IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110017023



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 a record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice be removed completely or placed in his restricted file.

2.  The applicant states he was first charged with having intimate contact with a female Soldier, but after all of the evidence was brought forth there was insufficient evidence to convict him.  Therefore, they charged him with disobeying a lawful order to not be at her quarters and showing her favoritism.  The order was to stay away from her quarters and no one saw him approach or leave the quarters.   He has suffered over the years for this unjust accusation including being forced to retire earlier than he wanted to and causing his divorce.  He does not feel he was treated fairly and the NJP should be removed from his record.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career Regular Army noncommissioned officer (NCO), was serving in the rank and position of command sergeant major for 2nd Battalion, 69th Armor Regiment, 3rd Heavy Brigade Combat Team, 3rd Infantry Division at the time of the incidents leading to his Article 15.

2.  On 14 September 2009, the applicant's commander issued a no-contact order with Sergeant (SGT) D____.  It specified that the applicant was to have no 

contact with SGT D____ in any manner and defined a number of specific means of contact that the applicant was specifically barred from using to contact her, including being physically within 50 feet of her quarters.

3.  Also on 14 September 2009, the commander directed that an Army Regulation 15-6 investigation be conducted to determine if there was sufficient evidence to support charges of fraternization and/or that the applicant had engaged in an inappropriate or adulterous relationship with SGT D____ in violation of the Uniform Code of Military Justice (UCMJ).

4.  On 21 September 2009, the applicant was suspended as the 2nd Battalion, 69th Armor Regiment command sergeant major.

5.  On 28 September 2009 the investigating officer (IO) submitted a memorandum to the commander.  The IO found that on three separate occasions (two during deployment in Operation Iraqi Freedom V, and one after redeployment), the applicant was warned by officers or senior NCO's about the perception of fraternization and/or inappropriate relations with SGT D____.  The IO documented several occasions when the applicant and SGT D____ were seen together at times that led to a perception of inappropriate relations.  When confronted with these allegations, both parties denied having an affair but were evasive as to their actual relationship and actions.  One specific incident that the applicant misrepresented significantly dealt with his wife slashing his car tires while it was parked at SGT D___'s residence.  With specific reference to the     no-contact order, the applicant was seen leaving SGT D____'s housing complex in the early morning.  When questioned about this, the applicant did not provide a reasonable reason for being in the housing complex.  Based on his investigation, the IO determined there was sufficient evidence to support a finding of fraternization, a violation of Article 92, UCMJ.  The IO also determined there was insufficient evidence to support a finding of adultery between the applicant and SGT D____.  In his citations of regulations the IO underlined, for emphasis, all references to the perceived or appearances of impropriety.

6.  On 29 October 2009, the applicant received NJP.  The Record of Proceedings under Article 15, UCMJ shows:

	a.  a charge of violation of a lawful general regulation by having an inappropriate superior-subordinate relationship with SGT D____, which included personal visits to her quarters and affording her special favors; 


	b.  the words "and intimate personal contact" were lined through from the above-noted charge;

	c.  the second charge was violating a lawful order issued by his commander to have no contact with SGT D____, by being at her apartment; 

	d.  the sentence imposed, on 17 November 2009, was forfeiture of $2,592.00 per month for two months and a written reprimand; 

	e.  the applicant did not appeal the NJP and the commander directed the NJP be filed in the performance section of his Official Military Personnel File.

7.  On 30 November 2009 the Commander, Headquarters, U.S. Army Maneuver Center of Excellence issued a Memorandum of Reprimand (MOR) for violating Army Regulation 600-20 (Army Command Policy), by having an inappropriate superior-subordinate relationship with SGT D____, while deployed to Iraq and continuing after redeployment to Fort Benning; by visiting her apartment and granting her special favors, to include arranging for her to return from deployment to Fort Benning on an earlier flight by removing an officer from the manifest, and making inquiries about her promotion.  He also reprimanded the applicant for violating a lawful order to not have any contact with SGT D____.

8.  The applicant retired on 31 January 2011 in the rank and grade of command sergeant major.  He had 22 years and 8 months of continuous active duty.  His narrative reason for separation was retirement with a separation program designator of RBD, voluntary retirement based on years of service.

9.  Army Regulation 600-20 states that relationships between Soldiers of different rank are prohibited if they: 

	a.  compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; 

	b.  cause actual or perceived partiality or unfairness; 

	c.   involve, or appear to involve, the improper use of rank or position for personal gain; 

	d.  are, or are perceived to be, exploitative or coercive in nature; or 

	e.  create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission; and 

	f.  violations of this regulation can result in personnel being charged under Article 92, Failure to Obey Order or Regulation.

10.  Army Regulation 27-10 (Military Justice), chapter 3 provides that an NJP may be set aside upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the Soldier.  New evidence unquestionably exculpating the individual is a cited example whereas the fact that a Soldier's subsequent performance has been exemplary or that the punishment adversely affects career potential is expressly excluded from the definition of clear injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was warned, on at least three occasions, in addition to the no-contact order, that his actions were or could be perceived as violations of regulation.  However, the applicant appears to have ignored both the informal and formal warnings.

2.  The NJP was given for an inappropriate superior-subordinate relationship, in accordance with Army Regulation 600-20, as well as violating a lawful order, to wit:  the no-contact order.  

3.  The record shows the applicant was afforded due process in this matter.  There is no evidence that he appealed either the NJP or the MOR while he was still on active duty. 

4.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  

5.  An NJP of this nature would most likely have a negative effect on the career of any senior NCO.  However, the applicant has provided no evidence that it was the cause of his voluntary retirement in January 2011.

6.  The applicant's wife was aware of something happening between the applicant and the sergeant as noted by her slashing his tires while it was parked at the sergeant's residence.  This incident occurred prior to the NJP and the NJP cannot be shown to have been the reason for his subsequent divorce.

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)                                         AR20110019984



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ABCMR Record of Proceedings (cont)                                         AR20110017023



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