IN THE CASE OF:	  

		BOARD DATE:	        3 March 2009

		DOCKET NUMBER:  AR20080020069 


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 removal of an Article 15 from his official military personnel file (OMPF).

2.  The applicant states that on 28 March 1998, he had a consensual sexual encounter in a secluded area with a woman in her parked car on Fort Lewis, Washington.  The woman initially alleged he sexually assaulted her; however, she later retracted the allegations and admitted that the encounter was consensual.  He adds that as soon as the immediate commander was notified that the woman admitted that the sex was consensual, he lifted the suspension of favorable personnel actions and the bar to reenlistment and told him that no action would be taken against him.  However, subsequent to a return from deployment, the battalion commander decided that the consensual affair inside a vehicle was indecent and, despite the favorable recommendations from the supervisor, company commander, and a legal advisor, the battalion commander issued an Article 15.  He also adds that although he disagreed with the grounds for the action, he took full responsibility and accepted the punishment.  He further adds that he deeply regretted this action and has since repented and renewed his commitment to his faith and to the Army.  He has served his country with honor, integrity, and respect for over 22 years and attained the rank/grade of master sergeant (MSG)/E-8.  However, he has been passed over for promotion to sergeant major (SGM) and/or appointment to the command sergeant major (CSM) program on three different occasions and believes that his non-selection is exclusively due to this Article 15 being in the restricted portion of his OMPF.

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

	a.  a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 13 January 1999;

	b.  two character reference letters, dated 27 October 2008 and 12 September 2008, and a letter of support, dated 19 April 2008; 

	c.  three memorandums for record, dated 17 June 2005, 12 June 2007, and 13 June 2008, regarding release of the restricted section data to the SGM/CSM Selection Boards; and

	d.  12 DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the periods 199711 through 199810, 199811 through 199906, 199907 through 200002, 200003 through 200007, 200008 through 200104, 200105 through 200204, 200205 through 200304, 200305 through 200309, 200407 through 200503, 200504 through 200601, 20060201 through 20070131, and 20070201 through 20080131.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) MSG/E-8 who initially enlisted in the RA on 28 October 1986.  He holds military occupational specialty 92Y (Supply Specialist).  He executed a series of reenlistments in the RA throughout his military career and was promoted to sergeant first class (SFC) on 1 July 1997 and to MSG/E-8 on 1 March 2001.

2.  The applicant’s records show he served in Iraq from 28 March 2006 to 27 March 2007.  His awards and decorations include the Bronze Star Medal, the Good Conduct Medal (7th Award), the Meritorious Service Medal (1st Oak Leaf Cluster), the Army Commendation Medal (3rd Oak Leaf Cluster), the Army Achievement Medal (4th Oak Leaf Cluster), the National Defense Service Medal, the Global War on Terrorism Service Medal, the Iraq Campaign Medal, the Armed Forces Expeditionary Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral 4, the Army Service Ribbon, the Overseas Service Ribbon with Numeral 5, the Kuwait Liberation Medal, the Southwest Asia Service Medal, the Driver and Mechanic Badge, and the Air Assault Badge.

3.  On 13 January 1999, while assigned as a supply sergeant to the 1st Battalion, 24th Infantry, Fort Lewis, Washington, at a closed hearing, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully and wrongfully exposing in an indecent matter to public view his p___s on or about 21 March 1998 while in a passenger car.  His punishment consisted of a forfeiture of $1,070.00 pay.  The imposing commander directed this Article 15 be filed in the restricted portion of the applicant's OMPF.  Furthermore, the applicant elected not to appeal his punishment.

4.  The applicant is a graduate of the U.S. Army Sergeants Major Academy, Class 54, August 2003 to May 2004.  His OMPF was released to the Fiscal Year (FY) 2005, 2006, 2007, and 2008 CSM/SGM Promotion Selection Boards in accordance with Office of the Deputy Chief of Staff G-1, memorandum, dated 3 February 2004.  He was considered for promotion to SGM and/or appointment to CSM by each board; however, he was not selected.

5.  The applicant submitted copies of his NCOERs from 1997 to present.  All reports reflect an overall performance and potential of among the best by the rater, and a successful overall performance and superior overall potential by the senior rater.

6.  The applicant submitted three statements in support of his petition as follows:

	a.  In a letter of support, dated 19 April 2008, the applicant's former supervisor and battalion S4 at the time of the incident stated that the applicant's performance at the time was exceptional despite the issues with the Article 15.  He added that he personally recommended a dismissal of the case to the battalion commander as he did not find any evidence that the applicant committed a violation.  However, the battalion commander pursued NJP action despite knowing that the accuser retracted her statement.  He further added that the applicant is not only a dedicated professional who is innocent of the charges of which he was accused, he is also an important asset to the Army and Soldiers.

	b.  In a character reference letter, dated 27 October 2008, the applicant's former company commander commented on his loyalty, selfless service, and dedication to the Army and Soldiers.  He added that the applicant was a victim of an unfortunate situation in that he was in the wrong place at the wrong time, and that the battalion commander wanted to make an example of the applicant.  He further added that he was surprised at the treatment the applicant received from the battalion commander considering that he was found innocent of the charges that were brought against him.  Nevertheless, since his incident, the applicant continued to serve the Army and Soldiers flawlessly and with distinction.  He deserved to be promoted to CSM.

	c.  In a character statement letter, dated 12 September 2008, the applicant's former battalion executive officer opined that the applicant is one of the finest NCOs he has ever served with.  He added that he was aware of the incident, and knew that the accuser retracted her statement and admitted that she had consensual sex with the applicant.  Accordingly, and during the unit's deployment to Panama at the time, the battalion commander told the applicant that no action would be taken against him.  However, upon return to Fort Lewis, and for unknown reasons, the battalion commander punished the applicant with an Article 15 despite the favorable recommendations presented by him, the company commander, and the prosecutor.  He further states that the Article 15 should be removed from the applicant's file so he may be selected for promotion.

7.  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.  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.

8.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-9 contains guidance on minor offenses.  It states that generally the term "minor" includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial.  It does not include misconduct of a type that, if tried by general court-martial, could be punished by dishonorable discharge or confinement for more than 1 year.  Paragraph 3-9 further stipulates that the general minor offense rule is not hard and fast and that the circumstances of the offense might indicate that action under Article 15 would be appropriate even in a case falling outside the normal identified categories.

9.  Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP in 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.

10.  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 that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates that 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.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, to request to be accompanied by a spokesperson, to request an open hearing, and to examine available evidence. 

11.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, 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 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 selected agencies such as the Army Board for Correction of Military Records (ABCMR).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15 filed on the restricted portion of his OMPF should be removed.

2.  The applicant's contention, and the supporting statements by former members of his chain of command at the time of the incident that allege he was not guilty of the charges upon which the Article 15 in question was based, and the supporting NCOERs and other evidence presented were carefully considered.  However, there is insufficient evidence to grant the applicant the requested relief.

3.  It is primarily the commander's function to determine guilt or innocence during nonjudicial punishment.  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 corrects records based on error or injustice.  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.  If the ABCMR determined the applicant was innocent, it could set aside the Article 15 as this would constitute error.  Similarly, if the Board determined the record of this Article 15 was creating an injustice, it could remove the Article 15 from his OMPF.

4.  The evidence of record confirms that the applicant was an SFC at the time of his incident.  After being notified and afforded the opportunity to consult with legal counsel, the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with his battalion commander.  The applicant had the opportunity to turn down the Article 15 at any time prior to punishment being announced and demand trial by court-martial.  He would have been entitled to a military defense counsel and a 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 officer/enlisted members.

5.  The record further shows that subsequent to the hearing at which the applicant presented matters of defense, mitigation, and/or extenuation, NJP action was imposed for the applicant’s violations of Article 134 of the UCMJ.  The imposing commander directed this Article 15 be filed on the restricted portion of his OMPF.  The applicant elected not to appeal his punishment.

6.  A commander’s decision whether to file a record of NJP in 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, and total service including his overall performance and past misconduct.  

7.  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 while holding the rank of SFC is evidence of a serious character deficiency and a substantial breach of military discipline.  The applicant's battalion commander already gave the applicant a break by filing his Article 15 in the restricted portion vice the performance portion of the OMPF.

8.  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 did not 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

___X____  ___X____  ___X____  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)                                         AR20080020069



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ABCMR Record of Proceedings (cont)                                         AR20080020069



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