IN THE CASE OF:

		BOARD DATE:	    18 December 2012

		DOCKET NUMBER:  AR20120017001 


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:

	a.  removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 May 2010, from his U.S. Army Military Human Resource Record (AMHRR);

	b.  restoration of rank/pay grade sergeant (SGT)/E-5; and

	c.  promotion to rank/pay grade staff sergeant (SSG)/E-6.

2.  He states he was punished for a relationship that occurred while he was legally separated from his wife.  He was unable to finalize the divorce because he was stationed in Korea and his ex-wife was serving in Iraq as a civilian contractor.  It wasn't until August 2012 that he was able to obtain the paperwork from his ex-wife to show they were legally separated.

3.  The applicant provides:

* DA Form 2627
* separation agreement
* divorce decree



CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 7 September 2000 and continued to serve on active duty through a series of reenlistments.  He attained the rank/pay grade of SGT/E-5 on 1 July 2004.

2.  On 12 May 2010, he accepted nonjudicial punishment (NJP) for wrongfully having sexual intercourse with a woman who was not his wife between 9 January 2008 and 1 February 2009.  His sentence included reduction to the rank/pay grade of specialist (SPC)/E-4 and forfeiture of $1,146.00 for 2 months, suspended until November 2010.

* the applicant did not demand trial by court-martial
* he requested a closed hearing
* he submitted additional matters and appealed the NJP

3.  A review of his AMHRR shows the DA Form 2627 was filed in the performance section.  It also shows he chose to withdraw the appeal.  The date of this action is not shown.

4.  He provided a copy of a separation agreement, dated 11 January 2007.  This document outlined the terms of the agreement, along with stipulations for child support and visitation guidelines.

5.  He also provided a copy of the final divorcee decree.  This document shows the divorce was finalized on 12 December 2008.

6.  The applicant was honorably discharged on 11 October 2012 after completing more than 12 years of net active service.

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the NJP process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated,

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and

		(3)  determining the amount and nature of any punishment if punishment is appropriate.

	b.  Paragraph 3-36 states that when NJP is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action, will be recorded on a DA Form 2627.  The decision to file the original DA Form 2627 in the performance section or the restricted section of the AMHRR will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by any superior authority.  

	c.  Paragraph 3-28 states that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.

	d.  Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the AMHRR.  It states that application for removal of a DA Form 2627 from a Soldier's AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR.  This regulation states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP instead of demanding a trial by court-martial to plead his innocence to the charge of adultery.  He originally submitted an appeal, but later chose to withdraw that appeal.  He now contends the punishment was unfair because he was legally separated from his ex-wife during this period but was not able to prove the separation until August 2012.

2.  The period of the adultery was stated to have occurred between 9 January 2008 and 1 February 2009.  His divorce was not final until 12 December 2008.  

3.  As for removal of the Article 15 from the performance section of the AMHRR, once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities.

4.  He has not submitted sufficient evidence or a convincing argument for removal of the NJP.  Therefore, the applicant is not entitled to remove the Article 15 from the performance section of the AMHRR or to restoration of rank/pay grade SGT/E-5.

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)                                         AR20120017001



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ABCMR Record of Proceedings (cont)                                         AR20120017001



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