IN THE CASE OF: 

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120018974 


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 the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)) dated 8 February 2012,
DA Form 67-9 (Officer Evaluation Record (OER)) for the period 7 June 2011 through 19 March 2012, and all allied documents to the two forms be removed from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  As an alternative, he requests all documents be transferred to the restricted section of his AMHRR or filed locally.

   a.  He also requests that the Investigating Officer's (IO's) initial findings and recommendations be followed.

   b.  He further requests the time period for the Relief for Cause (RFC) OER be declared as unrated time.

2.  The applicant states he was punished under Article 15, UCMJ, for misuse of a government-issued computer when he replied to an email that a superior officer sent to him that contained explicit images, which was in violation of Article 133, UCMJ.

   a.  He states that prior to the incident he was suffering from several mental ailments which clouded his judgment.  In the months just prior to the incident he took on an extremely difficult duty position that required knowledge and experience above his rank.  He wanted the acceptance and approval of his supervisor, which played a role in the way he replied to his supervisor.
   b.  He states the superior officer was more than just his rater and supervisor, he was a mentor and role model to him.  He adds that he believed he had a lot to lose if he said anything to him about the email that was sent him.

   c.  After he sent a reply to his supervisor, he deleted the message and did not reply or forward the message to anyone else.

   d.  An Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was conducted and the IO spent more than six months to complete the process.  The applicant consented to allow the IO to speak with one of his mental health providers.  The applicant states his mental health provider "testified to the fact that this was an extremely isolated event brought on by many factors which drove a lapse of judgment."

   e.  The IO's findings indicated that the applicant's superior demonstrated undue influence, that the applicant did receive an email containing explicit material, and that he exercised a lapse in judgment in replying to the email.  The IO recommended the applicant be formally counseled regarding the governing policies, complete Information Assurance training, and be counseled on the requirement to correct/report any unprofessional behavior by others.

   f.  Despite a legal review of the AR 15-6 investigation, the commander initiated a General Officer Article 15, which was read to him on 5 December 2011.  He was instructed by Trial Defense Services that he would be contacted when the second portion of the Article 15 would be administered.  However, he was not informed until the evening prior and he didn't have the opportunity to have anyone speak on his behalf or to gather matters of defense and extenuating circumstances in order to present a proper defense.

   g.  He states he served honorably as an enlisted Soldier for 10 years and attained the rank of staff sergeant.  He has also had a very successful career as a commissioned officer since being appointed on 13 December 2002.

   h.  For the past several years he has been "struggling with an ongoing battle related to several diagnosed mental statuses (severe depression, adult attention deficit disorder, separation anxiety disorder, and social adjustment disorder as well as chronic post-traumatic stress disorder (PTSD) and severe night terrors, as they related to an extremely aggressive deployment), which greatly diminished my rationalizations."

   i.  He had been receiving treatment and he should not be punished for behavior which occurred within the context of his diagnosed (or undiagnosed) medical conditions.
   j.  He concludes, "The bottom line is that I never forwarded, searched for, or stored this type of material on my computer.  No data was found on my computer as stored on the hard drive nor in a … data pull of all Outlook sent and received items."

3.  The applicant provides a copy of the DA Form 1574 (Report of Proceedings by IO/Board of Officers) appointed on 25 July 2011, two statements from the IO's AR 15-6 Investigation and the legal review, and his RFC OER.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant enlisted and entered active duty in the Regular Army on 1 October 1992.  He was honorably discharged on 17 August 2001, in the rank of staff sergeant/pay grade E-6, to enter an officer training program.  He had completed 8 years, 10 months, and 17 days of active service.

2.  He was appointed as a Reserve commissioned officer in the rank of second lieutenant/pay grade O-1 (Medical Service Corps) and ordered to active duty on 13 December 2002.  He was promoted to:

* first lieutenant/pay grade O-2 on 13 June 2004
* captain/pay grade O-3 on 2 June 2006.

3.  A DA Form 2627 (with Continuation Sheet) shows that, on 5 December 2011, Major General David A. R----, Commander, U.S. Army Medical Department Center and School, Fort  Sam Houston (FSH), TX, notified the applicant that he was considering whether to impose nonjudicial punishment (NJP) under Article 15, UCMJ, for:

* on 4 January “2010,” violating a lawful general regulation by wrongfully storing pornography on his government-issued computer, in violation of Article 92, UCMJ
* on 10 February 2011, violating a lawful general regulation by wrongfully viewing pornography on his government-issued computer, in violation of Article 92, UCMJ
* on 10 February 2011, using his government-issued computer to reply to and comment on an email from another officer that contained
17 pornographic pictures of a woman, in violation of Article 133, UCMJ

   a.  On 8 February 2012, having been afforded the opportunity to consult with counsel, the applicant placed his signature on the DA Form 2627 indicating he did not demand trial by court-martial; he requested a closed hearing; a person to speak in his behalf was not requested; and that matters in defense, mitigation, and/or extenuation would be presented in person.

   b.  Following a closed hearing where all matters presented in defense, mitigation, and/or extenuation were considered, the commander lined-out the first specification and found the applicant guilty of the remaining two specifications, he placed his signature on the document, and imposed punishment of a forfeiture of $3,222.00 pay per month for 2 months (suspended, to be automatically remitted if not vacated before 8 May 2012) and a written reprimand, dated 
8 February 2012.  Item 4b shows the commander directed the DA Form 2627 be filed in the performance section of the applicant's AMHRR.  He advised him of his right to appeal to the Commander, U.S. Army Medical Department Command (MEDCOM), within 5 calendar days.

   c.  The applicant placed his signature in item 5 and also indicated with his initials that he would appeal the Article 15 and submit additional matters.

   d.  On 15 February 2012, the applicant submitted a two-page appeal of imposition of the NJP in which he presented information and argument similar to that he now presents to the Army Board for Correction of Military Records (ABCMR).

   e.  On 8 March 2012, the colonel serving as the Staff Judge Advocate, MEDCOM, considered the appeal and opined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offense committed.

   f.  On 8 March 2012, after consideration of all matters presented in the appeal, the Commander, MEDCOM, denied the appeal.

   g.  On 19 March 2012. the applicant acknowledged having seen the action taken on his appeal.

4.  A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed:

    a.  a copy of the DA Form 2627 (with Continuation Sheet) and written reprimand are filed in the performance section of his AMHRR; and

   b.  the allied documents to the DA Form 2627 are filed in the restricted section of his AMHRR.  They include, in pertinent part, a copy of the AR 15-6 investigation (pertaining to the applicant and his superior officer) and attached enclosures.
    	(1)  Included as attachments to the AR 15-6 investigation are:

    		(a)  a statement from the Colonel Noel J. C----, Chief of Staff/Deputy Commander for Administration (the applicant's senior rater), subject:  Allegation of Misuse of Government Automation Equipment by (the applicant's rater), dated 27 July 2011, in which he describes the events leading to the discovery of the applicant's rater's misuse of his government-issued laptop computer; and

    		(b)  a memorandum for record (MFR), dated 13 September 2011, that the IO typed based on his interview of the applicant because he was unable to write a statement on his own.  During the interview, the applicant couldn't recall specific details of any email messages or pornography with regard to his use of a government-issued computer and he placed his signature on the statement.

	 	(2)  The IO noted that the applicant subsequently acknowledged receipt of pornographic materials from his superior officer's government email.  An attachment to the AR 15-6 investigation also shows the applicant replied to his superior officer's email and offered comments.

    	(3)  The IO noted that the applicant agreed to allow him to meet with his treating psychiatrist and the IO did so.  Based on his interview with Dr. Douglas D----, BAMC, the IO prepared an MFR, dated 3 October 2011.  The doctor confirmed that he was the applicant's treating physician/therapist.  The doctor indicated the applicant did not have an addiction to pornography and confirmed that the applicant was undergoing treatment for PTSD, attention deficit disorder, and a sleep disorder.

    	(4)  The IO recommended the applicant "be formally counseled regarding viewing and storing of pornography images on his government computer and he should immediately update his Information Assurance training.  Furthermore, he should be counseled on the requirement to correct and/or report unprofessional/ unethical behavior by military or civilian personnel."

5.  On 5 October 2012, the IO submitted his findings and recommendations to the Commander, BAMC, FSH, TX.

6.  On 7 October, 2011, an attorney advisor, BAMC, FSH, TX, conducted a legal review of the AR 15-6 investigation and determined the proceedings were conducted in accordance with law and regulation and that there was sufficient evidence to support the IO's findings and recommendations.  He recommended the Commander, BAMC, approved the IO's findings and recommendations.

7.  Accordingly, the commander approved the findings and recommendations of the AR 15-6 investigation.

8.  Army Review Boards Agency, Arlington, VA, memorandum, dated 8 August 2012, shows the President, Department of the Army Suitability Evaluation Board (DASEB), notified the applicant that Army regulation authorizes the DASEB to transfer records of NJP, but restricts the DASEB's ability to remove NJP from the AMHRR.  Accordingly, the applicant was advised that the authority to act on his request for removal of an Article 15 and GOMOR from his AMHRR rests with the ABCMR.

9.  The applicant was issued a DA Form 67-9 (RFC OER) covering the period
7 June 2011 through 19 March 2012 for his performance while assigned as Health Services Comptroller, Headquarters and Headquarters Company, BAMC, Troop Command, FSH, TX.

   a.  The basis of the RFC OER was the applicant's "grave error in judgment and (he) failed in his moral obligation as a U.S. Army officer when he was forwarded an email by a senior officer containing pornographic images which he viewed and inappropriately responded to the message."

   b.  The senior rater noted, "his actions resulted in an Article 15 and a GOMOR (General Officer Memorandum of Reprimand).  As a result of the findings of the AR 15-6 and the punishment imposed, I directed his relief for cause."

   c.  The RFC OER, applicant's comments, and supplemental review are filed in the performance section of the applicant's AMHRR.

10.  A review of the applicant's AMHRR failed to reveal any evidence that he appealed the RFC OER.

11.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis
for the Army's Evaluation Reporting System.

   a.  Chapter 4 (Evaluation Report Redress Program), section III (Evaluation Appeals), paragraph 4-7, (Policies), provides that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to:

* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of the rating officials at the time of preparation

   b.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.  The determination regarding adequacy
of evidence may be made by Headquarters, Department of the Army, Army Special Review Board, Evaluation Appeals Branch (AHRC–PDV–EA),
1600 Spearhead Division Avenue, Fort Knox, KY  40122-5407.

   c.  Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.  Substantive appeals will be submitted within 3 years of an OER "Thru" date.  Failure to submit an appeal within this time will require the appellant to submit his appeal to the ABCMR, in accordance with AR 15-185 (ABCMR).

12.  Army Regulation 15-185, section II (Application procedures), paragraph 2-5, provides that the ABCMR will not consider any application if it determines an applicant has not exhausted all administrative remedies available.

   a.  There is no evidence the applicant submitted an appeal of his RFC OER.

	b.  Since the applicant has not exhausted his administrative remedy with regard to his RFC OER, no further action can be taken at this time and the matter will not be discussed further in this Record of Proceedings.  However, upon completion of the appeal process, should the matter not be satisfactorily resolved and/or the applicant still feels an error or injustice exists, he may submit a new DD Form 149 (Application for Correction of Military Records) with evidence of the denial of his request.

13.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.

   a.  Paragraph 1-9 (Use of results of investigation in adverse administrative actions) provides that the regulation does not require that an investigation be conducted before adverse administrative action, such as relief for cause, can be taken against an individual.

   b.  Paragraph 2-3 (Action of the appointing authority) provides that unless otherwise provided by another directive, the appointing authority is neither bound nor limited (emphasis added) by the findings or recommendations of an investigation or board.  Therefore, the appointing authority may take action less favorable than that recommended with regard to a respondent or other individual, unless the specific directive under which the investigation or board is appointed provides otherwise.  The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the investigation or board.

14.  Army Regulation 600-8-104 (Army Military Human Resource Records) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of six sections:  performance, service, restricted, medical, other, or State/Territory.  Once placed in the AMHRR, the document becomes a permanent part of that file.

	a.  Table B-1 (Authorized Documents) provides guidance for filing the
DA Form 2627.  The DA Form 2627 will be filed in either the performance or restricted section of the AMHRR, as directed by item 4 of the DA Form 2627.

	b.  The restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command (USA HRC), or the Headquarters, Department of the Army, selection board proponent.  Documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

15.  Army Regulation 27-10 (Military Justice), Chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.

   a.  Paragraph 3-5 (Reference to superior) provides that NJP should be administered at the lowest level of command commensurate with the needs of discipline, after thoroughly considering the nature and circumstances of the offense and the age, previous record, maturity, and experience of the offender.
   
   b.  Paragraph 3-6 (Filing determination) 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 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, and total service.  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.

   c.  Paragraph 3-37 (Distribution and filing of DA Form 2627 and allied documents) provides that for Soldiers who are at the rank of specialist or corporal (pay grade E-4) and below (prior to punishment), the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another General Court-Martial Convening Authority.  For all other Soldiers, the original will be sent to the appropriate records custodian for filing in the AMHRR.

   d.  Paragraph 3-43 (Transfer or removal of records of NJP), subparagraph e, states that Army Regulation 15-185 contains policy and procedures for applying to the ABCMR and for the correction of military records by the Secretary of the Army.  Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted.  Absent evidence to the contrary, a properly completed, facially valid DA Form 2627 will not be removed from a Soldier's record by the ABCMR.

16.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

   a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.

   b.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

	c.  Enlisted Soldiers and commissioned officers may request the transfer of a record of NJP from the performance section of their AMHRR to the restricted section under the provisions of this regulation.

	 	(1)  To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15, has been served and that transfer of the record is in the best interest of the Army.

	 	(2)  Requests normally will not be considered until a minimum of 1 year has elapsed and at least 1 nonacademic evaluation report has been received since imposition of the punishment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 8 February 2012, and all allied documents should be removed from his AMHRR; transferred to the restricted section of his AMHRR; or filed locally and that the IO's findings and recommendations be followed in lieu of the NJP that was imposed.

2.  The evidence of record shows the appointing authority of an AR 15-6 investigation may take action less favorable than that recommended by the IO with regard to a respondent.  In the applicant's case, the appointing authority decided to impose NJP against the applicant that included (in part) a written reprimand, which was within his authority.  Thus, the applicant's contention that the appointing authority should have implemented the recommendations of the IO in lieu of imposing NJP is not supported by the governing Army regulation.

3.  The governing Army regulation does not authorize the filing of NJP imposed against Army officers to be filed in local (unit) files.

4.  The applicant presents insufficient evidence to show the intended purpose of the Article 15, UCMJ, has been served and that transfer of the record to the restricted section of his AMHRR is in the best interest of the Army.

5.  The applicant's contention that the NJP should be removed from his AMHRR was carefully considered.

   a.  The NJP was imposed against the applicant based on violation of Article 92 and Article 133, UCMJ.  Specifically, for violating a lawful general regulation by wrongfully viewing pornography on his government-issued computer and using his government-issued computer to reply to and comment on an email from another officer that contained 17 pornographic pictures of a woman, thereby demonstrating his lack high ethical standards and a level of discipline expected of an officer of the U.S. Army.
   
   b.  The AR 15-6 investigation contained an MFR that summarized the IO's interview with the applicant's mental health provider.  Thus, the applicant's mental health status was available to both the commander who imposed the NJP and the appeal authority.

   c.  The commander directed the DA Form 2627 be filed in the performance section of the applicant's AMHRR and the appeal authority affirmed the filing.

   d.  It is noted that the applicant provides no additional evidence regarding his mental health status with respect to the period of service under review.

6.  The governing regulation provides that the commander must weigh 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 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 [emphasis added].

7.  By regulation, in order to remove a DA Form 2627 from the AMHRR, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 filed in the performance section of his AMHRR is untrue, in error, or unjust.  Therefore, the DA Form 2627, along with the allied documents, are deemed to be properly filed and should not be removed from the applicant's AMHRR.

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)                                         AR20120018974



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ABCMR Record of Proceedings (cont)                                         AR20120018974



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