BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100009528 


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 the following:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from his record
* Damages in the amount of $100,893.00 due to lost wages as a staff sergeant from 25 August 2004 to March 2008
* Damages in the amount of $137,000.00 for court costs
* Lost wages in the amount of $322,000.00 due to the loss of a job he was offered prior to the loss of his Top Secret Clearance

2.  The applicant states, in effect, that members of the 501st Military Intelligence (MI) Brigade aided his spouse in a divorce and a child custody case.  He adds the same members of the command attempted to title him with court-martial offenses and deliberately harassed him and his family.  The applicant offers his proceedings under Article 15, UCMJ, were based upon falsified information deliberately orchestrated by members of the 501st MI.  He states he finds the battalion commander's decision to reduce him one rank for the alleged crime of child pornography utterly incredulous.  He questions why he was not court-martialed for the offense. 






3.  The applicant provides the following:

* Memorandum, Subject:  Failure of [Applicant] to Pay Child Support and Possible Abduction of Daughter from Family Home, dated 12 May 2004
* DA Forms 4856 (Developmental Counseling Form) dated 13 May and
23 May 2004
* A Written Complaint, dated 19 May 2004
* Self-authored statement, dated 21 May 2004
* Letter from First Sergeant (1SG), dated 8 June 2004
* Applicant's Sworn Statement, dated 9 June 2004
* Numerous email messages
* Memorandum, Subject:  [Applicant's Spouse] Family Situation, dated
30 June 2004
* Congressional Correspondence
* U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report
* Letter from applicant's mother, dated 3 August 2004
* Memorandum for Record, Subject:  [Applicant], dated 16 August 2004
* Affidavit, undated
* Letter, dated 19 August 2004
* Withdrawal of Petition for Legal Case
* DA Form 2627, dated 25 August 2004

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant has requested an Article 15, based on false charges, be removed from his official military personnel file (OMPF).  A review of his record shows he received two Article 15s, one on 13 June 2005 for failing to go to a physical training (PT)/accountability formation and another Article 15 on 25 August 2004 for making two false official statements.  Although the applicant provides comments on the Article 15 he received for missing PT formation, he does not indicate that he is requesting redress on this issue.  Therefore, this Article 15 will not be addressed in the record of proceedings.

3.  His records show he enlisted in the Regular Army on 19 January 1995 and through a series of reenlistments, he remained in the military.  

4.  In a memorandum, Subject:  Failure of [Applicant] to pay child support and possible abduction of daughter from family home, dated 12 May 2004, addressed to the applicant's company commander, a legal assistance attorney stated that she was writing the letter on behalf of the applicant's spouse.  She explained the applicant had his mother take their 3-year old daughter to the United States on false pretense.  The attorney offered that the applicant's spouse was a Korean national and the applicant refused to renew her visa.  She suspected that the applicant's actions were a direct attempt to deprive the spouse of her parental rights by making it impossible for her to visit and/or have custody of the child.  The attorney also informed the applicant's commander he should be aware that the applicant had a girlfriend, Susannah, whom he met on the internet.  She concluded by urging the commander to counsel the applicant about his legal obligation to return the child to her mother and about his support obligation to his family.

5.  The CID report, dated 18 July 2004, stated the examiner conducted an examination of 5 computer hard drives, 1 removable universal serial bus storage device, and 56 3.5 inch floppy disks, property of the applicant.  The examination identified several digital movies and numerous images depicting suspected child pornography; however, the examiner was not an expert in the identification of depictions of children versus adult subjects in photographs.  

6.  In a Memorandum for Record, dated 16 August 2004, the company commander stated that on 10 May 2004, after advising the applicant of his rights which he waived, he asked the applicant if he had met with Susannah.  The applicant stated that he had not.  However, on 11 May 2004 the applicant told the company commander he had made a mistake and admitted he had met with Susannah.

7.  On 25 August 2004, nonjudicial punishment was imposed against the applicant for making two false official statements to two individuals on two separate occasions:  "I have never been in possession of child pornography" and "I have not personally met Susannah" (his alleged mistress).  His punishment consisted of reduction to the rank/grade of sergeant (SGT)/E-5. 

8.  Records show he was afforded the opportunity to consult with counsel and initialed "I do not demand trial by court-martial."  He also initialed the block indicating that matters in his defense would be presented in person.  The commander signed the Article 15 verifying that "I have considered all matters presented in defense and/or extenuation and mitigation."  The Article 15 was directed to be filed in the restricted portion of the applicant's OMPF.  The applicant signed the Article 15 confirming that he wished to appeal.  

9.  His OMPF contains a memorandum from the 121st General Hospital, Chief, Pediatrics in which she stated she completed a sexual maturity rating of a portion of the individuals illustrated in a collection of images.  She found 44 of the individuals as females under the age of 18 and two of the individuals as males under the age of 18.  She stated the quality of the other images was either too poor for assessment or the individuals could not be assessed as under the age of 18 to a reasonable degree of medical certainty.

10.  His OMPF contains a forensic report from the Department of Defense Computer Forensic Laboratory confirming the presence of child pornography on a computer seized from him.

11.  His OMPF contains a memorandum, dated 30 August 2004, that shows he elected to appeal the Article 15.  In the memorandum, the applicant said he took full responsibility for his actions.  He added as a non-commissioned officer he understood that he must be held to a higher standard.  He stated by making a false official statement to his company commander and to CID, he fully understood he had fallen short of that standard.  The applicant admitted he and his wife downloaded pornography on the computer and on one occasion, he opened a file that contained child pornography.  He said once he realized what was in the file he immediately closed and deleted the file.  He asked the commander to consider his wife and their marital problems and the events that led to the Article 15.  On 30 August 2004, his appeal was denied.

12.  On 16 May 2005, he was counseled concerning a viable family care plan and given 30 days to rework his family care plan.  The commander stated he would consider the applicant for separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8, if he could not provide and maintain an adequate family care plan.

13.  On 13 June 2005, he submitted a memorandum stating he could not arrange for the care of his family members so as to be available for duty when and where the needs of the Army dictated and to perform his assigned military duties without interference of family responsibilities.  He stated he had notified the commander that he could not meet the submission deadline for a family care plan.
14.  On 15 June 2005, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-8, involuntary separation due to parenthood.

15.  On 15 June 2005, he acknowledged receipt of the discharge action.  He was advised of his rights and effects of any action taken by him in waiving his rights.  He elected to waive consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less than honorable.  He also elected not to submit statements in his own behalf.

16.  On 7 July 2005, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-8 and directed that an Honorable Discharge Certificate be issued.

17.  His DD Form 214 shows on 30 August 2005 he was honorably discharged in the grade of E5 under the provisions of Army Regulation 635-200, paragraph 5-8, parenthood.  He was credited with completing 10 years, 7 months, and 12 days of active service.   

18.  Army Regulation 27-10 (Military Justice) establishes the policies and procedures for administration of military justice.  Paragraph 3-2 states the use of nonjudicial punishment is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction.  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, UCMJ.  The Soldier will be advised that he has a right to demand trial.  The demand for trial may be made at any time prior to imposition of punishment.  The Soldier will be informed of his right to fully present his case in the presence of the imposing commander, to call witnesses, present evidence, be accompanied by a spokesperson, request an open hearing, and/or examine available evidence.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).

19.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual’s OMPF.  The regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5-8 contains the authority and outlines the procedures for involuntary separation due to parenthood.  The regulation states that Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of their military responsibilities.  Specific reasons for separation because of parenthood include the following:

* Inability to perform prescribed duties satisfactorily
* Repeated absenteeism
* Repeated tardiness
* Inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty noncommissioned officer (NCO)
* Non-availability for worldwide assignment or deployment according to the needs of the Army

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Chapter 3 of this regulation governs claims and expenses.  The regulation states that monetary settlements occur only as a result of correcting the military records.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant request his Article 15 be removed from his OMPF.  He cites undue influence from his command in his divorce and child custody case and maintains his proceedings under Article 15 were based upon falsified information orchestrated by members of his command.

2.  Evidence of record shows he received an Article 15 for making a false official statement to his commander and a CID agent.  The possession of child pornography was verified through images obtained from his computer by CID and a sexual maturity rating review of those images by the Chief, Pediatrics, 121st General Hospital.  Therefore his statement of "I have never been in possession of child pornography" was determined to be false.  In a Memorandum for Record the applicant told the commander he had not met with Susannah, but later admitted he had met with her.  This information verifies the statement of "I have not personally met Susannah" was also false.
3.  The record shows that prior to accepting the Article 15 he was afforded the opportunity to consult with counsel and the right to demand trial by court-martial.
The record also shows he elected to present matters in his defense and or extenuation in person.  Therefore, he had an opportunity to present matters in defense, extenuation and/or mitigation.  The commander signed the Article 15 indicating that he had considered all matters presented prior to making his final decision.  

4.  The Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offenses committed.  Further, he admitted making false official statements to his company commander and to the CID agent in his appeal of the Article 15.  The applicant has not provided and there is no evidence of falsified information and/or undue command influence in the rendering of the Article 15.  

5.  Evidence of record shows that on 13 June 2005 he submitted a memorandum stating he could not arrange for the care of his family members and, therefore, his commander initiated separation in accordance with Army Regulation 635-200, paragraph 5-8.   

6.  The evidence of record confirms his discharge proceedings were accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  He failed to produce an adequate family care plan as required for all Soldiers.  There is no evidence and he has not provided any to show he received unfair treatment and is entitled to any type of damages. 

7.  He has failed to show his loss of a security clearance resulted from any improper action by the Army.  The Article 15 and parts of the Department of Defense Computer Forensic Laboratory investigation are properly filed in his OMPF.  The available evidence supports the commander's determination that the applicant committed the offenses cited.  

8.  The ABCMR does not pay damages or court costs.  Likewise, the ABCMR does not pay for lost wages for civilian employment resulting from the loss of a security clearance.  The evidence supports the Article 15 resulting in his reduction to E-5 and the ABCMR does not find the action to have been in error or unjust.





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.



      _______ _ 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)                                         AR20100009528



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record o