| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Walter T. Morrison | Chairperson | |
| Mr. Christopher J. Prosser | Member | |
| Ms. Yalonda Maldonado | Member |
2. The applicant requests, in effect, that his 2001 (Department of the Army (DA) Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice) be corrected to either delete or amend that portion pertaining to the violation of Article 134 of the Uniform Code of Military Justice (UCMJ). He states that while he admits to having received the UCMJ action because he made a mistake, he was found not guilty of the adultery charge. He admits that he "made some bad decisions and that [he] deserved to be punished for inappropriate relationships" but he "did not commit adultery." He notes that when he was administered the UCMJ action his commander informed him that there was "no evidence to support the adultery charge and that it was being dropped." The applicant states that he subsequently realized that the UCMJ action was filed in the restricted portion of his OMPF (Official Military Personnel File) with the adultery charge still recorded on the record of proceedings. In support of his request the applicant submits a March 2002 statement from his former unit commander, to the Adjudication Division of the United States Army Intelligence & Security Division, indicating that he had "failed to articulate [that the applicant] was not charged for Article 134" in the "transcription of the administrative data for punishment…." The applicant maintains that retention of the inaccurate information is impacting on his military career and will continue to do so.
3. Records available to the Board indicate the applicant entered active duty on
2 September 1997 and was promoted to pay grade E-5 in October 2000.
4. On 24 April 2001, while the applicant was serving as a Team Leader in a military police company in Korea, he was notified that his commander intention to punish the applicant under the provisions of Article 15 of the UCMJ for violation of Article 92 (failure to obey an order or regulation by wrongfully having an inappropriate relations with a junior soldier) and Article 134 (adultery). The information regarding violation of Article 92 was on the front page of a DA Form 2627, and the information regarding violation of Article 134 was on a separate, continuation page.
5. The applicant indicated on 14 May 2001 that he would not demand trial by court-martial and that he requested a closed hearing and that an individual speak in his behalf. The applicant's commander then imposed punishment (forfeiture of pay, extra duty, restriction and a written reprimand) and directed that the record of proceedings be filed in the applicant's restricted fiche. The applicant did not appeal the action.
6. The applicant's records indicate that the entire UCMJ action (DA Form 2627 and continuation sheet) was filed in his restricted fiche with no notation or explanation that the applicant had been found not guilty of violating Article 134. The filed document gives the appearance that the applicant was punished for violation of both Article 92 and 134.
7. The statement submitted by the applicant's former commander in March 2002 to officials at the United States Army Intelligence & Security Division is the same commander who imposed punishment under Article 15 of the UCMJ. He stated that the applicant "was found guilty of…inappropriate conduct with an enlisted soldier with the rank of specialist in his platoon" and although also charged with adultery "he was cleared of all charges as there was no evidence supporting this charge."
8. Army Regulation 27-10 (Military Justice) notes that the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising the commander's authority in an absolutely fair and judicious manner. It states that the commander of the alleged offender should investigate the allegations to determine whether an offense was committed, whether the soldier was involved, and the character and military record of the soldier. Having completed a preliminary inquiry and determined that the punishment, if it should be proved to be appropriate, might exceed extra duties for 14 days, restriction for 14 days, oral reprimand or admonition, or any combination thereof, will then notify the soldier of his intentions to dispose of the matter under the proceedings of Article 15 of the UCMJ. All entries regarding the action will be recorded on a DA Form 2627. Subsequently, in the presence of the commander, the soldier will be allowed to personally present matters in defense, extenuation, or mitigation. In cases where administrative error results in incorrect entries on the DA Form 2627 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.
CONCLUSIONS:
1. Based on the comments of the applicant's former commander, in his March 2002 statement, the Board concludes that the commander did not intend to give the impression that the applicant was punished for violation of both Article 92 and Article 134. While he may have initially believed there was sufficient evidence that the applicant had violated Article 134, the commander subsequently determined that there was not. Prior to filing the record of proceedings in the applicant's OMPF the commander should either have annotated the proceedings in such a way to indicate that the applicant was not being punished for violation of Article 134, or deleted that information entirely.
2. The Board concurs with the applicant that continued retention of that information in his OMPF might be detrimental, and certainly unfair. As such, and in the interested of simplicity, the Board concludes that it would be appropriate, and in the interest of justice, to merely expunge the entire continuation sheet of the record of proceedings.
3. In order not to compound the injustice, the Board concludes that it would be appropriate, once the continuation sheet has been expunged from his file, to return these proceedings, and all documents related to this appeal to the Board for permanent filing.
4. In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by expunging the continuation page of the 2001 DA Form 2627 from the OMPF of the individual concerned and, following completion of the administrative correction directed herein, that the proceedings of this Board and all documents related to this case be returned to the Board for permanent filing.
BOARD VOTE:
__WTM__ __CJP __ __YM___ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
___Walter T. Morrison___
CHAIRPERSON
| CASE ID | AR2002075876 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030130 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. | 126.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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