IN THE CASE OF:	  

		BOARD DATE:	    4 October 2011

		DOCKET NUMBER:  AR20110011500 


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 punishment imposed against him under Article 15 of the Uniform Code of Military Justice (UCMJ) be set aside and all rights and privileges be restored.  He also requests removal of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) and all associated documents from his official military personnel file (OMPF).

2.  The applicant states that he was found guilty of fraternization despite the existence of no evidence to support the charge.  He further states he has been disadvantaged by the government's delay in filing the documents because it delayed his appeal to the Board and hinders his ability to clear his record before promotion consideration for major.

3.  The applicant provides a two-page memorandum explaining his application and a copy of the DA Form 2627.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a U.S. Army Reserve first lieutenant when he was ordered to active duty on 20 September 2006 for assignment to Fort Leonard Wood, Missouri.  He was promoted to the rank of captain on 1 February 2007.

2.  On 27 May 2009, the applicant's commanding general (CG) notified him that he was considering whether the applicant should be punished under Article 15, UCMJ, for two specifications of committing sodomy, for fraternizing with a staff sergeant, and for providing alcohol to a minor.

3.  The applicant did not demand trial by court-martial and requested a closed hearing; a person to speak in his behalf; and to present in person matters in defense, mitigation, and/or extenuation.

4.  On 29 June 2009, after considering all matters in defense, mitigation, and/or extenuation, the CG imposed a forfeiture of $2,361.00 pay per month for 2 months (1 month suspended to be automatically remitted if not vacated by 26 December 2009) and a written reprimand.  He directed filing the DA Form 2627 in the performance section of the applicant's OMPF.

5.  The applicant appealed the punishment to the CG of the Combined Arms Center and Fort Leavenworth, Kansas.  The CG dismissed the two specifications alleging sodomy and the specification of providing alcohol to a minor and determined the punishment for the remaining offense was appropriate.

6.  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.

7.  Paragraph 3-18 of Army Regulation 27-10 contains guidance on notification procedures and explanation of rights.  It states 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 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 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 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.

8.  Paragraph 3-28 of Army Regulation 27-10 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the Article 15 should be set aside; all rights, privileges, and property should be restored; and the DA Form 2627 and all associated documents should be removed from his record as well as 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 three of the court-martial charges pending against him by Article 15.  The commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the evidence submitted by the applicant.  The commander determined beyond a reasonable doubt that the applicant committed the offense of fraternization and a review of the evidence of record supports the commander's decision.

3.  By regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed hearing.  He requested the opportunity to present matters in rebuttal at the hearing and to have someone speak on his behalf.  After considering the available evidence, the applicant's commander found him guilty of the alleged misconduct.

4.  The Article 15 regulatory standard further requires the commander to be convinced beyond a reasonable doubt before finding the applicant committed the offense, which is the same high standard required of court-martial panels and judges sitting alone as triers of fact prior to entering findings of guilt.

5.  Notwithstanding the applicant's outstanding overall record of service, the governing regulation requires there to be clear and convincing evidence of an error or injustice to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.  The evidence and argument submitted by the applicant do not constitute clear and convincing evidence that the applicant did not commit the alleged misconduct.  Therefore, the regulatory burden of proof necessary to support set aside or removal of the applicant's Article 15 has not been satisfied in this case.


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)                                         AR20110011500



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ABCMR Record of Proceedings (cont)                                         AR20110011500



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