RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 FEBRUARY 2007
	DOCKET NUMBER:  AR20060010109 


	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.  


	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 2003 record of proceedings under Article 15 of the Uniform Code of Military Justice be removed from her Official Military Personnel File (OMPF) and Restricted Section.  Additionally, she requests that Special Court-Martial Order Number 5, Headquarters V Corps, dated 2 February 2003, be removed from her Restricted Fiche.

2.  The applicant states that it has been over 3 years since she stood an accepted corrective training for the unprofessional acts she committed.  The applicant admits that she takes full responsibility for her actions and the consequences of those actions.  She concludes that she was wrong for the acts she committed in Germany and has learned from her mistakes.

3.  The applicant provides copies of her Noncommissioned Officers Evaluation Reports (NCOERs), Service School Academic Evaluation Reports, Letter of Commendations, several memorandums, and Army Achievement Medal.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she enlisted in the Regular Army on
15 April 1994.  She has served continuously since her enlistment and is currently a Staff Sergeant. 

2.  Special Court-Martial Order Number 5, dated 2 February 2003, shows that the applicant was charged with 2 violations of Article 134 for adultery and committing an indecent act with another Soldier while in the present of others.  The charge and the specifications were withdrawn on 2 February 2003.  The order stated “that all rights, privileges, and property of which the accused has been deprived by virtue of these proceeding will be restored.”

3.  On 21 February 2003, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully committing an indecent act with a sergeant by engaging in sexual conduct in the presence of three other Soldiers.  Additionally, the Article 15 stated that the applicant, a married woman, wrongfully had sexual intercourse with this sergeant who was a married man, not her husband.  Her punishment included a suspended reduction to specialist (E-4) and extra duty for 45 days.  

4.  Records show the applicant was afforded the opportunity to consult with counsel but initialed "I do not demand trial by court-martial."  She also initialed the block indicating that matters in her defense would be presented in person. The commander signed the Article 15 verifying that "I have considered all matters presented in defense and/or extenuation and mitigation."  He directed the Article 15 to be filed in the performance section of the applicant’s Official Military Personnel File.  She signed the Article 15 confirming that she did not wish to appeal.  

5.  The applicant’s NCOERs from September 2002 through January 2006 shows that she served in a myriad of positions within the Network and Computer Field.  In these positions, the applicant was rated as “Fully Capable” by her rater in three out of the five NCOERs she provided and assessed as “2 Successful” or “1 or 2 Superior” by her senior rater in overall performance or overall potential for promotion.  The other two NCOERs show that the rater assessed the applicant’s overall potential for promotion as “Among the Best” with “1 Successful/Superior” ratings by the senior rater in overall performance and potential.  Laudatory comments listed on the evaluations included “epitomizes what every Noncommissioned Officer should be; aggressive, intelligent, and professional,” “demonstrated the ability to perform in wide range of assignments,” and “promote now; send to Basic Noncommissioned Officer Course ahead of peers.”

6.  Academic Evaluation Reports for January 2006 and June 2006 show that the applicant successfully completed Phase I and Phase II of the Basic Noncommissioned Officer Course. 

7.  A certificate dated 13 May 2004 shows that the applicant was awarded the Army Achievement Medal for meritorious achievement for selection as the Personnel Information Systems Directorate Soldier of the Quarter for the second quarter, 2004.  

8.  Army Regulation 27-10 (Military Justice) establishes the policies and procedures for administration of military justice.  Paragraph 3-2 states that the use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction.  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, UCMJ.  The Soldier will be advised that he has a right to demand trial.  The demand for trial may be made at any time prior to imposition of punishment.  The Soldier will be informed of his right to fully present his case in the presence of the imposing commander, to call witnesses, present evidence, be accompanied by a spokesperson, request an open hearing, and/or examine available evidence.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).
9.  Army Regulation 600-37, Unfavorable Information, establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual’s Official Military Personnel Files (OMPF).  The regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the 
individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that prior to the commander imposing NJP against the applicant, a Special Court-Martial was convened and all charges against the applicant were withdrawn.  Therefore, since the charges were withdrawn and an Article 15 was imposed instead, in the interest of equity and justice it would be appropriate to remove the court-martial order from the applicant’s restricted section.

2.  The record shows that prior to accepting the Article 15 the applicant was afforded the opportunity to consult with counsel and the right to demand trial by court-martial.  The record also shows that the applicant elected to present matters in her defense and or extenuation in person.  Therefore, she had an opportunity to present matters in defense, extenuation and/or mitigation.  The commander signed the Article 15 indicating that he had considered all matters presented prior to making his final decision.  The applicant did not appeal the Article 15.

3.  The Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offenses committed.  Further, the applicant admitted “that she was wrong for the unprofessional acts she committed and has learned from her actions.”  The only justification she provides for the removal of the Article 15 is “the incident occurred 3 years ago.”  The fact that the applicant's records document her outstanding performance following the issuance of the Article 15 and the incident occurred over 3 years ago, is not sufficient evidence to justify removal.

4.  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 

___HF __  ___WC__  ___DD __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing Special Court-Martial Order Number 5, Headquarters V Corps, dated    2 February 2003.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the Article 15. 




_______Hubert Fry_________
          CHAIRPERSON




INDEX

CASE ID
AR20060010109
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070213
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY

ISSUES         1.
126.00
2.

3.

4.

5.

6.