BOARD DATE:	 5 January 2012 

		DOCKET NUMBER:  AR20110017702 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 28 April 2005, from the restricted section of the applicant's official military personnel file (OMPF).

2.  Counsel states:

* the allegations in the Article 15 are untrue
* the punishment was unjust
* the intended purpose has been served

3.  Counsel provides:

* multiple DA Forms 2823 (Sworn Statement)
* appointment of investigating officer (IO) memorandum
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* legal review of Army Regulation 15-6 (Procedures of Investigating Officers and Boards of Officers)
* DA Form 2627
* Article 15 rebuttal
* general officer memorandum of reprimand (GOMOR)
* DA Forms 67-9 (Officer Evaluation Report) from June 2006 to June 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as an ordnance Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 5 December 2002 and entered active duty on 14 June 2003.  He was promoted to first lieutenant (1LT) on 5 June 2004 and to captain (CPT) on 1 February 2006.

2.  He was assigned to Headquarters and Headquarters Company, 46th Corps Support Group (CSG) (Airborne), Fort Bragg, NC, and deployed with this unit to Iraq in support of Operation Iraqi Freedom.

3.  On 16 March 2005, an IO was appointed by the commander, 507th CSG, Iraq, to conduct an informal investigation into allegations of officer misconduct and sexual harassment by the applicant.

4.  On 18 March 2005, the IO concluded there was credible evidence the applicant violated the UCMJ by having sexual intercourse with a junior enlisted Soldier (adultery), sexual harassment and indecent language, fraternization and failure to obey a regulation, and conduct unbecoming of an officer.  The IO recommended the applicant's dismissal from the Army and issuance of an Article 15 or a GOMOR.  The appointing authority approved the IO's findings and recommendations.

5.  On 21 March 2005, a military attorney conducted a legal review of the Army Regulation 15-6 investigation and found it legally sufficient.  He opined there was sufficient evidence the applicant engaged in sexual intercourse with a junior and married female Soldier (adultery) in his trailer, fraternization, and conduct unbecoming of an officer and a gentleman.

6.  The applicant's company, battalion, and group commanders recommended issuance of a GOMOR and elimination from the Army.  The battalion commander stated the applicant appeared to be a predator of young female Soldiers in his section.  His conduct was intolerable and he deserved elimination from the Army.

7.  On 23 April 2005, the Commanding General, Multi-National Force-Iraq, reviewed the applicant's case and returned the matter to the Commanding General, 1st Corps Support Command (CSC), for appropriate action.

8.  On 28 April 2005 after having the Article 15 read to him, he submitted a rebuttal wherein he stated he is not a sexual predator and he never engaged in any sexual activity with any enlisted Soldier.  He added that Specialist (SPC) L____ D____ made the allegations against him as a form of reprisal because he recommended that she receive an Article 15.  He stated he had previously lent her money and he later tracked her down to collect the money.

9.  On 4 May 2005 at a closed hearing, the applicant declined trial by a court-martial and he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for:

* engaging in a sexual relationship with SPC L____ D____, a subordinate, from on or about 20 January 2005 to on or about 19 March 2005 under circumstances that constituted conduct unbecoming an officer and a gentleman
* knowingly fraternizing with SPC L____ D____ by having sexual intercourse with her in his trailer from on or about 20 January 2005 to on or about 19 March 2005
* orally communicating to another Soldier, SPC H____ M____ B____, certain indecent language, "you have nice breasts" and "can I see your breasts," from on or about 20 January 2005 to on or about 19 March 2005

10.  His punishment consisted of a GOMOR.  The imposing commander directed filing the original DA Form 2627 in the restricted section of the applicant's OMPF. 
The applicant elected not to appeal.

11.  A review of his OMPF reveals the DA Form 2627 is, in fact, filed in the restricted section of his OMPF.

12.  On 9 May 2005, he was reprimanded by the Commanding General, 1st CSC.  The GOMOR stated the applicant abused his position of trust as a section head by creating an environment of sexually-oriented discussions and/or actual or perceived partiality toward female junior enlisted Soldiers under his leadership.  He failed to respond to guidance from senior noncommissioned officers and other officers regarding the appearance of inappropriate relationships with female junior enlisted Soldiers and compromised his ability to lead.

13.  His records show that since his incident in May 2005, his achievements include promotion to CPT on 1 February 2006, completion of the Combined Logistics Captains Career Course from 19 June to 2 November 2006, and receipt of multiple OER's with ratings of "Outstanding Performance – Must Promote" and "Best Qualified."

14.  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.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders whom 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 filing of 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 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.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  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 3-37b(2) states the original record of NJP will be sent to the appropriate custodian for filing in the OMPF for Soldiers in the ranks of sergeant (SGT) and above.  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.  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.

	c.  Paragraph 3-43 contains guidance on 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).  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.

15.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  Only those documents listed in table 2-1 (Composition of the OMPF) and 
table 2-2 (Obsolete or No Longer Used Documents) 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 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.

16.  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 the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents filed 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 evidence of record confirms the applicant, a 1LT in a leadership position, violated the UCMJ and subsequently accepted NJP on 4 May 2005 for engaging in sexual intercourse with a junior and married female Soldier (adultery) in his trailer, fraternization, and conduct unbecoming of an officer and a gentleman.  The imposing commander directed filing the Article 15 in the restricted section of the applicant's OMPF.  The applicant elected not to appeal.

2.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted section of his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show the DA Form 2627 is untrue or unjust.

3.  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.

4.  He also believes the Article 15 in the restricted section of his OMPF has served its purpose.  However, when an NJP action reflects unmitigated moral turpitude or lack of integrity, or evidence of character deficiency or substantial breach of military discipline, the interests of the Army are compelling and in such cases the record should be filed in the OMPF.  The fact that he engaged in adultery, fraternization, and conduct unbecoming of an officer and a gentleman while holding the rank of 1LT is clear evidence of a character deficiency.

5.  He has not demonstrated the NJP action was unjust or untrue, that this NJP should be removed because of the length of time, or that removal would be in the best interest of the Army.  Therefore, he is not entitled to relief 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)                                         AR20110017702



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ABCMR Record of Proceedings (cont)                                         AR20110017702



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