IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:  AR20080012396 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of a letter of reprimand (LOR), dated 10 September 2006, from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the accuser withdrew her statement and indicated that she made false accusations against the applicant.  He also contends that the Inspector General (IG) threw the case out and that his command followed through with the case after the IG threw it out.  The LOR was not issued by the command that he fell under during the time of the incident.

3.  The applicant provides a statement from the accuser, dated 10 July 2008; a copy of the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers); and a copy of his Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a captain in the U.S. Army Reserve serving on active duty in the Active Guard Reserve Program.

2.  The specific facts and circumstances leading to the incident in question are not contained in the official record.  An informal AR 15-6 investigation was initiated into the applicant's alleged relationship with a female noncommissioned officer (NCO) from another nation.  The informal 15-6, completed on 22 November 2005 found that there was insufficient evidence to find that the applicant had an adulterous, sexual or otherwise inappropriate relationship with a lower ranking female Soldier, and that there was insufficient evidence to find that the applicant engaged in acts unbecoming an officer and gentleman with respect to the female NCO.  Specifically, there was no evidence that he caused or influenced the female NCO to retract allegations of an improper relationship that she apparently made to the IG.

3.  The IG report of investigation was not available for review.  The statement made by the female NCO to the IG was not available for review.

4.  On 10 September 2006, the applicant was issued an LOR from the Commanding General, Headquarters, 88th Regional Readiness Command, Fort Snelling, Minnesota.  He was reprimanded for engaging in a long-term adulterous and inappropriate sexual relationship with a Soldier of lesser rank who was a member of Austria's armed forces.  He made false statements about his marital status that induced the lower ranking Soldier to engage in sexual relations with him.  While he was married to another woman, he provided the lower-ranking Soldier with an engagement ring and made representations to others that she was his fiancée.  His long-term deception for his selfish physical gratification resulted in inflicting severe anxiety, pain, and depression on the lower-ranking Soldier.  The LOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  He was advised that he had the right to submit a written rebuttal within 14 days of receipt of the LOR.

5.  The applicant acknowledged receipt of the LOR and provided a rebuttal.  In his rebuttal, the applicant indicated that he sincerely regretted any compromise of faith to his unit, family, or the Army.  He apologized for any actions actual or perceived that may have undermined the positive image of the Army.  He indicated that it was his intention to talk to the lower-ranking Soldier as her friend and confidante and he believed that the confusion was a language issue.  She told him about her relationship problems and he gave her his opinions.  She used his electronic mail (e-mail) account to correspond with friends and family because she did not have an account.  He did not know he was not allowed to interact with NCOs of other nations.  He believed the matter was closed when the female NCO retracted her statements.

6.  On 18 January 2007, the LOR imposing authority reviewed the applicant's rebuttal and considered the circumstances of the case.  He directed that the LOR be filed in the applicant's OMPF.

7.  The applicant provided a statement from the accuser, dated 10 July 2008.  In this statement, she indicates that the complaint she submitted against the applicant was fabricated.  She blames her actions on her severe depression and the medications she was taking.  She attests that the applicant was a true friend to her and that she wanted the relationship to be more than friendship, but it was not to be.  The applicant was clear about just being friends.  He allowed her to use his e-mail account to contact her family members and she betrayed his trust. She was not aware of the severe consequences of her actions.

8.  On 11 June 2008, the DASEB considered the applicant's request to remove the LOR from his OMPF.  The DASEB noted that the applicant did not acknowledge any adulterous relationship, admitting to a lesser offense of allowing someone access to his e-mail account.  A review of his Officer Evaluation Report for the period in question reveals that it did not mention the incident and he was rated as Satisfactory/Promote, and Satisfactory/Fully Qualified.  His previous ratings had been Outstanding and Best Qualified.

9.  The DASEB found that the applicant failed to provide clear and convincing evidence that the charge of a long-term adulterous relationship was untrue, that there was no engagement ring provided, that he referred to the accuser as his fiancée, or that he misrepresented his marital status.  He provided no statements of support from his chain of command or his former chain of command, or any evidence that the IG threw out his case.  The DASEB determined that the overall merits of his case did not warrant removal of the LOR.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  It states, in pertinent part, that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority.

11.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to (1) authorize placement of unfavorable information about Army members in individual official personnel files; (2) ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and (3) 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.  It establishes the DASEB to hear appeals for removal of documents.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's LOR was properly imposed as an administrative measure and it was properly filed in his OMPF as directed by the commanding general who imposed the LOR.

2.  The applicant petitioned the DASEB for removal of the LOR from his OMPF.  After careful and thorough consideration of circumstances involved in his case, his petition was denied because it failed to provide clear and convincing evidence that the LOR was untrue or unjust, in whole or in part.

3.  The applicant has not shown that the LOR is untrue or unjust.  He contends that the IG threw his case out; however, he did not provide any corroborating evidence to show that this contention is true.  Although an informal AR 15-6 investigation found insufficient evidence that the applicant had engaged in an adulterous, sexual or otherwise inappropriate relationship with a female NCO or that he influenced her to retract her accusations, the LOR imposing authority obviously found sufficient evidence to support the issuance of an LOR.  The commanding general had the discretion to issue the LOR based upon his own consideration of the evidence and it would be imprudent to substitute the judgment of the ABCMR for that of the commanding general when all the specific facts and circumstances are not available for review.

4.  In his rebuttal to the LOR, the applicant indicates that he was a "friend and confidante" to the female NCO, that he allowed her access to his e-mail account, and that he did not know that he was not allowed to interact with NCOs of other nations.  The applicant was surely aware of the Army's policies on socializing/ fraternizing with lower enlisted Soldiers and the policy would remain the same with the NCOs from other nations.

5.  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 did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis to grant his request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  __X_____  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.


															XXX
      _________________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012396



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ABCMR Record of Proceedings (cont)                                         AR20080012396



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