IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100025893 


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 that his military records be corrected, in effect, by:

* removing the nonjudicial punishment (NJP), dated April 2003
* removing the NJP, dated May 2005
* editing his DA Form 67-9 (Officer Evaluation Report) by deleting all implications and references of wrongdoing
* removing the DA Form 67-9 for the period he served as an operations officer with the Baltimore Recruiting Battalion
* reviewing his separation action, dated November 2007
* adding an Academic Evaluation Report and appropriate achievement/permanent change of station award

2.  Additionally, he requests that his original application and the arguments that were raised in his defense be reconsidered.

3.  The applicant states in a 29-page narrative that he wants his active duty separation action reviewed to include those issues that were involved in the separation process.  He contends his request is still within the 3-year statute of limitations.  He states the underlying issues of the two NJPs and the OER are still within the statute of limitations.

4.  The applicant argues that the NJP he received in 2003 was improper and violated his constitutional rights to due process.  He contends the investigating officer did not thoroughly consider all sides of the issues with impartiality.  
5.  The applicant argues that a video tape that led to the investigation should be suppressed because it was the result of an illegal search and seizure.  The video was used as evidence in the NJP he received in 2005 and in the subsequent board of inquiry. 

	a.  He contends that in regard to his NJP, his right to due process was violated because there was nothing in the record, that he did not provide, that discussed his character.

	b.  He contends his rights to due process were also violated because he was denied the opportunity to have a particular witness even though that person was reasonably available.

6.  He wants the OER he received during his time as the operations officer for the Baltimore Recruiting Battalion removed because it is intimately tied to the board of inquiry proceedings. The applicant listed in a 3-page memorandum for record his issues concerning this OER.  He stated he has not completed his submission of evidence concerning this matter; but, he wants this issue reviewed until he is able to submit additional evidence.

7.  The applicant provides a compact disc containing several hundred pages of material.  The following documents were printed for use in this case:

* The applicant's 29-page statement
* Statements and documents relating to the NJP in 2003
* Report of Proceedings by the Investigating Officer/Board of Officers, dated March 2003
* 2003 NJP appeal
* Army Board for Correction of Military Records (ABCMR) Report of Proceedings, dated 5 April 2005
* Freedom of Information (FOIA) request for 2005 NJP documentation
* OER for the period from 28 May 2005 to 28 April 2006 with referred comments
* Army Regulation 15-6 findings and recommendations, dated 23 April 2007
* Board of Inquiry proceedings, dated 2007
* Officer Elimination Case, dated 2007

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 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.  On 17 September 1991, the applicant enlisted in the Regular Army.  He attained the rank of staff sergeant, pay grade E-6, and had completed 5 years, 
8 months, and 18 days of creditable active service when he was honorably discharged on 4 June 1997, for the purpose of accepting a commission in the U.S. Army.

3.  On 5 June 1997, the applicant took his oath of office as a second lieutenant, Corps of Engineers, U.S. Army Reserve, with immediate call to active duty.  

4.  On 1 December 2000, the applicant was promoted to captain, pay grade 
O-3E.

5.  On 24 April 2003, the applicant accepted nonjudicial punishment (NJP) for having wrongful sexual intercourse with a married woman who was not his wife. The punishment imposed against him included a letter of reprimand and a forfeiture of $1,000.00 pay for 1 month.  His appeal of the punishment resulted in the forfeiture of pay being reduced to zero.

6.  On 5 April 2005, this Board considered the applicant's request to overturn the NJP he accepted on 24 April 2003.  The Board denied his request.

	a.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  
      
	b.  The staff of the ABCMR reviewed the applicant's request for reconsideration with regard to overturning his NJP, dated 24 April 2003.  This issue will not be considered or discussed further in these proceedings, because his request does not meet the above criteria.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction.



7.  On 7 May 2005, the applicant accepted NJP for having wrongful sexual intercourse with a woman not his wife, and for being drunk and disorderly.

	a.  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) indicates that on 7 May 2005 the applicant elected:

* not to demand a trial by court-martial
* a closed hearing
* not to have a person speak on his behalf
* to personally present matters in defense, mitigation, and/or extenuation

	b.  On 27 May 2005, after a closed hearing, the imposing commander found the applicant guilty of the offense.  The punishment included a memorandum of reprimand and a forfeiture of $2,556.00 pay for 2 months.

	c.  The imposing commander directed that the DA Form 2627 be filed in the performance section of his Official Military Personnel File (OMPF).  The applicant was advised of his right to appeal within 5 calendar days.

	d.  On 27 May 2005, the applicant indicated that he would appeal and submit additional matters.

	e.  On 8 June 2005, the applicant's appeal was denied.

8.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) indicates a board of inquiry (BOI) convened on 30 May 2007 for the purpose of determining whether the applicant should be released from active duty due to misconduct and conduct unbecoming an officer.

	a.  The applicant appeared before the BOI with his civilian counsel and appointed military counsel.

	b.  The BOI carefully considered the evidence presented and made the following findings:

       (1)  the applicant did not fail to maintain the desired standards of his grade and branch through acts of personal misconduct on two separate occasions by having sexual intercourse with a married woman, not his wife in February and March 2003;

       (2)  the applicant did fail to maintain the desired standards of his grade and branch through acts of personal misconduct by having sexual intercourse with a woman, not his wife between 1 January and 31 July 2005; and
       (3)  the applicant did fail to maintain the desired standards of his grade and branch through acts of personal misconduct by being drunk and disorderly between 1 January and 27 May 2005.

   c.  The BOI recommended that the applicant be separated from the service due to misconduct with an honorable discharge.

9.  On 26 September 2007, the Department of the Army Board of Review for Eliminations recommended the applicant be eliminated from the U.S. Army based on misconduct and moral or professional dereliction, with an honorable characterization of service.  The appropriate authority approved the recommendation on 28 September 2007.

10.  In a message, dated 3 October 2007, the Commander, U.S. Army Human Resources Command, then located in Alexandria, Virginia, informed the Commander, U.S. Army Recruiting Command, Fort Knox, KY, of the applicant's approved elimination action and directed that the applicant be discharged as soon as possible, but not later than 30 days from the date of this message. 

11.  The available evidence does not include a copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty).  Furthermore, the applicant is requesting that the ABCMR "review" his separation action.  In that the Board is not an investigative body and the applicant's discharge document is not available, this portion of the applicant's request will not be further discussed in these proceedings. 

12.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. 

	a.  It provides guidance for setting aside the punishment imposed by NJP and restoration of rights, property and privileges.  The setting aside and restoration 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 which 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.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have an adverse effect on the retention or promotion potential of the Soldier.  

	b.  It also provides that the commander of an alleged offender must ensure that the matter is promptly and adequately investigated.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover whether an offense was committed, whether the Soldier was involved and the character and military record of the Soldier.  If after the preliminary inquiry, the commander determines, based on the evidence currently available, that the Soldier probably has committed an offense and that an NJP procedure is appropriate, the commander should take the actions as required by this regulation.

	c.  It also provides that in regard to NJP, the Soldier will be advised of his/her right to consult with counsel and the location of counsel.  For the purpose of NJP, counsel means a judge advocate, a Department of the Army civilian attorney or an officer who is a member of the bar of a Federal court or of the highest court of a State.  

	d.  It also provides that absent compelling evidence to the contrary, a properly-completed, facially-valid DA Form 2627 will not be removed from a Soldier's record by the ABCMR.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation.  Types of authorized military personnel files include the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by the ABCMR or other qualified authority.

14.  The applicant requested removal of his OER for the period ending on         28 April 2005, and listed in a 3-page memorandum for record his issues concerning this OER.  However, he also stated in his application that he has not completed his submission of evidence concerning this matter; but, he wants this issue reviewed until he is able to submit additional evidence.  In that ABCMR is 


not an investigative body, and the applicant acknowledged in his application the OER issue is incomplete, this portion of the applicant's request will not be further discussed in these proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected by overturning and expunging his NJP, dated 7 May 2005.

2.  The evidence in this case suggests that NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indication of any procedural errors that may have jeopardized his rights.

3.  The evidence also suggests that he was afforded due process, in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting the NJP.

4.  The applicant contends that a portion of the evidence that led to his investigation and subsequent NJP was the result of an illegal search and seizure.  The available evidence is insufficient to show that there was an illegal search and seizure, or that any such evidence so acquired was used as a basis for a finding of guilty.

5.  The applicant's issues concerning the editing/removal of his OERs and award of a personal decoration based on corrections made by this Board are moot.

6.  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____  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)                                         AR20100025893



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100025893



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1