PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 June 2000
	DOCKET NUMBER:   AR1999023131

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		Member	

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

	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, in effect, that a Memorandum of Reprimand (MOR) be transferred from the performance section (P-Fiche) to the restricted section (R-Fiche) of his Official Military Personnel File (OMPF). 

3.  The applicant states, in effect, that he is ashamed and embarrassed for what he has done to his family and to the Army.  He contends that he had been assured by his attorney that his divorce would be final in time for him to remarry his fiancée prior to his travelling on his reassignment to Hawaii.  He also claims that he only allowed his fiancée to travel with him on orders in order to not strand her in California and that upon his arrival in Hawaii he immediately informed his chain of command of the situation.  

4.  He contends that this situation has hung over his head for 5 years and has prevented his promotion, which is an embarrassment to him considering soldiers that had worked for him have already been promoted to that rank.  He claims he does not blame anyone for this and takes responsibility for his actions even though he did it to protect his loved ones.  He contends that he is not a bad soldier or person and simply made a bad decision that he has never attempted to hide.  

5.  He believes he is still an asset to the Army and is truly sorry for what he did.  He respectfully requests that the MOR be transferred to his R-Fiche and he assures the Board he would never let anything like this happen to his soldiers. Finally, he expresses his hope that the Board will recognize that he has learned from his mistakes and that the military is his life and not just a job to him, and he would not like his career to end on this note.  The applicant has enclosed 
12 letters of support from supervisors and colleagues at Fort Monmouth, New Jersey attesting to his outstanding duty performance as a new equipment instructor.

6.  The applicant’s military records show that on 7 October 1982 he entered the Regular Army and has served on active duty continuously to the present date.  He is currently serving as a staff sergeant/E-6 (SSG) and performing duties as a Training Instructor for the New Equipment Training (NET) Branch at
 Fort Monmouth, New Jersey.

7.  On 17 January 1995, the applicant received a MOR from his battalion commander for bigamy, false claim, false official statement, larceny, and attempted larceny.  This letter indicates that the applicant seriously damaged his integrity by his actions concerning his marriage to two women and the claims made to the government from these marriages.  

8.  The MOR further states, that the applicant specifically admitted to marrying his second wife in Washington D.C. prior to being divorced from his first wife.   It goes on to admonish the applicant for making claims for travel pay and allowances for dependents based on that second marriage.  Finally, it indicates that the applicant seriously damaged his integrity and the trust the command had in him.  

9.  The applicant submitted a rebuttal to the MOR and explained his version of the events that took place leading to this action.  He stated that in June 1994, while processing for reassignment to Hawaii he notified personnel officials that he would be divorced in July 1994 and that he would remarry prior to his scheduled departure for Hawaii in August of 1994.  Based on that he had his fiancée’s name listed on his reassignment orders as his wife, and she was authorized to travel with him on his reassignment in that status. 

10.  He indicated that he continued to check the status of his divorce throughout July 1994 while on leave in California pending his travelling to Hawaii.  However, in August 1994 his attorney informed him that his wife at that time was contesting the divorce, and that the divorce would not be final prior to his departure for Hawaii.  At this point, based on his concern for her he elected to allow his fiancée to travel with him to Hawaii as his wife at government expense, rather than stranding her in California.

11.  He states that upon his arrival in Hawaii he immediately informed his command sergeant major of the facts of the situation.  At that time he volunteered to reimburse the government for his fiancée’s travel expenses and the money was immediately deducted from his pay by the finance office.  On 
2 September 1994, a final judgement of decree of divorce was issued by the Superior Court of Muscogee County, Georgia, which finally dissolved his marriage; and on 13 September 1994, he was married to his fiancée in Honolulu, Hawaii. 

12.  On 14 February 1995, the applicant’s military defense counsel addressed a rebuttal statement to the charges contained in the MOR against to the applicant’s battalion commander.  Counsel stated that the MOR accuses the applicant of bigamy, false official statement, larceny, and attempted larceny.  However, after his review of the entire packet he firmly established that the applicant had not committed the offense of bigamy.  He goes on to indicate that the final divorce decree from his first wife was issued on 2 September 1994 and he did not remarry until 13 September 1994.

13.  On 4 April 1995, the commanding general after reviewing and considering the documents in supporting the January 1995 MOR issued to the applicant determined that it would be appropriate to permanently file the MOR in the applicant’s OMPF.  

14.  The applicant’s evaluation record subsequent to the MOR being received has been above average to excellent.  The last Noncommissioned Officer Evaluation Report (NCO-ER) on file in the OMPF and available to this Board for review is an annual report that covered the period ending in August 1998.  This NCO-ER is an accurate representation of the applicant’s record of service subsequent to his receiving the MOR. 

15.  In Part IV b-f of this NCO-ER, the rater gave the applicant two “excellence” and three “success” ratings.  In Part Va (overall potential for promotion and or service in positions of greater responsibility) the rater evaluated the applicant as “among the best.”  In Part Vc (overall performance) and d (overall potential for promotion and or service in positions of greater responsibility) the senior rater gave the applicant the highest rating possible by placing him the 1 block in both areas.   The senior rater also provided comments that suggested that the applicant should be promoted ahead of his peers and that he should be assigned to positions of greater responsibility.  

16.  On 3 December 1998, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) to have the MOR transferred from the 
P-Fiche to the R-Fiche of his OMPF.  The record contains the DASEB Decision Summary, dated 29 January 1999, containing the summary of their review of the applicant’s petition to transfer the MOR to the R-Fiche.  The summary indicates that the events which led to the MOR occurred almost five years prior and the applicant had about 12 years of service at the time.  They found he received due process and that his subsequent performance of duty has been above average.  

17.  The DASEB members in their review found that the applicant did not thoroughly or clearly substantiate that he did not commit any of the offenses for which he was reprimanded and that there were contradictions between the statements he made in his appeal request and in his response to the MOR at the time.  Further, while transferring documents in the OMPF to the R-Fiche is possible when it is shown that the document’s intended purpose has been served, the DASEB determined the applicant had failed to meet this burden of proof necessary to overcome the regulatory presumption of regularity and they denied his appeal.

18.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to 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. 

19.  Paragraph 3-2 of the regulation contains guidance on filing unfavorable information in the OMPF.  It, in effect, establishes referral procedure for unfavorable information and indicates that this information will not be filed in an OMPF 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. 

20.  Paragraph 7-1 (removal of unfavorable information from the OMPF) establishes DA Suitability Evaluation Board (DASEB) as the agency for acting on appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 (appeals for removal of OMPF entries) contains the policies and procedures for appeal actions.  It states, in pertinent part, 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. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

CONCLUSIONS:

1.  The Board determined, while some of the charges in the MOR were valid and it is clear that the applicant inappropriately allowed his fiancée to illegally travel with him to Hawaii on government orders, it is also evident that the applicant did not marry his second wife prior to divorcing his first wife.  Therefore, he was clearly not a bigamist as alleged in the MOR.  

2.  The Board found that defense counsel informed the chain of command that the applicant was not a bigamist prior to the filing determination being made on the MOR.  In the opinion of the Board, at this point it became incumbent on the chain of command to modify the MOR to remove all incorrect references to bigamy, prior to the MOR being filed in the applicant’s OMPF.  Therefore, the Board finds that the all specific references to bigamy and any statements in the MOR that allude to bigamy or being married to two women at the same time should be deleted from the MOR.

3.  The applicant’s duty performance, subsequent to his receiving the MOR, has been excellent.  This is evidenced by the letters of support with this application and in his evaluation reports.  These factors when combined with his expressed remorse for his actions sufficiently establish that the MOR has served its intended purpose.  Therefore, notwithstanding the DASEB decision summary, the Board concludes that the regulatory provisions for transfer of documents in the OMPF to the R-Fiche has been met and that it would be appropriate in this case to take this action at this time.

4.  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 deleting all references to bigamy, and marriage to two women at the same time, contained in the MOR issued to the individual concerned on 
17 January 1995.

2.  That the MOR, dated 17 January 1995, currently filed in the P-Fiche of the OMPF of the individual concerned be transferred to the R-Fiche because it has served its intended purpose.  

BOARD VOTE:  

___be___  ___eb___  ___jhk___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Elizabeth Buchanon____
		        CHAIRPERSON

INDEX

CASE ID	AR1999023131	
SUFFIX		
RECON		
DATE BOARDED	2000/06/13	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  280	126.0300	
2.		
3.		
4.		
5.		
6.