IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20100011323 


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 the following documents from his Official Military Personnel File (OMPF):

* a DA Form 2627 (Record of Proceedings under Article 15 Uniform Code of Military Justice (UCMJ) dated 6 June 2006 and all associated documents
* all documents associated with his appeal to the Department of the Army Suitability Evaluation Board (DASEB)
* a Relief for Cause (RFC) Noncommissioned Officer Evaluation Report (NCOER) ending in June 2006

2.  The applicant states the commander’s inquiry, the nonjudicial punishment (NJP) proceedings, and the RFC NCOER were unjust.  The commander's inquiry and Article 15 proceedings were improperly conducted and biased based on improper command influence.  He goes on to state he did not have the necessary documents to refute the absent without leave (AWOL) charge at the time, but he is providing it now.  He continues by stating he was named one of America’s Army Real Heroes and the RFC NCOER is a contradiction.  Therefore, it should be removed from his records.  He also states that a review of his evaluation reports will show the RFC NCOER does not truly reflect his competence and character.  Additionally, he states his application was delayed because he was recovering from injuries suffered in combat.




3.  The applicant provides:

* a memorandum requesting support of the America’s Army Game Project, Real Heroes Program
* a copy of a commander’s evaluation for the Asymmetric Warfare Group
* a telephone roster
* three NCOERs
* 41 pages from myspace.com
* A copy of a calendar for September 2005
* Copies of three letters and three electronic mail (email) messages from the office manager of the University of Central Florida Army Reserve Officers' Training Corps Department

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 July 1986 and has remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 on 1 September 2003 in military occupational specialty (MOS) 18Z5W Special Forces Operations Sergeant.

2.  On 27 February 2006, while serving as a military science instructor in an ROTC Department of a university in Florida, the applicant was contacted by his battalion commander/Professor of Military Science (PMS) (a lieutenant colonel) regarding allegations of improper behavior involving fraternization with cadets.  The commander gave the applicant a direct order not to have contact with cadets outside of the specific ROTC environment.  The following day the applicant emailed the commander a message in which he apologized for his lack of judgment and character and cited several personal and serious reasons for his behavior, to include a failed marriage and financial burdens related to his actions.

3.  During the period 3 March to 9 March 2006, the PMS began interviewing cadets and cadre in regard to the allegations of improper relationships between the applicant and cadets.  The majority of the cadets confirmed the allegations.

4.  The applicant was interviewed on 3 March, was advised of his rights, and was advised that a commander’s inquiry was being conducted into allegations of improper relationships, sexual misconduct, and coercion on his behalf.  The applicant waived his rights and admitted that he had consumed alcohol with cadets for short periods of time while mentoring them.  He denied any sexual misconduct or coercion on his part.

5.  On 26 May 2006, the Commander, Cadet Command (Eastern Region) informed the applicant that he was considering whether he should be punished under Article 15, UCMJ for:

* being absent from his place of duty from 3 to 5 September 2005
* being absent from his place of duty from 31 December 2005 to 
1 January 2006
* being absent from his place of duty from 7 to 9 January 2006
* being absent from his place of duty from 28 January to 1 February 2006
* being absent from his place of duty from 3 to 7 February 2006
* being absent from his place of duty from 10 to 15 February 2006
* for disobeying a lawful order on divers occasions by maintaining personal relationships with cadets between 1 December 2005 and 
1 March 2006

6.  The commander further advised the applicant that he was not required to make any statements, and that if he did they could be used against him in further proceedings or at a court-martial trial.  He also advised the applicant he had not yet made a decision to punish him and that he would not punish him unless he was convinced beyond a reasonable doubt that the applicant had committed the offense(s).  He went on to advise the applicant that he would consider everything presented before deciding whether he would impose punishment or the type of punishment he would impose.  He further advised the applicant that if he did not want him to dispose of the report of misconduct under the provisions of Article 15, he (the applicant) had the right to demand trial by court-martial.  The applicant was also advised of his right to consult with counsel.

7.  On 6 June 2006, after having been afforded the opportunity to consult with counsel, the applicant elected not to demand trial by court-martial.  He requested a closed hearing and elected to present matters in defense, mitigation and/or extenuation in person.

8.  After considering all matters presented, the commander determined the applicant should be punished for being absent from his place of duty from 
3 to 5 September 2005 and for disobeying a lawful order by maintaining personal relationships on diverse occasions with cadets.  He imposed a forfeiture of $1,982.25 pay for 2 months (suspended to be automatically remitted if not vacated before 5 August 2006).  It was directed that the DA Form 2627 be filed in performance section of the applicant's OMPF.  The applicant did not appeal the punishment. 


9.  On 23 June 2006, the applicant received an RFC NCOER covering the period August 2005 to June 2006.  In Part IV, under Army Values, the rater rated the applicant “NO” under “RESPECT/EO/EEO,” “HONOR,” and “INTEGRITY.”  The rater’s bullet comments indicate the applicant misuses his position of authority over cadets and he demonstrates poor moral judgment.

10.  In Part IV, under “Values/NCO Responsibilities,” the applicant was rated “Need Improvement” under Competence, Leadership and Responsibility and Accountability.  The bullets comments indicate:

* the applicant violated command policy on maintaining proper cadre-cadet relationships
* he disregarded a no contact order
* he turned a positive, heroic image of himself into one of mistrust and intimidation
* he caused conflict with cadets between loyalty to him and their personal integrity
* he failed to properly coordinate absences from work with his chain of command
*  he does not accept responsibility for inappropriate actions. 

11.  The rater rated him “Marginal” for overall potential for promotion and/or positions of greater responsibility.

12.  The senior rater (SR) gave the applicant a “Fair” rating under overall performance and a “Poor” rating under overall potential for promotion and/or positions of greater responsibility.  The SR’s comments indicate:

* the applicant’s misconduct with cadets caused him to lose trust and confidence in him
* he willfully disregards regulations and unit policies and 
* he should not be promoted as his potential is very limited

13.  There is no evidence in the available records to show the applicant appealed the RFC NCOER to the Enlisted Special Review Board (ESRB).

14.  On 17 July 2007, the applicant applied to the DASEB requesting that the Record of NJP be transferred to the restricted section of his OMPF because it had served its purpose.  On 6 September 2007, the DASEB denied his request.



15.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-16d (4) 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 the military justice regulation 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 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 an open hearing, and to examine available evidence.  

17.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  It provides, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.  It further provides that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

18.  Army Regulation 600-20 (Army Command Policy) provides the policies and responsibilities of command, military discipline and conduct, precedence of rank and the Military Equal Opportunity Program.  It provides, in pertinent part, that relationships between Soldiers of different rank that involve, or give the appearance of, partiality, preferential treatment, or the improper use of rank or position for personal gain, are prejudicial to good order, discipline, and high unit morale.  It is Army policy that such relationships will be avoided. 




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Article 15 and all supporting documents related to his appeal should be removed from his record along with the supporting evidence submitted were carefully considered; however, there is insufficient evidence to support granting the requested relief.  

2.  The evidence of record confirms the applicant accepted adjudication of two of the charges pending against him by Article 15.  The commander administering the Article 15 proceedings determined the applicant committed the offenses in question during a closed Article 15 hearing after considering all the evidence submitted by the applicant.  The applicant did not appeal the punishment during the timeframe allowed and he did not elect trial by court-martial whereas he could have asserted his innocence before a jury of his peers.  

3.  Accordingly, it appears the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offenses and there is no evidence of any violations of the applicant’s rights.   

4.  Notwithstanding the applicant's overall record of service, the regulatory burden of proof necessary to support removal of the applicant's Article 15 has not been satisfied in this case.  

5.  The applicant’s contention that the commander’s inquiry was improperly conducted and biased and that the RFC NCOER is unjust has been noted and appears to lack merit.  While the applicant may believe this to be true, he has not submitted sufficient convincing evidence to show that such was the case.  The RFC NCOER does reflect his contribution during the period in question; however, it also reflects his performance, which was tainted by his misconduct during the period in question. 

6.  The fact remains that he violated the trust placed in him as the senior NCO of his unit by both his superiors and subordinates alike.  It is apparent that his rating chain took the matter very seriously and believed that his conduct in the matter was serious enough to diminish the quality and degree of his overall performance and potential during the period in question.

7.  It is also noted that the applicant did not appeal the RFC NCOER to the ESRB and that he does not address specific areas he believes to be in error or unjust.  Accordingly, there does not appear to be any basis for removal of the NCOER in question.

8.  While the applicant has received excellent NCOER's subsequent to the RFC NCOER, they do not serve to invalidate the judgment of his rating chain during that period nor do they mitigate the misconduct for which he was punished.

9.  The third party statements and the face book documents have been noted; however, they are not sufficiently mitigating to warrant the relief he seeks.

10.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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)                                         AR20100011323



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ABCMR Record of Proceedings (cont)                                         AR20100011323



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