RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 February 2006
      DOCKET NUMBER:  AR20050016610


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David K. Hassenritter         |     |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, in effect, that the general officer memorandum
of reprimand (GOMOR) dated 4 February 2000 be removed from his records or
at least transferred to his restricted file.  He also requests, in effect,
promotion reconsideration.

2.  The applicant states that, prior to being notified he had to go before
a board of inquiry (BOI), he had vigorously fought the underlying show
cause action for well over a year.  Although the BOI was not favorable,
their recommendation was overturned by the Deputy Assistant Secretary (Army
Review Boards).  The applicant was informed the documents which were the
basis for directing him to show cause for retention would remain in his
file and could be removed only through an appeal.  He states that to permit
these documents, which were contested at his BOI, to remain in his Official
Military Personnel File (OMPF) is patently unfair and denies him equitable
opportunities for career advancement.

3.  The applicant states he has successfully contested those false
allegations for well over five years in a variety of forums, including a
trial for the charge of battery.  At that trial, he was completely
exonerated by a jury when they returned a verdict of Not Guilty.  Since the
order for his retention, he has served honorably and well.  He has spent
six months in Kuwait from February 2005 through July 2005 as the Finance
Officer in Charge.  Since the events that led to his GOMOR, he has
apologized for errors in judgment in the sense that some of his actions and
decisions then caused questions to be raised.  As a matter of FACT
(emphasis in the original), he was not guilty of any action which would
cast doubt on his honor or integrity as a man, a husband, or an officer.

4.  The applicant provides a 23 June 2004 memorandum from the U. S. Army
Human Resources Command (USAHRC); a 4 March 2004 memorandum to USAHRC; a 6
February 2004 memorandum from his attorney; two emails    dated 23 February
2004; a memorandum for record dated 26 February 2004;      a handwritten
memorandum for record dated 24 November 2003 with a typed version; a State
of George vs. (the applicant) Verdict dated 22 May 2000;    letters of
support dated 13 November 2003, 14 July 2003,14 October 2003,       22
October 2003, 14 October 2003, 12 October 2003, 15 September 2003, and 26
September 2003; an undated memorandum, Subject:  Recognition of Support;
three officer evaluation reports (OERs) for the periods ending 3 April
2004,       17 December 2004, and 6 July 2005; a Department of the Army
Suitability Evaluation Board (DASEB) Decision Summary; and a 13 February
2003 memorandum from the Assistant President, DASEB.


CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  After having prior enlisted service, the applicant was appointed a
second lieutenant in the U. S. Army Reserve.  He entered active duty in
August 1987.  He was promoted to major on 1 August 1998.

3.  On 4 February 2000, the Commander of the 326th Area Support Group,
Kansas City, KS gave the applicant a letter of reprimand.  The letter
stated the applicant knowingly traveled with the spouse of an enlisted
service member, and while on the trip, stayed together overnight in the
same hotel room.  That gave the appearance of impropriety and compromised
his position as an officer.  In addition, his conduct resulted in a
negative incident with the woman's husband and the London Police.  He was
being reprimanded for conduct unbecoming an officer.

4.  The applicant responded to the letter of reprimand by stating he
regretted any embarrassment the unfortunate incident may have brought on
the command.  His relationship with the woman was never anything but
platonic and professional.  Had he been aware of her tumultuous marital
relationship, he would never have allowed himself to be placed in such a
compromising position.  He stated the Army Regulation 15-6 investigation
revealed the woman's husband had a longstanding history of accusing
innocent men of being sexually involved with his wife.  The investigation
also revealed there was no physical evidence of impropriety.

5.  On 16 April 2000, after carefully considering all the facts pertaining
to the incident, including the applicant's statements, the Commanding
General, U. S. Army 89th Regional Support Command directed the letter of
reprimand be filed in the applicant's OMPF.

6.  On 22 May 2000, in the State Court of Clayton County, State of Georgia,
the applicant was found not guilty of the offense of battery (apparently
against the husband of the woman mentioned in the letter of reprimand).

7.  On 25 November 2002, USAHRC initiated elimination action on the
applicant under the provisions of Army Regulation 600-8-24, paragraphs 4-
2b(5) and (8) because of misconduct, moral or professional dereliction as
substantiated by the GOMOR.

8.  On 5 December 2002, the applicant requested the GOMOR be removed from
his OMPF.  On 13 February 2003, the DASEB voted to deny the transfer of the
GOMOR to his restricted fiche.

9.  A BOI heard the applicant's case on 24 November 2003 and recommended he
be eliminated from the Army with an Honorable characterization of service.
On 26 March 2004, the Commanding General, U. S. Army Infantry Center and
Fort Benning recommended approval of the recommendation.  On 10 May 2004,
the Commanding General, U. S. Army Training and Doctrine Command
recommended approval of the recommendation.

10.  On 25 June 2004, the Army Board of Review for Eliminations reviewed
the action of the BOI.  The Army Board of Review for Eliminations found
that the Government established by a preponderance of the evidence that the
applicant committed an act of misconduct by traveling on or about 18 June
1999 with the spouse of an enlisted Soldier and, while on that trip,
staying overnight in the same hotel room.  The Army Board of Review for
Eliminations recommended, however, that the applicant be retained with
reassignment.

11.  On 28 June 2004, the Deputy Assistant Secretary (Army Review Boards)
approved the recommendation of the Army Board of Review for Eliminations
and directed the applicant be retained on active duty and reassigned.

12.  The applicant's last three OERs (for the periods ending 3 April 2004,
         17 December 2004, and 6 July 2005) all show his performance and
potential for promotion were rated as "Outstanding Performance, Must
Promote" by his raters. His senior raters all rated his promotion potential
as "Best Qualified" (center of mass).  All comments by raters and senior
raters were highly commendable.

13.  The Manual for Courts-Martial, United States, 1998 edition, Article
133 (Conduct unbecoming an officer and gentleman) states not everyone is or
can  be expected to meet unrealistically high moral standards, but there is
a limit of tolerance based on customs of the service and military necessity
below which   the personal standards of an officer cannot fall without
seriously compromising    the person's standing as an officer or the
person's character as a gentleman.  This article prohibits conduct by a
commissioned officer which, taking all the circumstances into
consideration, is thus compromising.

14.  Army Regulation 600-37 sets forth policy and procedures to authorize
placement of unfavorable information about Army members in individual
official personnel files, and ensure that the best interest of both the
Army and the Soldier are served by authorizing unfavorable information to
be placed in and, when appropriate, removed from official personnel files.
In pertinent part, it states 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.  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.

15.  Army Regulation 600-8-29 prescribes the officer promotion function of
the military personnel system.  In pertinent part, it provides that an
officer will not be considered for promotion by a special selection board
when an administrative error was immaterial or the officer, in exercising
reasonable diligence, could have discovered and corrected the error in the
ORB or OMPF.

DISCUSSION AND CONCLUSIONS:

1.  It does not appear that the GOMOR was unjustly issued or filed on the
applicant’s OMPF.

2.  The applicant stated the Army Regulation 15-6 investigation revealed
the woman's husband had a longstanding history of accusing innocent men of
being sexually involved with his wife and also revealed that there was no
physical evidence of impropriety.  That may have been true; however, the
applicant did not receive the GOMOR for adultery or sexual misconduct.  He
received it for knowingly traveling with the spouse of an enlisted service
member, and while on the trip, staying together overnight in the same hotel
room, acts which gave the appearance of impropriety and compromised his
position as an officer.

3.  As Article 133 states, there is a limit of tolerance based on customs
of the service and military necessity below which the personal standards of
an officer cannot fall without seriously compromising the person's standing
as an officer or the person's character as a gentleman.  This article
prohibits conduct by a commissioned officer which, taking all the
circumstances into consideration, is thus compromising.  The applicant
should have taken into consideration the fact he was traveling with the
wife of an enlisted Soldier, and he did not know the character of that man.
 By putting himself into that situation, he created the impression of
impropriety and compromised his standing as an officer and a gentleman.

4.  That being said, it appears the GOMOR’s intended purpose has been
served and that its transfer to the applicant's restricted fiche will be in
the best interest of the Army.  It has been six years since the GOMOR was
issued, the applicant has had no further record of indiscipline, and his
OERs indicate he is an above average officer.  It would be equitable and
within regulatory guidance to transfer the GOMOR and related documents to
the applicant’s restricted fiche at this time.

5.  Nevertheless, since this decision is based only on intent served and
there was no material error in the applicant’s records, the applicant is
not eligible for promotion reconsideration by a special selection board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__lds___  __jcr___  __dkh___  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 transferring the GOMOR dated 4 February 2000 and
all related documents to his restricted fiche.

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
removing the GOMOR and related documents from his OMPF and promotion
reconsideration.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016610                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060223                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |134.04                                  |
|2.                      |131.11                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]