MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 April 2000
	DOCKET NUMBER:   AR1999033399

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger Able		Member	
	Ms. Margaret V. Thompson		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:  The removal of a General Officer Memorandum of Reprimand (GOMOR) and all associated documents from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that the charges brought against him were false and he should never have received a GOMOR until the civilian charges were resolved.  He also states that there was no false official statement and the charges were subsequently dismissed.  He further states that the court has ordered that any record of the charges be expunged from his records and he has provided a copy of that order.

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

He was commissioned as a USAR second lieutenant on 17 May 1985 and was ordered to active duty on 15 November 1987.  He accepted a Regular Army appointment on 15 March 1988 and served as a special forces officer for the majority of his career.  He was promoted to the rank of captain on 1 May 1991 and was selected for promotion to the rank of major prior to his separation.

On 13 November 1997, while stationed at Fort Bragg, North Carolina, he was arrested in Fayetteville, North Carolina by the Cumberland County Sheriff’s Department and was charged with second degree rape and a second degree sexual offense.

The applicant gave a statement to the police department to the effect that he was at home at approximately 1200 hours working on his computer and decided to go on the internet and visit a chat line. In doing so, he met someone from Fayetteville (a female) who convinced him to call her and arranged a meeting at approximately 1315 hours.  He further stated that she proposed sex and he initially declined because he was on duty and married and did not want his vehicle seen at the motel she proposed they go to.  They eventually decided to go to her home and he contends that no sex ever took place and that he left.  

The female complainant stated, in effect, that the applicant was the one who proposed sex, that he became violent/angry when she refused and that he then proceeded to rape her.  She further claims that she saved the condom after he departed and reported the incident.

On 16 December 1997, the Commanding General issued a GOMOR to the applicant indicating that he had been apprehended for suspicion of rape and reprimanding him for being absent from his place of duty at the time of the incident, for making a statement to the police admitting that he had committed adultery, for making a false official statement, and for conduct unbecoming an officer.  The reprimand was referred to the applicant for comment prior to making a decision on the filing of the GOMOR.  It also contained a statement that it was imposed as an administrative measure and not as punishment under the UCMJ.

The applicant responded to the GOMOR on 29 December 1997 stating, in effect, that while he knew what he did was wrong and that he displayed poor judgment, the criminal charges against him were false.  He further stated that he had faith that the charges would prove to be unfounded and given his excellent record of service and performance, he requested that the CG not make the GOMOR a permanent part of his record that would result in destroying his career opportunities either with government law enforcement agencies or the Army.

The imposing commander directed that the GOMOR be filed on the performance fiche of the applicant’s OMPF.

The applicant submitted a request for unqualified resignation on 16 November 1998 and his request was approved on 15 December 1998.

Accordingly, he was honorably discharged in the rank of captain on 27 January 1999 under the provisions of Army Regulation 600-8-24. Paragraph 3-5, for miscellaneous/general reasons.  He had served 11 years, 2 months, and 13 days of total active service.  

A review of the applicant’s records shows that he was awarded the Bronze Star Medal (BSM) with “V”device, the BSM, the Army Commendation Medal, the Army Achievement Medal (2d award), the Meritorious Unit Commendation Medal, the National Defense Service Medal, the Armed Forces Expeditionary Medal; the Southwest Asia Service Medal with three bronze service stars, the Army Service Ribbon, the Kuwait Liberation Medal, the Combat Infantryman Badge, the Expert Infantryman Badge, the Master Parachutist Badge with combat distinguishing device, one bronze service star, the Pathfinder Badge, the Air Assault Badge, the Ranger Tab, and the Special Forces Tab.

The petition for and order of expunction submitted by the applicant consists of an order from the North Carolina District Court which indicates that the charges were dismissed in trial on 9 August 1998 and directs that all entries relating to his apprehension, trial and disposition of charges be expunged from the records of the court and all law enforcement agencies. 

Army Regulation 600-37 serves as the authority for filing of unfavorable information in the OMPF.  It states, in pertinent part, that a nonpunitive MOR or admonition will be filed in the OMPF only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient.

Army Regulation 27-10 provides policies and procedures pertaining to the administration of military justice within the Army. It states, in pertinent part, that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty adjusting to military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are administrative reprimands and admonitions and they must contain the statement indicating that they are imposed as an administrative measure and not as punishment under the UCMJ. 

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.  The GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the applicant’s OMPF. 

2.  The Army has an interest in maintaining certain records and, the applicant has failed to provide evidence to show why the LOR should not remain a matter of record.

3.  Notwithstanding the dismissal of charges against the applicant and his subsequent approval to have his civil records expunged of all references to the event in question, the applicant admitted to the imposing officer that aside from the civil charges against him, he had used bad judgement and that he had done wrong.  The Board finds that the charges against him at the time were irrelevant and that his conduct which led up to his being charged was inappropriate.  Accordingly, the commander was acting within his authority to impose nonpunitive measures against the applicant in the form of a GOMOR.

4.  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 the aforementioned requirement.

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

___ra___  ___wtm__  ___mvt__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033399	
SUFFIX		
RECON		
DATE BOARDED	2000/04/20	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  329	134.0100/rem gomor	
2.		
3.		
4.		
5.		
6.