MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           15 August 2000    
	DOCKET NUMBER:   AR1999033302

	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. Thomas D. Howard		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wise		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:  That a May 1995 general officer letter of reprimand (LOR) be expunged from his Official Military Personnel File (OMPF). 

APPLICANT STATES:  That he was reprimanded for actions “that later proved untrue.”  He notes that he was reprimanded for “an adulterous relationship, a physical altercation, and improper loaning of a computer.”  He states that he did not engage in a physical relationship with a female soldier “until [he] reviewed her divorce degree,” that he was not the property book officer of record for the lap-top computer he loaned to the soldier for use in her home while she was sick in quarters, and that the “alleged physical altercation was proved to be a fabrication” which later resulted in [the female soldier] receiving non-judicial punishment for making a false official statement.  In support of his request he submits statements from two general officers.  Both statements are dated in 1996.

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

He entered active duty as an enlisted soldier in September 1980 and was discharged for the purpose of accepting an appointment as a warrant officer in December 1987.

He was promoted to pay grade W-2 in December 1989.

On 19 May 1995 the applicant received a LOR from the commanding general, Headquarters, 32d Army Air Defense Command in Germany.  The LOR noted the applicant was being “reprimanded for [his] gross lack of judgment and willful misconduct as reflected in [his] actions by committing adultery and [his] wrongful appropriation of government property.”  The letter goes on to state that the applicant engaged in an adulterous relationship with a junior enlisted soldier which “culminated with an argument which degenerated into a physical altercation” in the presence of the enlisted soldier’s daughter.  The letter also noted that the applicant “abused [his] position as Property Book Officer to give a U.S. Government computer to [the enlisted soldier] for her home use.”  The applicant was 35 years old at the time he received the LOR.

In a 30 May 1995 response to the LOR the applicant admitted to the physical relationship but indicated that he “did not know that she was still married.”  He noted he had known the soldier for approximately 3 years and did not engage in a physical relationship until February 1995 after she showed him “a document that she claimed to be a divorce decree….”  He also noted that the lap-top computer he loaned her was not from his property book but had been hand receipted to him from another property book officer “to complete [his] work at [his] place of residence” which was permitted by the commands standard operating procedures (SOP).  He indicated that he subsequently loaned the computer to the enlisted soldier “while she was on quarters in order for her to complete work at home, while absent from her work place.”  He made no mention of the physical altercation in his letter.

On 1 June 1995 the commanding general, 32nd Army Air Defense Command directed that the LOR be filed in the applicant’s OMPF.

The applicant was promoted to CW3 in December 1995.

On 7 April 1996 he initiated an appeal to the Department of the Army Suitability Evaluation Board (DASEB) to have the LOR removed from his file.  He essentially raised the same issues included in his 30 May 1995 letter to the commanding general of the 32nd Army Air Defense Command but included information indicating that the enlisted soldier had lied about the physical altercation, that he was in fact only defending himself, and that as a result of her false statement she was charged with assault and rendering a false official statement.  As a result of the charges the enlisted soldier was administratively separated from the Army in lieu of trial by court-martial.

Included with his DASEB appeal were the two general officer statements the applicant submitted with his application to this Board.  Both statements were authored by general officers.  One, dated 19 October 1995, merely recommends the applicant be retained on active duty and noted that the general officer could not “comment directly about the reprimand…[but believes the applicant] was at the wrong place at the wrong time trying to do the right thing.”  The second letter, dated 1 May 1996, speculates that the general officer who issued the LOR may not have been aware of “all the facts at the time he endorsed” the LOR into the applicant’s OMPF.  The author also states that it “is unlikely from the chronology of events that either [the applicant] or [the issuing general officer] saw the CID [Criminal Investigation Division] ROI [Record of Investigation] prior to the filing determination.”  He also noted that the applicant’s duty performance “has been outstanding in every respect.”

The DASEB denied the applicant’s petition on 10 July 1996.

A 1 May 1995 preliminary CID investigation report indicated the applicant had gone to the enlisted soldier’s home on 29 April 1995 to retrieve the computer he had “let her borrow” and to “explain their intimate relationship was over.”  The report indicated that a tape recording “removed from a tape recorder inside [the enlisted soldier’s] residence, just prior to the [applicant’s] departure from the home disclosed what appeared to be [the enlisted soldier] initiating the physical altercation….”  The enlisted soldier was charged on 23 May 1995 with attempted assault, making a false official statement, and being absent without leave from 
10 May until 17 May 1995.

The SOP referred to by the applicant regarding the use of lap-top computers notes that “laptop computers may be utilized by office personnel in the user’s normal work location, field work location, residence, TDY location, or other authorized work area….”  It also states that “personnel requesting to use a laptop AIS will sign for the equipment using a DA Form 3161 (Request for Issue or turn-in) from the property receipt holder for the section.”

The applicant has apparently been passed over for promotion to CW4 and submitted his application to this Board in October 1999.

Army Regulation 600-37 (unfavorable information) provides in pertinent part, that only information that the individual has been provided a opportunity to review the material and offer a written response may be filed in a soldier's OMPF.  Once filed in the OMPF such documents are permanent unless removed in accordance with chapter 7.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate derogatory information are to be based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army.  If an appeal is denied the DASEB letter of denial will be filed on the performance fiche, the appeal itself and any associated documents will be filed on the restricted fiche.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

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

1.  While the applicant contends that he was somehow not responsible for the situation which ultimately resulted in the LOR, the available evidence indicates that the applicant did engage in a relationship with a junior enlisted soldier, who’s marital status was questionable at best, loaned her a lap-top computer for which he, and not the enlisted soldier, had signed for, and was involved in an altercation with a female soldier, regardless of who initiated the altercation.  The Board contends that such conduct would clearly indicate a “gross lack of judgment and willful misconduct.”  The Board notes the applicant was 35 years old at the time of incident and had nearly 15 years of military service.

2.  The applicant had the opportunity to submit his rebuttal to the LOR, including information concerning the circumstances surrounding the physical altercation, regardless of the status of the CID investigation.  The general officer, after reviewing the applicant’s rebuttal deemed it appropriate to file the letter in the applicant’s OMPF, which was within his realm of authority.  The applicant has not shown that the general officer’s decision was in error or unjust or that with any more information he would have made a different decision.

3.  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.

4.  The LOR was administered in accordance with applicable regulations and was not disproportionate to the offense.  There is no evidence of any substantive violation of the applicant’s rights.

5.  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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__tdh___  ___aao__  ___gjw__  DENY APPLICATION

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

INDEX

CASE ID	AR1999033302	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000815	
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.	134.00	
2.		
3.		
4.		
5.		
6.