BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100020734 


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, in effect that the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 18 February 2010, be rescinded and that she be restored to her former grade of sergeant (SGT)/E-5, and reinstated to the local promotion list to staff sergeant (SSG)/E-6.

2.  She states:

* the unfounded accusations were formed primarily based on rumors and perception
* the command launched two different investigations based on herself and First Sergeant (1SG)/Master Sergeant (MSG) P____ E. L____ which were found to be inconclusive

3.  She provides:

* results of an Inspector General (IG) investigation regarding 1SG L____
* letter of reprimand regarding 1SG L____
* an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation initiated on 23 September 2009 with ten sworn statements
* notification for an administration reduction board
* Army Regulation 15-6 Investigation initiated on 23 November 2009 with five sworn statements
* DA Form 2627
* request to appeal Article 15
* legal opinion from her defense counsel

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 31 March 2005.  The highest grade she held was SGT/E-5.

2.  Her record shows her rank/grade at the time of the Article 15 was SGT/E-5.  She was reduced to specialist (SPC)/E-4 on 18 February 2010.

3.  She is currently serving in the grade/rank of SGT/E-5 with a date of rank of 11 October 2010.

4.  On 6 January 2009, MSG/1SG L____ was informed by Lieutenant Colonel (LTC) W____ that the IG had received an allegation that he and a subordinate member of the command had engaged in an adulterous affair.

5.  On 16 February 2009, Major (MAJ) U____ S. H____, the investigating officer (IO), reported the results of the Commander's Inquiry into the IG request regarding the allegations.  The IO found that:

	a.  the allegation that 1SG L____ and the applicant committed adultery was unsubstantiated and

	b.  the investigation uncovered certain perceptions of fraternization that were addressed.

6.  On 20 February 2009, the commander of the 4th Sustainment Brigade issued a letter of reprimand to 1SG L____ for fostering a misperception of fraternization in the unit based on his actions that created a perception within the unit that the applicant was receiving preferential treatment.  The letter of reprimand was filed in 1SG L____'s local personnel file.

7.  On 6 August 2009, the applicant was recommended for promotion to SSG.

8.  On 23 September 2009, MAJ  H___ was appointed as the IO to conduct an informal investigation under the provisions of Army Regulation 15-6 regarding the facts and circumstances surrounding an inappropriate relationship and fraternization.  The IO was directed to specifically investigate an inappropriate relationship and recommend appropriate administrative actions to be taken by the chain of command.

9.  The applicant provided copies of the following sworn statements obtained during the course of this Army Regulation 15-6 investigation.

	a.  Four commissioned officers and one noncommissioned officer stated they knew MSG L____ and the applicant, but did not witness any inappropriate actions; however, there were rumors.  The witnesses also stated they did not witness any inappropriate conduct, relationship, or fraternization between MSG L____ and the applicant and they did not witness MSG L____ showing any favoritism to the applicant.

	b.  On 22 September 2009, the applicant stated she knew MSG L____, had contact with him, and that he had been to her apartment to meet her mother.

	c.  On 23 September 2009, MSG L____ stated he was the former 1SG of the 10th Transportation Company, knew the applicant, had contact with her after 3 September 2009 in regard to schools, and drove a Chevy Silverado.

	d.  On 28 September 2009, MSG L____ stated he had visited the applicant's apartment three or four times, but he did not remember the nature of his visits.

	e.  On 29 September 2009, the applicant stated that MSG L____ came to her apartment three or four times between 15 June and 20 July 2009, but she could not remember the nature of his visits.

10.  On 30 September 2009, the IO stated that based on the evidence, it was his belief that there was a probability that MSG L____ and the applicant engaged in an inappropriate relationship based upon the following findings:

	a.  video footage was reviewed showing MSG L____ on various times and dates in the vicinity of the apartment complex where the applicant lived;

	b.  the applicant's admission that MSG L____ visited her apartment on various dates;

	c.  MSG L____'s admission that he visited the applicant's apartment on various dates;

	d.  the general consensus of personnel interviewed was that there was no fraternization or inappropriate relationship between MSG L____ and the applicant;

	e.  there was a perception formed and rumors about an inappropriate relationship between the applicant and MSG L____ during the unit's last deployment;

	f.  individuals interviewed believed that unfounded accusations and rumors continued after the unit's redeployment;

	g.  MSG L____ was counseled by the previous commander regarding rumors of an inappropriate relationship with the applicant while the unit was deployed;

	h.  personnel interviewed witnessed no fraternization and/or an inappropriate relationship between the MSG L____ and the applicant;

	i.  the applicant and MSG L____ stated that the nature of the visit to her apartment was to meet her parents on one occasion, specifically her mother;

	j.  MSG L____ also agreed to assist another individual in the unit with moving some items to the applicant's apartment from storage on or around 11 July 2009 through 13 July 2009;

	k.  video footage supports the statement by showing that on 13 July 2009 MSG L____ brought some TA-50 [Army-issued individual equipment] duffel bags to the applicant's apartment; and

	l.  the general consensus was that MSG L____ at no time showed any favoritism toward the applicant.

11.  On 27 October 2009, the legal review of the Army Regulation 15-6 investigation of the allegations of an inappropriate relationship between the applicant and MSG L____ was found to be legally sufficient, the IO complied with the legal requirements of the investigation, and the recommendations were consistent with the findings.

12.  On 29 October 2009, the applicant was informed that an Administrative Reduction Board was convening to determine if she should be reduced in rank/grade because of the investigation for improper relations/fraternization with a senior noncommissioned officer.  The results of that board are not available.

13.  On 23 November 2009, MAJ L____ P____ was appointed as the IO to investigate the facts and circumstances surrounding an inappropriate relationship and fraternization based on new evidence to:

	a.  reopen the investigation concerning an inappropriate relationship between MSG L____ and the applicant;

	b.  determine whether there was an environment created during the recent deployment of the 10th Transportation Company to allow inappropriate sexual relationships between senior personnel and subordinates;

	c.  investigate allegations of inappropriate relationships among members of the 10th Transportation Company concerning MSG L____, SSG J____ L____,
SSG D____ T____, SSG S____ W____, and the applicant;

	d.  investigations made by Mrs. T____ that a child was fathered by SSG T____ while engaged in an inappropriate relationship with SPC A____J____ during the recent deployment of the 10th Transportation Company; and

	e.  investigate allegations that SSG W____ impregnated SPC C____ M____ during the recent deployment of the 10th Transportation Company.

14.  The applicant provided copies of the following sworn statements obtained during the course of this Army Regulation 15-6.

	a.  On 30 November 2009, SPC M____ stated she witnessed instances that alluded to the appearance of an inappropriate relationship between MSG L____ and the applicant.

	b.  On 3 December 2009, MSG L____ stated his awareness and understanding of the company's fraternization policy.  He also stated that he received a no-contact order while he was deployed and was issued a second no-contact order by the battalion commander after he returned from deployment.

	c.  On 8 December 2009, Mrs. S____ Y____ L____ stated she gave a video to the battalion commander which shows MSG L____ making several trips to the applicant's house and not leaving until the next morning.

	d.  On 11 December 2009, Captain (CPT) C____ G. F____, the former commander of the 10th Transportation Company while it was deployed, stated he was unaware of any inappropriate relationships in his command, he was aware of the no-contact order for MSG L____ and the applicant, and that MSG L____ knew it was an indefinite order.

	e.  On 8 December 2009, the IO submitted the findings and recommendations to the battalion commander of the 260th Quartermaster Battalion, 3rd Sustainment Brigade.

	f.  The IO found the applicant violated the no-contact order on numerous occasions.  The IO also found that the applicant and MSG L____ continued to develop a perception that an inappropriate relationship existed by the daily visits to her apartment.  The IO recommended that appropriate UCMJ action must be taken against both the applicant and MSG L____.

15.  20 December 2009, the legal review of the Army Regulation 15-6 investigation of the allegations of an inappropriate relationship between the applicant and MSG L____ rendered the following legal objections to the finding and recommendations based upon the following concerns.

	a.  Substantial Concerns (Findings):

		(1)  The IO needs to document in the findings what new evidence came to light since the last investigation.  Response:  Investigation was reopened because the applicant named SPC J____ as a character reference for her reduction board and SPC J____ is being investigated for allegation of an inappropriate relationship.

		(2)  Although the memorandum, dated 22 January 2009, indicates that MSG L____ would receive a no-contact order, there is no documentation date and the specifics of this order.  CPT F____ was contacted to provide a sworn statement regarding the no-contact order.  Response:  CPT F____ stated he made it clear to MSG L____ that the no-contact order was indefinite.

		(3)  MSG L____ mentions an additional no-contact order issued by LTC L____ D. E____ around August or September 2009.  More specifics are needed on this order to match up the timeline with the data collected from the video.  Response:  The no contact order was issued by LTC E____ after the video was taped.

		(4)  The applicant's physical training record and promotion board information are included in the back of this investigation binder.  If the IO intends to comment on their relevancy, the findings and recommendations need to be amended.  Response:  No comment needed to be included in the findings.

	b.  Technical/Procedural Concerns:

		(1)  The investigation should contain an index of all the documents in the binders.  Response:  Completed.

		(2)  Some of the sworn statements contain information that is relevant to this investigation and other investigations.  Response:  Noted.

		(3)  The IO's findings and recommendations memorandum is missing the IO's signature.  Response:  Completed.

		(4)  The statement from CPT F____, dated 11 December 2009, is missing the signature of the IO and the IO authority to administer oaths.  Response:  Completed.

		(5)  The rights waiver from CPT F____, dated 11 December 2009, is missing the IO's signature.  Response:  Completed.

		(6)  The rights waiver signed by MSG L____ does not have a date and time inputted.  Response:  Completed.

		(7)  Because MSG L____ acknowledged that LTC E____ (battalion commander and appointing authority) gave him the no-contact order, LTC E____ may also become a witness to the investigation.  This investigation should be reviewed by the brigade commander.  In addition, the results will likely go up the chain of command to the division to determine the issue of alleged senior leader misconduct.  Response:  Noted.

		(8)  The sworn statement from Private (PV2) M____ does not have a time stamp on the top page.  Response:  Completed.

16.  On 6 January 2010, the second legal review of the findings and recommendations from MAJ P____, the IO appointed to the Commander's Inquiry of an allegation of an inappropriate relationship between the applicant and MSG L____, found the investigation to be legally sufficient, the IO having complied with the legal requirements of the investigation, and the recommendations were consistent with the findings.

17.  On 18 February 2010, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for having an inappropriate relationship with MSG L____ on two separate occasions and with intent to make a false statement.  Her punishment consisted of a reduction to SPC/E-4, forfeiture of $1,099.00 for 1 month (suspended), and extra duty for 45 days.  The imposing commander directed that the original DA Form 2627 be filed in the restricted section of the applicant's official military personnel file (OMPF).

18.  On 23 February 2010, the applicant appealed the Article 15 wherein she states:

	a.  around February 2009, she was counseled by the battalion command sergeant major (CSM) which included instructions regarding a no-contact order for the period of their deployment to Kuwait;

	b.  the initial investigation completed on 20 September 2009 stated that she and MSG L____ admitted he visited her residence and the general consensus was that there was no fraternization;

	c.  on 17 November 2009, she was scheduled to appear before an administrative reduction board.  After listing SPC J____ as a witness, the investigation regarding her alleged relationship with MSG L____ was reopened.  She stated she was not afforded the opportunity to make a statement during this investigation;

	d.  on 12 November 2009, her attorney informed her that the reduction board had been cancelled; however, her records were flagged, but no one could explain why;

	e.  at no time was she counseled or given a no-contact order by her previous commander, CPT F____.  CPT F____ did not explain the no-contact order given by the battalion CSM.  The only time it was addressed was when she saw LTC E____ who explained the allegations to her and told her if she were found guilty she could be punished.  Throughout both investigations she was never counseled or given a no-contact order;

	f.  the sworn statement given by PV2 M____ was a personal attack against her;

	g.  her punishment should be similar to other Soldiers; and

	h.  she continued to excel as a Soldier.

19.  On 2 March 2010 after a legal sufficiency review by a judge advocate, the appellate authority denied the appeal.

20.  She submitted a memorandum from her legal assistance attorney, dated 26 June 2010, subject:  [Applicant's] Application to Set Aside Article 15, in which he states the Article 15 should be set aside because:

	a.  the imposing commander violated the UCMJ's prohibition against unlawful command influence, based on LTC E____'s directing a second Army Regulation 15-6 investigation when the first one failed to get the findings and recommendations he had hoped for;

	b.  the applicant's reduction board was held at the same time as the Army Regulation 15-6 investigation;

	c.  LTC E____ appointed his executive officer as the IO in the second investigation and those recommendations were the opposite of the first Army Regulation 15-6 investigation;

	d.  LTC E____'s Army Regulation 15-6 investigator-shopping is a subtle violation of the UCMJ prohibition on unlawful command influence; and

	e.  during the period in question, the applicant was not in MSG L____'s supervisory chain of command and even if they had a relationship, it was legally impossible for her to violate Army Regulation 600-20 (Command Policy) because the prohibition contemplates superior-subordinate relationships that undermine supervisory authority.

21.  A review of her OMPF reveals the DA Form 2627, dated 16 February 2010, is, in fact, filed in the restricted section.

22.  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 3-28 describes the setting aside and restoration actions.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a "clear injustice." 
Clear injustice means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

	c.  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.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (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.

23.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation 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.

24.  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 February 2010, be rescinded, to be restored to her former rank, and reinstatement of her promotable status.

2.  Notwithstanding the applicant's legal assistance attorney's opinion, the evidence of record confirms the commander administering the Article 15 proceedings determined during a closed Article 15 hearing, after considering all the evidence, that the applicant committed the offense in question.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s).  The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for a closed Article 15 hearing.

3.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided an opportunity to consult with a defense attorney, she was given the right to demand trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels.

4.  The applicant did not provide convincing evidence that shows the imposing commander denied her the right to speak or bring issues in her defense during the proceedings.  The arguments she presents are not sufficient to change the determination of guilt made by the commander.

5.  The applicant's dissatisfaction with the outcome of this Article 15 does not invalidate it.  She violated the UCMJ and she was punished for it.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or to restore her rights and privileges.

6.  Her NJP proceedings were conducted in accordance with law and regulation and the Article 15 and allied documents are properly filed in the restricted portion of her 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 the document is untrue or unjust, or the applicant must present compelling evidence to warrant removal as a matter of equity.

7.  The evidence shows each of these documents was properly administered in accordance with applicable regulations and is properly filed in the performance section of her OMPF.  There is no evidence of an error or an injustice.

8.  The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

9.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant failed to submit evidence that the documents in question that are filed in the performance section of her OMPF are untrue or unjust.  Therefore, they are deemed to be properly filed and should be retained in her OMPF.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20100020734



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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