RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20070003505 


	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. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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.  In effect, the applicant requests removal of his nonjudicial punishment (NJP) from his records.

2.  The applicant states that the NJP was imposed for offenses that occurred outside the applicable two-year statute of limitations, and the allegations of misconduct were not supported by the evidence.

3.  The applicant provides:

     a.  a copy of a memorandum, dated 5 March 2007 from his counsel in support of his application;

     b.  a copy of an Article 15 and memorandums dated 22 February 
2007, 5 December 2006, and 23 October 2006;

     c.  a copy of his Officer Records Brief (ORB); and

     d.  a copy of DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the Article 15 from the applicant's records.

2.  Counsel states that the applicant had acknowledged having an adulterous relationship with the wife of an Army Staff Sergeant (SSG), but the applicant could not be found guilty of that offense and punished under Article 15, Uniform Code of Military Justice (UCMJ), because the offense fell outside the two-year statute of limitations.

3.  Counsel states that on 18 October 2006, the applicant received an NJP for conduct unbecoming of an officer and gentleman, a violation of Article 133, UCMJ.  The applicant was punished for engaging in various activities taken in an attempt to maintain an adulterous relationship with the wife of an Army SSG.  He states that the applicant was given NJP for wrongfully and dishonorably conducting himself in a manner to disgrace himself and the armed forces by kissing and holding hands with the SSG's wife and giving her gifts of money, clothes, jewelry, dishware, a wallet, and greeting cards.  He states that the NJP was given to the applicant for action allegedly undertaken to conceal, maintain, and reinitiate the adulterous relationship for which he could not legally be found guilty.
4.  Counsel argues the commander's lining out of the adultery charge because it fell outside the two-year statute of limitation was a finding of not guilty of that charge.  Further, counsel states the remaining charges of which the applicant was found guilty were an legally impermissible attempt to resurrect the adultery charge barred by the statute of limitations.

5.  Counsel states that following the imposition of the NJP, the applicant appealed and submitted additional matters pursuant to Article 15(e), UCMJ, but the appeal was denied by the commanding general on 21 December 2006.

6.  Counsel states that there is no evidentiary support for the allegations that the applicant attempted to maintain an adulterous relationship or give greeting cards to the SSG's wife while in Kuwait and the Netherlands between 18 October 2004 and 8 December 2005, because the applicant was not in Kuwait at the time of the allegations.  Counsel also asserts the Government improperly interfered with his ability to present favorable testimony by COL C__, thus violating his right to present evidence in his defense of mitigation.

7.  Counsel provides excerpts of the investigation.  The excerpt provides evidence of email conversations and sworn statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was commissioned as a second lieutenant and entered active duty on 26 May 1982.  He served continuously in various assignments until achieving the rank of colonel.  He was promoted to colonel on 1 May 2003.

2.  He is currently serving on active duty at U.S. Army Element Northern Command, Peterson Air Force Base, Colorado.

3.  On 27 February 2006, an investigation commenced against the applicant for having an adulterous relationship with an Army SSG's wife.  On 24 March  
2006, the investigation concluded with the following findings and recommendations:  (1) there was sufficient evidence to show that the applicant committed adultery with the SSG's wife and was guilty of conduct unbecoming an officer and gentleman; and (2) there was insufficient evidence that the applicant wrongfully used a government computer. 

4.  The specific details of the offenses, as outlined in the investigation, shows that the applicant had a sexual relationship over a period of 17 months with the SSG's wife at a variety of locations, a violation of Article 134, Adultery.  The 
relationship covered approximately 2 1/2  years starting in August 2003 and ending in May 2005.  However, a statement from the SSG's wife shows that the relationship ended on 8 December 2005.

5.  The investigation also found that the applicant was posing as another person in order to compromise the SSG in an attempt to continue the relationship with his wife.  This is a violation of Article 133, conduct unbecoming an officer and gentleman.

6.  The investigation shows there was no evidence that the applicant improperly created an Army Knowledge Online (AKO) "guest account" in order to keep in touch with the SSG's wife.  Also, there was no evidence to show that the applicant misused government computers.

7.  The investigating officer recommended trial by court martial for the offenses of conduct unbecoming an officer and gentleman, a violation of Article 133, for attempting to compromise the SSG by posing as another person in an attempt to carry on the relationship with the SSG's wife, and for adultery, a violation of Article 134.

8.  In a sworn statement from the SSG's wife, dated 14 December 2005, it was stated, in effect, that the applicant kept in touch with her via email using a Yahoo email account.  She states that the applicant left for Kuwait in January 2004.  He kept in contact with her by email and phone calls.  In July 2004, he took a mid-tour leave and visited her in Dallas, Texas where they spent the weekend together at a hotel.  She states they spent a night in a hotel in Houston, Texas before he left.  In September 2004, her family moved to the Netherlands.

9.  In this same sworn statement she states that the applicant left Iraq to visit her in Geleen, Netherlands where they spent the day together in December 2004.  She states that the last time she saw the applicant was the time she went home to her sister's wedding in Killeen, Texas, in May 2005.  They spent time together in her hotel room in Killeen, Texas.  They continued to talk and email each other until she informed her husband (the SSG) about the relationship on 21 November 2005.

10.  In a sworn statement from the SSG, dated 14 December 2005, he stated, in effect, that on 1 November 2005, the applicant started to send emails posing as another person.  He reported the emails to Allied Command Counter Intelligence. His wife then told him that the emails came from the applicant because they had continued to have a sexual relationship and the applicant had used a fake name on a Yahoo email account.  He states, in effect, that he confronted the applicant about the relationship with his wife, and the applicant denied everything.  However, two weeks later, the applicant called to apologize, he admitted to the relationship with his wife, and he admitted to sending the emails using another person's name.

11.  In another sworn statement by the SSG, dated 6 September 2006, the SSG states that the applicant admitted he sent the emails to him using another person's name and that he had a relationship with his wife.

12.  Within the investigation report, there are copies of numerous greeting cards, written notes, and pictures of gifts that were addressed and sent to the SSG's wife expressing his love and affection to her.

13.  On 22 September 2006, the commanding general imposed NJP against the applicant for two separate specifications of conduct unbecoming an officer and gentleman.  On 29 September 2006, the applicant accepted the NJP and elected not to demand a trial by court-martial.

14.  On 18 October 2006, the punishment was imposed and the Article 15 was directed to be filed in the performance section of the applicant's OMPF.

15.  On 23 October 2006, the applicant appealed the Article 15.  However, it was denied on 21 December 2006.

16.  COL C__ indicated in an email to the applicant he was instructed to have no contact with the applicant.

17.  Army Regulation 27-10 (Military Justice) states that NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.  Computation of this two-year limitation is in accordance with the Articles 43(c) and (d), UCMJ.  The period of limitations does not run when the Soldier concerned is absent without authority; fleeing from justice; outside the territory where the United States has authority to apprehend; in the custody of civil authorities; or, in the hands of the enemy.

18.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.


DISCUSSION AND CONCLUSIONS:

1.  The applicant admitted to the major general imposing the NJP that he did have an adulterous sexual relationship with the SSG’s wife from August 2003 to December 2005.  He accepted NJP instead of opting to demand a trial by court-martial to plead his innocence.  All of the evidence presented in this case shows that the applicant's offenses constituted conduct unbecoming an officer and gentleman.

2.  The counsel states that the NJP was imposed outside the two-year statute of limitations; however, the evidence shows that the applicant accepted the NJP on 29 September 2006, and the punishment was imposed on 18 October 2006.  The statements from the SSG and his wife and the copies of the letters sent by the applicant clearly show the applicant's improper relationship with the SSG's wife, his giving of gifts to the SSG's wife, and his communicating with the SSG's wife under an assumed name continued into December 2005.  As such, the NJP was within the two-year statute of limitations.  Therefore, the statute of limitations for Article 15 was not applicable in this case.

3.  Further, the commander's lining out of the adultery charge barred by the statute of limitations constitutes a dismissal of that charge, not a finding of "not guilty."  Dismissal of that charge did not bar findings of conduct unbecoming an officer that were within two years of the NJP.

4.  Although the record indicates COL C__ was instructed to have no contact with the applicant, there is no offer of testimony from COL C__ as to what favorable evidence he would have offered in the applicant's behalf.  The applicant has thus failed to demonstrate he was harmed.

5.  As for the removal of the Article 15 from the performance fiche of the OMPF, the evidence proved to be accurate based on the applicant's admission to the offenses, and also, once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities; therefore, the applicant is not entitled to correction of his records to remove the Article 15 from the performance section of the OMPF.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ena__  ____au__  ____reb__  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.




_________Eric N. Andersen_________
          CHAIRPERSON




INDEX

CASE ID
AR20070003505
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070517
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.

2.

3.

4.

5.

6.