RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20070002697 


	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. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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 his nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, and reimbursement of the $4,326.00 forfeiture.  The applicant also requests that the general officer memorandum of reprimand (GOMOR) be expunged from his official military personnel files.

2.  The applicant states in a sixteen page narrative, in effect, that the NJP proceedings were not conducted in accordance with established Army regulatory guidance and the Military Manual for Courts-Martial.  He contends that administrative and legal procedures substantially violated his rights. He also states that the commander, in making his decision, considered tainted evidence that was developed through unlawful command influence or was fruit of a poisonous tree.  He also states that the imposing commander displayed extreme prejudicial, illegal and unethical behavior that resulted in an unjust, uninformed, illegal and unfair NJP hearing and punishment.  The applicant also contends that he was unlawfully held in the lock-down ward.

3.  The applicant provides the documents at Tabs A through X and 2 through 9, a tape recording, and a plastic bag containing underwear and socks.  Tab A: Record of NJP; Tab B: Letter of Input for Eighth United States Army Troop Program Unit Soldiers Augmentation, three officer evaluation reports, character letter, Officer of the Year Award Certificate, Counter-drug Service Ribbon Award, Letter of Appreciation, Certificate of Excellence, and four support letters; Tab C:  two Certificates of Appreciation, three letters of appreciation, and a memorandum for record; Tab D: seven letters of support; Tab E: extract of the Manual for Courts-Martial; Tab F: Psychiatry progress notes; Tab G: extracts of Department of Defense Directive 6490.1; Tab H: NJP appeal; Tab I: extracted sworn testimony and extracted article 32 decision; Tab J: Criminal record request; Tab K: extracted chronology; Tab L: Transfer of jurisdiction; Tab M: Clearance Certificate; Tab Mc: extract of Army Regulation 27-10 (Military Justice); Tab N: sworn statement; Tab O: sworn statement; Tab P: rebuttal to general counseling statement; Tab Q: general counseling statement; Tab R: sworn statement; Tab S: sworn statement; Tab T: Trial Defense memorandum; Tab U: E-mail from counsel to applicant; Tab V: Defense counsel response to the government's objection to providing requested evidence; Tab W: Memorandum, Dismissal of Court-Martial Charges; Tab X: E-mail from Staff Judge Advocate to defense counsel; Tab 2: Defense counsel Request for Sanity Board; Tab 3: Denial of Sanity Board Request; Tab 4: Trial Counsel request to order an inquiry into the applicant's mental capacity or responsibility; Tab 5: Commander's order for the applicant to undergo a mental capacity and responsibility examination; 
Tab 6: Operation Iraqi Freedom notes (source not identified); Tab 7: sworn statement and photograph of bagged underwear and socks; Tab 8: handwritten notes (source not identified); Tab 9: three training certificate, two training diplomas, three academic evaluation reports, orders awarding the Army Reserve Components Achievement Medal, and a certificate of appreciation.  

CONSIDERATION OF EVIDENCE:

1.  On 10 February 2003, the applicant, a first lieutenant was mobilized with his unit and subsequently assigned for duty in Iraq from 5 April to 30 June 2003.   

2.  During his assignment in Iraq, a commander's inquiry was initiated to investigate allegations of fraternization between the applicant (platoon leader) and his platoon sergeant (female staff sergeant).  The available evidence does not show that this action was completed.

3.  On 30 June 2003, the applicant was medically evacuated from Iraq to the medical center at Ramstein Air Force Base, Germany.  From there he was further transported to the hospital at Fort Knox, Kentucky.  He was undergoing treatment for post traumatic stress disorder and depressive/anxiety symptoms.

4.  On 18 February 2004, at Fort Knox, Kentucky, the psychiatry progress notes indicate that the applicant's hospitalization was prolonged and he was restricted to the ward due to charges pending against him.    

5.  On 17 June 2004, charges were preferred by the Commander, WRAMC, under the Uniform Code of Military Justice for violation of Article 86, AWOL (occurred at Fort Knox); for violation of Article 92, dereliction of duty and failing to obey a lawful order (occurred at Fort Knox); and for violation of Article 134, two specifications of fraternization that supposedly occurred prior to and during his duty in Iraq.  

6.  On 15 March 2005, after reviewing the charges and the evidence and upon confirmation with the applicant's defense counsel that the applicant would accept NJP, the court-martial charges were dismissed. 

7.  On 1 April 2005, the applicant received NJP for one specification of fraternization. The punishment included a forfeiture of $2,163.00 pay per month for two months. The imposing commander directed the NJP be filed on the applicant's performance fiche.  

8.  On 6 April 2005, the applicant submitted, through counsel, his appeal of the NJP punishment.  He raised two issues: that new evidence was introduced at the proceeding, and that evidence was tainted by unlawful command influence.  

9.  On 28 April 2005, in a sixty-five page addendum to his appeal, the applicant raised the following additional issues: 1) Statute of limitations; 2) Evidence obtained by commander's inquiry; 3) Inability to examine new evidence; 4) Filing determination; 5) Mitigation; 6) Pattern of bias; and 7) Consideration of illegal evidence.  

10.  On 9 June 2005, the Deputy Staff Judge Advocate, United States Army Military District of Washington, published a Memorandum for The Judge Advocate General, 2200 Army Pentagon, Washington, DC 20310-2200, wherein it addressed the applicant's NJP appeal.  It provided detailed information regarding the NJP proceedings and indicated that the commander had set aside all specifications except for fraternization between on or about 1 April to on or about 7 June 2003, at or near Camp Pennsylvania, Kuwait, and Camp Anaconda, Iraq. It did not recommend any relief as to punishment.  

11.  On 11 October 2005, a judge advocate review determined that the NJP proceedings were conducted in accordance with law and regulation and the punishment imposed was just and not disproportional to the offense committed.

12.  On 17 October 2005, The Judge Advocate General denied the appeal.  

13.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that NJP 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 believed 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.



14.  Rules for Court-martial govern the procedures and punishments in all courts-martial and whenever expressly provided, preliminary, supplementary, and appellate procedures and activities.   Rule for Courts-Martial 304, provides for moral or physical restraint on a person's liberty which is imposed before and during the disposition of offenses.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant was charged with violation of several Articles under the UCMJ and that he willfully agreed to accept punishment by NJP in lieu of these charges.  Accordingly, the commander imposed NJP.  The commander left intact one specification alleging the applicant fraternized with a noncommissioned officer.

2.  The applicant submitted an extensive appeal which was thoroughly considered by the commander.

3.  Appellate review determined that the NJP was processed in accordance with law and regulation, and that the punishment was just. 

4.  The applicant's contention that the NJP process was unfair because the commander considered "tainted evidence obtained unlawfully" is without merit.  With regard to NJP, the imposing commander is not bound by the formal rules of evidence required before courts-martial.  He may consider any matter, including unsworn statements the commander reasonably believes to be relevant to the case.  The weight the commander assigns any particular piece of evidence or witness statements rests solely within the commander's discretion. 

5.  There is no evidence of record, and the applicant has not provided any such evidence to show that he received a GOMOR. 

6.  The available evidence substantiates the applicant's contentions that his legal rights were most likely violated by being held in the "lock-down" ward for other than medical reasons.  However, there is no evidence to substantiate that this action precluded the applicant receiving due process with regard to the NJP. Furthermore, there is no evidence showing that the imposing commander acted in a prejudicial, illegal or unethical manner.  The applicant's contention that this somehow prevents action under Article 15, UCMJ, or voids his punishment lacks merit.  Rule for Court-Martial 304 is not applicable to an Article 15 proceeding.  Even if the applicant was improperly held in a lock down status, it is, at most, a matter in mitigation that could have been raised to and considered by the commander in deciding the applicant's punishment. 
7.  The applicant has not provided any new evidence or substantiating argument that was not previously considered by the imposing commander or by The Judge Advocate General.

8.  In view of the above, the applicant's request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____JRS   ___LDS_  __CD___     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
AR20070002697
SUFFIX

RECON
 
DATE BOARDED
20070605 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
126.0400
2.

3.

4.

5.

6.