MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 October 2003
         DOCKET NUMBER: AR2002082903

         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Robert L. Duecaster		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)

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APPLICANT REQUESTS: Through counsel; that the nonjudicial punishment (NJP) imposed against him on 10 May 2002 under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), be set aside and all rights, privileges, and property be restored; that DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) be expunged from his Official Military Personnel File (OMPF); that all mention of derogatory information related to the subject NJP be removed from unit files and any other records system; and that he be reinstated to Drill Sergeant (DS) status.

APPLICANT STATES: In a four-page statement with 12 pages of attachments, that, in effect, he was unjustly accused of fraternization with two female soldiers-in-training, Private (PVT) "M" and PVT "C." He contends that both soldiers had issues -- PVT "M" craved attention and PVT "C" lacked military bearing and required frequent counseling. He adds both soldiers were, in effect, infatuated with him and would constantly stare at him. At some point in time, he brought to work a photo album of his tour of duty in Bosnia in order to show his fellow DS. He showed the album to his soldiers on 30 March 2002 and, after so doing, returned the album to the DS Office. On 31 March 2002, the applicant states he was notified by a DS that PVT "C" had his photo album and a photo [presumably of the applicant] had been removed from the album. The DS told the applicant that he believed PVT "C" had a "crush" on him.

The applicant states that he went to the company at approximately 1300 hours, 31 March 2002. At approximately 1500 hours, he was the only DS on duty. At 1845 hours, he was getting the soldiers ready for the evening meal and had removed his money from his pants pocket in order to see if he had enough to eat in the dining facility. PVT "M" ran by at that instant and handed him a piece of paper saying, "Here Drill Sergeant, you dropped this." He placed it in his pocket and marched the soldiers to the dining facility. Later, he discovered that the paper was actually two notes -- one from PVT "C" and one from PVT "M" -- both stating that he was an excellent DS and they liked his eyes. He called both soldiers to the DS Office and forcefully impressed upon them the command's non-fraternization policy, told them he was "tired of the elementary school crap," slammed his fist on the desk, and ordered them to "get out of [his] office."

The applicant concludes that 19 days later he was accused of improper association with PVT "M" and PVT "C." He believes that the two soldiers, fearing that they would get into trouble, concocted and spread the false story that he had private conversations with them and that he kissed PVT "M." He also believes that several soldiers were "out to get him" because he was a taskmaster and a disciplinarian, thus a male soldier-in-training provided a statement that he had witnessed the "kiss."

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COUNSEL CONTENDS: That the applicant was an outstanding soldier and, as a DS, he was a stern taskmaster, which led to confrontations and animosity toward him. He adds that PVT "M" and PVT "C" had strong sexual attractions toward the applicant and this engendered a competition between them for the applicant's attention. When they were rebuked, they told a story of an illegal association between themselves and the applicant. Counsel points out that during the investigation, PVT "M" rendered a sworn statement (DA Form 2823) on 20 April 2002 essentially denying the illegal association, then on 24 April 2002, she rendered a sworn statement acknowledging the association. Finally on 3 August 2002, PVT "M" provided a letter repudiating her 24 April 2002 sworn statement.

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

He was a Staff Sergeant (SSG/E-6) assigned as a DS at Fort Jackson, South Carolina. A Military Police Report, dated 1 May 2002, states that on 31 March 2002, the applicant, while in his DS Office, did engage in a personal relationship with PVT "M," a female soldier-in-training under his charge, by hugging and kissing her.

During the investigation, PVT "M" rendered a sworn statement that she was attracted to the applicant, as was PVT "C." While looking through the applicant's photo album of his Bosnia assignment, she found a note written by PVT "C" stating that she [PVT "C"] found the applicant attractive. PVT "M" then wrote a note of her own stating that she found him sexually attractive. She stated that she passed the applicant both notes on 31 March 2002. He read them and later called PVT "C" to his DS Office. PVT "M" accompanied PVT "C" to the meeting with the applicant. In the office, the applicant chastised both soldiers and asked PVT "M" what she wanted from him. PVT "M" responded that she wanted to have sex with him. He told the two PVT's to stop obsessing over him and to go back to the platoon. PVT "M" then added that the applicant asked her to remain behind and the two kissed and hugged. PVT "M's" story was corroborated by a male soldier-in-training who alleged that he witnessed the kissing.

On 30 April 2002, the applicant was advised of his legal rights, which he invoked, and requested a lawyer. On 1 May 2002, the Staff Judge Advocate's Office opined that sufficient probable cause existed to believe the applicant committed the offense of violation of Article 92, UCMJ, by engaging in a prohibited relationship. On 4 May 2002, the applicant's battalion commander offered him NJP. The applicant accepted the NJP on 9 May 2002 and, on 10 May 2002, the commander imposed punishment consisting of reduction from SSG to Sergeant (SGT/E-5), a written reprimand, and forfeiture of $1,097 pay per month for 1 month (suspended, to be remitted if not vacated on or before 5 November 2002).

On 14 May 2002, the applicant was issued a written memorandum of reprimand by his battalion commander. On 16 May 2002, he was removed from the DS Program. On 17 May 2002, the applicant waived his right to appeal removal from the Drill Sergeant Program.

Army Regulation 600-20 prescribes the policies and responsibilities of command, which include military discipline and conduct, and the Army Equal Opportunity Program. It provides, in pertinent part, that relationships between soldiers of different rank are prohibited if they: (1) compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; (2) cause actual or perceived partiality or unfairness; (3) involve, or appear to involve, the improper use of rank or position for personal gain; (4) are, or are perceived to be, exploitative or coercive in nature; and/or (5) create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. It specifically prohibits any relationship between permanent party personnel and initial entry soldiers-in-training not required by the training mission. This prohibition applies to permanent party personnel without regard to the installation of assignment of the permanent party member or the soldier-in-training. Violations of this regulation are punishable under Article 92, UCMJ, for failure to obey a general order or regulation.

Army Regulation 27-10 provides policy for the administration of military justice. Chapter 3 provides that NJP 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 rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed 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. However, the soldier has the right to accept NJP or reject it and demand trial by court-martial prior to the start of the hearing and consideration, examination, or presentation of evidence. The soldier's decision to accept NJP is irrevocable, but should the soldier consider requesting trial he/she will be told that such trial could be by summary court-martial (SCM), special court-martial (SPCM), or general court-martial (GCM). The soldier will also be told that he/she may object to trial by SCM and that, at SPCM or GCM, the soldier would be entitled to be represented by qualified military counsel, or by civilian counsel at no expense to the Government.

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. 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 this requirement.

2. Allegations surfaced that the applicant engaged in a prohibited personal relationship with two female soldiers-in-training. An investigation was conducted which resulted in the applicant being listed as the subject in a Military Police Report. During the investigation, statements were taken from multiple sources which corroborated the basic allegation.

3. The applicant was offered NJP by his battalion commander. As its name indicates, NJP is different from a trial by court-martial. An NJP hearing is a more informal proceeding where the rules of evidence need not be strictly applied. Before he elected to accept NJP, the applicant was made aware of these differences and of his right to demand trial by court-martial where he would receive the protection of the rules of evidence. Instead he chose to have the matter settled nonjudicially and accepted NJP.

4. The policies and procedures governing the imposition of NJP are set forth in Title 10, USC, § 815 (Article 15, UCMJ), and in Army Regulation 27-10, chapter 3. In this case, there is no evidence of significant departure from those established policies or procedures. The NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was not disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.

5. The Board has viewed all three of PVT "M's" statements concerning the matter for which the applicant was disciplined. In the first instance, the Board views the statement as self-serving, as an attempt by PVT "M" to keep herself from trouble, not only for engaging in a prohibited personal relationship, but also for engaging in homosexual activity. In her second statement, PVT "M" relates a believable story of how she found PVT "C's" note, penned one herself, and delivered both notes to the applicant. She then relates how she and PVT "C" were called to the applicant's office and chastised, and how she and the applicant then engaged in hugging and kissing shortly after the two soldiers were dismissed. This statement is corroborated by witnesses. The final statement,

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written well after the applicant's NJP and PVT "M's" departure from Fort Jackson, is viewed by the Board as retrospective thinking -- an attempt to help the applicant after the fact. The Board places the most credence on the second statement.

6. 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

__fne___ __slp___ __rld___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082903
SUFFIX
RECON
DATE BOARDED	20031007
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	126.0400
2.	129.0600
3.	134.0000
4.
5.
6.