IN THE CASE OF:	  

		BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20130012209 


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, in effect, correction of her military records by showing that her nonjudicial punishment (NJP) was set aside.

2.  The applicant states an officer accused her of being engaged in sexual activities, but that was not the situation.  She was simply showing a coworker a tattoo on her left thigh.  She was charged with committing sodomy and received NJP.  She was also advised by her lieutenant to admit to an attempt of sexual activity as she believed that it would reduce the severity of the charges against her.  She knew she should not have heeded her counsel, but at the time she was naive, scared, and worried about the ramifications of accepting NJP.  She argues that at the time sodomy was considered an unconstitutional charge by the Supreme Court.  There was also no corroborating evidence of sexual activity, as there was only one statement made by the officer saying that she and another Soldier were engaged in sexual activity.  There was no evidence collected to prove sexual activity, and both she and the other Soldier involved made statements stating they were not engaged in sexual activity, but were only showing each other their tattoos.  

3.  The applicant states this still haunts her 9 years later, to the point that she tried to self-terminate in August of 2011.  She does not want to have her tombstone marked with Specialist when she dies, considering how much suffering and grief the NJP has caused her.  She would like to know that she can rest in peace instead of being forever branded with the embarrassment of a reduction in rank and for having received no Army achievement medals for serving in Iraq.  She has post-traumatic stress disorder (PTSD) with depression associated with the NJP.  Her therapist believes that it will help in her recovery to have this NJP overturned, because it was an injustice to both her and to the other Soldier.  She has attended a PTSD inpatient course at the Fort Harrison Department of Veterans Affairs (VA) hospital because of the trauma associated with the NJP.  She still has nightmares and severe PTSD episodes that are related to this NJP.  Her therapist believes, as does she, that having the NJP lifted will help in her healing process.

4.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 15 June 2000, the applicant enlisted in the Regular Army.  She was promoted to sergeant, pay grade E-5 on 1 August 2003.

3.  A DA Form 2627 indicates that on 17 December 2003, the applicant accepted NJP for committing sodomy with another Soldier in Iraq.  The record further shows:

	a.  she did not demand trial by court-martial;

	b.  she requested a closed hearing;

	c.  she indicated she would offer any matters in defense, extenuation, and/or mitigation in person;

	d.  the imposing commander found the applicant guilty;

	e.  the punishment imposed consisted of reduction to specialist, pay grade 
E-4, a forfeiture of $832.00 pay, and extra duty for 45 days;

	f.  the applicant appealed the NJP but did not submit any additional matters; and

	g.  the appeal was denied on 26 December 2003.

4.  On 30 July 2004, the applicant was honorably released from active duty due to completion of required active service and transferred the U.S. Army Reserve (USAR).  She had completed 4 years, 1 month, and 16 days of creditable active duty service.

5.  On 5 February 2008, the applicant was honorably discharged from the USAR.

6.  Army Regulation 27-10 (Military Justice) provides that:

	a.  the 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;

	b.  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;

	c.  the basis for any set aside action is a determination that, under all of the circumstances of the case, the punishment has resulted in a clear injustice; and

	d.  in cases where administrative error results in incorrect entries on the DA Form 2627, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

7.  In Lawrence, the Supreme Court identified a constitutionally-protected liberty interest in private sexual activity between “full[y] and mutual[ly] consent[ing]” adults. 539 U.S. at 578, 123 S.Ct. 2472.  In U.S. v. Castellano, 72 M.J. 217 (C.A.A.F., May 23, 2013), the court addressed the application of Lawrence to military situations, stating:
   
In Marcum, [U.S. v. Marcum, 60 M.J. 198 (C.A.A.F. 2004)] we applied Lawrence in the military context and upheld the constitutionality of Article 125, UCMJ [Uniform Code of Military Justice], construing it to reach only acts of sodomy that involve (1) a factor that Lawrence identified as not involved in that case, 539 U.S. at 578, 123 S.Ct. 2472, or (2) “additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.”  Marcum, 60 M.J. at 206–07.  Thus, Lawrence identified a constitutionally protected liberty interest and defined its scope, and Marcum answered whether and how that interest applies in the military context.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected by showing that her NJP was set aside.  She argues that she never committed sodomy.  She further contends that lifting the NJP will help her heal and to deal with her PTSD.

2.  The available evidence clearly shows the applicant accepted NJP.

3.  In Lawrence, the Supreme Court did identify a constitutionally-protected liberty interest in private sexual activity between consenting adults.  However, in Marcum the court applied Lawrence in the military context and upheld the constitutionality of Article 125 of the UCMJ, construing it to reach only acts of sodomy that involve a factor that Lawrence identified as not being involved in that case.  Therefore, consensual sodomy can still be illegal in the military context.

4.  There is no evidence of error, injustice or illegal action in this case.  What the imposing commander and the appellant authority did was proper and authorized by the provisions of the governing regulation.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20130012209



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ABCMR Record of Proceedings (cont)                                         AR20130012209



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