IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090006954 


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 reconsideration of her earlier request for correction of her military records to remove a nonjudicial punishment (NJP) and a Relief-for-Cause Noncommissioned Officer Evaluation Report (NCOER) from her official military personnel file.

2.  The applicant states, in effect, that the NJP and Relief-for-Cause NCOER stemmed from a Commander's Inquiry that determined the applicant had engaged in an adulterous affair.  The applicant contends that the other Soldier and she both denied having such an affair.  However, the investigating officer claimed that the other Soldier later admitted to having sexual relations with her on six occasions and that it was his condom wrapper that was found in the applicant's residence.  The applicant contends that this relationship is at the heart of all the negative personnel actions received by the applicant.  The NJP concerned her relationship with the other Soldier and her alleged untruthful statements made during the investigation.  The Relief-for-Cause NCOER was based entirely on the NJP proceeding.  More significantly, the investigating officer's conclusions were based completely on the other Soldier's alleged and undocumented verbal confession, as stated in a memorandum from the investigating officer.  Thus, the investigating officer's integrity and investigative techniques must be reviewed to determine whether the NJP resulted from a just investigation.

3.  The applicant states that the investigating officer was later relieved of his command due to an inappropriate relationship with a female drill sergeant and fraternization with drill sergeants under his command.  The command knew of the investigating officer's behavior at the time of the subject investigation.  A number of complaints had been made concerning the investigating officer's behavior during his investigation.  Two different Soldiers told similar stories about the same investigating officer's improper tactics during interviews.  This casts doubt on the veracity of the investigating officer's conclusions.

4.  The applicant states that the Board apparently made no inquiry into the allegations concerning the investigating officer.  The failure to review the personnel actions concerning the investigating officer casts doubt on whether this Board could adequately and fairly review the applicant's claims.  The Board merely stated in its decision that the applicant had failed to provide sufficient evidence to undermine the validity of the commander's decision that she had committed the offenses charged in the NJP.  To provide real evidence of innocence would be impossible since to do so would require proving a negative.

5.  The applicant states that the Board determined that the applicant had not shown through convincing evidence that the contested NCOER was inaccurate.  The applicant contends that the rating chain based her evaluation on the NJP.  If the NJP were removed, then the NCOER should also be removed.  Removal of the NJP and NCOER would then clear the way for additional relief including reinstatement as a drill sergeant and reconsideration for promotion to sergeant first class, pay grade E-7.

6.  The applicant provides copies of two support statements from other Soldiers and a copy of her statement, dated 6 June 2005, that was considered by the original Board in support of her request for reconsideration.

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 AR20070006754 on 29 April 2008.

2.  The applicant provides two new statements that require consideration by the Board.  She also argues that the Board should have made inquiries concerning the investigating officer's actions before making a decision.

3.  The original Board proceedings show that the applicant accepted NJP for wrongfully having sexual intercourse with another man, not her husband; for making a false official statement; and for being disrespectful in language towards the investigating officer who was a commissioned officer in the execution of his office.  It further shows that the applicant was relieved for cause and furnished an NCOER documenting her lack of honor/integrity based on her failure to be honest with her superiors and to maintain [an acceptable standard] of personal conduct while off duty.

4.  In an undated statement, the Soldier, a sergeant, pay grade E-5, with whom the applicant was accused of having an adulterous affair, denied that they were romantically involved.  He further contended that the investigating officer was hostile and belligerent towards him.  The Soldier admitted that he had lied about spending a night with the applicant in a hotel room; however, they did not have a sexual relationship.  He further contends that he did not tell the investigating officer that he had sex with the applicant six times or that the condom found in the applicant's home was his.  The Soldier states that he has since learned the investigating officer was separated from the Army for having an inappropriate relationship with a drill sergeant and may have pushed this matter as hard as he did to deflect attention away from his own actions.

5.  In an undated statement, a sergeant first class, pay grade E-7, contends that she was investigated by the same investigating officer for allegedly inappropriate electronic mail (email) messages between herself and another drill sergeant.  She states that the investigating officer's tactics were unprofessional at best.  The investigating officer focused on the content of the email messages rather than on how they were revealed.  She was kept for 3 1/2 hours and could not leave the investigating officer's office until she signed a sworn statement implicating herself.  She agreed to sign the statement.  She described the investigating officer as a liar and a snake and could not be trusted.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) governs the process of this Board.  It provides, in pertinent part, that the ABCMR will decide cases on the evidence of record.  The ABCMR is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Board did not make inquiries concerning allegations against the investing officer casting doubts on the Board's decision.  She further contends that the NJP was based solely on the investigating officer's conclusions and that the Relief-for-Cause NCOER was the result of the NJP.  As such, if the NJP is removed, so should the NCOER.

2.  The two supporting statements, made by Soldiers who report that they also were investigated by the same investigating officer, are insufficiently convincing by themselves.  Neither Soldier has provided any documentary evidence showing that their allegations are factual.  Furthermore, it appears that both of these Soldiers could have possibly written these statements to gain personal benefit.

3.  There is no available documentary evidence, such as a substantiated Inspector General finding, showing that the investigating officer had done anything wrong or that he has since been separated from the Army for cause.

4.  The applicant argued that the Board should have made inquires.  The Board is not an investigative body.  As such, it is the responsibility of the applicant to provide evidence showing that there was an error or injustice.

5.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X      

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 to amend the decision of the ABCMR set forth in Docket Number AR20070006754, dated 29 April 2008.



      ____________X_____________
                 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)                                         AR20090006954



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ABCMR Record of Proceedings (cont)                                         AR20090006954



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