IN THE CASE OF:	  

		BOARD DATE:	    21 July 2011

		DOCKET NUMBER:  AR20100020925 


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 the Memorandum of Reprimand (MOR), dated 17 February 2010, with allied documents from his Official Military Personnel File (OMPF):

2.  He states:

* he received an MOR that was placed in his OMPF
* he sent a packet of information to the Department of the Army Suitability Evaluation Board (DASEB) for review
* the company commander inserted additional documents information into the transmittal documents that he was unable to review
* the commanders wrote false letters of recommendation to the brigade commander stating that the females involved were discharged 
* he was undergoing a show cause board
* the date and times on his MOR are incorrect
* the command claimed to have information he was unaware of from his spouse, from whom he had been separated since March 2007
* the MOR claims both women were married, but only one was

3.  He did not provide any supporting documents.  

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving on active duty in the rank of second lieutenant (2LT).  
2.  On 5 February 2010, the applicant received an MOR for engaging in an inappropriate sexual relationship with two married colleagues from the Basic Officer Leadership Course II.  The MOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  

3.  On 10 February 2010, he acknowledged receipt of the MOR and elected to submit matters on his behalf.  

4.  On 17 February 2010, he submitted a response to the MOR and stated that:

* his actions during the officer basic course caused his judgment, loyalty, and dedication to the U.S. Army to be questioned
* the behavior for which he had been associated was unacceptable
* adultery or conduct unbecoming is unacceptable and should not be tolerated and he is truly sorry and remorseful
* he requested that the reprimand be filed locally
* he did not rebut the reprimand

5.  The applicant provided letters of support from military personnel who attested to his character and professionalism and recommended that his MOR be filed in his local file.  

6.  On 17 and 18 February 2010, his commander and intermediate commander recommended that the MOR be filed in his OMPF and stated that:

   a.  his acts of infidelity were the result of two separate investigations where the two female LTs provided self-incriminating sworn statements that resulted in their own elimination from military service; and
   
   b.  speaking with his wife, after she called him about the allegations, she categorized their relationship as "rocky" and they were "separated" due to prior perceptions of infidelity and inappropriate relations; and 
   
   c.  "…Although hearsay, I [the company commander] he find it unlikely that two married officers would self incriminate themselves…."

7.  On 26 February 2010, the imposing authority directed that the MOR be filed in the applicant's OMPF in accordance with Army Regulation 600-37, paragraph 
3-4b.  The MOR and allied documents are filed in the performance portion of his OMPF.  

8.  On 18 March 2010, the applicant appealed to the DASEB for removal of the MOR from his OMPF and his request was denied.  The DASEB Record of Proceedings and allied documents are filed in the restricted portion of his OMPF.

9.  On 9 December 2010, the Department of the Army Ad Hoc Review Board reviewed his Probationary Officer Elimination Case, based on misconduct and moral or professional dereliction in accordance with Army Regulation 600-8-24 (Personnel Separations), paragraph 4-2b.  The board directed and his DD Form 214 shows that he was discharged on 27 January 2011, under the provisions of paragraph 4-2b of Army Regulation 600-8-24, by reason of unacceptable conduct.  This form further shows the applicant's character of service as under honorable conditions (general).

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  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, 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, Human Resources Command, as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

11.  Army Regulation 600-37 (Unfavorable Information) states, in pertinent part, that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.  Additionally, the regulation states that the DASEB can revise, alter, or remove from the OMPF unfavorable information that is determined upon appeal to be unjust or untrue, in part or in whole.  The board can transfer from the performance to the restricted portion of the OMPF those administrative letters of reprimand, admonition, or censure that are determined upon appeal to have served their intended purpose, when such transfer would be in the best interest of the Army.   



DISCUSSION AND CONCLUSIONS:

1.  The applicant received an MOR on 5 February 2010 for engaging in inappropriate sexual relationships with two married colleagues.  

2.  There is no evidence nor did he submit any evidence that shows he refuted the allegations in the MOR.  Evidence of record shows that given the opportunity to rebut the MOR, he did not refute it but apologized for his actions, stated that he understood why he received the reprimand, and understood that his behavior was unacceptable.  

3.  Regardless of his marital status, the marital status of the other officers, and the punishment or the lack of punishment that was rendered to the "other" officers involved in this incident, the applicant has failed to provide any evidence to show the MOR was inaccurate and/or unjust.  Additionally, he has provided no evidence to show that the MOR he received was rendered in error.

4.  The evidence of record shows the MOR was properly filed on the performance portion of his OMPF in accordance with applicable regulations. 

5.  However, the regulation clearly states that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  The memoranda, dated 17 and 18 February 2010, that were rendered by his company and intermediate commanders were written after the applicant acknowledge receipt of the MOR and as a result were not available for his review and/or comments prior to their filing in his OMPF.  As a result, these memoranda should be removed from his OMPF. 

6.  The MOR was properly imposed against the applicant; therefore, it is believed that due to the short period of time that has passed it is not evident that the MOR has met its intended purpose.  The evidence presented was insufficient to warrant the request for removal or of the transfer of the MOR to the restricted portion of the OMPF.  

7.  The available evidence also shows the applicant applied to the DASEB for removal of the MOR and his request was denied.  The DASEB Record of Proceedings and allied documents were filed in the restricted portion of his OMPF.  His service record is void of evidence and he has not provided compelling evidence to indicate these documents were improperly filed, except for the forwarding memoranda.  Therefore, there is no basis for granting his request for the removal of the MOR. 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  _______  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the recommendation memorandums dated 17 and 18 February 2010 from his OMPF.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the MOR.  



      _______ _  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)                                         AR20100020925



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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