BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20140006021 


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 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) from the restricted folder of his Army Military Human Resource Record (AMHRR).

2.  The applicant states, in effect:

	a.  On 9 October 2003, he received an Article 15 for adultery which is filed in the restricted folder of his AMHRR.  He wrongfully accepted the Article 15 because he was trying to end the embarrassment that he and his family were going through.  He never had a sexual encounter with the lady; they strictly had a friendship that her husband did not approve of.  He had just graduated from recruiting school when he was informed of the accusation against him and he denied it from day one.  

	b.  He is asking for justice 10 years after the fact because All Army Activities (ALARACT) Message 147-2013 states a recruiter cannot have certain violations.  Since he is a career recruiter, he does not meet the qualifications due to something that occurred 10 years ago.  He accepted the Article 15 under the impression that he would be able to prove himself and not worry about it once he left the company.  In addition, the back page of the Article 15 is not the original page that he signed.



	c.  During the investigation, the investigating officer (IO) made the female call him at work.  He was then told he broke a lawful order of not talking to her and that he was trying to get her to lie, even though the conversation lasted less than 30 seconds.  All that was said was she needed to tell the truth.

	d.  His legal counsel contacted the lady and he is providing the statement she completed.  On 23 October 2013, he was forced out of the U.S. Army Recruiting Command (USAREC) with little to no help to get his job back.  His appeal has been sent to USAREC in the hope it will be approved and he may continue to work as a career recruiter.  However, he is afraid that they will not approve it unless the Article 15 is removed from his records.  

	e.  His record speaks for itself and his letters of reference speak of how valuable he is, not only to USAREC, but to the Army.  Without the removal of the Article 15, he will be forced to retire if he makes it past the Qualitative Management Program/Qualitative Service Program boards.  

	f.  The Article 15 has been in his file for over 10 years, yet he was selected for promotion to sergeant first class (SFC) and then master sergeant.  Since 23 October 2013, he has struggled to face the fact that he is not good enough for a job that he dedicated over half of his Army career to.  Once he became promotable, he was flagged then he was told this was not a negative action.

3.  The applicant provides DA Form 2627, a letter, and two memoranda, dated 
26 and 27 March 2014.

CONSIDERATION OF EVIDENCE:

1.  The applicant is an active duty Regular Army Soldier and he holds military occupational specialty 79R (Recruiter).  In 2003, he was serving in the rank/grade of staff sergeant/E-6 and he was assigned to the Roanoke, VA Recruiting Company, U.S. Army, Recruiting Battalion-Beckley, WV.

2.  On 8 October 2003, the applicant's immediate commander notified the applicant that he was considering whether he should be punished under Article 15, UCMJ, for the following misconduct:

* on or about 21 August 2003, with intent to deceive, making to Captain (CPT) RD, an official statement that he did not enter the residence of Ms. KA or have sexual intercourse with her on 12 June 2003, which statement was totally false and known to be totally false
* on or about 12 June 2003, as a married man did wrongfully have sexual intercourse with Ms. KA, a married woman not his wife
* on or about 20 August 2003, wrongfully endeavor to influence the testimony of Ms. KA as a witness before an IO, by asking her to testify falsely concerning the sexual relations he had in engaged in with her

3.  The applicant checked the appropriate block of the DA Form 2627 to show he was afforded the opportunity to consult with counsel, that he did not demand a trial by court-martial, and he requested a closed hearing.

4.  On 9 October 2003, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for the misconduct stated in paragraph 2 above.  The punishment imposed was a forfeiture of $250.00.  The imposing commander, CPT HD, directed the DA Form 2627 be filed in the restricted folder of his AMHRR.  The applicant elected not to appeal the Article 15.  

5.  On 18 September 2007, he was promoted to the rank of SFC.  He is currently assigned to HQ, USAREC, Fort Knox, KY.

6.  The applicant provides a letter, dated 17 March 2014, wherein Ms KA stated:

	a.  The applicant did not commit adultery with her.  In 2003, they both lived in Christiansburg, VA.  He lived with his spouse and she lived with her spouse, now her former spouse, and her children.  She and the applicant had been best friends in high school and maintained their friendship until the allegation.

	b.  Her former spouse was in the U.S. Army Reserve and he subjected her to severe mental and physical abuse.  He was manipulative and caused a great deal of pain in her life.  She was under a lot of stress and sought treatment for depression.  Her depression was so extreme that she was afraid of losing custody of her children.  Sometimes, she talked through her problems with the applicant which made her former husband very jealous.  He made threats against her and waved a gun in her face several times.  To further control her and retaliate against the applicant, he reported to the applicant's command that she was sleeping with the applicant.  

	c.  One night an IO came to her home and asked her to make a statement.  He was very pushy.  Both the IO and her former spouse told her if she didn't admit to having sex with the applicant she would lose custody of her children.  She was afraid of the IO and her former husband, so she wrote what they told her, that she had sex with the applicant and then she signed it.  

	d.  Only recently did she find out the applicant's career is in jeopardy because of the false statement she was forced to make 11 years ago.  She is sorry for the damage she caused to his career.
7.  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 folder 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 statement 11 years after the Article 15 from Ms. KA that she falsely admitted adultery because she was afraid of the IO and her former spouse, the evidence of record confirms on 9 October 2003 the applicant accepted NJP for making a false official statement, committing adultery, and wrongfully attempting to influence Ms KA's testimony with the IO.  

3.  The Army Board for Correction of Military Records (ABCMR) does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless evidence exists which demonstrates an error or injustice to a degree justifying removal of the Article 15.

4.  The evidence of record shows the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during an Article 15 hearing after considering the evidence.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  

5.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing and he was afforded the opportunity to appeal the Article 15 to the next higher commander and present any mitigating issues at that time.  However, he elected not to do so.  There is insufficient evidence that shows the Article 15 is untrue, inaccurate, or that the second page of the DA Form 2627 is not the page he signed.

6.  The Army has an interest in maintaining the integrity of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  As required by the applicable regulation, the Article 15 is properly filed in the restricted folder of his AMHRR.  

7.  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)                                         AR20140006021



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ABCMR Record of Proceedings (cont)                                         AR20140006021



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