IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100013378 


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 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 18 July 2005, be removed from the restricted section of his official military personnel file (OMPF).

2.  The applicant states the Article 15 he received caused him to be denied access to a worksite on a military range.  He was punished to make everything go away, but it was thrown out of the Article 32 hearing.  It should not still be affecting his life.  He served his country honorably and he would like to continue serving his country and put this behind him.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 14 November 2000 and was honorably released from active duty on 2 August 2006.  The highest grade held was sergeant (SGT)/E-5.

3.  On 24 January 2005, an initial U.S. Army Criminal Investigation Command (USACIDC, also known as CID) report was initiated upon notification from the Provost Marshal's Office, Fort Bragg, NC, of a possible rape and sexual assault.

4.  On 2 May 2005, an Article 32 investigating officer was appointed and on 16 May 2005 he recommended nonjudicial punishment (NJP) for the following reasons:

	a.  The evidence presented by the government was contradictory on several critical points.

	b.  Witnesses to the event did not corroborate each other's stories.

	c.  The evidence presented during the investigation portrayed a much different situation than the inflammatory reports from CID.

	d.  The applicant, by his testimony, admitted to having a previous sexual relationship with one victim and by all testimony stopped touching the women as soon as they said to do so.

	e.  Rape, as stated in the report, was never stated by any of the victims and was "inferred" by the CID Special Agent.

	f.  Ejaculation was also inferred by the CID Special Agent and not substantiated by the evidence or testimony.  No forensic evidence was produced.

	g.  It was apparent that the entire incident was a result of the perceptions of minors who provided the details of what they perceived to have happened to the alleged victims and who were so impaired they have no recollection of what actually occurred.

5.  On an unknown date after reviewing the court-martial charges, documentary evidence, and Article 32 investigation pertaining to the applicant, his brigade commander directed the matter be returned to the battalion commander for appropriate action and dismissal of the rape charge due to insufficient evidence.

6.  On 24 June 2005, the applicant's commander initiated NJP proceedings alleging two specifications of indecent assault.  On 7 July 2005, the applicant accepted the NJP.  The commander found him guilty and imposed punishment of a reduction to pay grade E-4, a suspended forfeiture of $938.00 per month for 1 month, and a suspended restriction for 45 days.  The commander directed that the NJP be placed in the restricted portion of the applicant's OMPF.

7.  The applicant appealed the punishment.  On 14 July 2005 after a legal sufficiency review by a judge advocate, the appellate authority denied the appeal.

8.  The applicant's counsel provided a statement on his behalf for his Article 15 hearing in which she encouraged the commander to look at the "mistake of fact" defense when considering the applicant's guilt or innocence.  Further, the only way the applicant should be found guilty is if the commander believed:

	a.  the applicant knew that his touchings were unwanted or could not be consented to and that he did it anyway,

	b.  his touchings were with the intent to gratify his sexual desires, and

	c.  his touchings were to the prejudice of good order and discipline or of a nature to bring discredit upon the Armed Forces.

9.  His counsel states she "feels very strongly that [the applicant] has not committed these offenses beyond a reasonable doubt."  She encourages the commander to find him not guilty.

10.  On 18 July 2005 after appeal, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully committing an indecent assault upon two female Soldiers with intent to gratify his lust or sexual desires.  His punishment consisted of a reduction to specialist/E-4, forfeiture of $938.00 for 1 month (suspended), 45 days of extra duty, and restriction.  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.

11.  A review of his OMPF reveals the DA Form 2627, dated 18 July 2005, is in fact filed in the restricted section.

12.  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 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.  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:

	a.  Paragraph 3-6 addresses the filing of an NJP and provides 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.  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.

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates there must be clear and compelling evidence to support the removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 and 
Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF as directed in item 5 of the DA Form 2627.

14.  Paragraph 2-3 of Army Regulation 600-8-104 provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the DA Form 2627, dated 18 July 2005, be removed from his OMPF.

2.  The evidence of record shows the Article 32 investigation found, in part, the witness testimony to be contradictory, the CID report inflammatory, and the charges were based on inaccurate perceptions of what occurred.  Further, the alleged victims were too impaired to recall the events.  The matter was transferred to the battalion commander for disposition and the rape charges were dropped.  Subsequently, the applicant accepted NJP on 7 July 2005 for wrongfully committing an indecent assault.  The imposing commander directed this Article 15 be filed in the restricted section of his OMPF.  The appellate authority denied the applicant's appeal.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of the his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides insufficient evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust, or the applicant must present compelling evidence to warrant removal as a matter of equity.

4.  He contends the presence of this Article 15 in his OMPF is still impacting his life.  However, he provided no evidence that supports this contention.  Further, he failed to provide sufficient evidence to warrant removal as a matter of equity or fairness.

5.  In view of the foregoing evidence, his request should be denied.

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 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)                                         AR20100013378



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ABCMR Record of Proceedings (cont)                                         AR20100013378



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