RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070003553 


	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.  


Ms Catherine C. Mitrano

Acting Director

Ms. Deyon D. Battle

Analyst


The following members, a quorum, were present:


Mr. Patrick H. McGann, Jr

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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 that the Record of Proceedings under Article 15, Uniform Code of Military Justice (DA Form 2627) that was imposed against him on 8 November 2005, and the General Officer Memorandum of Reprimand (GOMOR) dated 8 November 2005, along with all affiliated documents, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states that the punishments for the offense were unduly harsh, inappropriate, and have served their purpose.  He states that unlawful command influence was exercised and he was never afforded any meaningful opportunity to seek the assistance from counsel or to respond to the GOMOR prior to the imposition of punishment.  He states that irrelevant matters were included in his packet that prejudiced his right to have matters fairly reviewed and errors and injustices exist in the record for other reasons as raised in the documents that he submits in support of his application.

3.  The applicant provides in support of his application a copy of his appeal packet dated 8 May 2006, addressed to the Commander, Army Human Resources Command (AHRC) , subject:  "HQDA Initiated Removal from a Centralized Promotion List" which includes 34 enclosures; a copy of promotion orders dated 12 July 2006; a copy of a memorandum from the Chief, Enlisted Promotions, Promotions Branch dated 24 January 2006, notifying him of his initiated removal from a centralized promotion list by Headquarters Department of the Army (HQDA); copies of electronic mail (email) between the Senior Enlisted Promotions Standby Advisory Board Manager and himself, pertaining to his being removed from consideration for promotion; a copy of a DA Form 2627; dated 8 November 2005; a copy of a GOMOR, addressed to him, dated 8 November 2005; a copy of a memorandum addressed to him dated 9 December 2005, directing the filing of the GOMOR in his OMPF; a copy of a memorandum from the Staff Judge Advocate dated 9 January 2006, disagreeing with the recommendation made by his chain of command; a copy of a memorandum dated 2 January 2006, addressed to the Commander, AHRC, recommending that the applicant be removed from the promotion and that the flag remain in place; a copy of his Enlisted Record Brief; a copy of a Memorandum for Record dated 17 November 2006, from a staff sergeant at Comp Taji Branch Trial Defense Services; and a copy of a Sworn Statement made by a staff sergeant, dated 12 May 2006.




CONSIDERATION OF EVIDENCE:

1.  The available records indicate that the applicant enlisted in the Regular Army on 25 September 1979 in the pay grade of E-1 and he successfully completed his training as a fuel system specialist.  He remained on active duty through a series of reenlistments and he was promoted to pay grade E-7 on 1 February 1993 and to pay grade E-8 on 1 October 1997.

2.  The applicant was assigned to Camp Taji, Iraq, when a Commander's Inquiry (Army Regulation 15-6 Investigation) was initiated after the discovery of nude photographs of a female staff sergeant was distributed throughout Camp Taji.  The investigating officer (IO) was appointed on 13 September 2005 and she was instructed to determine:  did a specific individual serving in the rank of private distribute the nude photographs and if so, where and to whom were they distributed; how were the photographs distributed; who was involved; were government computers used; and how were the photographs obtained?  

3.  On 18 September 2005, the IO presented her findings and recommendation of the investigation to the Commander, 87th Corps Support Battalion (CSB).  The IO found that it was impossible to conclusively determine whether or not the private in question was responsible for the distribution of the photographs or to whom they were distributed; that it was most likely someone made a copy of the photographs from the hard drive of the staff sergeant's computer and distributed them electronically; that the private was involved with copying the data from the hard drive of the staff sergeant onto a compact disc (CD) in order to save her information since there was something wrong with her computer, per her request; that government computers were used to perform the work of moving data from the hard drive on to the CD; and that the photographs were obtained from the hard drive of the staff sergeant prior to the work being completed by the private.  The IO noted that it was impossible to know for sure who copied the photographs for distribution because of the fact that the hard drive sat in the open for several weeks and it was a small possibility that the photographs were obtained through the mail because the staff sergeant mailed the photographs in question home on a disc.

4.  The IO went on to state that in reviewing the photographs, it was determined that there were violations of General Order Number 1 (pertaining to pornography) and General Order Number 2 (Pertaining to visitation of individuals of the opposite gender in one's living quarters).  The IO stated that two to three of the photographs from the staff sergeant's hard drive were graphic shots of female genitalia and there were two to three photographs depicting the staff sergeant and the applicant in her trailer on Camp Taji.  The IO stated that the staff sergeant admitted to the violations, but asserted that she did not fully understand the general orders or that she was violating them with her actions; however, the applicant invoked his right to counsel prior to questioning and was unable to obtain an appointment with counsel prior to the end of the investigation.  

5.  The IO recommended that the 87th CSB shop no longer perform any personal work whatsoever, in effect, for all parties involved; that the private be counseled on his possible involvement and the ramifications of distributing nude phonographs, whether with or without consent of the individual involved; that all Soldiers in the 87th CSB be informed of the ramification of obtaining, distributing, or viewing personal photographs without the consent of the owner; that the full content of General Order Number 1 and General Order Number 2 be reviewed with the Soldiers so that there is no question as to the parameters of the orders; that the staff sergeant be transferred for rehabilitative reasons outside of the 87th CSB in order to prevent further embarrassment for her; and that the applicant's exemplary 26-year outstanding career be taken into account when determining the appropriate course of action in his case.  The IO stated that the applicant made an error in judgment; however, she did not believe that nonjudicial punishment (NJP) was the appropriate consequence because of his past record.  The IO recommended that the applicant receive a negative counseling for his violation of the general order (visitation by a member of the opposite gender in one's living quarters).

6.  On 19 September 2005, the Brigade Judge Advocate found that the IO's investigation was legally sufficient.  He requested that the commanding general, who had reserved the authority to impose NJP on senior noncommissioned officers, release jurisdiction to the applicant's command.  The Staff Judge Advocate indicated that the commander intended to initiate an Article 15 against the applicant.  On 2 November 2005, the commanding general released Article 15 authority, but included with his release was a handwritten note that it was being done subject to the applicant receiving a GOMOR.

7.  Two Reports to Suspend Favorable Personnel Action (FLAG) were initiated against the applicant 7 November 2005.  One was initiated by his commander for adverse action and the other was initiated for HQDA Use Only for elimination or removal from a selection list.  

8.  On 8 November 2005, NJP was imposed against the applicant for violation of a lawful general order (visitation and cohabitation in living areas of United States Department of Defense Personnel assigned to Task Force Baghdad or present within the Task Force Baghdad area of responsibility, dated 10 December 2004, and amended on 14 March 2005) on or about 17 February 2005, and on or about 17 September 2005, by wrongfully entering the living quarters of a staff sergeant, a member of the opposite sex, without approval from his chain of command.  His punishment consisted of a forfeiture of pay in the amount of $750.00 per month for 2 months.  The DA Form 2627 that he was furnished indicates that, having been afforded the opportunity to consult with counsel, he did not demand trial by 
court-martial; he requested that the hearing be closed; he did not request a person to speak in his behalf; and he was presenting matters in defense, mitigation, and/or extenuation.  The applicant's commanding officer directed that the DA Form 2627 be filed in the restricted portion of the applicant’s OMPF.

9.  On 8 November 2005, in an action separate from the Article, the applicant was furnished a GOMOR for visiting the living quarters of a member of the opposite gender, in violation of General Order Number 2, dated 14 March 2005.  He was informed that his behavior was inappropriate for a senior noncommissioned officer and that he knew he was responsible for ensuring that rules and regulation were upheld.  The applicant was told that he failed to set an example for others to follow and brought discredit upon himself, his unit and the United States Army.  He was told that the reprimand was administrative in nature and was not imposed as punishment under the Uniform Code of Military Justice; that he should acknowledge receipt of the reprimand in accordance with Army Regulation 600-37 by endorsement and return it through his chain of command not later than 7 working days from the date served; and that matters that he wished to submit for consideration must accompany his acknowledgement.  

10.  The FLAG that was initiated against the applicant for adverse action was removed on 8 November 2005 based on the disciplinary action that was taken.

11.  On 22 November 2005, the applicant submitted a reply requesting that the GOMOR be filed in his local file.  In his reply, he stated that he was fully aware that his actions were wrong and that he displayed poor judgment for a senior 
noncommissioned officer.  He stated that the transgression was a momentary lapse that was out of character and that it would not be repeated.  He stated that he had embarrassed himself as well as embarrassed the unit and that he was truly remorseful for his actions.  In his reply, the applicant went on to state his accomplishments and explain that he had been selected for promotion to sergeant major (E-9) in July 2005 with the sequence number 1.  He stated that he was scheduled to attend the Sergeant Major Academy in August of 2006 and that he had always given 100 percent to the Army and to his Soldiers.

12.  The applicant's chain of command recommended local filing of the GOMOR on 9 December 2005.

13.  On 9 December 2005, the Commanding General (CG) directed that the GOMOR be filed in the applicant's Official Military Personnel file.

14.  On 12 December 2005 and 14 December 2005, members in the applicant's chain of command recommended removal of the FLAG based on the fact that the NJP was complete and the filing determination for the GOMOR had been made.  However, on 2 January 2006, the Staff Judge Advocate informed the CG that he disagreed with the recommendation made by the applicant's chain of command and he requested that the applicant be removed permanently from the promotion list prior to removal of the FLAG.

15.  On 2 January 2006, in a memorandum addressed to the Command, AHRC, the CG recommended that the applicant be removed from the promotion list and that the FLAG remain in place until the action was accomplished.  The applicant submitted letters from individuals, addressed to the Commander, AHRC, attesting to his professionalism, exemplary service, intelligence, and intensive work ethic.  He also submitted copies of citations and recommendations for awards.  

16.  On 24 January 2006, the Chief, Enlisted Promotions Branch, AHRC notified the applicant of an HQDA initiated removal of his name from a centralized promotion list.  He was informed that an HQDA Promotion Selection Board which recessed on 24 June 2005, recommended him for promotion to sergeant major and that a review of the information available revealed that he received a General Officer Memorandum of Reprimand subsequent to the board which recommended him for promotion to sergeant major.  He was informed that his records were being referred to a HQDA Enlisted Standby Advisory Board and that he would be in a non-promotable status until a final decision was rendered by the board.  He was further informed that he had until 7 February 2006 to submit information in his behalf as to why he believed he should be retained on the selection list.  He was informed that he would be notified of the board's decision through his chain of command, normally within 60 days following the board.

17.  On 8 May 2006, the applicant forwarded his appeal packet to the Commander, AHRC, citing the reasons that he believed he should be retained on the sergeant major promotion selection list.

18.  The available records fail to include the response from the Commander, AHRC to the applicant's appeal packet.  However, the records do show that the applicant was promoted to sergeant major on 12 July 2006 retroactive to 1 March 2006.

19.  Army Regulation 27-10, in effect at the time, states, in pertinent part, that the decision to file DA Forms 2627 on the performance or restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and was to be indicated in item 5, DA Form 2627.   

20.  Army Regulation 600-8-104 serves as the authority for the filing and release of documents authorized for filing in the OMPF.  It states, in pertinent part, that the restricted fiche is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is controlled and will not be released without written approval from the Commanding General, Total Army Personnel Command or the Headquarters, Department of the Army selection board proponent. 

21.  Pursuant to Army Regulation 27-10, paragraph 3-18(h), a Soldier has the right to be accompanied at an Article 15 hearing with a spokesperson.  However, the Soldier has no right to legal counsel at the proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The GOMOR was properly imposed in compliance with applicable regulations and the GOMOR and associated documents are properly filed in the applicant’s OMPF.  It was an action taken by the commanding general separate and apart from the Article 15 proceedings.  As such, it was not the product of command influence.  The commanding general did not, and could not, delegate his independent authority to issue a non punitive GOMOR.

2.  The DA Form 2627 dated 8 November 2005 was properly completed and the appropriate authority directed its filing in the restricted portion of his OMPF.  The applicant's claim the he was not afforded meaningful counsel at his Article 15 proceedings lacks merit.  He was afforded the opportunity to consult with counsel over the telephone.  He did not have the right to a face to face meeting with counsel, especially in a war zone.

3.  The applicant’s contentions have been noted.  However, the Army has an interest in maintaining certain records and the applicant has failed to provide evidence to show why the GOMOR and the DA Form 2627 should not remain a matter of record.  

4.  The applicant acknowledged that he was in violation of General Order Number 2 and he accepted responsibility for his actions.  He stated that he was fully aware that his actions were wrong, and he was furnished a GOMOR and a DA Form 2627 as a result of his actions.  He has failed to show through the evidence submitted with his application or the evidence of record that the information contained in the GOMOR and/or the DA From 2627 is incorrect. 

5.  The applicant's other contentions were considered and found to lack merit.  He was provided an opportunity to respond and present rebuttal evidence to the GOMOR and Article 15.  To the degree that he did submit such matters, they were considered by the respective commander and found to be unpersuasive.

6.  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 this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ECP__  __MJF_  _  __PHM__  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.
7



____Patrich H. McGann, Jr.___
          CHAIRPERSON




INDEX

CASE ID
AR20070003553
SUFFIX

RECON

DATE BOARDED
20080220
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  277
126.0000/NONJUDICIAL PUNISHMENT
2.  280
126.0300/REMOVE REPRIMAND
3.  1034
126.0600/REM NJP FROM RESTRICT FICHE
4.

5.

6.