IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110002095 


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:

	a.  removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 February 2009, from his official military personnel file (OMPF);

	b.  restoration of his rank and pay grade; and

	c.  monetary reimbursement of the forfeiture of pay imposed on 12 February 2009.

2.  The applicant states the DA Form 2627 is erroneous because the imposing commander found him not guilty of adultery.  The imposing commander also recognized the four specifications alleging indecent acts were barred by the statute of limitations.  The facts of the alleged "indecent language" under the circumstances of his case do not constitute an offense under military law and the DA Form 2627's inclusion in his record is legally erroneous.

3.  The applicant provides:

* DA Form 2627, dated 12 February 2009
* email between the applicant and the commander who imposed the nonjudicial punishment (NJP)
* statement from J____ A____ of Angeles City, Pampanga, Philippines, dated 29 July 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 27 February 2009

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 10 August 1998.  He reenlisted on 17 August 2001 and 28 February 2006.  He was assigned military occupational specialty 35N (Signals Intelligence Analyst).

2.  He was promoted to staff sergeant/pay grade E-6 on 1 January 2007.

3.  On 15 May 2007, he accepted NJP for:

* failing to obey a lawful order from a noncommissioned officer to submit to a portable breathalyzer test
* violating a lawful general order by failing to be on a military installation, in a private residence, or place of lodging during curfew hours
* fleeing apprehension by Armed Forces policemen, persons authorized to apprehend him
* making a false official statement with the intent to deceive
* being drunk, which conduct was of a nature to bring discredit upon the Armed Forces

4.  The NJP he received was forfeiture of $500.00, suspended until 10 November 2007, and extra duty and restriction for 10 days.

5.  On 5 November 2008, an investigating officer (IO) was appointed to look into allegations the applicant hosted, operated, and/or produced pornographic websites.  By a preponderance of the evidence, the IO found the applicant did engage in the alleged misconduct along with additional misconduct of operating a business without the commander's authorization and adultery.

6.  On 7 November 2008, an administrative law attorney reviewed the above investigation and determined it was legally sufficient.  The inquiry substantially complied with legal requirements and sufficient evidence existed to support the findings.

7.  On 29 January 2009, he received a general officer memorandum of reprimand.

	a.  He was reprimanded for owning, developing, and/or operating multiple pornographic websites that featured photographs and videos of him and his friends committing indecent acts, sodomy, and adultery with Philippine women who he hired for this purpose.

	b.  He financially profited from this misconduct by charging others to view his pornographic websites which contained the photographs, video, and written records of these violations of the UCMJ and Philippine law.

	c.  As a result of his illegal activities, two of his websites and his name were listed in a United Nations Children's Fund report on the topic of sexual abuse and exploitation of children in the Philippines.

	d.  By exploiting the women of the Philippines for his own perverse pleasure and personal gain, then bragging about it to other Soldiers in his unit, he failed his country and tarnished the reputation of the honorable Soldiers who serve it.

8.  The DA Form 2627, dated 12 February 2009, shows his commander notified him on 4 February 2009 that he was considering whether the applicant should be punished under Article 15, UCMJ, for:

* wrongfully having sexual intercourse with various women not his wife
* two specifications of committing an indecent act with a woman on or about 21 and 29 November 2005
* wrongfully committing an indecent act on or about 1 December 2005 by engaging in sexual intercourse with a woman while being video recorded
* wrongfully committing an indecent act on or about 2 December 2005 by video recording another individual engaging in sex with a woman
* communicating certain indecent language in writing to a woman known as J____

9.  On 12 February 2009, he acknowledged he had been afforded the opportunity to consult with counsel and he:

* did not demand trial by court-martial
* requested a closed hearing
* elected not to have a person speak in his behalf
* attached matters in defense, mitigation, and/or extenuation

10.  A closed hearing was held on 12 February 2009.  After consideration of all matters presented in defense, mitigation, and and/or extenuation, the commander imposed the following NJP:

* reduction to sergeant/pay grade E-5
* forfeiture of $1,405.00
* extra duty and restriction for 10 days, suspended for 7 days

11.  His commander directed filing the DA Form 2627 in the performance portion of his OMPF.  The applicant was also advised of his right to appeal the punishment and he elected not to appeal.

12.  On 27 February 2009, he was discharged by reason of having completed his term of required active service.  His DD Form 214 indicates his rank and pay grade as sergeant/pay grade E-5 at the time of his separation.  He completed 10 years, 6 months, and 18 days.

13.  The email from the imposing officer indicates he struck out the adultery charge and specifications 2, 3, and 4 were beyond the 2-year statute of limitations.

14.  In the statement from J____ A____, dated 29 July 2010, she stated the Yahoo Instant Messenger chat log from 11 February 2008 was between the applicant and herself.  The discussion was made in private and never intended to be seen by anyone else.  She was not offended and she did not find it indecent in any way.  She was participating in the chat willingly and never expected it would ever be seen by outsiders.

15.  Note 5 of the DA Form 2627 states an offense determined not to have been committed will be lined through.

16.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the NJP process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated,

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and

		(3)  determining the amount and nature of any punishment if punishment is appropriate.

	b.  Paragraph 3-36 states that when NJP is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action, would be recorded on a DA Form 2627.  The decision to file the original DA Form 2627 in the performance section or the restricted section of the OMPF will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by any superior authority.  However, the superior authority cannot direct filing an Article 15 in the performance section when the imposing commander directed filing it in the restricted section.

	c.  Paragraph 3-12 states that NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.

	d.  Paragraph 3-28 states that 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.

	e.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.

	f.  Paragraph 3-37(1)(a) specifies that the decision to file the original DA Form 2627 in the performance or restricted portions of the OMPF will be made by the imposing commander at the time punishment is imposed.

	g.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states that application for removal of a DA Form 2627 from a Soldier's OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627, dated 12 February 2009, should be removed from his OMPF, his forfeiture of pay returned to him, and his rank be restored was carefully considered and found to be without merit.

2.  The imposing officer indicated he struck out the adultery charge.  Therefore, the DA Form 2627 should be corrected by lining through this charge.

3.  The four specifications concerning indecent acts were committed more than 2 years before the date of imposition of NJP.  Therefore, NJP cannot be imposed for these specifications and it would be appropriate to correct the DA Form 2627 by lining through these four specifications.

4.  In promoting the applicant to staff sergeant, the Army reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  By becoming involved in acts of illicit behavior and involving his fellow Soldiers, he clearly violated this special trust and confidence.  As a leader who is supposed to provide a good example for his subordinates, his conduct was clearly prejudicial to good order and discipline.

5.  The statement submitted by ____ A____ almost 2 1/2 years after the date of the chat log and almost 1 1/2 years after the NJP was imposed and his discharge must be considered retrospective thinking and therefore does not provide a basis for approving his request to remove the DA Form 2627.

6.  The applicant had the opportunity to make the argument to his commander that the Internet chat was not conduct prejudicial to good order and discipline.  The commander found that under the circumstances, the language used was indecent.  The applicant's argument notwithstanding, the Board finds the evidence sufficient to support the commander's allegation.

7.  Therefore, there is an insufficient basis to remove the DA Form 2627, dated 12 February 2009, from his OMPF.  There is no basis to return his forfeiture of pay or to restore his rank and pay grade.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the following corrections to the DA Form 2627, dated 12 February 2009:

* line through the entry "…wrongfully have…not your wife…" [the adultery specification]
* line through the entries of committing an indecent act with a woman on or about 21 and 29 November 2005
* line through the entry of committing an indecent act on or about 1 December 2005
* line through the entry of committing an indecent act on or about 2 December 2005

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the removal of the DA Form 2627, return of the forfeiture of pay, and restoration of his rank/pay grade.



      _____________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)                                         AR20110002095



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002095



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1