IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120009383 


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 reconsideration of his earlier request to expunge the below documents from his official military personnel file (OMPF) and reimburse him of monies lost as a result of the Article 15:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 29 June 2009
* General Officer Memorandum of Reprimand (GOMOR), unknown date

2.  The applicant states that based on the findings of the appeal authority, Lieutenant General (LTG) WBC, Commander, Combined Arms Center and Fort Leavenworth, LTG WBC was not informed of the findings of the imposing authority, Major General (MG) GFM, Commander, U.S. Army Maneuver Center and Fort Leonard Wood, prior to making his own decision on the remaining charges.  Thus, he was denied a fair and an informed appeal to LTG WBC.  He was charged with wrongfully providing alcohol to a minor, two specifications of sodomy by and with Ms. TLT, and fraternization with an enlisted person.  However, MG GFM dismissed two of the charges (sodomy and wrongfully providing alcohol to a minor).  When the chief of justice failed to annotate on the DA Form 2627 that he was found not guilty of the two charges, the appeal authority was misled to evaluate the validity of all original charges and not just the remaining two charges.  This led to a higher probability factor, combination factor, deprivation of defense to appeal, stand alone charge, and no relief despite reduction in culpability.

3.  The applicant provides a self-authored argument.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110011500, on 4 October 2011.

2.  The applicant submitted a new argument which was not previously considered by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant, having transferred from the U.S. Air Force, was appointed as a Reserve commissioned officer in the rank of first lieutenant and ordered to active duty on 20 September 2006.  He was assigned to the 787th Military Police Battalion, Fort Leonard Wood, MO, as executive officer of a one-station-unit- training unit.  

4.  He was promoted to captain on 1 February 2007 and assigned as the Assistant Chief of Doctrine for the Maneuver Support Center, Fort Leonard Wood, MO. 

5.  On 10 February 2008, agents of the U.S. Army Criminal Investigation Command (USACIDC, also known as CID), Fort Leonard Wood, MO, were notified by a detective of the Pulaski County Sheriff Department that their law enforcement agents had arrested the applicant for an alleged forcible rape and sodomy of Ms. TLT.  The CID Report shows Ms. TLT reported that she had been raped by the applicant during the early morning hours on 9 February 2008.  She was admitted to the military hospital and underwent a sexual assault forensic examination.  The detective also stated that staff sergeant (SSG) JLH of the same battalion was present at the residence at the time.  The applicant was read his legal rights and provided a verbal statement stating that he had consensual sex with Ms. TLT.  

6.  The applicant was released on a cash bond and he was also pulled from his assigned position awaiting the outcome of the investigation and/or disposition of his case.  A subsequent Article 32 hearing determined there was sufficient evidence to support a finding that the applicant committed some of the alleged offenses. 

7.  On 27 May 2009, while holding the rank of CPT and in a closed hearing, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for:

* sodomy with Ms. TLT by placing his pxxxs in her mouth (this entry is deleted, with initials “S--” (probably the initials of LTG WBC’s legal advisor) and the date 14 September 2009)
* sodomy with Ms. TLT by placing his mouth onto her vxxxxa (this entry is deleted, with initials “S--” (probably the initials of LTG WBC’s legal advisor) and the date 14 September 2009)
* knowingly fraternizing with SSG JLH by consuming alcohol with him at his home and other drinking establishments
* wrongfully providing alcohol to Ms. TLT, a person under the age of 21 (he was found not guilty of this charge) (this entry is deleted, with the letters “NG,” possibly meaning “not guilty”)

8.  His punishment consisted of a forfeiture of $2,361.00 pay per month for 2 months, one month suspended until 26 December 2009, and a written reprimand. The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF.  

9.  On 29 June 2009, the applicant submitted through his attorney an appeal to the next higher commander, LTG WBC, the Commander, Combined Arms Center, Fort Leavenworth, KS.  The appeal noted that the applicant had been found not guilty of one specification of sodomy and providing alcohol to a minor.  It is noted here that:

	a.  The prior Board decision indicated in paragraph 5 of the Record of Proceedings that the Board concluded LTG WBC dismissed the two specifications of sodomy and the specification of wrongfully providing alcohol to a minor.

	b.  The applicant's appeal stated MG GFM dismissed one of the specifications of sodomy and the charge of providing alcohol to a minor.  The annotations on the DA Form 2627 do not comport with the applicant's argument or the information laid out in the original Board case. 

10.  On 14 September 2009, after considering all matters presented in the appeal, LTG WBC granted relief in the form of dismissing the two specifications of sodomy.  However, after considering the evidence he found the punishment for the remaining offense appropriate and therefore affirmed it. 

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

12.  There is no indication a GOMOR is filed in his OMPF.

13.  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 states 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.  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 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.  

	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.   

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  

14.  Army Regulation 27-10 is silent as to describing how or whether the DA Form 2627 is to be annotated (e.g., by lining through) when a charge is dismissed.

15.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 and Table
2-2 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 (Composition of the OMPF) of Army Regulation 600-8-104 shows that 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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, a CPT, violated the UCMJ and subsequently accepted NJP on 27 May 2009 for various infractions.  The imposing commander directed this Article 15 be filed in the performance section of his OMPF.  

2.  The applicant appealed his punishment.  The next higher commander considered all matters presented in the appeal and ordered the dismissal of the two sodomy specifications but found the punishment for the remaining offense (fraternization) appropriate and therefore affirmed it. 

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

4.  He contends that when the chief of justice failed to annotate on the DA Form 2627 that he was found not guilty of the two charges, the appeal authority was misled to evaluate the validity of all original charges and not just the remaining two charges.  However, there is no regulatory requirement to annotate the DA Form 2627 concerning such findings. 

5.  The main issue here is that two general officers and their legal staffs looked at the various charges and determined he was guilty.  By regulation, punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s)  

6.  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.

7.  The applicant has not demonstrated the NJP action was unjust or untrue or that a 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110011500, dated 4 October 2011.



      __________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)                                         AR20120009383



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009383



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1