MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           18 June 2002                  
	DOCKET NUMBER:   AR2001065498

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 the DA Form 4833, Commander’s Report of Disciplinary or Administrative Action, generated as a result of her committing adultery, be expunged from Criminal Records Division.

APPLICANT STATES:  That the contested form, and supporting documents, are over six years old and contain information that has blocked her from becoming a drill sergeant.  She contends that the report, which generated the contested form, is irrelevant, untimely, and unduly prejudicial.  She explains that she had been legally separated from her husband when she had a sexual relationship with a man she believed was legally separated and pending a divorce.  When she was questioned about her relationship with this man by the Military Police investigator, she was upfront and honest, that she had a sexual relationship with the man and didn’t learn until later that he was not separated or divorced.  She adds that the issue of her adultery was dropped after she admitted to having an affair with the man in question to the Military Police investigator.  Since the contested report was generated, her divorce was finalized, she was promoted to pay grade E-6, she was deployed to Bosnia as a team chief, she served in Korea as a section sergeant, and she taught advanced individual training.  She said that despite numerous memoranda of recommendation from command sergeants major and one memorandum of recommendation from the Commanding General of Fort Gordon, Georgia, her appeal of the denial of her application for entry into the drill sergeant program was denied based on the DA Form 4833 she wants removed from Criminal Records Division’s files.

In support of her application, she submits the letters of recommendation she references, along with the memorandum from the Total Army Personnel Command denying her appeal.  In that denial she was informed that, “Despite the fact that your current performance of duty is outstanding, all Army leaders are held accountable for past personal conduct.  Moreover, all noncommissioned officers screened for both drill sergeant and recruiting duty are held to a very high standard of personal conduct.  As you know, these are extremely sensitive duty positions.  Any founded report of unfavorable information that meets the established criteria will result in disqualification of the soldier.  The memorandums of support provided with your exception to policy request are indeed impressive, but do not deny the fact that the incident occurred.  When you were asked to provide a copy of your separation agreement, it was discovered that one did not exist, and for this reason I am unable to act favorably on your request.”

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

She enlisted in the Regular Army on 7 February 1989, was awarded the military occupational specialty of mobile subscriber equipment transmission system operator, and was promoted to pay grade E-6.  At the time she submitted her application to the Board she was serving on active duty in pay grade E-6.
On 6 July 1995, a DA Form 4833 was completed on the applicant which showed that she was under investigation for committing adultery in violation of Article 134, Uniformed Code of Military Justice, from 1 April 1994 to 21 February 1995.  In the remarks section of this form it is stated “Soldier was given counseling statement and advised not to have any further contact with the other soldier involved in this incident.”

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

1.  While the applicant states that she was legally separated from her husband and she believed that the man she had the relationship with was legally separated, she has not submitted any evidence to substantiate those claims. 

2.  The PERSCOM, the command with responsibility for determining the standards for entry into the drill sergeant program, had been presented with essentially the same evidence and argument as has been provided to the Board.  It is apparent from the PERSCOM denial that the applicant’s memorandums of recommendation were given careful consideration, but did not outweigh the applicant’s adulterous behavior.  It is noted that the PERSCOM mentioned that, while the applicant stated that she was separated at the time she had an affair with the soldier in question, she did not provide a copy of the separation decree.  

3.  The Board concurs with the PERSCOM, that the applicant has not provided any evidence to show that she was legally separated at the time she had an affair with the man in question, and has not provided any evidence to show that she was led to believe that he was legally separated.  Without such documentation, 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

___mhm__  ___alr__  ____kak _  DENY APPLICATION

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

INDEX

CASE ID	AR2001065498	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020618	
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.		
2.		
3.		
4.		
5.		
6.