RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060010721


	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. Gerard W. Schwartz

Acting Director

Mr. Robert J. McGowan

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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 removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), its associated General Officer Punitive Letter of Reprimand (PLOR), and all references to these documents from his Official Military Personnel File (OMPF).

2.  The applicant states the Article 15 was based on insufficient evidence and its issuance has had a devastating effect on his career and family.  He states, in effect, the allegations against him were later proven to be false.  He also states:

	a.  Under the provisions of Army Regulation (AR) 600-37 (Unfavorable Information), all of the paperwork associated with the Article 15, to include his appeal, must be filed.  His OMPF contains an incomplete Article 15 filing in that his appeal and the appellate authority's decision are missing.

	b.  He did not receive a copy of the completed Article 15 with the appellate authority's denial of his appeal.

	c.  He received a PLOR on the same day he was administered the Article 15.

	d.  Neither he nor his counsel were given the opportunity to "...cross-examine any witnesses that the prosecution questioned."  One year later the accusations against him were revealed to be false.

3.  The applicant makes additional statements concerning his security clearance and a prior Record of Proceedings by the Army Board for Correction of Military Records (ABCMR) in a related case.  These statements are not germane to the issue at hand and are not further enumerated.

4.  The applicant provides:

	a.  A 5 July 2006 memorandum for the ABCMR with an attached timeline of events [provided under separate cover received on 27 July 2006].

	b.  Copy of DA Form 2627, dated 31 January 2003, stating that he "did, at Camp New York, Kuwait, on or about 5 December 2002, violate a lawful general regulation, to wit:  AR 600-20, Army Command Policy, paragraph 4-14, Relationships between Soldiers of different ranks, dated 13 May 2002, by wrongfully having an inappropriate relationship with PFC [JB].  This is a violation 

of Article 92, UCMJ."  It further states he "did, at Camp New York, Kuwait, on or about 14 December 2002, with intent to deceive, make to LTC [JM], the AR 15-6 Investigating Officer, an official statement, to wit:  that you did not have an improper relationship with PFC [JB], an enlisted woman, and that you were not in the NTV..."  Also attached is a copy of the applicant's PLOR, dated 8 February 2003.

	c.  A Memorandum for Record, Subject:  Article 15 – MAJ [Applicant], written by a Lieutenant Colonel (LTC), Judge Advocate (JA), explaining that the completed copy of the applicant's Article 15 was misplaced due to the exigencies of war, but that the appeals process was properly completed and denied by the Commander, V Corps.

	d.  A Department of the Army Suitability Evaluation Board (DASEB) decision summary.

	e.  A Motion to Dismiss for Selective Prosecution, dated 28 January 2004.

	f.  A 26 March 2004 memorandum dismissing without prejudice court-martial charges against the applicant.

	g.  An ABCMR Record of Proceedings (AR200500001438), dated 13 October 2005, wherein the ABCMR directed General Court-Martial Order Number 24 be expunged from the applicant's OMPF.

	h.  A 5 July 2006 DA Form 1559-R (Inspector General Action Request).

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) Major.  In December 2002, he was assigned to Headquarters and Headquarters Company, 3rd Infantry Division as the Division G-5 (Civil Affairs Officer), and he was located with the Division Headquarters (HQ) at Camp New York, Kuwait.

2.  At approximately 2130 hours, 5 December 2002, a Captain and two enlisted Soldiers were checking tactical vehicles parked on Camp New York when they observed a non-tactical vehicle (NTV) parked near several Bradley Fighting Vehicles.  There were two individuals in the back seat of the NTV.  When the three Soldiers approached the NTV, a male jumped into the driver's seat and drove off without headlights.  The incident was reported and an AR 15-6 investigation was directed by the 3rd Infantry Division Chief of Staff.

3.  The AR 15-6 investigation determined that the applicant and a female Private First Class (PFC) were the two individuals in the NTV on 5 December 2002.  The Captain provided a sworn statement in which he positively identified the applicant as the person who jumped from the back seat to the driver's seat and drove away.  One of the enlisted Soldiers provided a sworn statement that he identified a certain female PFC as being in the back seat of the NTV.  The other enlisted Soldier provided a sworn statement that the two individuals in the back seat of the NTV were engaged in what appeared to be a sex act.

4.  The AR 15-6 investigating officer also interviewed the Division G-5 NCOIC (Noncommissioned Officer-in-Charge), who provided a sworn statement that the applicant and the female PFC were involved in what he perceived as an improper relationship and that he "counseled both about this perception."

5.  The applicant and the PFC each provided sworn statements saying that there was no improper relationship.  The applicant stated that on 5 December 2002, he returned from a trip to Doha, Kuwait and went to the Division Tactical Operations Center, where he gave his keys to an unidentified NCO, variously described as a male or female.  He stated he checked his email and then went to his tent, where he encountered a LTC tent mate reading a book.  Later, the tent mate could not confirm or deny having seen the applicant.

6.  On 13 December 2002, the AR 15-6 investigation concluded the applicant was guilty of the conduct alleged and recommended he be charged with fraternization with a female PFC under Article 134, Uniform Code of Military Justice (UCMJ), and failure to obey orders/regulations under Article 92, UCMJ.

7.  On 31 January 2003, the Deputy Division Commander, a Brigadier General, informed the applicant that he was considering whether to punish him under Article 15, UCMJ for violating a lawful general regulation, to wit:  AR 600-20, Army Command Policy, for having an inappropriate relationship with a female PFC, and for making a false official statement to the AR 15-6 investigating officer, to wit:  the he did not have an improper relationship with a female PFC.  The applicant, having been afforded the opportunity to consult with counsel, elected not to demand trial by court-martial and to accept the Article 15 in closed proceedings.  On 8 February 2003, the Deputy Division Commander held a hearing with the applicant present, found the applicant guilty of these two charges, and consequently imposed a PLOR.  He also directed the DA Form 2627 and associated documents be filed in the Performance Portion of the applicant's OMPF.

8.  The applicant appealed the Article 15 to the V Corps Commander, a Lieutenant General.  The appeal was denied and the Article 15 packet was hand carried back to 3rd Infantry Division HQ.  However, on the date the packet was returned, the HQ was in the process of moving into the assembly area for the start of Operation Iraqi Freedom.  The DA Form 2627 and the PLOR were never placed in the applicant's OMPF.  Six months later after court-martial charges were preferred against the applicant for additional misconduct, the oversight was discovered and corrected.

9.  The applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) seeking removal of the Article 15 and the PLOR.  On/about 6 June 2006, the DASEB responded stating that pertinent regulations only permitted transfer of the documents to the Restricted Portion of the applicant's OMPF.  The DASEB voted to deny transfer.  Before doing so, the DASEB contacted the General Officer who imposed the Article 15 and asked if he wished to remove it to the Restricted Portion of the applicant's OMPF.  The General Officer declined to do so.

10.  AR 27-10 provides policy for the administration of military justice.  Chapter 3 prescribes requirements, policies, limitations, and procedures for the implementation and amplification of Article 15, UCMJ.  It provides that 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 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 believes 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.  The regulation specifically provides:

	a.  Article 15 proceedings are not adversary in nature; neither the Soldier nor spokesperson (including any attorney present on behalf of the Soldier) may examine or cross-examine witnesses, unless permitted by the imposing commander.


	b.  The specific sequence of events in a formal Article 15 proceeding shall include (1) notification and explanation of rights, (2) a reasonable decision period for the Soldier to consult with counsel, (3) a hearing, (4) the imposition of punishment (if the accused is found guilty), and (5) the appeal process.

	c.  There is no prohibition against the imposition of punishment immediately upon the Soldier's acceptance of the Article 15, if the imposing commander finds the Soldier guilty of one or more of the charges after the hearing is completed.

	d.  The original DA Form 2627 and all allied documents will be forwarded for filing in the Soldier's OMPF.

11.  AR 600-8-104 (Military Personnel Information Management /Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  It states, in pertinent part, that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the file, unless directed by competent authority.  

12.  AR 600-37 (Unfavorable Information) sets forth policies and procedures to (1) authorize placement of unfavorable information about Army members in individual official personnel files; (2) ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and (3) ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It establishes the Department of the Army Suitability Evaluation Board (DASEB) to hear appeals for removal of documents.  It provides that the DASEB may transfer records of nonjudicial punishment to the Restricted Portion of a Soldier's OMPF upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met. Claims that an Article 15 is untrue or unjust, in whole or in part, will not be considered.


DISCUSSION AND CONCLUSIONS:

1.  After seeing an NTV improperly parked in a tactical vehicle motor park, an officer and two enlisted Soldiers went to investigate.  When the NTV was approached, a male figure jumped from the back seat to the driver's seat and drove off without headlights.  The applicant was suspected of being the male figure.  The incident was reported.

2.  An AR 15-6 investigation was ordered by the Division Chief of Staff.  The investigation determined the applicant and a female PFC were together in the back seat of the applicant's NTV in an inappropriate relationship.  The investigating officer recommended the applicant be charged with fraternization and disobeying a lawful general regulation.

3.  The Deputy Commander, 3rd Infantry Division, on 31 January 2003, offered the applicant nonjudicial punishment (NJP) under Article 15, UCMJ, for violating a lawful general regulation and for making a false official statement.  The applicant's rights were explained to him and he was afforded the opportunity to seek legal counsel.  After consulting with legal counsel, the applicant, on 8 February 2003, declined his right to a trial by court-martial and requested a closed Article 15 hearing.  On 8 February 2003, the commander found the applicant guilty of the charges after a hearing with the applicant; he also decided to impose punishment and directed the applicant be issued a reprimand.  On that same date, the applicant received a PLOR and immediately appealed his punishment.

4.  The applicant's appeal was hand carried by a 3rd Infantry Division JA officer to HQ, V Corps, where the Corps Commander reviewed the applicant's appeal and denied it.  The applicant's DA Form 2627 was hand carried back to HQ, 3rd Infantry Division.  When the JA officer returned, he found the HQ was moving to an assembly area in preparation for the start of the Iraq War.  Due to the exigencies of war, the applicant's DA Form 2627 was mishandled and not properly processed for filing.  Some several months later, the filing error was discovered and the DA Form 2627 was reconstructed through a copy that existed through the imposition of punishment (but without the appellate action).  The JA officer provided a memorandum explaining the circumstances and the documents were then filed in the applicant's OMPF.

5.  Although not accomplished strictly in accordance with governing regulations, the discrepancies in the applicant's Article 15 process do not rise to the level of fatal flaws.  The Deputy Commander, 3rd Infantry Division properly conducted 

the Article 15 hearing only after an AR 15-6 investigation found sufficient cause to believe the applicant violated the UCMJ.  If the applicant did not have the opportunity to "cross-examine" witnesses [and this has not been shown], the decision to allow or deny cross examination resided solely with the imposing commander.  The issuance of the PLOR immediately upon the applicant's decision to accept NJP and after being found guilty of the charges by the imposing commander was not in violation of governing regulations.

6.  The administrative filing process for the applicant's DA Form 2627 was interrupted by the exigencies of war; so that the completed form and related documents were not timely filed in the applicant's OMPF.  Later when the error was discovered, a copy of the DA Form 2627, completed through the appellate process, could not be located.  A copy of the form through the applicant's appeal was located and it, together with a memorandum for record clarifying the situation, was filed in his OMPF.  The applicant's election to appeal is not filed in the record; however, this is not viewed as a fatal flaw.  If the applicant has a copy of his appeal, he may request that it be included in his OMPF.

7.  The DASEB queried the commander who imposed the PLOR and he stated he did not support its transfer to the Restricted Portion of the applicant's OMPF or removal of PLOR from the record.

8.  There is sufficient evidence the applicant was guilty of the charges listed on the DA Form 2627.  An AR 15-6 investigating officer and the Deputy Division Commander reviewed the evidence and were apparently convinced beyond a reasonable doubt of his guilt.  Additionally, a JA reviewed his appeal and hand carried it to the appellate authority, who found it to be without merit.  Therefore, the Article 15 is valid.

9.  The Article 15 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.

10.  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

__lds___  __jtm___  __rsv___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060010721
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
126.0300
2.
126.0500
3.

4.

5.

6.