RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 AUGUST 2006
      DOCKET NUMBER:  AR20060002742


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. John Heck                     |     |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 the NJP (nonjudicial
punishment) action, taken against her in December 2005, be overturned and
her rank restored.

2.  The applicant states the NJP action was imposed against her unfairly.
She states that she was charged with adultery and making a false official
statement, was given only one day to appeal the punishment, and was reduced
two grades, one for each of the charges.  She states that the married
Soldier (SGT M) that was involved was only reduced one grade and then only
as a result of a pornography charge and that he was found innocent of the
very charge for which she was found guilty.

3.  She states that she attempted to contact legal assistance and feels she
was put to the side several times which was further evidence of how
unfairly she was treated.  She states that she received an electronic mail
(e-mail) from the unit attorney indicating he was too busy to deal with
her.

4.  The applicant maintains she was punished more harshly than the male
Soldier and attempted to submit evidence which in fact showed that she was
innocent.  She states that evidence was never seen by the appeal authority.
 She notes that information in an e-mail between her and the Soldier she
was alleged to be involved with was altered.  Originally believing the e-
mails were altered by another Soldier (SPC K) or the married Soldier’s
spouse, she subsequently found out that it was another woman (Ms D) the
married Soldier was involved with and that she was providing a copy of an
instant message in which the other woman (Ms D) admitted to altering e-
mails.

5.  She also states she has a statement from another Soldier who indicates
that she (the other Soldier) never told investigators that the applicant
had a sexual relationship with the married Soldier in question.  The
applicant notes that if you read that woman’s statement she never told or
swore to the investigating officer that the applicant admitted to a
relationship with the married Soldier.  She states this statement was
misplaced prior to her receipt of the NJP action.

6.  The applicant maintains she was caught in the crossfire of a troubled
marriage and that the married Soldier admitted to sleeping with her only
after his spouse leveraged his son against him.  She states the married
Soldier was ultimately given a Bronze Star Medal for his service in Iraq
but her Meritorious Service Medal was withdrawn.  She also notes there were
several other incidents members of her unit were involved in while deployed
for which individuals were not punished, including incidents of drinking
and sexual misconduct.  She maintains this is further evidence of how
unfairly she was treated and as such warrants the NJP action being
overturned and her rank restored.

7.  The applicant provides a copy of an “instant message” between the
married Soldier and the woman who admitted changing earlier electronic
traffic, the statement from the Soldier indicating she never told the
investigating officer that the applicant admitted to a sexual relationship
with the married Soldier, correspondence between the applicant and the unit
attorney, a copy of the 15-6 investigation, additional sworn statements,
and counseling forms she received during her deployment in Iraq.

CONSIDERATION OF EVIDENCE:

1.  Few of the applicant’s military records were available to the Board.
This case is being considered mostly based on documents provided by the
applicant.

2.  In July 2005 a commander’s inquiry was initiated into possible
violations by the applicant of the Army’s Command Policy and the UCMJ
(Uniformed Code of Military Justice).  The applicant was a member of the
Texas Army National Guard and deployed to Iraq at the time.  The
investigation surrounded allegations made by another Soldier (SPC K)
regarding the applicant’s involvement with several married Soldiers.  After
interviewing several individuals and obtaining sworn statements, the
investigating officer concluded that while he did not feel the applicant
was forthcoming with details about her relationship with two enlisted
Soldiers or an officer, he found no other witnesses during his inquiry to
corroborate the allegations made by SPC K.  He indicated that he believed
the applicant most likely engaged in immoral behavior but there was no
independent evidence to substantiate that a violation of the Army’s Command
Policy or the UCMJ had occurred.

3.  In December 2005, after the applicant’s unit had returned to the United
States, the investigating officer conducted a second commander’s inquiry.
The second investigation occurred as a result of allegations made by SGT
M’s spouse in October 2005.  SGT M’s spouse provided e-mails between the
applicant and SGT M detailing their sexual relationship as well as a copy
of an instant message in which he (SGT M) admitted to his spouse that he
had a sexual relationship with the applicant.

4.  As noted in the investigating officer’s summary, he indicated that he
also spoke to two other enlisted women (SPC W and SPC L) who both noted the

applicant had admitted getting “booty” from SGT M while deployed.  When
asked to explain “booty” both enlisted women indicated that the word
referred to sexual intercourse.

5.  The investigating officer indicated that he had also spoken with the
applicant on 13 November 2005 and noted the applicant said she did not have
a sexual relationship with SGT M and believed that the incriminating e-
mails were the fabrication of SPC K and SGT M’s spouse.  When questioned
how that was possible considering the e-mails numbered approximately 30 and
were sent, received and replied to all from her Army account, the applicant
related that it would have been easy for the two individuals to continually
gain access to both her and SGT M’s e-mail accounts and carry on a dialogue
under their assumed identities without her or SGT M knowing.  The
investigating officer related that the applicant said that SPC K was
motivated by the fact that the applicant had been involved in having her
spouse pay back several thousand dollars to the government and that SGT M’s
spouse was motivated to extort custody of her
son from SGT M.  The investigating officer also noted in his summary that
both Mrs. M and SPC K denied knowing one another.

6.  Ultimately the investigating officer concluded that probable cause
existed to charge the applicant with violation of Article 134 (adultery)
and Article 107 (making a false official statement) of the UCMJ.  He noted
that while the applicant denied a sexual relationship with SGT M, he (the
investigating officer) noted that SGT M had admitted a sexual relationship
to his spouse and that it would be unlikely that a married man would make
such a confession without having engaged in such conduct.  The
investigating officer also noted the applicant made numerous statements to
her fellow Soldiers that she had engaged in “getting booty.”  He cited the
emails provided by SGT M’s spouse which he stated contained details about
the relationship between the applicant and SGT M which only those two
individuals would have known.

7.  The investigating officer made similar findings regarding SGT M but
also included a charge of failing to obey an order, which was associated
with possession or manufacturing of pornographic material relating to
photographs SGT M had made of himself and distributed to several
individuals.

8.  A completed copy of the applicant’s NJP action was not available to the
Board.  However, the applicant did provide a copy signed only by her
battalion commander on 9 December 2005 notifying the applicant that he was
considering punishing her for making a false official statement regarding
her relationship with SGT M and for wrongfully engaging in sexual
intercourse with SGT M.  The punishment portion and appeal portion of the
NJP were not completed.
9.  Included as evidence, which the applicant maintains supports her
contention that the NJP action was unfair, was a 12 December 2005 statement
signed by SPC L.  SPC L was one of the two Soldiers interviewed as part of
the investigation into the applicant’s conduct in Iraq.  In the 12 December
2005 statement SPC L noted she was writing the statement because her
original statement was lost.  She stated that she did not state that the
applicant “got booty” but did state that the applicant had used the phrase.
 She indicated she did not really care what was going on because if
anything did happen she,
SPC L, did not want any part of it.

10.  The applicant also included a two page document she referred to as a
copy of instant message traffic between SGT M and another woman (D) in
which D, a friend of hers, helped change SGT M’s e-mail.  The message
traffic contains no date and is listed as occurring between “Mike” and
“Danica.”  The applicant indicated in e-mail traffic to the unit’s attorney
that she received a copy of the instant message document on 16 December
2005 and wanted to make sure the officer who was acting on her appeal of
her NJP action saw the message.

11.  The applicant also included copies of e-mail traffic between her and
the unit attorney.  She essentially was inquiring as to the status of her
appeal and then ultimately asked the unit attorney, who had returned to his
civilian practice, about other options for appealing the NJP action.  It
was to that request that the attorney responded that he did not have time
to handle her matter and referred her to Trial Defense Services.  It is
noted, however, that in one of the e-mails the attorney questioned why SGT
M had not used instant message information in his defense seeing as the
instant message was supposed to have been received on
16 December 2005 and SGT M’s NJP hearing occurred on 17 December 2005.

12.  Copies of developmental counseling forms, provided by the applicant,
span the period March 2005 through July 2005 and are favorable regarding
her duty performance.  Several did note that she should maintain proper
respect and professionalism when dealing with non-commissioned and
commissioned officers and that she should not disrupt conversations between
other Soldiers.

13.  Army Regulation 27-10 provides policy for the administration of
military justice.  It notes that NJP (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 who 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.

14.  The regulation notes, in effect, that prior to imposing nonjudicial
punishment the imposing commander should investigate the matter promptly
and adequately. The investigation should provide the commander with
sufficient information to make an appropriate disposition of the incident.
The investigation should cover whether an offense was committed, whether
the Soldier was involved, and the character and military record of the
Soldier.  Usually the preliminary investigation is informal and consists of
interviews with witnesses and/or review of police or other informative
reports.  If, after the preliminary inquiry, the commander determines,
“based on the evidence currently available, that the soldier probably has
committed an offense and that a nonjudicial punishment procedure is
appropriate” he should take action as set forth in the regulation.
Included in those actions is the Soldier’s right to demand a trial.  The
demand for trial may be made at any time prior to imposition of punishment.


15.  However, the regulation also states that a commander should not impose
punishment unless he is convinced “beyond a reasonable doubt” that the
Soldier committed the offense.

16.  Black’s Law Dictionary defines “beyond a reasonable doubt” as, “fully
satisfied, entirely convinced, satisfied to a moral certainty….”
Reasonable doubt is defined as, “such a doubt as would cause prudent men to
hesitate before acting in matters of importance to themselves.”

17.  Army Regulation 27-10 also notes that only one appeal is permissible
under Article 15 proceedings.  It states that the appeal will be forwarded
through the imposing commander or successor-in-command, when applicable, to
the superior authority.  The Soldier may attach documents to the appeal for
consideration.  A Soldier is not required to state reasons for the
Soldier’s appeal; however, the Soldier may do so.  For example, the Soldier
may state that based on the evidence the Soldier does not believe he/she is
guilty or that the punishment imposed was excessive, or that a certain
punishment should be mitigated or suspended.

DISCUSSION AND CONCLUSIONS:

1.  The NJP action was imposed in compliance with applicable laws,
regulations and policies.  The punishment imposed was neither unjust nor
disproportionate to the offenses, and there is no evidence of any
substantive violation of any of the applicant’s rights.  The applicant’s
argument that she was reduced one grade for each charge is not supported by
any evidence available to the Board or provided by the applicant.  It is
just as reasonable to conclude the imposing authority felt that a two grade
reduction was the appropriate action considering the totality of the
applicant’s violations.

2.  The applicant, who maintains she was caught in the crossfire of a
trouble marriage, and that SPC K and SGT M’s spouse conspired to create an
elaborate trail of e-mail traffic in order to get back at her and use SGT
M’s son against him, is not supported by any evidence available to the
Board.  As noted by the investigating officer, it would be unreasonable
that the applicant would not have noticed 30 e-mails in her e-mail account
which she was not a party to.

3.  Additionally, the instant message document which the applicant purports
to support her conspiracy theory was between another woman and SGT M, not
his spouse.  It appears the applicant would have the Board believe that “D”
altered
e-mail traffic from SGT M to his spouse regarding his admission of an
affair with the applicant.  However, it is unlikely that this single e-mail
was the entire basis for Mrs. M to contact SGT M’s chain of command which
ultimately set in motion the final investigation which resulted in the NJP
against the applicant.  Had the information in the instant message been
authentic, as the unit attorney noted in his e-mail to the applicant,
clearly SGT M would have utilized it to bolster his case during his NJP
action.

4.  While the applicant may feel betrayed by members of her chain of
command, or that her punishment was somehow unfair when compared to that of
SGT M, or the lack of punishment against other individuals who she also
believes violated the UCMJ, those beliefs are not relevant to the facts of
her case.  The evidence, which include at least three individuals who noted
the applicant’s sexual relationship with SGT M, the admission by SGT M that
he had a sexual relationship with the applicant, and the e-mail traffic
between the applicant and SGT M, would clearly support a commander’s
conclusion that he was fully satisfied, entirely convinced, and satisfied
to a moral certainty, that the applicant committed the offenses for which
she was charged.  What was done or not done to other members of her unit is
not supported by any evidence available to the Board nor provided by the
applicant beyond her own assertions.  The Board notes that punishment and
the level of punishment are within the authority of and at the discretion
of the imposing officer.

5.  Notwithstanding the applicant’s arguments, there is no evidence that
her NJP action was handled inappropriately or unjustly and as such, no
basis to grant the relief she is requesting.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SP ___  ___RL___  __JH____  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.





                                  _____ Shirley Powell__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002742                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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