APPLICANT REQUESTS:  In effect, that he be restored to active duty, that the nonjudicial punishment action be expunged from his record, that he be restored to the rank of staff sergeant, receive all pay and allowances that he would have been entitled had he not been unjustly demoted, and that he be reimbursed the $1000.00 he forfeited as a result of the nonjudicial punishment.  

APPLICANT STATES:  That there is no evidence that he is the male in the pornographic photographs.  He states that the photographs were found among some old film he had submitted for development and the face of the male involved is not shown in any of the pictures.  Additionally, letters from his brothers indicate that they had told him about taking some pictures, but he had waited too long (to have film developed), and had no way of knowing which film was his (which were non-criminal) and which were his brothers.  There is no evidence that the acts occurred within the statute of limitations and the commander lacked jurisdiction.  

The applicant states that the military police investigating the case used only circumstantial evidence.  The film contractor violated consumer privacy, and that the pictures were of consenting adults, which were never intended to be seen by anyone.  He states that he wanted a court-martial, but his defense attorney did not think this necessary, and that his company commander informed him that he would not be reduced, so he elected to accept the Article 15.  The reduction ruined his military career.  His commander knew his career plans, and deliberately destroyed his career, and his commander is now using the Article 15 action to bar him from reenlistment (NOTE:  This statement, and his request were completed prior to the applicant’s discharge).

The applicant submits letters from his two brothers, one of whom stated that he (the applicant’s brother) and a lady friend used the applicant’s place, and other places, to do personal things and took pictures of one another.  This individual stated that he and his brother closely resemble one another, with a similar body structure and near exact facial features.  The applicant’s second brother stated, in effect, that the applicant was not capable of this type of conduct, but that he could believe it of his other brother, who very much resembles the applicant. 

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

The applicant entered active duty in May 1986, was promoted to Staff Sergeant E-6 on 1 October 1991, and remained on continuous active duty until his discharge on 7 March 1996.

A 12 December 1994 military police report indicates that the applicant had delivered some 109 rolls of film for processing at a troop exchange on Redstone Arsenal, Alabama, that the processed film contained pictures of nude females engaging in oral and anal sex with the applicant.  A search of the applicant’s barracks room revealed assorted pornographic material and additional film negatives depicting sexual acts.  

On 1 February 1995 the applicant received nonjudicial punishment for sodomy on diverse occasions between on or about 11 July 1994 and 6 December 1994.  The applicant did not demand trial by court-martial.  He was reduced to the grade of E-5, required to forfeit $500.00 per month for two months, and required to perform extra duty for 45 days.  The commander that imposed the punishment directed that the original of the record of proceedings be filed in the applicant’s restricted fiche.  The applicant appealed.  An officer of the Judge Advocate General’s Corps opined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offense committed.  On 
3 February 1995 his appeal was denied.

The applicant’s counsel appealed to the applicant’s battalion and brigade commanders, and to the commanding general.  In each instance counsel stated that the applicant’s alleged misconduct did not meet the standard required in an element of Article 125 of the UCMJ.  Counsel stated that the critical element of that article states that the “accused engaged in unnatural carnal copulation with a certain other person or with an animal (emphasis supplied by counsel)”, but the facts in the Article 15 record of proceedings states in effect that the applicant committed sodomy on divers occasions with numerous unknown females (emphasis supplied by counsel).  Counsel stated that the offense alleged in the record of proceedings is legally insufficient.  Counsel’s requests on behalf of the applicant were denied.    

On 27 June 1995 the applicant was barred from reenlisting.  based on the nonjudicial punishment, his letter of indebtedness for child support resulting in the garnishment of his pay; the applicant’s behavior as outlined in a 
5 October 1994 letter to the applicant from his commander in which that official stated that the applicant had been harassing another NCO, had forced entry into an NCO’s quarters, and had kept unregistered weapons on post; two police reports; and a counseling form which indicates that he failed to report for charge of quarters duty at the appointed time.  The applicant stated that he was furnished a copy of the bar to reenlistment action, that he was counseled and advised on the basis for the action, and stated that he did not desire to submit a statement in his own behalf.  The applicant did not appeal the bar to reenlistment.

The applicant was discharged on 7 March 1996 upon completion of his required active service.  He received an honorable characterization of service.  The applicant had 9 years, 
9 months, and 25 days of service.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal courts-martial rules of evidence and may consider any matter, including unsworn statements the commander reasonably believes to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Chapter 3 of the regulation sets forth the policy and procedures for nonjudicial punishment under Article 15, UCMJ.  It provides in pertinent part that an NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted.  A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the soldier.  New evidence unquestionably exculpating the individual is a cited example whereas the fact that a soldier's subsequent performance has been exemplary or that the punishment adversely effects the career potential is expressly excluded from the definition of clear injustice.

Army Regulation 600-8-104 provided, in pertinent part, that the R fiche is used for historical data that that may normally be improper for viewing by selection boards or career managers.  Its release is highly controlled.  The R fiche is intended to provide an unbroken historical record of an individual’s service while protecting the interests of both the soldier and the Army.

Army Regulation 601-280 prescribes the criteria for the Army’s total retention program.  Chapter 6 of that regulation prescribes procedures to deny reenlistment to soldiers whose immediate separation under administrative procedures is not warranted, but whose reentry into, or service beyond ETS (expiration of term of service) with, the Active Army is not in the best interest of the military service.  Soldiers may be barred from reenlisting for one or a combination of infractions or reasons, including late to assigned duties, recurrent article 15 punishments, failure to manage personal, marital or family affairs, involvement in immoral acts, and personal behavior which brings discredit upon his unit or the Army.  The fact that a soldier may have served honorably for a number of years is considered in the evaluation of his service; however, it does not prohibit the initiation of bar to reenlistment procedures.  Furthermore, the fact that a soldier may be issued an honorable or general discharge for the current period of service does not prevent initiation of bar to reenlistment procedures to deny the soldier later service in the Regular Army.

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.  The applicant’s contentions were repeatedly rejected upon appeal.  The governing regulation specifically excludes career implications as a basis for setting aside nonjudicial punishment.  Furthermore, the commander’s action in filing this incident on the restricted fiche tends to demonstrate that he was interested in protecting rather than ruining the applicant’s career.

2.  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 he elected to accept nonjudicial punishment the applicant 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 and could have argued technical matters such as the jurisdictional question.  Instead he chose to have the matter settled at nonjudicial punishment.  

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 his rights.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request to have the record of his punishment removed from his files. 

4.  The bar to reenlistment procedures were conducted in accordance with the procedures contained in the governing regulation.  The applicant chose not to appeal the imposition of the bar to reenlistment.  

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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director