PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            3 December 1998
	DOCKET NUMBER:   AC98-11129

	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.	Loren G. Harrell		Director	
	Mr.	Jessie B. Strickland		Analyst	

	The following members, a quorum, were present:

	Mr.	John N. Slone		Chairperson	
	Mr.	Edward Williamson		Member	
	Mr.	Roger W. Able		Member	

The applicant and counsel if any, did not appear before the Board.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests the removal of the restricted fiche of his Official Military Personnel File (OMPF) and all documents contained therein.

3.  The applicant states all court-martial charges were withdrawn and his Letter of Reprimand was untrue and unjust.  He further states that to maintain documents in his OMPF that were deemed to be in error to begin with constitutes both error and injustice.  He goes on to state that he received a general officer memorandum of reprimand (GOMOR) on 17 October 1997 alleging that he had committed sexual misconduct as a drill sergeant at Aberdeen Proving Ground, Maryland from 1995 to 1996.  He continues by stating that he denied any type of wrongdoing since he first became a suspect in September 1996; however, he was grouped with the other drill sergeants at Aberdeen and became part of the Aberdeen scandal.  Prosecutors tried to court-martial him in July 1997 but dropped the charges a few days before his trial was to begin.  It was not until his administrative separation board in January 1998 that he finally got to tell his side of the story.  This was the first time that neutral members examined the prosecutor’s evidence, which included offenses during a period when he was not even assigned to Aberdeen,  and they found that he had not committed any misconduct.  He also states that not only did the commanding general approve the findings of the administrative separation board, he also recommended that the GOMOR be removed from his records. 

4.  The applicant’s military records show that he enlisted on 26 August 1981 for a period of 4 years and training as a track vehicle mechanic.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 June 1996.

5.  The applicant attended the Drill Sergeant School at Fort Jackson, South Carolina from August to October 1995.  He then attended the Advanced NCO Course (ANCOC), at Aberdeen as a student from March to May 1996 and was permanently assigned to Aberdeen as a drill sergeant upon completion of the ANCOC.

6.  On 17 January 1997 charges were referred against the applicant for seven specifications of sexual misconduct, one specification of being drunk on duty, and one specification of indecent assault.  On 3 July 1997 the charges were dismissed without prejudice.  A copy of the dismissal order was placed in the restricted fiche of his OMPF with instructions to restore all rights and privileges to the applicant.  The order also indicates that no pleas were entered and no findings were made.   Meanwhile, he was removed from the drill sergeant program and his drill sergeant badge was revoked.

7.  On 17 October 1997 he received a GOMOR for having sexual intercourse with a trainee, for committing adultery, for failing to report prohibited personal associations by other drill sergeants with trainees during the period of November 1995 to September 1996, and wrongfully soliciting trainees for sexual intercourse between May and August 1996.  He directed that the GOMOR be filed in the applicant’s OMPF.

8.  The applicant appeared before an administrative separation board convened on 31 January 1998 to determine if the applicant should be separated from the service for misconduct.  The board convened for 2 days and received extensive testimony in the applicant’s case.  The board determined that the allegations of misconduct were not supported by the preponderance of the evidence and recommended that he be retained in the Army.  The commanding general approved the findings and recommendations on 6 March 1998.

9.  The applicant and his counsel submitted a request to the commanding general who imposed the GOMOR requesting his assistance in removing the GOMOR from his OMPF.  The commanding general submitted a memorandum to the Department of the Army Suitability Evaluation Board (DASEB) recommending that the GOMOR be removed.  He indicated that after reviewing the evidence submitted to the administrative separation board, he determined that the allegations against him were not supported by a preponderance of the evidence.

10.  The applicant, with the assistance of his attorney, submitted a request to the DASEB for removal of the GOMOR from his OMPF.  The DASEB determined that the applicant had provided a preponderance of evidence of a clear and compelling nature that the information was untrue or unjust, in whole or in part, to justify removal of the unfavorable information.  The DASEB directed that the GOMOR be removed from his OMPF; however, the DASEB opined that the action was not retroactive and that the removal of the GOMOR did not constitute referral to a special reconsideration board for promotion nonselections that may have occurred.

11.  Army Regulation 600-8-104 serves as the authority for filing of court-martial orders in the OMPF.  It states, in pertinent part, that court-martial orders will be filed on the performance fiche of the OMPF when there is an approved finding of guilty on at least one specification.  If all approved findings are not guilty, file the order on the restricted fiche.  If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, remove all related documents from the performance and transfer them to the restricted fiche. 
CONCLUSIONS:

1.  The applicant was charged with multiple charges of sexual misconduct that were subsequently withdrawn.  However, he was issued a GOMOR 3 months after the charges were withdrawn for essentially the same charges.

2.  The applicant was then referred to an administrative separation board 6 months later to determine if he should be separated from the service.  At this time the applicant was afforded an opportunity to present matters in his defense. In doing so, he presented testimony and evidence which not only showed that he was not present at Aberdeen during part of the period in which he was accused of committing some of the offenses, he also brought to light discrepancies in the government’s case/evidence, and established that the witnesses against him lacked creditability.

3.  As a result of the evidence and testimony presented at that board, with the assistance of his military counsel, the board determined that the charges against him were not supported by a preponderance of the evidence.  It must also be presumed that the Department had somewhat reached the same conclusion when it determined that the charges should be dismissed. 

4.  Consequently, the commanding general that imposed the GOMOR, after reviewing the evidence and testimony presented, recommended that the GOMOR be removed from his OMPF.  Likewise, the DASEB also recognized that the GOMOR was unjust and directed that the GOMOR be removed from his OMPF.

5.  The Board agrees that the GOMOR should have been removed from the OMPF; however, the Board does not agree with the DASEB’s assessment that the removal of the GOMOR does not constitute promotion reconsideration.  Had the error or injustice not occurred, the GOMOR would not have been issued and would not have been seen by selection boards.  Therefore, it would be appropriate that he receive promotion reconsideration by any selection boards that reviewed his records with the GOMOR present and failed to select him.

6.  Likewise, the Board agrees with the applicant that the presence of the order that withdrew the charges against him before he was brought to trial, that is present in the restricted fiche of his OMPF, constitutes an injustice to him.  Therefore, it would be appropriate to remove the order.

7.  The Board also notes that the applicable regulations provide for removing court-martial orders from the performance fiche to the restricted fiche when charges are later dismissed or if all findings of guilty have been reversed in a supplemental order.  These instructions imply that the individual concerned appeared before a court-martial and the charges were dismissed or that the charges were reversed through the appellate process.  Such was not the case with the applicant.  Therefore, the Board sees no useful purpose in maintaining the order in his OMPF.

8.  The facts and circumstances in this case suggest that the applicant was prematurely charged at a time when numerous others at Aberdeen were also being charged for sexual misconduct; however, by the time it was determined that the government’s case against the applicant was not supported by the preponderance of the evidence, the applicant’s career and reputation had already been damaged.

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing from the restricted fiche of the OMPF of the individual concerned, the order dismissing court-martial charges against him and any other related documents that may be present with the order. 

2.  That the applicant’s records, as thus corrected, be submitted to a duly constituted special selection board for promotion/selection by all boards that reviewed his records with the presence of the GOMOR and failed to select him.  

3.  That, in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections herein, the proceedings of the Board and all documents related to this appeal be returned to the Board for permanent filing.   

BOARD VOTE:  

__rwa___  ___elw __  ___js ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON