IN THE CASE OF:	  

		BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120006720 


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 removal of the 1972 Article 15 and allied documents from his records. 

2.  The applicant states:

	a.  His superior imposed the Article 15 with malice and racism without any Uniform Code of Military Justice (UCMJ) offense or charge.  His chain of command subjected him to extreme and harsh punishment for false and unproven accusations.  He was charged with attempting to seduce a German woman and defrauding the Government of temporary duty (TDY) funds amounting to $30.

	b.  He was TDY from Nuremberg to Worms, Germany at the time which required continuous travel throughout Europe.  He had a car wreck near Wurzburg and he had to continue his TDY by train; he met Ms. SW on the train.  She called him the next day and invited him to her house; upon arrival she kissed him passionately; he kissed her back and touched her breasts.  She then told him that she had just had an abortion and it was too soon to have sex; they never tried to undress or have sex and he left.  

	c.  He called her a week or so later and she invited him to her place where he met her boyfriend.  She told him to come back another day.  The following Monday, he was travelling with his wife when the Chief of Staff called him and told him he was under charges of attempted rape by Ms. SW.  A subsequent investigation by agents of the U.S. Army Criminal Investigation Command (USACIDE, also known as CID) determined he had not committed the offense and charges were not preferred against him.  He also learned that the boyfriend was a young enlisted Military Police Soldier who was informed by Ms. SW that he, the applicant, had attempted to have sex with her against her will.  Ms. SW, who was divorced from her first American husband, was using him in her efforts to influence the young enlisted Soldier to gain U.S. citizenship.  She finally married him and they moved back to the States. 

	d.  He tracked her down over the years in an effort to have her recant her statement but he was unable to speak with her.  He also confronted her husband (they were separated by then) but the conversation ended up in a threat of bodily harm.  He regrets making this awful mistake that cost him his career and family.  

	e.  His commander along with the chief of staff jointly conspired, with prejudice and malice, to falsely charge him, first, unsuccessfully with aggravated assault and then with the attempt to seduce, when the opposite was true.  They considered his conduct unbecoming and threw in the charge of defrauding the Government with funds but not listing the amount.  

	f.  After the charges were proven unfounded, the chief of staff ordered him to go to Heidelberg to see a Staff Judge Advocate (SJA) officer.  However, upon arrival, he was misled by a captain, whom he thought was his defense counsel, into signing the Article 15.  The real counsel who knew the details of the case was sent TDY to Africa on an unscheduled mission. 

	g.  The chief of staff further embarrassed him in another situation during a social gathering when he had his (the applicant's) wife sit in his lap and dared him to do something that would incriminate him.  The Article 15 and subsequent reprimand and resulting negative evaluation report led to his release from active duty.  He simply wants the removal of the unjust and racially-inspired Article 15 from his records. 

3.  The applicant provides:

* Letters to and from his Member of Congress
* Privacy Act Form
* Letter from the National Personnel Records Center
* Illegible copy of the contested DA Form 2627-1 (Record of proceedings Under Article 15, UCMJ)
* DA Form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, UCMJ)
* Letter to his former attorney
* Unsigned statement and letter from his former attorney
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 Army Board for Correction of Military Records (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.  The applicant's records show he was born on 8 November 1934 and he was commissioned in the U.S. Army Reserve on 5 June 1958.  He entered active duty on 30 November 1958.  He subsequently served in a variety of stateside and/or overseas assignments, including Korea, Panama, Vietnam, and Germany. 

3.  He was honorably released from active duty on 28 June 1973 and he was transferred to the U.S. Army Reserve.  He completed 14 years, 6 months, and  29 days of creditable active service.  

4.  Subsequent to his release from active duty, he served in various troop program units of the USAR and he attained the rank of colonel.  

5.  On 9 January 1983, he was issued a Notification of Eligibility for Retired Pay at Age 60.  

6.  He ultimately retired on 7 November 1994 and placed on the Retired List in his retired rank of COL on 8 November 1994, his 60th birthday.  

7.  He received an annual Officer Evaluation Report that covered the rating period 29 June 1970 through 28 June 1971 for his duties as the Custodian Nuremberg Transient Billets, U.S. Forces Support District, Nordbayern, Germany.  His rater stated, in pertinent part "On two occasions, women complained to me of improper advances on the part of Major [Applicant].  One, an unmarried local national, was employed in this headquarters and the other, a young wife of an enlisted man, was employed as a cashier at the hotel.  Major [Applicant] was counseled to manage his personal conduct so that his actions could in no way be misconstrued particularly considering the sensitive position he occupied as custodian of the hotel." 
8.  On 17 March 1972, while holding the rank of major and assigned to the U.S. Forces Support District - Nordbayern, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for:

	a.  On or about 6 and 7 January 1972, in Nuremburg, Germany, preparing vouchers and presenting them to an office of the United States, duly authorized to approve, allow, and pay such claims, making and uttering such a claim against the United States for temporary duty expenses and per diem, which claim was false, in that it included time spent and expenses incurred in Heidelberg, where he had no official business; a violation of Article 132, UCMJ

	b.  On or about 17 December 1971, in Heidelberg, Germany, he took indecent liberties with and attempted to seduce Ms. SW, a woman not his wife; a conduct unbecoming an officer and a gentleman, a violation of Article 133, UCMJ.

9.  His punishment consisted of a forfeiture of $200.00 pay per month for 2 months and a letter of reprimand.  The imposing officer, the Commanding General, U.S. Army Europe and Seventh Army, ordered the Article 15 filed in the efficiency section of the applicant's official military personnel file. 

10.  On 19 June 1972, he appealed his punishment to the Commander in Chief, U.S. Army Europe.  However, after a legal review determined that the NJP proceedings were conducted in accordance with law and regulation, and after reviewing all matters, the Commander in Chief, U.S. Army Europe denied his appeal.  

11.  He submitted:

	a.  Letter, dated 9 December 2009, to his former attorney with a draft statement.  He contends that he did not commit the infractions stated in the Article 15 and that he wanted to regain his dignity as an officer. He asked the former attorney to sign the self-authored statement. 

	b.  A response, dated 7 January 2010, from the former attorney informing him that he has no recollection of the matter and could not sign the statement he (the applicant) drafted and sent.

12.  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 who 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 the filing of an NJP and provides, in pertinent part, 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 the 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 that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.  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.   Additionally, 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 the transfer or removal of DA Forms 2627 from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that 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.

13.  Article 132 of the UCMJ pertains to (1) making a false or fraudulent claim; (2) presenting for approval or payment a false or fraudulent claim; (3) making or using a false writing or other paper in connection with claim; (4) making a false oath in connection with claims; (5) forgery of signature in connection with claims; (6) using forged signature in connection with claims; (7) delivering less than amount called by receipt; (8) making or delivering receipt without having full knowledge it is true.  The maximum punishment under Article 132 (1) and (2) is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.  The maximum punishment for Article 132 (3) and (4), when the amount is less than $500, bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months; and when the amount is over $500.00, similar to that in 91) and (2).  

14.  Article 132 of the UCMJ pertains to conduct unbecoming an officer and a gentleman.  The maximum punishment allows is dismissal from the service, forfeiture of all pay and allowances, and confinement for a period not in excess of that authorized for the most analogous (similar) offense for which a punishment is prescribed in the manual of Court-martial, or, if none is prescribed, for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, a major, violated the UCMJ and subsequently accepted NJP on 17 March 1972 for conduct unbecoming an officer and a gentleman and filing a fraudulent travel voucher for expenses incurred during a trip.  He declined trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing.

2.  He had the opportunity to decline the Article 15 at any time prior to the imposition of punishment being announced and demand trial by court-martial.  His election to accept the Article 15 was simply his choice.  The imposing commander directed this Article 15 be filed in the performance section of his OMPF.  He appealed his punishment to the next higher commander but his appeal was denied.

3.  The evidence of record also shows that he had previously been identified as having similar conduct unbecoming an officer and a gentleman allegations made against him by two different women.

4.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show that the DA Form 2627 is untrue or unjust.
5.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  He was provided a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15 through the proper channels.  

6.  He did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings.  The argument he now presents, some 40 years after he accepted the NJP, is not sufficient to change the determination of guilt made by the commander.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or restore her rank. 

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120006720





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ABCMR Record of Proceedings (cont)                                         AR20120006720



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