interest of the Army to transfer
the document to the R-fiche.  The DASEB recommended the MOR be placed in
the applicant's R-fiche.

8.  The applicant submitted copies of several of the memorandums of support
he submitted to the DASEB.

9.  Army Regulation 600-37, in pertinent part, provides the policy for
authorized placement of unfavorable information in individual official
personnel files.  It provides that unfavorable information will not be
filed in an official personnel file unless the individual has been given
the chance to review the documentation that serves as the basis for the
proposed filing and make a written statement, if desired, that rebuts the
unfavorable information.  The referral to the recipient will include
reference to the intended filing of the letter and include documents that
serve as the basis for the letter.

10.  Army Regulation 600-37, also provides that a LOR or MOR, regardless of
issuing authority, may be filed in the OMPF only upon the order of a
general officer.  Statements and other evidence will be reviewed and
considered by the officer authorized to direct filing.  Letters
(memorandums) of reprimand, admonition, or censure may be the subject of an
appeal for transfer to the
R-fiche.  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 DASEB has been established as the appeal
and petition authority for unfavorable information entered in the OMPF
under this regulation.

11.  Army Regulation 600-37, also specifies 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.  In view of the circumstances in this case, the applicant is not
entitled to removal of his MOR from his OMPF.  He has not shown error,
injustice, or inequity for the relief he now requests.


2.  The applicant was issued a MOR and was provided the opportunity to
rebut his reprimand and he did so.  After considering the supporting
documentation, the applicant's rebuttal, and the filing recommendation of
the chain of command, on 9 September 2004, the Commander, Headquarters, US
Army Medical Department Center and School and Fort Sam Houston, determined
that the MOR be filed permanently in the applicant's OMPF.

3.  In April 2006, based on a request by the applicant for removal of the
MOR from his OMPF or transfer of the OMPF to his R-fiche, the DASEB
concluded that the MOR had served its intended purpose and it would be in
the best interest of the Army to transfer the document to the R-fiche.  The
DASEB recommended the MOR be placed in the applicant's R-fiche.

4.  Based on the foregoing facts and conclusions, the Board concludes that
the applicant has not provided clear and convincing evidence that the
document was untrue or unjust, in whole, or in part, to support his request
for its total removal from his OMPF.  Therefore, there is no basis for
removing the MOR entirely from his OMPF.

5.  In view of the foregoing, there is no basis for granting the
applicant’s requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_SLP____  __RML__  _JGH ___  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.




                                  ___   Shirley L. Powell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010271                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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