RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            5 April 2005
      DOCKET NUMBER:   AR20040003552


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a Record of Proceedings Under
Article 15, Uniform Code of Military Justice (UCMJ), DA Form 2627, be
overturned and removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he was not guilty of the offense
upon which the Article 15 was based.  He claims that he was wrongly
convicted of adultery and his appeal was incorrectly denied.  He claims
that the evidence presented at the Article 15 hearing was insufficient to
prove beyond a reasonable doubt that he committed the offense.  He claims
the Article 15 conviction was based primarily on a sworn statement from the
woman involved, which she later recanted in an instant message to him.

3.  The applicant claims that the Article 15 proceedings in his case were
unjust, as he was denied due process protections granted to him by the
governing Army Regulation and the UCMJ.  As a result, the DA Form 2627 was
improperly filed in the performance portion (P-Fiche) of his OMPF.

4.  The applicant provides a seven page self-authored memorandum and the
10 exhibits identified in the table of contents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a captain (CPT).

2.  On 18 March 2003, an investigating officer (IO) completed his findings
and recommendations from an Army Regulation 15-6 investigation he conducted
into the alleged adultery committed by the applicant.  The IO found the
applicant engaged in sexual misconduct and conduct unbecoming an officer in
the United States Army on 3 January and 5 March 2003.  The IO recommended
the applicant be punished for his violation of the UCMJ and that his
dismissal be pursued.  He further recommended a formal reprimand and the
applicant’s removal from special forces training.

3.  On 20 March 2003, while he was serving as a CPT at Fort Bragg, North
Carolina, the applicant was notified that the Commander, United States Army
John F. Kennedy Special Warfare Center and School (USAJFKSWCS), a major
general, was considering whether he should be punished under Article 15 of
the UCMJ for violating Article 134 of the UCMJ by wrongfully having sexual
intercourse with a married woman not his wife, on two separate occasions.
4.  On 20 April 2003, the applicant elected not to demand a trial by court-
martial, and instead chose for the matter to be handled by the USAJFKSWCS
Commander at a closed hearing.

5.  On 24 April 2003, the USAJFKSWCS Commander, after having considered all
matters presented in defense, mitigation and/or extenuation at a closed
hearing, imposed the following punishment on the applicant:  Letter of
Reprimand and $1,000 fine.

6.  On 24 April 2003, the applicant appealed the punishment imposed.  In
his appeal, he claimed he had not committed the offense upon which the
Article 15 was based.

7.  On 5 May 2003, the Commander, USAJFKSWCS, issued the applicant a
General Officer Memorandum of Reprimand (GOMOR) that reprimanded the
applicant for committing adultery.

8.  On 18 June 2003, the Headquarters, United States Army Special
Operations Command (USASOC) Acting Staff Judge Advocate (ASJA) reviewed the
applicant’s appeal.  The ASJA concluded that the Article 15 proceedings
were conducted in accordance with law and regulation.  However, the
punishment was disproportionate to the offense.  The ASJA recommended the
appellate authority grant the appeal by mitigating the forfeiture of pay.

9.  On 18 June 2003, the USASOC Commander, a lieutenant general, the
appellate authority, granted the applicant’s appeal by mitigating the
forfeiture of $1,000. portion of the punishment, and published a Record of
Supplementary Action Under Article 15, UCMJ (DA Form 2627-2) taking this
action.

10.  The applicant provides an Internet Mail Message he claims is from the
woman involved in the incident in question.  This message indicates she was
sorry for upsetting him and was hoping to make her friend jealous.  She
further indicated that her friend knew nothing happened other than her
falling asleep.  The message contains no information regarding her stay at
the applicant’s apartment.

11.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.  Paragraph 3-18 contains
guidance on notification procedures and explanation of rights.  It states,
in pertinent part, that the imposing commander will ensure that the Soldier
is notified of the commander's intention to dispose of the matter under the
provisions of Article 15. It further stipulates that the Soldier will be
informed of the following:  the right to remain silent, that he/she is not
required to make any statement regarding the offense or offenses of which
he/she is suspected, that any statement made may be used against the
Soldier in the Article 15 proceedings or in any other proceedings,
including a trial by court-martial.

12.  Paragraph 3-18 further states the Soldier will be informed of the
right to counsel, to demand trial by court-martial, to fully present
his/her case in the presence of the imposing commander, to call witnesses,
to present evidence, to request to be accompanied by a spokesperson, to an
open hearing, and to examine available evidence.

13.  Paragraph 3-28 of the military justice regulation provides guidance on
setting aside punishment and restoration of rights, privileges, or property
affected by the portion of the punishment set aside.  It states, in
pertinent part, that the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment has resulted
in a clear injustice.  "Clear injustice" means that there exists an
unwaived legal or factual error that clearly and affirmatively injured the
substantial rights of the Soldier.  An example of clear injustice would be
the discovery of new evidence unquestionably exculpating the Soldier.

14.  Paragraph 3-28 further states that clear injustice does not include
the fact that the Soldier's performance of service has been exemplary
subsequent to the punishment or that the punishment may have a future
adverse effect on the retention or promotion potential of the soldier.  It
further states that normally, the Soldier's uncorroborated sworn statement
will not constitute a basis to support the setting aside of punishment.
DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant that he was not guilty of the charges
upon which the Article 15 in question was based and the supporting argument
and evidence presented were carefully considered.  However, there is
insufficient evidence to support these claims.

2.  The evidence of record confirms that the applicant was notified of the
USAJFKSWCS commander’s intent to handle the offense in question under the
provisions of Article 15.  After being afforded the opportunity to consult
with legal counsel, the applicant elected not to demand a trial by court-
martial and chose to have his case disposed of through Article 15
proceedings at a closed hearing with the USAJFKSWCS commander.

3.  The record further shows that subsequent to the hearing, at which the
applicant presented matters of defense, mitigation, and/or extenuation,
nonjudicial punishment was imposed for the applicant’s violation of Article
134 of the UCMJ.  The applicant appealed the NJP action and although the
punishment was found to be disproportionate to the offense, the legal
reviewed concluded the proceedings were conducted in accordance with law
and regulation.

4.  By regulation, the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment resulted in a
clear injustice. "Clear injustice" means that there exists an unwaived
legal or factual error that clearly and affirmatively injured the
substantial rights of the Soldier.  The regulation further stipulates that
clear injustice does not include the fact that the Soldier's performance of
service has been exemplary subsequent to the punishment or that the
punishment may have a future adverse effect on the retention or promotion
potential of the soldier.

5.  The internet message provided by the applicant that indicates the woman
involved in the incident recanted the sworn statement she gave to the Army
Regulation 15-6 IO was also carefully considered.  However, this message
alone, given there were other credible third-party statements corroborating
the woman’s original sworn statement, was not sufficiently credible to
unquestionably exculpate the applicant.

6.  The evidence of record in this case does not reveal an injury to the
applicant’s substantial rights in the Article 15 process, or that the
nonjudicial punishment imposed resulted in a clear injustice to the
applicant.  Thus, notwithstanding his outstanding military record and duty
performance, there is insufficient evidence of a fatal legal or factual
error, or of clear injustice that would satisfy the regulatory criteria
necessary to support setting aside the Article 15 action in this case.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MDM   ___TEO _  ___JRM_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ____Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003552                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/05                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  267  |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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