APPLICANT REQUESTS:  That an August 1994 record of non-judicial punishment (NJP) and a relief-for-cause evaluation report for the period April 1994 through September 1994 be expunged from his Official Military Personnel File.  He also requests reimbursement of $1923.30, the amount forfeited from his pay as a result of the August 1994 NJP ($961.65 per month for 2 months).

APPLICANT STATES:  He was punished under Article 15, UCMJ and received a relief-for-cause evaluation report following an investigation of allegations that he had an improper relationship with a female soldier undergoing Advanced Individual Training (AIT) in his Battalion.  He states the investigation was initiated when another AIT student saw the female soldier leaving his house at approximately 1245 hours on 10 July 1994.  The applicant states the female AIT soldier arrived at his house uninvited and that he immediately called her a cab to return to her unit.  He notes, in effect, the imposition of the NJP was unjust and illegal, that the commander abused his discretion by imposing punishment even though an earlier NJP had been dismissed and that the relief for cause evaluation report was issued in violation of the governing regulation.  In support of his application he submits several letters/memos regarding his professionalism subsequent to the relief-for-cause evaluation.

COUNSEL CONTENDS:  The applicant was initially charged with violation of Article 92, UCMJ for violating a Lawful General Regulation (CASCOM and Fort Lee Regulation (CASCOM&FL) 600-27, paragraph 4I(4)).  As a result of a letter from the applicant’s counsel, who reminded the applicant’s battalion commander “that he as the fact-finder must be sure of Applicant’s guilt beyond a reasonable doubt,” the initial charge was withdrawn.  However, on 24 August 1994 a second Article 15 was initiated again alleging violation of Article 92 but the “new charge dropped the subparagraph (4) allegation and reference only that applicant violated CASCOM and Fort Lee Reg 600-27 subparagraph 4i.”  Counsel contends the CASCOM regulation is vague and fails to adequately define it’s terms, specifically the meaning of “entering” a relationship.  He notes the applicant “was administered the Article 15 for not dissuading a student from coming to his home, even though the student was someone that he had previously known” and because the student, a female soldier, had taken the applicant’s 12 year old daughter shopping.  Counsel states the applicant did not “enter” into a relationship while the student was in training but merely continued a relationship “with someone already known to him prior to her status as an AIT student.”  Counsel states the applicant met the female student while he was in Texas.  Counsel notes that Department of the Army Pamphlet 600-37 encourages “close, personal relationships” as “desirable and required to build cohesive units in the Army” and that “the leader must be counted on to use good judgment, experience, and discretion to draw the line between relationships which are “destructive” and those which are “constructive.”  Counsel concludes the command should have considered the broader Army principle rather than “been so eager to impose punishment for innocent behavior due to its interpretation of a vague portion of regulation.”

Additionally, counsel argues that the decision to withdraw the initial, 12 August 1994, NJP action because there was insufficient evidence to conclude the applicant violated the provisions of paragraph 4i(4) of CASCOM&FL Regulation 600-27 in effect also meant there was insufficient evidence that he violated paragraph 4i.  He notes an individual can not violate a subparagraph without violating the primary paragraph and when cleared of one is ultimately cleared of both.  As such the final 24 August 1994 NJP action should not have taken place.

Counsel also maintains that the applicant’s relief-for-cause evaluation report was flawed because of discrepancies in the rating chain and that rater qualification requirements were not met.  He submits copies of a February 1994 and July 1994 rating chain, but notes neither was followed when the relief-for-cause report was rendered.  He notes several versions of the evaluation report were rendered before the final report was complete which adversely affected the applicant.  He states “not only did the command have a problem with deciding who the rating officials would be and what period the report should cover but they also could not decide whether the report should be a change of rater or relief-for-cause, and whether the report should be totally adverse or only adverse in one area.”  He notes that senior rater comments about the lack of counseling and the “pending disciplinary action” violate the “explicit language of the regulation.”

Counsel concludes that “because the Article 15 was improperly given the contested report...should be voided in its entirety as it is based on the same incident that led to the nonjudicial punishment.”

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

He entered active duty on 21 August 1978 and has served on continuous active duty.  During his military service he has received numerous Army Achievement Medals, several Army Commendation Medals and a Meritorious Service Medal.

With the exception of a 1979 relief-for-cause evaluation report for verbally and physically abusing a subordinate and the 1994 relief for cause report in question, the applicant’s overall performance has generally been rated as among the best.  In addition to the 1994 Article 15 he received one prior Article 15, in 1983, for being “drunk and disorderly in camp....”  The 1983 record of NJP is filed on his restricted fiche.

In January 1994, while serving in pay grade E-7, the applicant was assigned to Company P, 266th Quartermaster Battalion as a senior instructor/writer.  He was responsible for training 125 AIT students each month.

According to a Military Police Report, rendered in July 1994 and submitted as part of the applicant’s request, and several accompanying statements, an investigation was initiated when it was learned “of a possible prohibited relations case between a PVT in T. Co. and [an] instructor in P. Co.”  On 11 July 1994 the applicant stated he had given the female student his address and phone number but told her not to call or come over until she was finished with training.  He notes he gave her this information because he “knew her from the past.”  However, he indicated the female student “did come on her [own] as well as call” but “told her to wait till she finished school.”  In an undated statement the applicant related that he knew the female student “in Korea” and that when she came over to his house in a taxi he told her he had given her his address “with the understanding that [she] could come and see [him] when [she] finished training” and then “turned her around and told her to go back to her quarters.”

On 12 July 1994 the female student rendered a four page statement, of which only two pages were provided with the applicant’s request.  She stated she first met the applicant at a party at Fort Hood “about one year ago, in July” while she was living in Houston and visiting a friend at Fort Hood. She then noted that while standing in line at the mess hall on Fort Lee, “about three weeks ago,” the applicant came up to her and asked her where she was from.  When she informed him she was from Korea she indicated he told her he had just returned from Korea and that his ex-wife was Korean.  She noted that when she saw him in the mess hall she recognized him from Fort Hood.  Page 2 of her statement was not included with the applicant’s request and as such clarification of why the applicant asked where she was from in view of having met previously is not available.

The female student related that when the applicant gave her his address and phone number he explained he was not supposed to see her until she finished school.  She noted she called him a couple times to see him but “he said that we better see after school(sic).”  The female student mentioned seeing the applicant’s daughter and then related that on a Sunday she took a cab to his house and when she arrived he said “he was glad to see [her]....”  She stated he explained “about Army Regulations and he didn’t want to take chance(sic)” and then “about 12:00 noon” called a cab.  In a subsequent sworn statement, rendered on 26 July 1994 by a provost marshal investigator, the investigator related the female student had indicated she went to the applicant’s house several times to pick up his daughter and take her to the PX and that they talked several times a week on the phone.

On 12 August 1994 the applicant’s battalion commander signed an Article 15 indicating his intention to punish the applicant for “wrongfully having [the female student], an Advance Individual Training student, at [his] quarters.”  There is no evidence the NJP was referred to the applicant. However on 24 August 1994 the applicant received an Article 15 “for wrongfully having [the female student], an Advanced Individual Training student, at [his] quarters and for allowing the student to come to his quarters and pick up his daughter.  The applicant did not appeal the proceedings.

CASCOM&FL Reg 600-27, also provided by the applicant, was published on 1 December 1992 and superseded an earlier version dated 13 May 1985.  The regulation “prohibits certain transactions, relationships and activities between permanent party or student personnel and Initial Entry Training (IET) soldiers.”  Paragraph 4i, prohibits “entering into any public or private relationship with IET soldiers that is not required to accomplish the training mission.”  It notes that this “prohibition includes, but is not limited to” and then cites four examples in subparagraphs, including subparagraph 4, which states “engaging in any intimate or sexual relationship, to include but not limited to: dating, kissing, embracing, holding hands or caressing.”

Subsequent to the NJP, in March 1995, a relief-for-cause evaluation report was finalized.  The report covers the period January 1994 through September 1994.  The report was rendered by the Chief Instructor/Writer, a MSG and the Director of Training, a Major.  The February and July 1994 rating chain provided by the applicant both reflect a rater who was neither senior in grade nor date of rank to the applicant.  The report, which is filed in the applicant’s Official Military Personnel File, contains comments noting the “rated NCO has been notified of the reason for the relief” and that “counseling was not conducted due to promotable status.”

Army Regulation 623-205 states that a relief-for-cause evaluation report is defined as the removal of a NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army.  The minimum rater and senior rater qualification and the minimum rating period for a relief-for-cause evaluation is 30 days.  A rater must be senior in either grade or date of rank to the ratee.  It also notes that an evaluation report accepted for inclusion in the official record of an NCO is 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.

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.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before the applicant elected to accept nonjudicial punishment he was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.  The earlier version of the NJP, which was never referred to the applicant, does not invalidate the subsequent report.

2.  The applicant could have demanded trial by court-martial where-in he could have argued that alleged injustices he cites in his application somehow provided a defense or mitigated his misconduct.

3.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.

4.  The applicant has not shown, to the satisfaction of the Board, that his relief-for-cause evaluation report was in error or unjust.  The report, contrary to his application, covers the period January 1994 through September 1994, and does not contain reference to any pending disciplinary action.

5.  The applicant has submitted no evidence of substantive inaccuracy of the contested report from anyone in a vantage point equivalent to that of members of the rating chain.  While it may be true that the applicant’s evaluation report was not rendered by individuals on the February or July 1994 published rating chain the Board notes that the published rater would not have been able to rate the applicant because he was neither senior in grade or date of rank to the applicant.  Although the published rating chains may have been in error the individual’s who ultimately rendered the final report (Chief Instructor/Writer and Director of Training) were clearly in the applicant’s immediate supervisory chain.  As such the Board is convinced they were in a position to render an appropriate rating.

6.  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.

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:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director