BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20130004651 


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 a General Officer Memorandum of Reprimand (GOMOR) from his Army Military Human Resource Record (AMHRR)
* reversal of a DA Form 2627 (Record of Proceeding Under Article 15, Uniform Code of Military Justice (UCMJ))
* reinstatement to the rank/grade of staff sergeant (SSG)/E-6, with entitlement to back pay and allowances
* reinstatement of eligible awards

2.  The applicant states:

	a.  He was used as a scapegoat by a Soldier who was already in trouble for a different action.  This Soldier along with a female Soldier accused him of fathering the female Soldier's child and being in a relationship with her.  He denied all accusations and after he had already received punishment the female Solider came forth and told the truth to the former recruiting battalion executive officer.

	b.  He served in the U.S. Army for 8 years with an impeccable track record.  Nineteen months ago, he was the victim of a malicious attack by another Soldier and wrongly accused of committing an offense of engaging in an unauthorized relationship.  He was initially accused of engaging in an inappropriate/ unauthorized relationship with Private First Class (PFC) O----- B----- in December 
2010.  The accusation was unsubstantiated and he was returned to performing all assigned duties.  In late June 2011, he was once again questioned by the investigating officer (IO), Captain (CPT) J----- B----- and he answered all of CPT B-----'s questions in the same manner he had during the previous investigation.

	c.  On or about 7 July 2011, CPT B---- informed him that he had obtained email conversations between him and PFC B-----.  He informed CPT B----- that this was impossible because he did not have her email address nor did she have his.  A few hours later CPT B----- read the Facebook messages that he had obtained.  He informed CPT B----- that was not his Facebook account and he wanted an attorney because he felt he was being set up.

	d.  He did not get to meet with an attorney until November 2011 at which time the attorny presented him all the evidence they had intended to use against him.  The investigations included sworn statements by PFC B-----, the Soldiers of Kent Recruiting Station, and himself, along with a copy of his phone records.  His phone record showed 18 messages over a 4-month period and Facebook messages that had his name but no photo of him.  He felt it should have been discredited since he provided the Army access to his Facebook account to verify it was not sent from his Facebook account.  He asked his assigned attorney, CPT C----, who recommended and informed him that they should not take it to a court-martial and that an Article 15 would be far better for his situation.

	e.  Due to his attorney's recommendation he decided to take his chances with an Article 15.  CPT C---- had told him to use the good Soldier defense and to apologize for the situation and tell Major General (MG) M--- that he was willing to accept his decision in the case.  However, he maintained his innocence throughout the entire process and refused to confess to an offense he did not commit.  The Army provided no substantial evidence and he was still found guilty.  Nonetheless, he continues to perform his duties at the SSG level even though he felt betrayed.  His DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 10 June 2010 through 9 June 2012 provides a strong representation of his resilience, morals, values, and character.

	f.  On or about 4 September 2012, he was informed that PFC B----- had called the Cleveland Recruiting Battalion and informed Major (MAJ) E--- H-------- that her accusations against him were completely false and she was put up to it by Sergeant (SGT) J--- M. G-------, who is the true father of her child.  The reason she accused him was so she and SGT G------- could be together and get married and the Army would be none the wiser.  Then the truth about SGT G------- being married and getting discharged from the Army for sexually assaulting a minor 
female had come to light and she felt guilty for her actions.  She wanted the Army to assist with her child support case.  She provided a statement stating she wanted to correct her wrongdoing and clear his name.

3.  The applicant provides:

* Appointment of IO memorandum 
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* nine DA Forms 2823 (Sworn Statement)
* Telephonic Interview with PFC B----- Memorandum for Record (MFR)
* cell phone records
* Amended Commander's Recommendation memorandum
* Amended Report of Investigation memorandum
* DA Form 2627
* 2012 LabCorps paternity results 
* 2013 Establishment of Paternity Order
* three letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 23 March 2005 for a period of 3 years.  He completed training and he was awarded military occupational specialty 19D (Cavalry Scout).  He reenlisted in the RA on
11 January 2007 for a period of 6 years.  He was promoted to SSG/E-6 on
1 March 2009.

2.  On 10 December 2010, an IO was appointed to gather all facts regarding allegations of professional misconduct (inappropriate relationship) in regard to the applicant and Sergeant First Class (SFC) S---- F---------.

3.  He provides copies of:

	a.  A DA Form 2823, dated 30 December 2010, wherein PFC B----- stated, in effect, she and another Soldier had been accused of having inappropriate relations with the applicant and neither of them knew why.

	b.  A DA Form 3881, dated 30 December 2010, that shows the IO questioned PFC B----- about inappropriate relations with the applicant.

	c.  A Telephonic Interview with PFC B---- MFR, dated 1 July 2011, wherein CPT B----- stated PFC B---- had contacted him on 1 July 2011 with SSG M---, who informed him that PFC B-----'s chain of command was aware of everything 
that she was about to inform him.  PFC B----- then told him that she was pregnant with the applicant's child.  She stated she was sorry about giving a false statement to him during the investigation.  She also stated the applicant contacted her and told her to lie about their relationship, but she was currently willing to fully cooperate.  She further stated she had email traffic from the applicant telling her to get an abortion.  The relationship started while she was a future Soldier and that she was then 17 years of age.  SFC F--------- had knowledge of them.  She also stated there was no doubt in her mind the baby was the applicant's and she would do a DNA (deoxyribonucleic acid) test if required.  She further stated she was sending him the email traffic between herself and the applicant concerning her pregnancy.

	d.  A DA Form 2823, dated 7 July 2011, wherein PFC B----- stated:

		(1)  The relationship with the applicant began around the end of October 2009.  It continued until she left for basic training.  When she moved to advanced individual training they were in contact with each other once again.  In early December 2010, they started their sexual relationship again.  The applicant was under investigation and he had told her word-for-word what to write in her statement.  She wrote they had no relationship because he informed her that if she wrote anything different they both would lose their careers.  She was scared of that happening.

		(2)  When she left for her duty station in Germany on 4 January 2011, they still had a relationship.  On 24 January 2011, she learned she was pregnant. The applicant also heard that she was pregnant, but she was not sure who told him.  He sent her an email asking her to call him as soon as possible.  When she called him he asked if the baby was his and she told him it had to be.  He told her to have an abortion and he would pay for it.  She told him she couldn't do that and no matter what, their jobs were not more important than the child.  He begged her and then hung up the phone.  She has not had contact with the applicant since 1 April 2011.

4.  He also provides copies of his cell phone records, dated between February and April 2011 that show his text and call numbers.

5.  He further provides copies of nine DA Forms 3881, dated 6 July 2011, wherein the individuals stated they had no knowledge of any inappropriate relationship between any recruiters involving any future Soldiers at that Recruiting Station.  Two individuals state they had not heard anything about the applicant being the father of PFC B-----'s baby until she told them about her claiming the applicant was the father.
6.  In an Amended Commander's Recommendation memorandum, dated 18 July 2011, the Commander, Cleveland Recruiting Battalion, concurred with the findings of the IO that there was sufficient evidence to support the allegations made against the applicant.  He recommended the case be closed and the applicant receive an Article 15 for unprofessional conduct.  He also recommended the applicant's immediate removal from the U.S. Army for his inappropriate relationship with PFC B-----, lying to the IO, attempting to obstruct justice by telling PFC B----- to lie to the IO, and engaging in conduct prejudicial to good order and discipline in the Armed Forces.

7.  In an Amended Report of Investigation memorandum, dated 19 July 2011, CPT B----- stated:

	a.  Based on the evidence gathered in this investigation there was evidence to support that the applicant had an inappropriate relationship with PFC B-----.  She had provided Facebook messages between her and the applicant that show the applicant was concerned that her child could be his.  The concern that he had shows that there was a sexual relationship between them.  The applicant's text records from his government cell phone confirmed PFC B-----'s statements that she also received texts from the applicant concerning her pregnancy.  That does not prove that the child is the applicant's, but according to PFC B----- there is no doubt in her mind that it is the applicant's.

	b.  Based on the findings of the investigation there was enough evidence for CPT B---- to substantiate these allegations against the applicant and he recommended the applicant be given an Article 15 and separated from the U.S. Army.

8.  On 31 October 2011, that applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for failing to obey an lawful general regulation by wrongfully engaging in an unauthorized relationship with a high school-aged Army prospect between on or about 15 December 2009 and on or about 1 June 2010, and signing a DA Form 2823 with intent to deceive on or about 15 December 2010.

9.  His punishment included reduction to sergeant (SGT)/E-5 and a written reprimand.  He requested a hearing and stated he desired a person to speak on his behalf and matters in defense and/or extenuation would be presented.

10.  His record shows that on 13 December 2011 he was issued a GOMOR for failing to obey a lawful general regulation by wrongfully engaging in an unauthorized relationship with a high school-aged Army prospect and signing an 
official statement with intent to deceive.  The commanding general (CG) stated the applicant had failed in his responsibilities to act responsibly in every situation, to do what was right, and to set a positive example for others.  The applicant's actions had embarassed and disappointed his chain of command.  The CG directed the GOMOR be filed with the Article 15.

11.  On 13 December 2011, the applicant's appeal of the Article 15 was denied and the CG directed it be filed in the performance section of his AMHRR.  He was reduced to SGT/E-5 on the same date.

12.  His record also shows he was issued an annual NCOER for his duties as a human resources assistant for the Cleveland Recruiting Battalion.  The report was for the period 10 June 2011 through 9 June 2012.  The NCOER shows he was assessed as successful and fully capable.

13.  A review of his record located on the interactive Personnel Electronic Records Management System (iPERMS) shows the Article 15 and GOMOR are filed in the performance section of his AMHRR.

14.  He further provides:

* LabCorp paternity results, dated 2 January 2013, that show
J--- M. G-------, identified as the alleged father, could not be excluded as the biological father of PFC B-----'s child
* Establishment of Paternity, dated 22 January 2013, that shows 
J--- M. G------- is the natural father of PFC B-----'s daughter

15.  He also provides three letter of support wherein the writers attest to the fact the applicant was an honest and hardworking Soldier.  Two individuals stated the applicant was wrongfully accused of being the father of PFC B-----'s daughter.  

16.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that NJP 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.

17.  Army Regulation 27-10, paragraph 3-37(1)(a) specifies the decision to file the original DA Form 2627 on the performance or restricted sections in the AMHRR will be made by the imposing commander at the time punishment is 
imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of DA Forms 2627 from the AMHRR.  It states 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 that 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.

18.  Army Regulation 600-37 (Unfavorable Information) provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that:

	a.  Unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

	b.  A Memorandum of Reprimand (MOR), regardless of issuing authority, may be filed in the AMHRR only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing. Once an official document has been properly filed on 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.  Only MORs, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.

19.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR Management Program.  It also prescribes the composition of 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.  With regard to removal of the GOMOR, the evidence shows the applicant was reprimanded in conjunction with an Article 15 for failing to obey a lawful general 
regulation by wrongfully engaging in an unauthorized relationship with a high school-aged Army prospect and signing an official statement with intent to deceive.

2.  When the CG reprimanded him, he had the option to file the GOMOR and Article 15 in the local file, the performance section of the AMHRR, or the restricted section of the AMHRR.  The CG felt the applicant had failed in his responsibilities as a Soldier.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  As such, the GOMOR and memorandum were correctly filed in his AMHRR.

3.  With regard to removal of the Article 15, upon completion of an investigation it was concluded the applicant had an inappropriate relationship with an Army prospect and as a result he was issued an Article 15.  He requested a hearing.  At the conclusion of an open hearing that he requested, he was found guilty and reduced to SGT/E-5 for misconduct.  The Article 15 was directed to be filed on the performance section of his AMHRR.

4.  His contentions and the documents he submitted were carefully considered.  However, the evidence of record supports the allegations the applicant engaged in an inappropriate relation.  He has not provided convincing evidence that this Article 15 was unjust, in whole or in part, to support its reversal and/or removal from his AMHRR.

5.  He also submitted insufficient evidence of any injustice that led to the Article 15 or to warrant relief as a matter of equity.  By regulation, there must be compelling evidence to support the reversal or removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record.  Absent evidence meeting this regulatory standard there is an insufficient evidentiary basis to support his request.

6.  With regard to reinstatement to the rank of SSG with back pay and allowances, he accepted NJP for the foregoing offenses.   At the conclusion of an open hearing that he requested, he was found guilty and reduced to SGT/E-5 for misconduct.   He has not shown he was unjustly or improperly reduced in pay grade.  Therefore, he is not entitled to reinstatement to the rank of SSG with entitlement to back pay and allowances.   His reduction was a result of his misconduct.

7.  With regard to reinstatement of awards, there is no evidence of record and the applicant did not provide any evidence that shows he was denied any eligible awards as a result of the issuance of the Article 15 and GOMOR.  There is no substantive evidence of record and he has provided none to show he was unjustly denied any awards during this period of his service.

8.  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)                                         AR20130004651



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ABCMR Record of Proceedings (cont)                                         AR20130004651



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