RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070012055 


	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

Director

Ms. Loretta D. Gulley

Analyst

      The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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 reconsideration of his request for removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) and the General Officer Punitive Letter of Reprimand (PLOR) be removed from his Official Military Personnel File (OMPF) or placed in the restricted section of this OMPF.

2.  The applicant states, in effect, that based on the new evidence he is submitting to the DASEB panel, he and his attorneys feel the General presiding over his case was misinformed about the witnesses and allegations brought against him by the 3rd Infantry Division Judge Advocate when he (the General) made his decision to give to him a PLOR and an Article 15.  The applicant also states, in effect, that during a subsequent Article 32 investigation, witnesses under oath and information regarding this PLOR came out that did not come out during his initial Article 15 investigation.

3.  The applicant provides the following documents in support of this application:  a copy of the DA Form 2627 Record of Proceedings Under UCMJ Article 15, dated 31 January 2003; a copy of the PLOR, dated 8 February 2003; a copy of a memorandum for the Deputy Commanding General, dated 8 February 2003; seven DA Forms 2823 (Sworn Statements); a statement from Chief Warrant Officer 3 (CW3) N---s dated 5 February 2003; excerpts of the Article 32, UCMJ Investigation Record of Proceeding; a copy of a Motion to Dismiss for Selective Prosecution, dated 28 January 2004; of a copy of memorandum for the DASEB, dated 24 August 2007; a copy of an email dated 23 January 2003; a copy of a memorandum for LTC K—g, dated 24 January 2003; a copy of an unsigned DA Form 4856 (Developmental Counseling Form), written by the applicant, dated
3 February 2003; a copy of the Department of the Army Suitability Evaluation Board (DASEB) decision summary; an ABCMR Record of Proceedings (AR20060010721), 22 March 2007, and a copy of the ABCMR’s 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. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060010721, on 22 March 2007.  

2.  During its original review of the applicant's case, the Board reviewed all the information submitted by the applicant, which included information on the events the applicant now presents as new evidence in this reconsideration request.  The Board found no evidence of probable error or injustice to warrant removal of the Article 15 from his OMPF, nor did the Board find any evidence that the applicant’s rights were violated.  

3.  The applicant is a Regular Army (RA) Major.  He is currently assigned to the Headquarters Corps, as the Deputy Assistant Chief of Staff G-5 (Civil Affairs) in Heidelberg, Germany. 

4.  In support of his reconsideration request, the applicant also provided copies of the following sworn statements obtained during an Army Regualtion 15-6 Investigation:
      
      a.  A sworn statement dated 9 December 2002, from CPT A------n, in which he positively identified the applicant as the person who jumped from the back seat to the driver's seat and drove away. The sworn statement also states that he and two Solders identified that female in the vehicle.

	b.  A sworn statement dated 10 December 2002, from SFC R--------r, that states that on or about 2 November 2002, he counseled the applicant and the female PFC regarding what he perceived as an improper relationship and that he “counseled both the applicant and the PFC about this perception while they were in Camp Doha, Kuwait.”    
      
      c.  A sworn statement dated 12 December 2002, from PFC B-----s that states that a week after her arrival at Camp New York, she went to Camp Doha.  She provided a timeline for her activities on 8 December 2002, concluding with her return to Camp New York, taking a shower, and going to bed.
      
      d.  A sworn statement dated 1 February 2003,  from MAJ B----t, that states that on 23 November 2002, the applicant sat next to him at a conference at or about 1400 hrs and that the applicant left at or about 1600 hours.
      
      e.  A sworn statement dated 3 February 2003, from Sergeant Major A------s that states that during the period 2 through 21 November 2002, they received several issues with SFC R-------r.  He states that appropriate action was taken and no other action was necessary. 
      
      f.  A sworn statement dated 3 February 2003, from SFC B---n  stating that he had an altercation with SFC R------r.
      
      g.  A sworn statement dated 3 February 2003, from CPT M----a stating that between 25 December 2002 and 12 January 2003, she saw the applicant drive the PFC to the shower trailer and that she saw the PFC get out of the vehicle and walk into the showers.
      
      h.  A statement dated 5 February 2003, from CW3 N---s stating that on or about 23 November 2003, he met the applicant and the PFC in the PX in Camp Doha.  He states that they left bags in his trailer and the applicant departed about 1400 hrs for a meeting and that PFC B------s stayed with him to discuss her duties as the Commanding General’s cook.
      
5.  On 31 January 2003, the applicant was notified by the deputy commander, 3rd Infantry Division (Forward, Camp New York, Kuwait, that he intended to impose nonjudicial punishment (NJP) against him for  violating Army Regulation 600-20, Army Command Policy, paragraph 4-14, Relations between Soldiers of different ranks, dated 13 May 2002, by wrongfully having an inappropriate relation with PFC B------s and for making a false official statement to the AR 15-6 investigating officer, to wit:  that he did not have an improper relationship with a female PFC.  The applicant elected not to demand a trial by court-martial and chose to have the matter disposed of at a closed hearing.  The applicant elected to have a representative speak on his behalf, and did not present matters in defense, mitigation, and/or extenuation. 

6.  On 8 February 2003, the deputy commander, having considered all matters presented in defense, mitigation, and/or extenuation, found the applicant guilty of both charges and imposed a PLOR.  The Deputy Commander also directed that the Article 15 be filed in the performance section of the applicant's OMPF with the DA Form 2627 under Article 15, UCMJ.

7.  In support of his reconsideration request, the applicant also provided excerpts of the following transcripts of proceeding from the Article 32 hearing on 12, 13, 14, and 26 November 2003. 

      Pages 107, identifies PFC B-----s as the person who is being questioned.

      Pages 110 – 123 provides testimony that states that she and other enlisted Soldiers accepted rides to the shower with other officers besides the applicant, that she received an Article 15 resulting in her reduction to pay grade E-1 and ultimately being promoted back to pay grade E-3.  She also testified that she did not have an improper relationship with the applicant.

      Pages 133 and 138 - 150 provides testimony from PFC C------o, who testified that he was with CPT A------n and saw female and male silhouettes in the NTV but could not identify the male silhouette as the applicant.

      Pages 151 – 160 provides testimony from SGT G------z who testified that he was with CPT A------n and saw a silhouette in the NTC, but could not identify it as the applicant.  SGT G further testified that CPT A thought that the person in the NTV may be the applicant.
      
      Pages 217 – 230 provides testimony from CPT M----a who testified that she saw the applicant drop PFC B off at the shower pad.

8.  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.

9.  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.  

10.  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.  The applicant’s request to remove the Article 15 and PLOR in question from his OMPF, or to transfer these documents from the P-section to the R-section of his OMPF were carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant’s Article 15 and PLOR proceedings were accomplished in accordance with the applicable regulations.  

3.  The evidence of record confirms that all the documents submitted by the applicant with his original application to the ABCMR and his entire military record were fully reviewed and considered by the Board during its original review of this case in March 2007.  After consideration of all this material, the Board determined there was insufficient evidence to conclude that the applicant’s Article 15 and PLOR was unjust or in error.

4.  In the applicant’s request for reconsideration, he requested that evidence submitted with his original application be fully reviewed and that particular attention be paid to the Article 32 Investigation testimony and the sworn statements. 

5.  The Article 15 and PLOR were 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.

6.  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

___KAN__  ___RML_  __EEM      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 to amend the decision of the ABCMR set forth in Docket Number AR20060010721 dated 22 March 2007.




						____Kathleen A. Newman___
                CHAIRPERSON

      




INDEX

CASE ID
AR20070012055
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/12/06
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms.Mitrano
ISSUES         1.

2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20070012055



9


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508