RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20060010724


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, removal of a DA Form 2627 (Record of
Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from
his Official Military Personnel File (OMPF) and removal of all references
made to the DA Form 2627 that are contained in a DA Form 2166-8
(Noncommissioned Officer Evaluation Report (NCO-ER)) that is filed in his
OMPF.

2.  The applicant states, in effect, that he appeared before his commander
on
19 December 2005 for him to adjudicate an Article 15, pled not guilty to
the charges against him, and presented multiple witnesses and documentary
evidence.  He also states, in effect, that the commander correctly found
him not guilty of the adultery charge relating to the alleged sexual
relationship, but found him guilty of obstruction of justice and
communicating a threat which is not substantiated by anything in the
investigation.  The applicant further states, in effect, that the other
charges could fairly be described as "add-on" charges, which he should have
been found not guilty of, as well.  He concludes by stating, in effect, the
allegations and inclusion of the Article 15 in his OMPF are unjust.

3.  The applicant provides a copy of Headquarters, U.S. Army Trial Defense
Service, Taylor Barracks, Germany, memorandum, dated 7 December 2005,
subject:  Field Grade Article 15 - MSG [Applicant's Name]; Headquarters and
Headquarters Company, 21st Theater Support Command (Germany), memorandum,
dated 21 December 2005, subject:  Field Grade Article 15 Appeal MSG
[Applicant's Name]; Headquarters, Company A, 501st Personnel Service
Battalion, Serious Incident Report, dated 23 May 2005; Electronic Mail
(Email), dated 1 June 2005; DA Form 4856 (Developmental Counseling Form),
dated
2 June 2005; applicant's Statement, undated; Email messages between
applicant's Defense Counsel and the Investigating Officer (IO), dated 9
June 2005 and 27 June 2005; Email message from the applicant's Defense
Counsel, dated 27 January 2006; Headquarters, 200th Theater Distribution
Brigade (Germany), memorandum, dated 18 January 2006, subject:  Article 15
Written Reprimand; DA Form 2166-8, covering the period October 2004 through
June 2005; and Headquarters, 1st Personnel Command (Germany), memorandum,
dated 28 September 2005, subject:  Reviewer's Nonconcurrence on
[Applicant's Name, Rank, and Social Security Number], 200410 to 200506.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the
Regular Army on 2 November 1982.  Upon completion of basic combat training
and advanced individual training, the applicant was awarded military
occupational specialty (MOS) 75D (Personnel Records Specialist).  He was
subsequently promoted and awarded MOS 75H (Personnel Sergeant), which was
later redesignated MOS 42A.  On 1 July 2003, the applicant was promoted to
the grade of rank of master sergeant/pay grade E-8 and was appointed as
first sergeant (E-8) on 1 October 2003.   The applicant served in support
of Operation Iraqi Freedom from 4 January 2004 to 8 January 2005 and was
awarded the Bronze Star Medal for meritorious service.  At the time of his
application, the applicant was serving in the rank of master sergeant (E-
8).

2.  The applicant requests, in pertinent part, removal of all references
made to the DA Form 2627 that are contained in a DA Form 2166-8 (NCO-ER)
that is filed in his OMPF.  However, there is no evidence that the
applicant appealed the NCO-ER in question using the Evaluation Report
Redress Program outlined in Army Regulation 623-205 (Noncommissioned
Officer Evaluation Reporting System).  Therefore, no action is being taken
by the Board concerning this aspect of the applicant's request.  The
applicant has been notified by separate correspondence of the process for
appealing the comments related to the
NCO-ER in question.  As a result, this aspect of the applicant's request
will not be discussed further in this Record of Proceedings.

3.  The applicant's OMPF contains a copy of a DA Form 1574 (Report of
Proceedings by Investigating Office/Board of Officers), dated 14 August
2005.  This document shows, in pertinent part, that the IO conducted an
informal investigation pursuant to Army Regulation 15-6 (Procedures for
Investigating Officers and Boards of Officers) to investigate if the
applicant: (1) had an affair, possibly sexual in nature, with a female
enlisted Soldier in his unit; (2) used his rank to provide benefits or
promises of other favors in exchange for sexual activity; and (3) used his
position to influence other Soldiers within the unit or battalion to cover
up, conceal or refrain from discussing the incident with military police,
the criminal investigation division, or higher headquarters.  The IO also
was charged with determining whether other members of the command in
leadership positions were aware of any sexual misconduct concerning the
applicant and the female enlisted Soldier.  This document also shows, in
pertinent part, that the IO found that there was no substantial evidence to
suggest the applicant used his rank to provide benefits or promises of
other favors in exchange for sexual activity.  However, the IO found
substantial evidence that suggested that the applicant did use his position
to influence other Soldiers within the unit or battalion to cover up,
conceal or refrain from discussing the incident with military police, the
criminal investigation division, or higher headquarters.

4.  The DA Form 1574 shows that the IO recommended, in pertinent part, that
the applicant be relieved from his leadership position; that a written
letter of reprimand be issued and filed in the applicant's OMPF; and
punishment of the applicant under the UCMJ for adultery, fraternization,
lying, disobeying an order, and unbecoming conduct.  This document also
shows that the IO submitted his findings and recommendations to the
appointing authority and that the appointing authority approved the
findings and recommendations of the IO.

5.  The applicant's military service records contain a DA Form 2627, along
with a written letter of reprimand, the IO's report, and allied documents
that are filed in the restricted section of the applicant's OMPF.  The DA
Form 2627 shows that on 2 December 2005, the colonel in command of the
200th Theater Distribution Brigade notified the applicant of his intent to
impose non-judicial punishment upon him for wrongfully having sexual
intercourse with a female Soldier, a woman not his wife, in violation of
Article 134, UCMJ.  This document also shows that the applicant indicated
with his initials that he did not demand trial by court-martial and, in the
Article 15 proceedings, he requested the hearing be open; a person to speak
in his behalf; and that matters in defense, mitigation, and/or extenuation
would be presented in person.  This document further shows that the
applicant signed Item 3 of the DA Form 2627.

6.  On 16 December 2005, in a Field Grade Article 15 proceeding, the
applicant was found guilty of violating Articles 134 and 92, UCMJ, in that,
on or about
31 May 2005, he wrongfully influenced the testimony of a Soldier and on or
about 6 June 2005, he wrongfully endeavored to influence the actions of a
noncommissioned officer.  Also, between on or about 20 April 2005 and 30
May 2005, the applicant violated an Army regulation by wrongfully having an
inappropriate relationship between a leader and subordinate.  The charge
against him of committing adultery with a female Soldier, in violation of
Article 134, UCMJ, was dismissed.  The commander directed a written
reprimand and forfeiture of $2,062.00 pay per month for two months.  The
commander also directed in Item 5 of the DA Form 2627 that the document be
filed in the restricted section of the applicant's OMPF and the commander
affixed his signature to the DA Form 2627. On 16 December 2005, the
applicant indicated with his initials that he would submit additional
matters in appeal to the Record of Proceedings Under Article 15 and he
affixed his signature in Item 7 of the DA Form 2627.  After reviewing the
applicant's appeal, which did not include his response to the written
reprimand part of the Article 15 punishment, the commander took no further
action and forwarded the appeal to the Commander, 21st Theater Support
Command for action.

7.  On 2 February 2006, the Staff Judge Advocate in support of the 21st
Theater Support Command indicated in Item 8 of the DA Form 2627 that the
proceedings were conducted in accordance with law and regulation and the
punishment imposed was neither unjust nor disproportionate to the offense
committed and he affixed his signature to the document.  On 12 February
2006, the brigadier general serving as commander of the 21st Theater
Support Command considered all matters presented on appeal.  The commander
denied the applicant's appeal, and affixed his signature in Item 9 of the
DA Form 2627.

8.  In support of his application, the applicant provides copies of
documents that are filed in the restricted section of his OMPF as allied
documents to the
DA Form 2627.  These documents provide no new evidence that was not
considered by the colonel in command who imposed the Article 15 and also
reviewed the applicant's appeal, or that was not considered by the
brigadier general in command who reviewed the applicant's appeal of the
Article 15 action.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files; ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files; and 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.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.
This document states that only those documents listed in Table 2-1 and
Table
2-2 are authorized for filing in the OMPF.  Depending on the purpose,
documents will be filed in the OMPF in one of three sections:  performance,
service, or restricted.

11.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows
that the DA Form 2627 is filed in either the performance or restricted
section of the OMPF, as directed in Item 5 of the DA Form 2627.

12.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104
provides, in pertinent part, that the restricted section of the OMPF is
used for historical data that may normally be improper for viewing by
selection boards or career managers.  The release of information in this
section is controlled.  It will not be released without written approval
from the Commander, U.S. Army Human Resources Command (i.e., for enlisted
Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records
and Evaluation Center) or the Headquarters, Department of the Army (HQDA)
selection board proponent.  This paragraph also provides that documents in
the restricted section of the OMPF are those that must be permanently kept
to maintain an unbroken, historical record of a Soldier's service, conduct,
duty performance, and evaluation periods; show corrections to other parts
of the OMPF; record investigation reports and
appellate actions; and protect the interests of the Soldier and the Army.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records)
provides policy and procedures for applying to the Army Board for
Correction of Military Records (ABCMR) and for the correction of military
records by the Secretary of the Army.  This Army regulation provides, in
pertinent part, that requests should be sent to the ABCMR to correct an
error or remove an injustice only after other available means of
administrative appeal have been exhausted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that a DA Form 2627 and allied
documents that are filed in the restricted section of his OMPF should be
removed because he was found not guilty of the charge, but was found guilty
of obstruction of justice and communicating a threat which is not
substantiated by anything in the investigation.  However, the applicant
provides insufficient evidence in support of his claim.  The allegations
and evidence against the applicant were thoroughly reviewed by the
applicant's commander, a senior Staff Judge Advocate, and the Article 15
appellate authority.  At each level of review, it was determined that the
evidence supported a finding of guilt and the punishment imposed by the
commander.

2.  The evidence of record shows that the DA Form 2627 and allied documents
are properly filed in the restricted section of the applicant's OMPF.
There is no evidence of record, and the applicant provides insufficient
evidence, to show that the DA Form 2627 and allied documents are untrue or
unjust.

3.  By regulation, in order to remove a document from the OMPF, there must
be clear and convincing evidence showing that the document is untrue or
unjust.  The applicant provided no such evidence to this Board that the
documents are untrue or unjust in this case.  Therefore, the DA Form 2627
and allied documents are properly filed and should not be removed from the
restricted section of the applicant's OMPF.

4.  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

__CD____  ___JLP _  __RMN__  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.




                                  ____ Carmen Duncan____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010724                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061024                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.0600.0000                           |
|2.                      |111.0000.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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