IN THE CASE OF:	  

	BOARD DATE:	  5 August 2008

	DOCKET NUMBER:  AR20080009431 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests: 

	a.  removal of an Article 15 from his Official Military Personnel File (OMPF).

	b.  restoration of his rank and grade to staff sergeant (SSG)/E-6 with a date of rank of 1 May 2005.

	c.  restoration of pay and allowances.

2.  The applicant states, in effect, that he was unjustly punished under Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 February 2006 and he unfairly suffered the loss of one pay grade, from E-6 to E-5, and a forfeiture of $1,000.  He further adds that he was never guilty of any alleged offenses.  Specifically, he states that:

	a.  the Article 15 was administered in violation of the law and of his rights. 

	b.  the imposing officer exercised unlawful command influence and had a conflict of interest that was not disclosed to him.

	c.  his trial defense attorney was ineffective.

	d.  the case was not properly investigated. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 2 February 2006.

	b.  Self-authored statement, dated 27 May 2007.

	c.  Enlisted Record Brief (ERB), dated 19 November 2007.

	d.  Memorandum, dated 27 February 2006, Appeal of Article 15 and Subsequent Punishment.

	e.  Letters, dated 10 April 2006 and 26 July 2006, to a Member of Congress.

	f.  13 Character Reference Letters, dated on miscellaneous dates in 2006. 

	g.  DA Form 2166-8 [Noncommissioned Officer (NCO) Evaluation Report] for the periods 200403 to 200412; 200501 to 200510; 200511 to 200603; and 20060401 to 20070228.

	h.  Two sets of promotion orders to SSG/E-6, dated 21 April 2005 and 25 October 2007.

	i.  DA Form 1059 (Service School Academic Evaluation Report), dated 15 June 2007.

	j.  Permanent Orders awarding the applicant the Good Conduct Medal (3rd Award); two awards of the Army Commendation Medal; and the Combat Action Badge.

	k.  Letter, dated 2 October 2006, from the Adjutant General, Fort Leonard Wood, Missouri, to the applicant's Member of Congress.

	l.  Applicant's Military Training Record, dated on miscellaneous dates.

	m.  Three Memoranda for Record (MFR).

	n.  Report of Investigation with 9 Enclosures, dated on miscellaneous dates from 2004 to 2007, obtained under the Freedom of Information Act (FOIA).


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the removal of the applicant's Article 15 from his OMPF; his reinstatement to SSG/E-6, effective 1 May 2005; and restoration of all pay and allowances.

2.  Counsel did not make an additional statement. 

3.  Counsel did not submit any additional documentary evidence in support of the applicant's request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army SSG/E-6 who initially enlisted for a period of 3 years on 20 June 1996.  He holds military occupational specialty (MOS) 21B (Combat Engineer).  He executed a series of reenlistments in the Regular Army, including three 4-year reenlistments on 25 September 1998, 14 March 2002, and 5 August 2004, and a 3-year reenlistment on 14 February 2007.  

2.  The applicant’s awards and decorations include the Good Conduct Medal (3rd Award), the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, the NATO Medal, the Army Commendation Medal, the Army Achievement Medal (4th Oak Leaf Cluster), the Combat Action Badge, the Parachutist Badge, the Armed Forces Service Medal, the Multinational Force and Observers Medal, the Kosovo Campaign Medal, and the Driver and Mechanic Badges.  

3.  The applicant’s records show he was promoted to sergeant (SGT)/E-5 on 8 March 2002 and SSG/E-6 on 1 May 2005.  He was reduced to SGT/E-5 on 6 February 2006 for misconduct.  He was again promoted to SSG/E-6 on 1 November 2007. 

4.  On 19 October 2004, an allegation of trainee abuse involving the applicant was submitted by an officer of the applicant's unit, B Company, 43rd Adjutant General Battalion, Fort Leonard Wood, MO.  An initial entry trainee alleged that the applicant wrote a poem to a private.  The applicant's battalion commander determined the allegation to be credible and appointed an investigating officer (IO) to conduct an immediate investigation into the allegation.


5.  On 24 October 2004, the IO completed his investigation and determined that the allegation was unfounded due to a lack of physical evidence – the situation revolved around hearsay.  However, the applicant's character was determined to be questionable because he was immature and lacked discipline.  Therefore, the IO recommended that the applicant be assigned to a position that would not put him in direct contact with initial entry trainees.

6.  On 1 December 2004, the applicant's battalion commander submitted a final report regarding the applicant's trainee abuse allegation.  In his report, the battalion commander stated that the allegation of trainee abuse was unfounded due to a lack of physical evidence and primarily based on hearsay information.  Although there was a lack of evidence to support the allegation, based on concerns about the applicant's character, he would be reassigned to another company within the 43rd Adjutant General Battalion as a precaution in order to reduce the risk of his association with initial entry training (IET) Soldiers. 

7.  On 16 May 2005, an allegation of cadre sexual misconduct involving the applicant was submitted by an officer of the applicant's unit.  Reportedly, a former initial entry trainee alleged in a 15 May 2005 email to the applicant's first sergeant (1SG) that the applicant engaged in sexual relations with her against her will between 30 August 2004 and 3 September 2004, while she was assigned to B Company, 43rd Adjutant General Battalion.  The applicant was assigned as the Company Processing NCO at the time of the alleged incident.  

8.  On 19 May 2005, the Fort Leonard Wood, Missouri, Resident Agency of the U.S. Army Criminal Investigation [Division] Command (USACIDC) was notified by an officer of the applicant’s unit of a rape that was reported to this officer by a former Soldier of the officer’s unit.  Preliminary investigation revealed the applicant committed the offense of rape when he had sexual intercourse with the former Soldier after she repeatedly told him “No” and “Stop.”

9.  The USACID final report regarding the disposition of this case is not available for review with this case.  However, it appears that further investigation was terminated because the supporting Staff Judge Advocate (SJA) was of the opinion that sufficient admissible evidence was available to prosecute the applicant for the offense(s), that an additional investigation would produce only cumulative and unneeded evidence, and that the identification of additional individuals (subject/victims) or offenses was unlikely. 




10.  On 6 February 2006, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for failing to obey lawful general regulation on divers occasions between on or about 3 August 2004 and about 9 September 2004, by wrongfully touching and having sexual intercourse with a junior Soldier (in the rank of private).  His punishment consisted of reduction to SGT/E-5 and a forfeiture of $500.00 pay per month for 2 months.  Furthermore, he was found not guilty of the first allegation.

11.  On 6 February 2006, the applicant appealed his punishment and submitted additional matters.  However, after an SJA officer determined on 21 February 2006 that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust nor disproportionate to the offense committed, the applicant’s appeal was denied by the Commanding General, Fort Leonard Wood, Missouri, on 2 March 2006.  

12.  On 5 February 2008, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) to transfer his Article 15 from the performance section to the restricted section of his Official Military Personnel File (OMPF).  He claimed that the Article 15 had served its purpose.  He also added that he was holding an application to the ABCMR for correction of his records in abeyance pending the review by the DASEB.   

13.  On 4 April 2008, the DASEB denied the applicant’s petition to transfer his Article 15 to the restricted section of his OMPF.

14.  In his self authored statement, dated 27 May 2008, the applicant raises the following issues:

	a.  he was read the Article 15 on 27 January 2006, but was not provided a copy of any statements or materials until 1 February 2006, and despite repeated attempts, he was not provided a copy of the Article 15 itself.  He then had a hearing before the acting brigade commander on 2 February 2006, during which he told the acting brigade commander that he was not guilty.  On 6 February 2006, he was called into the hearing room twice for very brief periods.  The first time, he was asked why he chose to accept the Article 15 if he thought he was not guilty and he answered that, by accepting the Article 15, he was not admitting to guilt.  It was during the second hearing, when his punishment was read, that no witnesses were presented against him, he was not permitted to produce any witnesses on his behalf, and that the unit trial counsel was present throughout the proceedings, but at no time was he permitted a representative or counsel;



	b.  the requirements of the UCMJ and his rights were clearly violated with regard to the following:   

		(1)  Denial of his right to present matters in defense, extenuation, and mitigation. 

		(2)  Denial of key documents, in that he was not provided with a copy of the Article 15.  

		(3)  Denial of a spokesperson, in that he was informed by his trial defense attorney that he (attorney) could not represent him in the hearing.   

		(4)  Denial of witnesses, in that he was not informed of the option to call or not to call witnesses.

		(5)  Denial of evidence, in that he was denied the right to at least present his side of the story, thus denying him due process and fairness in the proceedings. 

	c.  the Article 15 contained two allegations.  However, the first allegation, pertaining to trainee abuse, had already been investigated and determined to be unfounded.  The only reason it was stated on the Article 15 was to unlawfully convict him of the second allegation via false innuendo derived from the first allegation.  The second allegation of rape was also investigated by the USACIDC and determined to be unfounded.  The USACIDC report stated that there was not enough evidence for prosecution of the case and ended with a suggestion to re-interview the applicant.  However, he was neither re-interviewed, nor was he offered the chance to explain his side of the story. 

	d.  unlawful command influence, lack of authority, and conflict of interest, as follows:

		(1)  rush to justice by the imposing commander and questionable authority to act, in that the garrison commander was not present from 30 January 2006 to 24 February 2006.  The allegations were brought to the acting commander who was not aware that the first allegation was determined to be unfounded.  Additionally, there was no appointment order appointing the imposing commander as the acting garrison commander and it appears that the orders were subsequently generated to cover what the applicant describes as "an embarrassing lapse that may have occurred.” 

		(2)  conflict of interest, in that the applicant’s spouse approached the Fort Leonard Wood Office of the Inspector General (IG) on 20 January 2006 for assistance prior to the hearing, since no action was being taken by the applicant’s trial defense; however, the IG officer who assisted the applicant’s spouse turned out to be the spouse of the imposing commander.  It was unfair for the applicant and his spouse for the office of the IG to refuse to investigate the unfairness of the imposing commander.  Both the acting commander and the IG officer knew that a clear-cut conflict of interest arose as soon as the IG officer appointed herself to adjudicate his case.  No action was taken by the Office of the IG regarding the applicant’s complaint on 7 February 2006 or on the applicant’s spouse complaint, dated 20 January 2006.

	e.  ineffective counsel assistance, in that although a qualified military attorney was available to assist him, that assistance was inadequate.  Counsel stated that he had too many cases and did not take the time to analyze the applicant’s case before the fact. 

	f.  insufficient evidence, in that in the final analysis, the case involved circumstantial evidence from trainees of dubious character.  The  trainee who made the first allegation in 2004 admitted that the applicant was never engaged in any inappropriate conduct around her in 2004, only to change her story two days later.  The second trainee who made the second allegation was unable to obtain a security clearance and was ultimately discharged for that reason. 

	g.  appellate rights, in that it was obvious he was denied the right to have his appeal actually considered by the Fort Leonard Wood Commanding General. The Judge Advocate officer led him to understand he (the applicant) had plenty of time to submit matters for consideration.

	h.  lack of facial validity and lack of legal review, in that the article 15 form itself is administratively incorrect and facially invalid.  It contains clear evidence that no legal review of the document was performed prior to the applicant’s submission of appellate matters.  It appears that the Commanding General signed the Article 15 denying the appeal before the JAG officer signed to indicate he conducted his legal review. 

	i.  additional documentation, in the form of the NCO Evaluation Reports, awards, academic evaluation reports, and character statements all speak to the applicant’s professionalism.  Furthermore, the applicant states that he was unfairly precluded from attending several training courses which would have further improved his career; and

	j.  in conclusion, the applicant states that he is not guilty of the offenses for which he was unfairly and improperly punished.  He requests the Article 15 be removed from his records; his SSG/E-6 rank restored to 1 May 2005 with back pay; and his forfeited money returned to him.

15.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM).  It provides, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’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 less time and personnel than trial by court-martial.

16.  Paragraph 3-6 of the above regulation addresses the filing of an NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP on the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  If a record of NJP has been designated for filing in a Soldier’s restricted section, the Soldier’s OMPF will be reviewed to determine if the restricted section contains a previous record of NJP. In those cases in which a previous DA Form 2627 (Record of Proceedings under Article 15, UCMJ) that has not been wholly set aside has been filed in the restricted section and in which prior to that punishment the Soldier was in the rank of SGT or higher, the present DA Form 2627 will be filed in the performance section.  The filing should be recorded on the present DA Form 2627 in block 11.  The Soldier concerned will be informed of the filing of the DA Form 2627 in the performance section.


17.  Paragraph 3-7 of this regulation prescribes the authority to impose NJP.  It provides, in pertinent part, that unless otherwise specified in this regulation, or if authority to impose NJP has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term commander, as used here, means a commissioned or warrant officer who, by virtue of that officer’s grade and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a command.  The term imposing commander refers to the commander or other officer who actually imposes the NJP commands include companies, troops, and batteries; numbered units and detachments; missions; Army elements of unified commands and joint task forces; Service schools; and area commands.  Commands also include, in general, any other organization of the kind mentioned above, for example, a provisional unit designated under AR 220–5, the commander of which is the one looked to by superior authority as the individual chiefly responsible for maintaining discipline in that organization.  Thus, an infantry company, whether or not separate or detached, is considered to be a command.  However, an infantry platoon that is part of a company and is not separate or detached is not considered to be a command.  Although a commissioned or warrant officer exercising command is usually designated as the commander, this position may be designated by various other titles having the same official connotation; for example, commandant, chief of mission, or superintendent.  Whether an officer is a commander is determined by the duties he or she performs, not necessarily by the title of the position occupied.  A multi-service commander or officer in charge, to whose command members of the Army are assigned or attached, may impose NJP upon such Soldiers.  A multi-service commander or officer in charge, alternatively, may designate one or more Army units and will for each such Army unit designate an Army commissioned or warrant officer as commanding officer for the administration of discipline under the UCMJ, Article 15.  A multi-service commander or officer in charge, when imposing NJP upon a military member of his or her command, will apply the provisions of this regulation.

18.  Unless such authority is limited or withheld by superior competent authority, a commander may impose punishment under Article 15 on commissioned officers, warrant officers, and other military personnel of that commander’s command, except cadets of the U.S. Military Academy (USMA).  For the purpose of Article 15, military personnel are considered to be “of the command” of a commander if they are assigned to an organization commanded by that commander; or affiliated with the command (by attachment, detail, or otherwise) under conditions, either expressed or implied, that indicate that the commander of the unit to which affiliated to exercise administrative or disciplinary authority over them.  Under similar circumstances, a commander may be assigned territorial command responsibility so that all or certain military personnel in the area will be considered to be of the command for the purpose of Article 15.  To determine if an individual is of the command of a particular commanding officer, refer first to those written or oral orders or directives that affect the status of the individual.  If orders or directives do not expressly confer authority to administer NJP to the commander of the unit with which the Soldier is affiliated or present (as when, for example, they contain no provision attaching the Soldier “for disciplinary purposes),” consider all attendant circumstances, such as the phraseology used in the orders; where the Soldier slept, ate, was paid, performed duty; the duration of the status; and other similar factors.  If orders or directives include such terms as “attached for administration of military justice,” or simply “attached for administration,” the individual so attached will be considered to be of the command of the commander of the unit of attachment for the purpose of Article 15.

19.  Whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  However, commanders are encouraged to consult with their NCOs on the appropriate type, duration, and limits of punishment to be imposed.  Additionally, as NCOs are often in the best position to observe a Soldier undergoing punishment and evaluate daily performance and attitude, their views on clemency should be given careful consideration.  The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.  For the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade.  When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed.

20.  The date of imposition of NJP is the date on which items 4 through 6, DA Form 2627, or items 1 through 3, DA Form 2627–1, as appropriate, are signed by the imposing commander.  This action normally will be accomplished on the day punishment is imposed.  Unsuspended punishments of reduction and forfeiture of pay take effect on the date imposed.  Other unsuspended punishments take effect on the date they are imposed, unless the imposing commander prescribes otherwise.  In those cases where the execution of the punishment legitimately must be delayed (for example, the Soldier is hospitalized, placed on quarters, authorized emergency leave or while on a brief period of TDY or a brief field problem), the execution of the punishment should begin immediately thereafter. The delay in executed punishment should not exceed 30 days. Once the Soldier has submitted an appeal, including all pertinent allied documents, the appeal normally should be decided within 5 calendar days. 
21.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, 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 Official Military Personnel File 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 selected agencies such as the Army Board for Correction of Military Records (ABCMR). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Article 15 was administered in contravention of law and his rights; that the imposing officer exercised unlawful command influence and had a conflict of interest that was not disclosed to him; that his trial defense attorney was ineffective; and that the case was not properly investigated, as well as the supporting argument and evidence submitted were carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  The evidence of record confirms that the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the evidence submitted.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).  The evidence of record confirms the applicant waived his right to a trial by court-martial, opted for a closed Article 15 hearing, and did not request a spokesperson. 

3.  The ABCMR does not determine guilt or innocence involving NJP.  This is the imposing commander’s function.  Furthermore, the applicant’s case has already been adjudicated through the Army’s legal system and the applicant was afforded the opportunity to appeal his punishment through the proper channels.  The ABCMR simply corrects records based on error or injustice.  In addressing the applicant’s concerns, the Board looks at error and/or injustice, not innocence or guilt.  If during the analysis and subsequent decision by the Board the applicant’s records are found to contain an error or an injustice, the records are then corrected.  






4.  With respect to the applicant’s arguments:

	a.  the evidence of record shows that on 27 January 2006, the garrison commander notified the applicant that he was considering whether he (the applicant) should be punished under Article 15 for failing to obey a lawful general regulation, on divers occasions between on or about 3 August 2004 and 9 September 2004, by wrongfully touching and having sexual intercourse with a junior Soldier; 

	b.  it appears that the applicant requested a decision period and was given reasonable time to consult with counsel, to decide whether or not to demand trial by court-martial.  It also appears that the applicant received actual notice and explanation of his rights under Article 15.  However, aside from the applicant’s arguments, there is no evidence that the applicant was not provided a copy of the DA Form 2627 with items 1 and 2 completed.

	c.  on 2 February 2006, having been afforded the opportunity to consult with counsel, the applicant stated his decision by placing his initials in the appropriate box not to demand trial by court-martial.  He further requested a closed hearing and stated that a person to speak on his behalf was not requested, and that matters in defense, mitigation, and/or extenuation would be presented in person. 

	d.  the applicant had the opportunity to turn down the Article 15 at anytime prior to punishment being announced and demand trial by court-martial.  He would have been entitled to a military defense counsel and trial before a military panel.  His election to accept the Article 15 was simply a forum choice.  However, by electing this forum, he put the issue of guilt or innocence in the hands of his commander rather than a panel of several officers/enlisted members;  

	e.  the fact that an applicant requested and was granted a closed hearing by the imposing commander did not preclude appearance of witnesses or prevent the commander from allowing the attendance of certain members of the chain of command, such as the Command Sergeant Major (CSM), or others deemed appropriate to the conduct of the proceedings;

	f.  the applicant, as an offender, had no right to legal counsel at the nonjudicial proceedings.  Individuals in this situation only have the right to consult counsel to obtain advice in responding to the proceedings.  The applicant had the option of retaining a civilian counsel to act as his spokesperson at no cost to the Government.  However, the spokesperson’s presence is voluntary.  Because the proceedings are not adversary in nature, neither the applicant or the spokesperson (including any attorney present on his behalf) may examine or cross-examine witnesses, unless permitted by the imposing commander.  Generally, a Soldier or spokesperson may indicate to the imposing commander relevant issues or questions they wish to explore or ask.  Nevertheless, the applicant stated that a person to speak on his behalf was not requested;

	g.  the applicant’s request for witnesses in defense, extenuation, or mitigation was restricted to those witnesses reasonably available as determined by the imposing commander;  

	h.  on 6 February 2006, the imposing commander, after two hearings, was convinced beyond a reasonable doubt that the applicant committed the offense of wrongfully having sexual intercourse with a trainee in violation of applicable regulations.  The commander found him not guilty of the other allegation.  After consulting with his CSM on the appropriate type, durations, and limits of punishment to be imposed, the imposing commander exercised his authority to impose punishment;

	i.  there is no evidence that another officer, and not the commander on the Article 15, imposed punishment.  The officer that the applicant notes in his argument, may have been acting solely as an intermediary for the actual commander.  After all, the regulation allows a subordinate officer to officiate the hearing for the actual commander; 

	j.  the applicant appealed his punishment on 6 February 2006.  His appeal was reviewed by a Judge Advocate who determined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offense committed.  The next superior authority, denied the applicant’s appeal on 2 March 2006; 

	k.  with respect to the loss of training and promotion opportunities, the evidence of record shows that as soon as the applicant became under investigation, and as required by applicable regulation, a suspension of favorable personnel actions (flag) was initiated against him.  Once the investigation was completed and after the applicant served his punishment, his flag was lifted.  Again, all requirements of law and regulation were properly followed;

	l.  there is no evidence in the applicant’s records and the applicant did not submit any evidence to substantiate what he described as inadequate legal counsel.  The fact that the applicant was punished under the provisions of Article 15 and that his appeal was subsequently denied, does not imply he received inadequate legal counsel; and

	m.  there is no evidence that the IG officer acted any less professionally than other IG officers, despite the marriage to the acting garrison commander.  The applicant was punished because of his misconduct.  Absent the misconduct, there was no fundamental reason to punish him under Article 15.  

5.  A commander’s decision whether to file a record of NJP on the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct).  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  The fact that the applicant engaged in inappropriate conduct with a trainee is evidence of a serious character deficiency and a substantial breach of military discipline. 

6.  In view of the foregoing evidence, there is no evidence of error or injustice.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, he 
is not entitled to relief in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
 _   _______   ______________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080009431



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ABCMR Record of Proceedings (cont)                                         AR20080009431



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