IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20080018792 


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 that the officer evaluation report (OER) she received for the period 31 May 2004 to 11 February 2005 be removed from her Official Military Personnel File (OMPF) or, as an alternative, that it be transferred to the Restricted section of her OMPF.

2.  The applicant states, in effect, that the OER references a general officer memorandum of reprimand (GOMOR) that has since been moved to the restricted section of her OMPF.  She goes on to state that both the GOMOR and the OER were unjustly issued because the allegation of adultery under Article 134 was inaccurate and was never properly investigated during the original investigation.  Adultery requires that the accused have sexual relations while married or with another person who is married under circumstances that are either prejudicial to good order and discipline or service discrediting.  She further states that this definition does not apply to the relationship between her and now her husband of 3 years because he filed for divorce on 21 October 2002 and had last cohabitated with his former wife on 12 May 2002.  She continues by stating that after he had filed for separation and divorce, they began dating and she had an open and ongoing relationship that was not adulterous nor did it bring discredit to the Armed Forces.  She also states that the Army Court of Military Review (ACMR) has found that a sexual liaison by a married military member who had entered into a separation agreement with his wife was not a violation of Article 134.  In her case, the evidence of adultery reviewed and discussed by the investigating officer occurred after the parties had separated with the intent to remain permanently apart.  Another fact that was overlooked is that the former wife waited over 2 years before making the accusation that she was having an adulterous affair with her husband and made it appear that her marriage was still active, when in fact they had been separated for over 2 years.

3.  The applicant provides a table of contents consisting of Tabs A through H and a timeline of events. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the Alabama Army National Guard (ALARNG) on 3 October 1989 and continued to serve until she was honorably discharged from the ALARNG on 14 November 1990 and was transferred to the United States Army Reserve (USAR) with a concurrent call to active duty in the Army Nurse Corps.  She was promoted to the rank of first lieutenant on 2 October 1992, to the rank of captain on 1 November 1994, and to the rank of major on 1 August 2001.

2.  On 10 November 2004, while stationed at Fort Eustis, Virginia, the applicant received a GOMOR for committing adultery and conduct unbecoming an officer.  The imposing commander (a major general) indicated that a commander's inquiry showed that since 2002, the applicant had been involved in an adulterous relationship with a married man and that although she knew the relationship was in violation of the Uniform Code of Military Justice (UCMJ) she continued to engage in the misconduct for more than 2 years.  The GOMOR was referred to the applicant and she elected to submit matters in her own behalf.

3.  On 6 December 2004, the applicant submitted a memorandum to the imposing commander requesting that he rescind the GOMOR or, as an alternative, that it be filed in local files.  She went on to state that she and the individual in question were involved in a committed relationship, that they started the relationship in July 2002, but it did not become a physical and committed relationship until February 2003 and that it was their intent to be married when his divorce became finalized.  She went on to describe how their relationship evolved over time and asserted that in no way did it meet the definition of adultery.  She also requested that she be granted the opportunity to speak with the commanding general (imposing officer) under the open door policy prior to his making his decision with the individual in question and a former commander present.  The applicant was granted her audience with the commanding general, and on 18 January 2005 he directed that the GOMOR be filed in the performance section of her OMPF.

4.  On 29 March 2005, the applicant received a change of rater OER covering the period 31 May 2004 through 11 February 2005 evaluating her as Head Nurse of the Operating Room and Central Material Service in a Medical Department Activity.   

5.  In part IVa., under Army Values, the applicant received a "NO" rating under integrity.  In Part V, under Performance and Potential Evaluation, her rater gave her a "Satisfactory Performance - Promote" rating.  Her rater gave her very laudatory comments regarding her performance and indicated that she had received a GOMOR for conduct unbecoming an officer.

6.  In Part VII, the senior rater (SR) rated the applicant as fully qualified and indicated that she was an outstanding clinical operating room nurse and that she had received a GOMOR for conduct unbecoming an officer.  The SR placed her below center of mass in his SR profile.

7.  The applicant applied to the Army Special Review Board (ASRB) to have the contested OERR removed from her OMPF.  She cited essentially the same reasons as she has cited to this Board and, on 7 April 2008, the ASRB denied her appeal.

8.  The applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) to transfer the GOMOR to the restricted section of her OMPF and on 1 June 2007, the DASEB voted to approve the transfer of the GOMOR to the restricted section of her OMPF based on intent served.

9.  The Manual for Courts-Martial provides that the elements required to constitute a charge of adultery is that the accused wrongfully had sexual intercourse with a certain person; that at the time, the accused or the other person was married to someone else; and that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

10.  Army Regulation 623-105, in effect at the time, established the policies and procedures for the OER system.  It provided, in pertinent part, that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, was presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.  Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports.  Each report must stand alone.

11.  That regulation also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the OER should be removed from her OMPF or transferred to the restriction section of her OMPF because it does not reflect her performance and potential during the period in question and contains unjust comments that were not properly investigated has been noted.

2.  Although the available records do not contain, and the applicant has not provided, the results of the investigation conducted, there is sufficient evidence to support the actions of the commander who issued her the GOMOR and the rating officials who noted that she had been issued a GOMOR during the rating period.

3.  While the applicant goes to great lengths to justify her conduct during the period in question, the fact remains that her "now husband" was still married to his former wife at the time she knowingly entered into a physical relationship with him.

4.  It is also noted that the issue that led to her receiving the contested report revolved around the GOMOR she received for her conduct unbecoming an officer and at the time, she was afforded the opportunity to submit matters in her own behalf, both in writing and in person before the commanding general.

5.  However, it appears that after reviewing all of the evidence and hearing the applicant's side of the issues at hand, he was not convinced that she had not committed the offenses for which she was accused and therefore proceeded to file the GOMOR in her OMPF.

6.  Accordingly, her rating officials were well within their authority to make mention of the fact that she had received the GOMOR in her evaluation and the applicant has failed to show that their evaluation was not the considered opinions and objective judgment of the ratings officials at the time.

7.  The applicant has failed to show through the evidence submitted or the evidence of record, sufficient justification to remove or transfer the OER as requested.

8.  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

___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.




      _________X_____________
               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)                                         AR20080018792





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ABCMR Record of Proceedings (cont)                                         AR20080018792



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