IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120008025 


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:

* expunging/deleting of the Article 15 received on 3 May 2000 from his Army Military Human Resource Record (AMHRR)  
* if this petition is affirmed, expunging the record of the Article 15 and investigation from the National Criminal Information Center (NCIC) database
* correction of the Federal Bureau of Investigation/Department of Justice Form R-84 (Final Disposition Report) to reflect the new disposition

2.  He states:

   a.  He appealed this nonjudicial punishment (NJP) and his appeal was denied on 30 May 2000.  The NJP and Letter of Reprimand (LOR) imposed on him on 3 May 2002 for knowingly possessing images of child pornography were in error and an injustice for two reasons:

* The Article 15 hearing was conducted in a manner that deprived him of various essential rights and that did not comply with fundamental procedural regulations
* The conduct at issue was not a crime

   b.  He developed chronic, moderately severe, post-traumatic stress disorder (PTSD) at some point in the late 1990s as a consequence of his two deployments to Bosnia.  The Army’s experiences with PTSD involving their Soldiers returning from the recent wars in Iraq and Afghanistan has shown that PTSD is a condition that can turn an individual’s normal behavior “upside down” and cause them to engage in self-destructive behaviors.  The Army is now much more attuned and supportive to Soldiers with PTSD that they were when he returned from his second deployment in 1998, especially in terms of the chain of command recognizing the disorder, the fear of stigma attached to seeking help, and treatment methodologies. 

	c.  Toward the end of his second tour in Bosnia, he clearly began to experience symptoms of PTSD in terms of depression and a profound sense of hopelessness that resulted in at least one incident of suicidal ideation.  By early 1999, after being assigned to Fort Knox, KY, he was suffering from insomnia, anxiety, hyper-vigilance, and emotional numbing.  He was isolating himself from his family and the world outside of work.

	d.  His wife, whom he has been married to for 17 years, began to argue with him that he was not behaving normally and needed to seek psychiatric help.  He finally went over to the troop clinic where he was given a brief assessment, some medication, and told to come back in a few weeks for an appointment with a behavioral health nurse.  He did meet with the nurse for a couple of weeks, but stopped seeing her when he was eventually told “he just needed to get over it.”  He wrongly interpreted this to mean he should stop taking his medication, working with her, and should deal with the problem on his own.  There was no follow-up when he stopped treatment.

   e.  In November 1999, the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) showed up at his office with a search warrant.  After the complete search of his work computer they went to his government quarters where they searched his home and confiscated his home computer and all of his computer disks.  They also questioned him and his wife.  As a result, he self-referred himself to Behavior Health and began seeing an actual psychiatrist for treatment.  He went back on medication and began weekly therapy.  He was then diagnosed with chronic, moderately severe PTSD.  Within weeks he improved dramatically.  

	f.  During therapy, he learned that his actions on the internet were an effort to deal with the atrocities he had seen in Bosnia, some of which involved children.  The therapist he saw after these events explained that PTSD directly caused his behavior.  In a psychodynamic sense, visiting pornographic and child pornographic sites, with their implicit victimization of women and children, 
represented a working through of the atrocities of Bosnia.  At no time did he derive sexual gratification from child pornography, fantasize about sex with children, or have any interest in engaging in such activities.  The behavior for which he was investigated was a direct result of his PTSD.
   g.  As noted in the Army’s own investigative record, no child pornography was downloaded to his computer.  The Chief of the Behavioral Medicine Services sent a letter recommending no action be taken by his battalion commander.  The CID and Staff Judge Advocate (SJA) originally did not feel that he had committed a chargeable offense.
   
   h.  In 2000, Lieutenant General (LTG) Rxxxx, as Commanding General of First United States Army, made the decision to address the alleged misconduct in which he had reportedly engaged through NJP rather than prosecuting the matter criminally.  He consented to this process. 

	i.  It was an error and injustice to find him guilty of knowingly possessing child pornography, when the evidence, at best, established that he viewed a variety of bizarre and disturbing things on the Internet, but downloaded none.  It was not a crime to view such images on the Internet until 2008.

   j.  In 2001, he underwent a Show Cause Board and was recommended for retention on active duty.  Since his 2003 retirement he has lived a productive life and dedicated himself to service in his church.  He has successfully learned to cope with his PTSD and has not returned to the inappropriate coping and destructive behaviors that he engaged in over 12 years ago.  He continues to serve as a Department of the Army civilian.  The fact that he has been able to maintain a top secret security clearance since the Article 15, with the associated background checks every five years, is indicative of his moral standing over all these years.

   k.  He recently became aware that due to a change made on 3 May 2011 to Department of Defense Instruction (DODI) Number 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, an NCIC entry now exists on this incident.  While he had long been convinced of the injustice of the Article 15 hearing, there was no long-term negative impact on his life once he retired from the Army in June 2003.  With the change to the DODI this injustice is now reaching out to severely impact his life in a very negative way many years after his active military service.  He was stunned when it came up in a background check he consented to as part of becoming a volunteer for his church at the local federal penitentiary.

   l.  To compound the injustice of the conduct of the Article 15, the titling in the NCIC database is in error and lists the offense as “Possession of Child Pornography” when a more accurate titling would be “Viewing of Child Pornography” based on what he was coerced to plead guilty to.  However, based on the forensic evidence in the CID case file neither titling is legally sufficient since no child pornography was found and viewing was not illegal until 2008.  He has attempted to get the titling of the NCIC record changed, but this request was denied by the U.S. Army Crime Records Center.  Even though the remarks indicate that the matter was handled by an Article 15 it had been consistently viewed as a “federal conviction" by those unfamiliar with the military.

	m.  As a result he is now under canonical investigation with his church to explain this Article 15, which they erroneously view as a federal criminal conviction.  That is not a matter for this Board to address, but it is an indication of the severe injury that it is causing to his life and the lives of his wife and son.

   n.  The fact remains that the injustice of this Article 15 is now transcending into his civilian life and drastically impugning his professional and personal reputation.

3.  He provides:

* Officer Record Brief
* Battalion commander’s statement
* DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice))
* letter from Chief, Behavior Medicine Services
* LOR
* legal opinion on Article 15 appeal
* Medical Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Civilian Record Brief
* two letters support

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel defers requests to the applicant and provides no additional evidence.

2.  In a declaration, counsel states:

   a.  The Article 15 hearing presided over by LTG Rxxxx related to the actions of the applicant was conducted in violation of fundamental, nondiscretionary procedural rules, which led to a coerced guilty plea.  As a result of the guilty plea, the applicant was not afforded an opportunity to see and hear the evidence against him, and suggest questions of the government witnesses.  LTG Rxxxx prevented the applicant from calling witnesses at the hearing in his defense, namely him and Colonel (COL) Jxxx Rxxxxx.
   
   b.  He and COL Rxxxxxx were prepared to testify that the applicant's actions were the direct result of PTSD, exacerbated by PTSD-related insomnia and excessive alcohol use, and therefore, not volitional.  LTG Rxxxx ignored his duty to preside impartially over the Article 15 proceeding and refrain from making a decision until he had heard the defense of the accused.  LTG Rxxxx predetermined the applicant's guilt without permitting him to present any defense to the charges and coerced a self-incriminating statement and guilty plea, in violation of the applicable principles and rules of law.  
   
   c.  Counsel gives a synopsis of his own education, military service, and employment history.

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 record shows he was appointed in the U.S. Army Reserve (USAR), Field Artillery Branch, as a second lieutenant, effective 26 May 1982.  He entered active duty on 20 June 1983.  

3.  In a statement, dated 10 March 2000, the applicant’s battalion commander stated that the applicant had served as his S-3 since September 1998.  The applicant had performed his duties in an excellent manner.  He had proven to be diligent, energetic, and a technically and tactically competent military officer.  They had worked closely together on many training projects during that period.  During their close association, he could sense that the applicant had several unresolved issues stemming from his prior assignment, a year’s rotation in Bosnia with the 2nd Armored Cavalry Regiment.  He urged the applicant to seek medical attention.  The applicant did, but only sporadically.

4.  On 20 April 2000, at a closed hearing, he accepted NJP under Article 15, UCMJ, for on or about 20 September 1999, knowingly receiving images of child 

pornography as defined in Title 18, USC, section 2256(8), in that said images showed minors engaged in sexually explicit conduct as defined in Title 18, USC, section 2256(2), images that had been transported in interstate or foreign commerce by computer and disgracing himself and the armed forces by knowingly receiving, through his computer, images of children engaged in sexually explicit conduct.  His punishment consisted of a forfeiture of pay for two months (suspended) and written reprimand.  He elected to appeal the punishment.

5.  In a letter to LTG Rxxxx, dated 21 April 2000, the applicant’s battalion commander stated if it was his judgment the applicant should be found guilty of the charges against him, he recommended that the Article 15 be filed on the restricted fiche, that the applicant’s administrative flag be lifted, and that he be promoted to LTC, a rank for which he was selected nearly a year ago.  He made those recommendations for the following five reasons:

* during his 2-year tenure as a brigade commander no major in any training support battalion of his brigade ever exceed the superb performance of duty exhibited by the applicant
* according to the applicant's physician, the offense he was alleged to have committed could be directly attributed to PTSD for which he was being treated.
* at no time during the investigation of the alleged offense was the applicant ever evasive or attempted to hide the truth
* the CID investigation revealed that there was no evidence the applicant retained any images of a child-pornographic nature nor did he attempt to purchase or distribute them
* the placement of the NJP in his official file will most certainly prohibit promotion and continued service, hence his family will also be the target of such punishment and would be so for many years to come

6.  On 3 May 2000, the applicant was issued an LOR for downloading images of graphic child pornography on his personal computer on 20 September 1999.  The LOR stated that the applicant had admitted to viewing images of children engaging in sexually explicit conduct.  By viewing child pornography, the applicant contributed to the exploitation of the most vulnerable in their society.  As a field grade officer with more than 17 years of service, the applicant’s behavior was a complete departure from the standards expected from someone of his rank and position.

7.  In a legal opinion, dated 12 May 2000, the senior defense counsel argued that the applicant must be found not guilty of the charged offense on his Article 15.  Although nonjudicial in nature, Article 15 proceedings require criminal misconduct.  The applicant had admittedly made some regrettable mistakes and the Army system had many alternatives for dealing with him.  However, his actions were not criminal. 

8.  On 30 May 2000, his appeal of the Article 15 was denied and the Article 15 was directed to be filed on his performance fiche.  

9.  In a Medical Statement, dated 22 October 2000, the Chief, Department of Behavior Health, stated:

   a. The applicant had been followed at the Ireland Army Community Hospital Behavioral Medicine clinic since 11 January 1999 for PTSD, resulting from his experiences in Bosnia.  The applicant’s primary symptoms were intrusive thoughts of Bosnia, avoidance of stimuli, reminding him of his experiences there, emotional numbing, hyper-vigilance, insomnia, irritability, isolativeness and withdrawal from his wife, and guilt.

	b.  Initial intervention with psychotropic medication was sufficient to diminish the applicant's neurovegetative symptoms and irritability; however, he continued to experience symptoms of PTSD, in particular, emotional numbing, guilt, insomnia, and isolativeness.  His behavior was characteristic of Soldiers with PTSD.

	c.  The applicant's underlying personality structure and character were sound. At no time did he derive sexual gratification from child pornographic pictures, did not fantasize about sex with children, and had never developed the desire or impulse to engage in such activities.  He had a healthy adult heterosexual orientation with no evidence of sexual deviance.  The atypical behaviors he displayed in the past were a direct result of his PTSD, which had improved with treatment to the point that he was now essentially symptom-free.

	d.  He strongly recommended that these factor be viewed as mitigating circumstances in this case.  The applicant posed no risk to security, mission accomplishment, or morale.  He was a natural leader, mentor, and teacher, who inspired those serving under him.  He remained highly motivated to serve in the Army, and had much to offer.  He was committed to making a full recovery from his PTSD and was working hard in therapy towards his goal.  It should be noted that literally thousands of serving officers with PTSD are performing their duties to standard, and suffering silently.  The difference between them and the applicant is that he had the courage to seek help in a culture that punished those who did so.

10.  He was honorably retired on 30 June 2003 and transferred to the Retired List in the grade of LTC.
11.  A review of his AMHRR located in the interactive Personnel Electronic Records Management System reveals the DA Form 2627 is in fact filed in the performance section.  

12.  He is currently employed by the Department of the Army in the position of Training Program Manager, GS-13.

13.  He provides two letters of support wherein the two individuals reference the applicant’s diagnoses of PTSD and request removal of the Article 15 for his AMHRR.

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 non-punitive 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 non-punitive 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 that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s AMHRR 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.  

   b.  Paragraph 3-6 also states that 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.
   
	c.  Paragraph 3-43 (current version of regulation) contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  There must be clear and compelling evidence which demonstrates errors or injustice to a degree justifying removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

15.  Army Regulation 600-8-104 (Army Military Human Resource Records Management provides policies, operating tasks, and steps governing the AMHRR.  This document states that only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the AHMRR.  Depending on the purpose, documents will be filed in the AHMRR in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the AHMRR) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the AHMRR, as directed in Item 5 of the DA Form 2627.

16.  DODI Number 5505.7 (new version dated 27 January 2012) contains the authority and criteria for titling decisions.  It states, in pertinent part, that titling only requires credible information that an offense may have been committed.  It further indicates that the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or no complete lack of credible evidence indicating the subject committed a crime.

17.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes the responsibilities and policies of the Army Criminal Investigation Program.  Paragraph 3-13a(12) states the USACIDC will not routinely investigate allegations of the misuse of Government computer.  The USACIDC retains primary investigated jurisdiction over incidents involving child pornography and unauthorized access and/or intrusions into Army interest computers.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant accepted NJP on 20 April 2000 for knowingly receiving images of child pornography as defined in Title 18, USC, section 2256(8), in that said images showed minors engaged in sexually explicit conduct as defined in Title 18, USC, section 2256(2), images that had been transported in interstate or foreign commerce by computer and disgracing himself and the armed forces by knowingly receiving, through his computer, images of children engaged in sexually explicit conduct.  He was issued a reprimand as a result of the Article 15.  His appeal of the NJP was denied on 30 May 2000.

2.  The evidence of record shows he was suspected of committing serious offenses in his capacity as a field grade officer with more than 17 years of service.  His behavior was a complete departure from the standards expected from someone of his rank and position.  However, the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing.  By law and 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 the Article 15.

3.  The evidence also shows the imposing commander directed the DA Form 2627 be filed in the performance portion of the applicant's AHMRR.  A review of his AHMRR revealed the DA Form 2627 is contained on the performance portion. 

4.  It appears the explanations he submitted in an appeal of the NJP failed to show the proceedings were not properly conducted under law and regulation and failed to show the punishment was not appropriate.  He appeared with counsel before the commander.  He tested to and was willing to admit the facts in the CID report.  He disputed that the facts constituted a crime.  There is no evidence he was coerced into admitting the facts constituted a crime.  The SJA opined that the proceedings were conducted in accordance with law and regulation.

5.  His record is void and he did not provide the investigative report; therefore, there is no evidence to evaluate the acts in question.  There is also insufficient evidence his stated mental health conditions and intoxication were at a level such that he did not know what his actions were.  His statement indicates he was sufficiently aware of his actions to know that he was on the internet and "looking at" various websites. There is insufficient evidence to prove otherwise.  

6.  Neither he nor counsel have provided convincing evidence that the NJP is untrue or unjust, in whole, or in part, to support his request that it be set aside or its removal from his AHMRR.  The applicant's assertions are insufficient to overcome the conclusions of the commander imposing the Article 15.  By regulation, there must be evidence that exists which demonstrates error or injustice to a degree justifying removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record.  Absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to grant the requested relief.

7.  Furthermore, his case has already been adjudicated through the Army’s legal system and he was afforded the opportunity to appeal his punishment through the proper channels while he was still on active duty.  Here, the evidence submitted by him is not sufficient to change the determination of guilt made by the commander. 

8.  With respect to the removal of the Article 15 and investigation for the NCIC database, DOD policy indicates the only way to administratively remove an action is to show either mistaken identity or a complete lack of credible evidence to dispute the initial determination.  

9.  Further, neither the ABCMR nor the Army has jurisdiction to order the FBI to remove any document filed by them from the NCIC database.

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)                                         AR20120008025



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ABCMR Record of Proceedings (cont)                                         AR20120008025



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