IN THE CASE OF:	   

		BOARD DATE:	         30 September 2008

		DOCKET NUMBER:    AR20080014027 


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 that the DA Form 2627 (Records of Proceeding Under 
Article 15, Uniform Code of Military Justice (UCMJ), dated 30 May 2006 and a General Officer Memorandum Of Reprimand (GOMOR), dated 31 May 2006 be completely removed from the restricted portion of his Official Military Personnel File (OMPF).  

2.  The applicant states the derogatory information associated with the UCMJ action is untrue.  The applicant continues that the Article 15 accuses him of "conduct unbecoming of an officer" based on presumption that his interaction with a lower enlisted Soldier was inappropriate.  The applicant further states the charge was based on sworn statements that were initially unsubstantiated and later recanted.   

3.  The applicant provides a copy of the Article 15, copy of the GOMOR, five letters of support, four Officer Evaluation Reports (OER), a Department of the Army Suitability Evaluation Board (DASEB) appeal, Person Summary sheet, and Officer Record Brief (ORB), in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant completed the Military Intelligence Officer Basic Course on 08 July 2005.  The applicant was assigned and is currently serving in the Regular Army on active duty as a first lieutenant at Fort Drum, New York.     

2.  Department of the Army memorandum, dated 6 April 2006, prepared by an investigation officer (IO) shows that the applicant was investigated concerning the following issues:

	a.  Cruelty and Maltreatment of a Subordinate (Sexual Harassment),

	b.  Fraternization,

	c.  Conduct Unbecoming of an Officer, and

	d.  Willfully Disobeying a Superior Commissioned Officer.

3.  The investigating officer found:

	a.  The allegation of cruelty and maltreatment of a subordinate (sexual harassment) was unsubstantiated; and

	b.  The allegations of fraternization, conduct unbecoming of an officer, and willfully disobeying a superior commissioned officer were substantiated.   

4.  Records show the applicant was punished under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful command and acting inappropriately and disgracefully. 
   
5.  A DA Form 2627, dated 15 May 2006, shows that the applicant was advised that he had the right to demand a trial by court-martial and the right to consult with legal counsel.  

6.  The applicant elected not to appeal and signed the DA Form 2627.  The applicant acknowledged that he was afforded the opportunity to consult with counsel and placed his initials in the box "I do not demand a trial by court-martial."

7.  The applicant did not provide any witnesses at the Article 15 proceedings.  

8.  The resultant punishment included a forfeiture of $2,225 of pay per month for two months and a written reprimand.  The commander directed filing of the Article 15 in the performance portion of the OMPF.   

9.  On 31 May 2006, a GOMOR was imposed as part on the punishment under the Article 15.  The GOMOR shows the applicant was reprimanded, between 
6 February 2006 and 28 February 2006, for repeatedly making unprofessional and disgraceful remarks to junior enlisted female Soldiers.      

10.  The four OERs cover the applicant's duty performance with the 10th Mountain Division from 8 July 2005 through 9 September 2008.  Three OERs rated the applicant "Best Qualified" and the remaining showed "Fully Qualified."    

11.  The applicant appealed to the DASEB to have the Article 15 and GOMOR transferred to his restricted file.  On 24 July 2008, the DASEB voted and approved the transfer of these documents to the applicant's restricted file.  

12.  In a supporting statement, the former company commander claimed that in third party statements given to her, that one of the Soldiers, who alleged the misconduct by the applicant, was having an affair with another officer.  In her mind, this action brings into question the validity of that Soldier's statement.

13.  In a supporting statement, the IO who conducted the investigation states over the course of the next year, he had the opportunity to work in close proximity to the primary witness and complainant against the applicant and her character became clearer.  The IO states it is his opinion based on the observed actions of the complainant that the complaints against the applicant were greatly exaggerated or fabricated.  

14.  The applicant provided three other supporting statements which essentially stated their observance of the applicant's performance and supports the transfer of the GOMOR to the applicant's restricted file.

15.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-18l provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

16.  Paragraph 3-18 of Army Regulation 27-10 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected; and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  In addition, it states that the Soldier will be informed of the right to consult with counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to hold an open hearing, and to examine available evidence.  

17.  Paragraph 3-28 of Army Regulation 27-10 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the Article 15, dated 30 May 2006 and GOMOR, dated 31 May 2006, from his Official Military Personnel File (OMPF) were carefully considered.   

2.  Although the DASEB voted to transfer the Article 15 and GOMOR, there is no evidence in the available records and the applicant has not provided sufficient evidence showing the Article 15 or GOMOR were untrue or unjust, and were not processed in accordance with laws and regulations.   

3.  Evidence shows the allegations of fraternization, conduct unbecoming of an officer, and willfully disobeying a superior commissioned officer substantiated.

4.  Pertinent regulation states, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  There is no evidence and the applicant has not provided sufficient evidence that an injustice has occurred.  

5.  Based on the foregoing, there is no basis to grant the applicant’s request for removal of the Article 15 and GOMOR from his OMPF.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX___  __XX___  __XX____  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.




      _______ _   _XX______   ___
               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)                                         AR20080014027



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014027



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1