IN THE CASE OF:	  

		BOARD DATE:	    29 January 2013

		DOCKET NUMBER:  AR20120017490 


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 an Article 15, dated 11 February 2011, from the restricted section of his official military personnel file, now known as the Army Military Human Resource Record (AMHRR).

2.  The applicant states the Article 15 was given to him by Major General (MG) DMC.  On 2 August 2011, he was found not guilty of the two charges on the Article 15 by a U.S. Army Recruiting Command (USAREC) General Officer Show Cause Board initiated by MG DMC.  The board allowed him to explain the incident and situation through the use of witnesses that spoke on his behalf as opposed to the swift response required for the Article 15.

3.  The applicant provides a letter, a memorandum, and a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers).

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was appointed as a Reserve commissioned second lieutenant and he executed an oath of office on 1 June 2002, with a concurrent call to active duty.  He was promoted to the rank of captain in the Regular Army on 1 September 2005.  In July 2010, he was assigned as the company commander of the Tacoma Recruiting Company, Tacoma, WA.

2.  On 27 October 2010, the Fiscal Year 2011 (FY11), Major (MAJ), Army Selection Board convened.  The applicant was subsequently recommended for promotion to MAJ and his name was placed on the FY11, MAJ, Army, Maneuver, Fires & Effects, Promotion Selection List.

3.  On 9 November 2010, an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigating officer (IO) was appointed to conduct a Commander's Inquiry into allegations of possible misconduct and inappropriate behavior by members of the Tacoma Recruiting Company during an annual training conference in October 2010.

4.  The IO found the applicant violated Army Regulation 600-20 (Army Command Policy) and acted inappropriately by receiving a lap dance from a noncommissioned officer (NCO) and for being in a hot tub with two other Soldiers while they were in their bra and panties.  When the IO asked the applicant about the lap dance and the hot tub, he stated he was too drunk to remember the lap dance or what the Soldiers in the hot tub were wearing.

5.  In addition, the IO stated the applicant participated in most of the inappropriate behavior that occurred during the training conference.  He was responsible for setting a positive example for his Soldiers and NCOs to emulate and instead, he became part of the problem.  He served drinks to his Soldiers and failed to take action when the first sergeant and an NCO were engaging in inappropriate behavior.  He wanted to have a good time and he was too drunk to remember his own actions.

6.  On 4 February 2011, he was relieved for cause from his duties as the company commander of the Tacoma Recruiting Company by MG DMC.

7.  On 9 February 2011, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for, on or about 30 October 2010, at or near Worley, ID:

* violating a lawful general regulation by wrongfully entering and/or remaining in a hot tub with two female NCOs wearing only their bras and panties
* wrongfully being in a hot tub with two female NCOs wearing only their bras and panties, that was conduct unbecoming an officer and a gentleman and of a nature to bring disgrace upon the Armed Forces

8.  The punishment imposed was a forfeiture of pay and a written reprimand.  MG DMC directed the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), be filed in the restricted section of his AMHRR.


9.  The applicant elected to appeal the Article 15.  In a statement he submitted with his appeal, dated 15 February 2011, he stated he took full responsibility for his actions and pled guilty to both charges.  He acknowledged his actions were both unprofessional and a dereliction of his duty as an officer and leader.  He further stated there was no excuse for his actions and he truly regretted what he did.  He asked that the Article 15 be dismissed and a letter of reprimand be filed in his local file, or the Article 15 not be filed at all.

10.  On 12 April 2011, his appeal was denied.  The appeal authority stated the Article 15 proceedings were conducted in accordance with applicable law and regulations and the punishment imposed was neither unjust nor disproportionate to the offenses committed.  The DA Form 2627 was subsequently filed in the restricted section of his AMHRR.

11.  On 2 August 2011, a Board of Inquiry (BOI) met at Fort Knox, KY, to determine if the applicant should be retained on active duty.  Several witnesses testified the applicant was an outstanding leader who still had much to offer the Army.  His battalion commander stated he (the applicant) admitted his wrongdoing, took responsibility for his wrongdoing [at the training conference], and he should be retained on active duty.

12.  The applicant testified when he arrived at the training conference on 29 October 2010 at the Coeur d'Alene Casino Resort Hotel, Worley, ID, he found his room had been changed to the penthouse suite.  On 30 October 2010, he and about 20 of his 42 Soldiers socialized in the penthouse suite.  He was in the penthouse hot tub when two female NCOs took off their clothes and entered the hot tub.  He thought their undergarments looked like bathing suits and he never had any sexual contact with any of his Soldiers.  He further testified that in his sworn statement, he stated he was too drunk to remember any lap dances.  He wanted to be retained in the Army and felt he still had much to offer the Army.

13.  The BOI found the applicant, on or about 30 October 2010, at or near Worley, ID:

* did not violate a lawful general regulation by wrongfully entering and/or remaining in a hot tub with two female NCOs wearing only their bras and panties
* was not wrongfully in a hot tub with two female NCOs wearing only their bras and panties, that was conduct unbecoming an officer and a gentleman and of a nature to bring disgrace upon the Armed Forces
* did not demonstrate conduct unbecoming an officer

14.  The BOI also found he did commit acts of personal misconduct and recommended his retention on active duty and reassigned out of USAREC.

15.  On 17 November 2011, a Promotion Review Board (PRB) met to determine if the applicant should be removed from the FY11 MAJ Promotion Selection List.  The PRB found his file indicated he had received a referred Officer Evaluation Report for the period 6 June 2010 through 4 February 2011 and an Article 15 after the convene date of the promotion selection board.  He was relieved of his duties as a recruiting company commander and exercised poor judgment when he engaged in inappropriate behavior with Soldiers during a company party in conjunction with an annual training conference.  He occupied a hot tub with two female NCOs wearing only their bras and panties.  This constituted fraternization.

16.  The PRB determined the applicant was not fully qualified and not best qualified to meet the needs of the Army and recommended his removal from the promotion selection list.

17.  On 27 February 2012, his name was removed from the FY11 MAJ Promotion Selection List.

18.  Army Regulation 600-8-104 (AMHRR Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the AMHRR.  Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the AMHRR.  Table B-1 (Authorized documents) shows the DA Form 2627 will be filed in either the performance or the restricted section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the AMHRR is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from the AMHRR unless directed by an appropriate authority.

2.  Notwithstanding the fact that a BOI found the applicant did not violate a lawful general regulation by wrongfully entering and/or remaining in a hot tub with two female NCO wearing only their bras and panties, and that he was not wrongfully in a hot tub with two female NCOs, the evidence of record confirms and the applicant himself admitted he had acted inappropriately and had been in a hot tub with the two NCOs.
3.  In addition, the BOI did find that he did commit acts of personal misconduct and a subsequent PRB confirmed he exercised poor judgment when he engaged in inappropriate behavior with his Soldiers by occupying a hot tub with the female NCOs wearing only their bras and panties during an annual training conference.  He was subsequently removed from the FY11 MAJ Promotion Selection List.

4.  The Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  There is no evidence and the applicant did not provide any evidence that shows the Article 15 is untrue or inaccurate.  As such, the Article 15 is properly filed in the restricted section of his AMHRR.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120017490



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ABCMR Record of Proceedings (cont)                                         AR20120017490



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