IN THE CASE OF:  

		BOARD DATE:  14 January 2015	  

		DOCKET NUMBER:  AR20140001760 


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:

The applicant defers his request to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request to remove the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 3 May 2000, and all relevant documents from his Official Military Personnel File (OMPF).  As a new issue, he requests correction of the applicant's criminal record maintained by the U.S. Army Criminal Investigation Command (CID) to demonstrate no criminal conviction.

2.  Counsel states the basis for reconsideration is the CID "Computer Forensic Examination Report" which was not available to the applicant at the time of his previous application to the Board.  The report demonstrates the Army had no legal basis to find him guilty of possessing child pornography which was the sole basis of the Article 15.  Counsel further states the applicant submits additional information about the cause of his post-traumatic stress disorder (PTSD) which was not previously considered by the Board.

3.  Counsel provides:

* 7-page Executive Summary of New Matters
* CID Criminal Investigation Laboratory exhibit listing and final Imaging and Technical Support Division Report
* 8-page statement (presumed to be from the applicant)
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20120008025 with original evidence

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120008025 on 22 January 2013.

2.  Counsel provided a copy of the CID laboratory exhibit listing and final Imaging and Technical Support Division Report as well as an 8-page statement of explanation from the applicant that were not previously considered by the Board.  As such, they constitute new evidence which will be considered at this time.

3.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve effective 26 May 1982 as a Field Artillery Branch officer.  He entered active duty on 20 June 1983.

4.  On 20 April 2000 in a closed hearing, nonjudicial punishment (NJP) was imposed against the applicant under Article 15 of the UCMJ for knowingly receiving images of child pornography as defined in Title 18, U.S. Code, section 2256(8), on or about 20 September 1999, in that said images showed minors engaged in sexually-explicit conduct as defined in Title 18, U.S. Code, section 2256(2), images that had been transported in interstate or foreign commerce by computer and disgracing himself and the Armed Forces by knowingly receiving images of children engaged in sexually-explicit conduct through his computer in violation of Articles 133 and 134.  He appealed the NJP.

5.  On 3 May 2000, the applicant was issued a general officer memorandum of reprimand (GOMOR) for downloading images of graphic child pornography on his personal computer on 20 September 1999.  The commanding general stated the applicant admitted to viewing images of children engaging in sexually-explicit conduct.  By viewing child pornography, the applicant contributed to the exploitation of the most vulnerable in their society.  As a field-grade officer with more than 17 years of service, the applicant's behavior was a complete departure from the standards expected of someone of his rank and position.  The commanding general directed filing the DA Form 2627 in the performance folder of the applicant's OMPF.

6.  In a legal opinion, dated 12 May 2000, the senior defense counsel argued that the applicant must be found not guilty of the charged offense in his Article 15.  Although nonjudicial in nature, Article 15 proceedings require criminal misconduct.  The applicant had admittedly made some regrettable mistakes and the Army system had many alternatives for dealing with him.  However, his actions were not criminal.

7.  On 30 May 2000, the applicant's appeal of the Article 15 was denied and the Article 15 was filed in the performance folder of his OMPF.

8.  In a memorandum to the Promotion Review Board, dated 22 October 2000, the Chief, Department of Behavioral Health, U.S. Army Medical Department Activity, stated the applicant had been followed at the Behavioral Medicine Clinic for moderately-severe chronic PTSD since 11 January 1999.  He stated the applicant continued to experience symptoms of PTSD consisting of emotional numbing, guilt, insomnia, and isolativeness.  The applicant avoided his family during evening hours and spent excessive time searching the internet at night.  He explored many different types of sites, including child pornographic sites.  The applicant's behavior was characteristic of Soldiers with PTSD.  In a psychodynamic sense, visiting pornographic or child pornographic sites with their implicit victimization of women and children represents a "working through of the atrocities of Bosnia."  The applicant's underlying personality structure and character were sound.  He did not derive sexual gratification from child pornographic pictures, did not fantasize about sex with children, and never developed the desire or impulse to engage in such activities.  The atypical behaviors the applicant displayed in the past were a direct result of his PTSD which has improved with treatment to the point that he was essentially symptom free.  The Department of Behavioral Health Chief strongly recommended viewing those factors as mitigating circumstances.

9.  He retired on 30 June 2003 and he was placed on the Retired List in the rank of lieutenant colonel effective 1 July 2003.

10.  A review of his OMPF in the interactive Personnel Electronic Records Management System shows the DA Form 2627 is filed in the performance folder.

11.  ABCMR Docket Number AR20120008025, dated 22 January 2013, shows the applicant submitted a 9-page statement with his original application for correction of his records by expunging the Article 15 wherein he stated:

	a.  He developed chronic, moderately-severe PTSD at some point in the late 1990's as a consequence of his two deployments to Bosnia.  The Army's experiences with PTSD involving its Soldiers returning from the recent wars in Iraq and Afghanistan have shown that PTSD is a condition that can turn an individual's normal behavior "upside down" and cause him or her to engage in self-destructive behavior.

	b.  Toward the end of his second tour in Bosnia, he clearly began to experience symptoms of PTSD in terms of depression and a profound sense of hopelessness that resulted in at least one incident of suicidal ideation.  By early 1999 after being assigned to Fort Knox, KY, he was suffering from insomnia, anxiety, hyper-vigilance, and emotional numbing.  He was isolating himself from his family and the world outside of work.

	c.  His wife began to argue with him that he was not behaving normally and needed to seek psychiatric help.  He finally went over to the troop clinic where he was given a brief assessment, some medication, and told to come back in a few weeks for an appointment with a behavioral health nurse.  He met with the nurse for a couple of weeks, but stopped seeing her when he was told "he just needed to get over it."  He wrongly interpreted this to mean he should stop taking his medication, working with her, and should deal with the problem on his own.  There was no follow up when he stopped treatment.

	d.  In November 1999, the CID showed up at his office with a search warrant.  After a complete search of his work computer, they went to his government quarters where they searched his home and confiscated his home computer and all of his computer disks.  They also questioned him and his wife.  As a result, he referred himself to the Behavior Health Clinic and began seeing an actual psychiatrist for treatment.  He went back on medication and began weekly therapy.  He was then diagnosed with chronic, moderately-severe PTSD and he improved dramatically within weeks.

	e.  During therapy, he learned that his actions on the Internet were an effort to deal with the atrocities he had seen in Bosnia, some of which involved children.  The therapist he saw after these events explained that PTSD directly caused his behavior.  In a psychodynamic sense, visiting pornographic and child pornographic sites – with their implicit victimization of women and children – represented a working through of the atrocities of Bosnia.  At no time did he derive sexual gratification from child pornography, fantasize about sex with children, or have any interest in engaging in such activities.  The behavior for which he was investigated was a direct result of his PTSD.

	f.  As noted in the Army's own investigative records, no child pornography was downloaded to his computer.  The Chief of the Behavioral Medicine Services sent a letter recommending no action by his battalion commander.  The CID and the Staff Judge Advocate originally did not feel that he had committed a chargeable offense.



12.  Note:  The applicant's continuation statement in support of his original application, dated 19 April 2012, is directly quoted as follows:

As noted in the Army's own investigative records, no child pornography was downloaded to my computer [United States Army, Criminal Laboratory Report, 7 March 2000; see also, Agent's Investigation Report, 28 March 2000 ("no child pornography images were discover[ed] on the computer.")]

13.  Counsel provided the referenced CID Criminal Investigation Laboratory exhibit listing and final Imaging and Technical Support Division Report, dated 7 March 2000, which shows examination of the applicant's computer did not identify any files containing apparent child pornography.  Nothing substantiating the alleged downloading of child pornography was found.  The report stated this did not rule out the possibility that such evidence existed.  A significant amount of data may have been erased and/or overwritten during the time between the alleged incident and seizure of the computer.  Evidence was found that on numerous occasions someone used the applicant's computer to search the Internet for the words rape, pre-teen, Lolita (a term meaning pre-teen on the Internet), and amateur in connection with sexual terms.  Additionally, the system was used to visit sexually-oriented web sites, some of which were links to child pornography sites.  The applicant's computer contained several files pertaining to sexually explicit stories involving rape, incest, and brutality – some related to children, others to prisoners of war and women Soldiers.

14.  Counsel provided an undated 8-page statement of explanation from the applicant wherein he described his experiences in Bosnia and with PTSD wherein he stated:

	a.  He was assigned as a member of an assessment team tasked to observe 1st Armored Division's deployment and operations in Bosnia and collect lessons learned.  His duties forced him to be a witness to the aftermath of all the human suffering.  He spent the bulk of his time at the division headquarters where he became aware of classified U.S. foreign policy information and decisions about their mission in Bosnia that he found ethically and morally disturbing.

	b.  Shortly after his return to Fort Sill he was transferred to Fort Polk and began training for a major regimental training exercise.  Eventually the regimental headquarters deployed to Bosnia where the situation had changed for the better, but it was still a very dangerous place.  Five months into the deployment he was starting to wear down, but the stress was increasing.  About a week after an incident where his vehicle was surrounded in a market place and someone attempted to drag him from his vehicle, he visited the Mine Action Center on the base.  After seeing a photograph of a young girl who had been injured in a minefield in a briefing binder, he was broken.  He had come to realize the photograph represented his deep inner conflict and challenged his basic core belief system.

	c.  After his return to Fort Polk and subsequent transfer to Fort Knox, his serious PTSD symptoms really started to manifest.  In January 1999, he went to the Community Mental Health Clinic where he was screened by a young female captain who prescribed an anti-depressant and a sedative.  He had one follow-up appointment during which "she said something to the effect that [he] needed to get over it."  He took the medication until it ran out, but he never made another appointment with her.  Things got progressively worse – he suffered from insomnia, he was self-medicating with alcohol, he was isolating himself from his family, and he was spending late hours "mindlessly surfing the internet."

	d.  A doctor of philosophy in theology writes that PTSD often turns the concept of normal upside down; e.g., people who avoided pornography and were faithful to their spouses become pornography addicted or have affairs.

	e.  While his life was spinning out of control at home, he was working harder and harder at work.  He and his family moved into government quarters and he learned that he was on the lieutenant colonel promotion list.  Then the bottom finally fell out.  Agents from CID showed up at his office with a search warrant.  They conducted a search of his work computer and then went to his home searching for child pornography.  They confiscated his computer and the removable disk drives.

	f.  He was devastated and finally had to admit that he had a problem and really needed help.  He returned to the Community Mental Health Clinic and ended up under the care of the Chief of Behavioral Health who placed him on a medication and weekly therapy regimen.  He continued to see the Chief of Behavioral Health until he was transferred to Fort Leavenworth in May 2002.

15.  NJP refers to certain limited punishments which can be awarded for minor disciplinary offenses by a commanding officer or officer in charge to members of his or her command.  Article 15 of the UCMJ and Part V of the Manual for Courts-Martial (MCM) constitute the basic law concerning NJP procedures.  To initiate Article 15 action, a commander must have reason to believe that a member of his or her command committed an offense under the UCMJ.  Article 15 gives a commanding officer power to punish individuals for minor offenses.  The term "minor offense" means misconduct normally not more serious than that usually handled at a summary court-martial where the maximum punishment is 30 days of confinement.

16.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to administration of military justice and implements the MCM.

	a.  Paragraph 3-2 states a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to NJP.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to:

		(1)  correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures;

		(2)  preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and/or

		(3)  further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	b.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance folder of a Soldier's OMPF is as important as the decision relating to imposition of the NJP itself.  In making a filing determination, the imposing commander must carefully 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.

	c.  Paragraph 3-43 addresses the transfer or removal of DA Forms 2627 from the OMPF.  There must be clear and compelling evidence which demonstrates errors or injustice to a degree justifying removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

17.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.  Only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  Table 2-1 shows the DA Form 2627 is filed in either the performance or restricted folder of the OMPF as directed in item 5 of the DA Form 2627.

18.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes the responsibilities and policies of the Army Criminal Investigation Program.

	a.  Paragraph 3-3a(12) states CID will not routinely investigate allegations of the misuse of government computers.  CID retains primary investigative jurisdiction over incidents involving child pornography and unauthorized access and/or intrusions into Army-interest computers.

	b.  Paragraph 3-4 states CID may assume responsibility for investigating any criminal offense within the investigative authority of the Army when appropriate to a related investigation or to further the law enforcement or crime prevention goals of the Army.  When CID assumes control of an investigation from the installation law enforcement activity and initiates a report of investigation (ROI), the investigation will be carried through to conclusion by CID unless otherwise specified.  Conducting a preliminary investigation does not presuppose assuming control of an investigation.

	c.  Paragraph 4-4 states CID ROI's are exempt from the amendment provisions of the Privacy Act and Army Regulation 340-21 (The Army Privacy Program).  Requests for amendment will be considered only under the provisions of this regulation.  Requests to amend or unfound offenses in CID ROI's will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report.  The burden of proof to substantiate the request rests with the individual.  Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity.  The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action.  Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, CID.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.  Requests for access to or amendment of CID investigative reports will be forwarded to the Director, U.S. Army Crime Records Center (CICR-FP), 6010 6th Street, Fort Belvoir, VA  22060-5585.

19.  Department of Defense Instruction 5505.7, dated 27 January 2012, states titling only requires credible information that an offense may have been committed.  The only way to administratively remove a titling action from the Defense Central Investigations Index is to show either mistaken identity or a complete lack of credible evidence indicating the subject committed a crime.



DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant submitted additional information about the cause of his PTSD which was not previously considered by the Board.  However, the 8-page statement from the applicant provided no substantive information not previously considered by the Board in Docket Number AR20120008025.

2.  Counsel contends the basis for reconsideration is the CID "Computer Forensic Examination Report" which was not available to the applicant at the time of his previous application to the Board.

3.  The applicant's continuation statement in support of his original application, dated 19 April 2012, is directly quoted as follows:

As noted in the Army's own investigative records, no child pornography was downloaded to my computer [United States Army, Criminal Laboratory Report, 7 March 2000; see also, Agent's Investigation Report, 28 March 2000 ("no child pornography images were discover[ed] on the computer.")]

4.  Contrary to counsel's contention, the applicant clearly referenced the CID Criminal Investigation Laboratory exhibit listing and final Imaging and Technical Support Division Report, dated 7 March 2000, in his original application continuation statement which is noted in ABCMR Docket Number 
AR20120008025 Record of Proceedings under The Applicant's Request, Statement, and Evidence.

5.  The evidence shows the applicant was fully aware of the content of the CID Criminal Investigation Laboratory exhibit listing and final Imaging and Technical Support Division Report, dated 7 March 2000, when he submitted his original application on 19 April 2012.

6.  Counsel specifically requested correction of the applicant's criminal record maintained by CID to demonstrate no criminal conviction.  The fact that the applicant's computer did not identify any files containing apparent child pornography did not rule out the possibility that such evidence existed.  The CID report stated the evidence showed someone used the applicant's computer to search the Internet for the words rape, pre-teen, Lolita, and amateur in connection with sexual terms on numerous occasions.  Additionally, the system was used to visit sexually-oriented web sites, some of which were links to child pornography sites.  His computer contained several files pertaining to sexually explicit stories involving rape, incest, and brutality – some related to children, others to prisoners of war and women Soldiers.

7.  Requests to amend or unfound offenses in CID ROI's will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report.  Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity.  The evidence of record shows credible information did, in fact, exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated.

8.  Counsel requested removal of the DA Form 2627, dated 3 May 2000, and all relevant documents from the applicant's OMPF.  The basis of the DA Form 2627 was the applicant's personal acknowledgement that he viewed images of children engaging in sexually-explicit conduct.  Counsel provided no evidence to dispute the applicant's admission.  As a result, there is no basis for removal of the DA Form 2627 from his OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120008025, dated 22 January 2013.

2.  The Board further determined the evidence presented was insufficient to warrant the remainder of the requested relief.  As a result, the Board 


recommends denial of so much of the application that pertains to correction of the applicant's criminal record maintained by CID.



      ___________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)                                         AR20140001760



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ABCMR Record of Proceedings (cont)                                         AR20140001760



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