MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 February 2001                  
	DOCKET NUMBER:   AR1999026329

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Melvin H. Meyer		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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)

APPLICANT REQUESTS:  In effect, that his October 1997 relief-for-cause evaluation report be expunged from his file.

APPLICANT STATES:  The applicant makes no statements regarding his request but defers to his legal counsel.

COUNSEL CONTENDS:  In effect, that the relief-for-cause evaluation report stemmed from a General Officer Memorandum of Reprimand (GOMOR) the applicant received on 25 September 1997.  Counsel contends that the applicant’s comments towards a junior enlisted woman were not sexual in nature and that as a result of “these erroneous allegations” the applicant “has undergone unnecessary humiliation.”  She notes that the Army Regulation 15-6 investigation which resulted in the GOMOR was biased and “did not conclude concrete facts to substantiate the allegations.”  Counsel states that the investigating officer did not contact any one who could testify regarding the applicant’s character but did contact individuals who could support the character of the enlisted woman.

Counsel states that at the time of the conversation the applicant was preparing to take his newly assigned platoon “to JROTC at Fort Polk, Louisiana” and would be away from his spouse “for an entire month.”  She notes that the applicant “wanted to get her [his spouse] a nice gift before he left” and asked the junior enlisted soldier (PFC) for her opinion.  Counsel states the conversation was exactly, “…you don’t have to answer this question if you don’t want to.  If your husband could bring home a gift for you, what would it be?”  Counsel states the enlisted woman responded “Since he is away, it could be nothing or lingerie.” Counsel contends that was the extent of the conversation and that he had “assured this soldier she was not compelled to respond” and that “there is absolutely no evidence to contradict these facts.”

Counsel goes on to cite the applicant’s outstanding service record, that “no other female soldier has come forth with these type of allegations” and that the applicant’s comment could not be construed as sexual harassment under the provisions of Army Regulation 600-20.

In support of this petition counsel and the applicant provide extracts from his official military personnel file, copies of documents utilized in response to his GOMOR and the relief-for-cause evaluation report, and a copy of the Army Regulation 15-6 investigation.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned as a U.S. Army Reserve second lieutenant on 5 May 1995 and entered active duty.  On 26 June 1995 he accepted a Regular Army commission.

Following completion of the Chemical Officer Basic Course he was assigned to Fort Bragg, North Carolina.  On 19 August 1997 he was assigned as a Platoon Leader with the 21st Chemical Company.

On 15 September 1997 an investigation into the “circumstances surrounding the allegation of inappropriate comments of a sexual nature made by [the applicant] to a junior enlisted paratrooper” under the provisions of Army Regulation 15-6 was begun.  The investigation concluded on 22 September 1997 and found that on 19 August 1997, the day the applicant arrived in the unit, that he asked the junior enlisted woman if she was married, if her spouse was assigned to the unit, and if she was happy.  The investigating officer found that on 3 September 1997 the applicant, while alone with the junior enlisted woman, asked her “what’s the one thing your husband could bring home to you that would turn you on?”  He noted that when the enlisted woman did not respond the applicant than asked to her to think about it and he would ask again later.  Within a few moments the applicant asked “Don’t you have an answer?  You don’t know what your husband could bring home to you that would turn you on?”  Ultimately, according to information contained in the investigation, the enlisted woman confided in her spouse about the conversation with the applicant and then lodged an informal complaint regarding sexual harassment.  The investigating officer found the allegations of the enlisted woman to be believable and recommended the applicant receive a memorandum of reprimand and that he be reassigned to another unit.

On 25 September 1997 the applicant received the GOMOR.  

In response to the GOMOR the applicant submitted a statement, via his attorney, claiming that he “did not sexually harass” the enlisted woman and that he did not “at any time…make sexual comments to her.”  The attorney noted that the applicant’s question of the enlisted woman; “What is the one thing your husband could bring home to you that would turn you on?” was not “a sexual question.”  He cited the meaning of “turn on” from Webster’s New Collegiate Dictionary which indicated the term meant “To gain knowledge or appreciation of something specified.”  In other words, the attorney argued the applicant was merely asking the enlisted woman “What could your husband bring home to you that you would appreciate.”  He noted that “frankly, it takes an overactive and perverted imagination to twist this conversation into a sexual encounter.”

Included with the applicant’s response to the GOMOR were several statements of support from various individuals who knew and/or worked with the applicant.

On 3 December 1997 the issuing officer noted that he had reviewed the applicant’s submissions and directed that the reprimand be filed in his Official Military Personnel File (OMPF).

While the GOMOR was being processed the applicant received the relief-for-cause evaluation report he is now requesting be expunged from is OMPF.

The evaluation report noted the applicant was being relieved for “inappropriate comments directed towards a subordinate on or about 19 August 97 and on or about 3 Sep 97.…”  The report indicated that a “15-6 investigation was conducted and concluded that these comments constituted sexual harassment….”  

In the applicant’s response to the evaluation report he again argued that he had “never made any welcomed or unwelcome sexual advances” towards the enlisted woman and did not make any requests for sexual favors and therefore the GOMOR and evaluation report were unfounded.  He noted that it was not the enlisted woman but her spouse that “found my comment to be of a sexual nature….”

In a December 2000 advisory opinion to this Board, the Officer Special Review Board (OSRB) noted that “neither the contested OER [Officer Evaluation Report] and GOMOR have been previously appealed under the provisions of Army Regulation (AR) 623-105 or AR 600-37 prior to the applicant’s submission to the ABCMR.”  The opinion noted that the applicant in his appeal had not surfaced any new information that was not previously included in his rebuttal to the GOMOR or OER and that none of the individuals who rendered support statements in the original rebuttals provided “any direct testimony to refute the facts contained in the GOMOR….”  They noted that the 15-6 investigation and subsequent administrative reprimand "supports the comments made by the rating officials" in the report in question and that the applicant had not provided any “clear and convincing evidence to justify deletion or amendment of the OER.”

A copy of the advisory opinion was forwarded to the applicant at the address he provided in his petition to this Board.  However, the letter which furnished him a copy of the opinion and asked for his comments was returned as undeliverable with no forwarding address.

A member of the Board’s staff contacted officials at the Total Army Personnel Command for an updated address and was informed that the applicant had been administratively discharged from active duty in June 1999 (two months after submitting his petition to this Board) and they had no current address on the applicant.

Army Regulation 623-105 states that evaluation reports accepted for including in the official records of an officer are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  An appeal that alleges a report is incorrect or inaccurate or unjust without usual supporting evidence will not be considered.

Army Regulation 623-105 also states that any verified derogatory information may be entered on an OER.  This is true whether the officer is under investigation, flagged, or awaiting trial.  While the fact that an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, it does not preclude the rating chain’s use of verified derogatory information.  Should previously reported information later prove to be incorrect or erroneous the officer will be notified and advised of his or her right to appeal the report. 

The Board recognizes that the applicant has not exhausted his administrative remedies to appeal the GOMOR or OER.  However, the Board notes that in the absence of a current address it would be futile to attempt to return his application, particularly in view of the fact that the OSRB (Officer Special Review Board) has concluded that based on available evidence the appeals would be denied.  As such the Board has elected to act on the applicant’s petition, notwithstanding the requirement to exhaust administrative remedies first.  In so doing the Board recognizes that a copy of these proceedings will be filed in the applicant’s OMPF should future inquiries arise.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Although the Board notes that the applicant is asking that his relief-for-cause evaluation report be expunged from his OMPF his argument revolves around the fact that he considers the GOMOR incorrect and unwarranted.  Presumably by impugning the validity of the GOMOR by default it would then require removal of the OER.  

2.  The Board concludes that the evidence indicates that both the GOMOR and relief-for-cause evaluation report were completed in accordance with appropriate regulations with no indication of procedural errors which would tend to jeopardize his rights.  The evidence indicates the applicant was given an opportunity to present his case in both instances, including character statements counsel contends were not part of the 15-6 investigation.  

3.  The Board notes that the applicant argued in his rebuttal to the GOMOR that his “question” of the enlisted woman was essentially innocent and that the misinterpretation of his use of the term “turn on” in his question was the result of “an overactive and perverted imagination to twist this conversation into a sexual encounter.”  The Board, as did the investigating officer and the applicant’s leadership, contends the statement was inappropriate and is commonly used in a sexual nature.  Additionally, the Board notes that in his petition to this Board the applicant now argues that he told the applicant she need not respond but if her spouse “could bring home a gift for you, what would it be?”  The applicant offers no evidence or explanation regarding the compelling differences between his original argument and the argument he now presents to this Board.

4.  The applicant has not shown that the contested report contains any serious administrative deficiencies, was not prepared in compliance with applicable regulations, or that it was not a valid appraisal of the applicant’s behavior.  Therefore, there is no basis for removing it from his OMPF.

5.  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 that requirement.

6.  The actions by the Army in this case were appropriate and there is no doubt to be resolved in favor of the applicant.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  __mhm___  GRANT

________  ________  ________  GRANT FORMAL HEARING

___fne__  __mkp___  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999026329	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010215	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.