IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150001233 


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 his record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) (DA Form 2627) be removed from his official military personnel file (OMPF) or relocated to his restricted folder and that the supporting documents (particularly the Defense Intelligence Agency (DIA), Inspector General (IG) Investigation and Report) be permanently removed from his OMPF.

2.  The applicant states the DA Form 2627 has served its purpose in that the intent was to have him retire.  He did so on 31 March 2013 and the Army Grade Determination Review Board (AGDRB) reduced him from lieutenant colonel (LTC)/pay grade O-5 to major (MAJ)/pay grade O-4.  He states:
   
* he has not engaged in any of the misconduct outlined in the DA Form 2627 since that time
* he has made a great effort to be a better husband and father
* the DIA, IG investigation report contain highly sensitive information and the photographs are prejudicial in ways that the DA Form 2627 alone is not
* the DA Form 2627 outlines his misconduct and the IG investigation adds nothing except to degrade and embarrass him; it adds no rehabilitative value
* he has paid a high price for his misconduct and received fair punishment
* he served his country honorably for over 20 years and put his life on the line more times than he can count
* the psychological issues outlined in the DA Form 2627 were the direct result of his combat service
* he led a team of 67 persons who provided detailed engineering assessments and operational support for investigations of weapons of mass destruction (WMD) production and proliferation
* established technical intelligence collection capabilities and established rapport with customer units that resulted in the removal of numerous high level insurgents from the battlefield
* was operations officer for a team engaged in the removal of 1,200 tons of nuclear related material from Iraq
* led a team to recover stolen radiological material from Western Iraq 
* received a Department of Veterans Affairs (VA) disability rating of 60 percent most of which is for post-traumatic stress disorder (PTSD) 
* one symptom of PTSD is grossly inappropriate behavior which is a mitigating factor in his situation
* he will forever feel the effects of his misconduct
3.  The applicant provides:

* his self-authored narrative statement as summarized above
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* ten letters of support  

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Special Forces LTC with a date of rank of 1 September 2009 who had approximately 20 years of commissioned service.

2.  A DIA, IG investigation, dated 22 March 2012, determined the applicant engaged in several acts of misconduct.  The report indicates that routine monitoring had shown the applicant had improperly used DIA sensitive computer equipment.  The report includes a sworn statement by the applicant to the effect that these activities started in the fall of 2009.  He stated that he did not mean to make excuses, that his behavior was wrong and his judgement atrocious.  He said he was profoundly ashamed and that he had disgraced himself and the Army.

3.  On 10 April 2012 court-martial charges were preferred against the applicant for:

* on diverse occasions between August 2009 and October 2011 violating Department of Defense Instruction (DODI) 5500.7-R (Joint Ethics Regulation) by using government computer and communication resources in a secure compartmented information facility (SCIF) to view and send sexually explicit photographs and to solicit male and female persons to engage in sex acts with him
* commit sodomy with three unidentified men
* conduct unbecoming an officer by engaging in indecent sexual acts; engaging in sexual intercourse with a woman, not his wife; making false official statements to investigators; and using the resources in the SCIF as described above
* adultery by wrongfully having sexual intercourse on 31 August 2011 with a woman, not his wife

4.  On 12 April 2012 the applicant submitted a request for voluntary retirement.  

5.  On 25 April 2012 the applicant completed a pretrial agreement that provided for the dismissal of the above charges and disposal of his misconduct in exchange for his waiving his rights to call witnesses, contest, or appeal an Article 15 proceeding or punishment imposed by the commanding general.    

6.  On 30 May 2012, the Commanding General, Military District of Washington (CG, MDW) imposed punishment under the provisions of Article 15, UCMJ for: 

* violating a lawful general order (the joint ethics regulation) by misusing the government resources in the SCIF
* indecent conduct by having sexual intercourse with a woman in the presence of another person
* conduct unbecoming an officer and a gentleman by sending sexual photographs to individuals, soliciting sexual relations with numerous persons, and engaging in sexual intercourse with persons – not his wife 
* committing adultery by sexual intercourse with another woman

7.  The punishment imposed consisted of forfeiture of $3,991.00 pay per month for 2 months with 1 month’s forfeiture suspended and automatically remitted if not vacated within 6 months.  The imposing commander directed the Article 15 be filed in the performance section of the applicant’s OMPF.

8.  On 4 June 2012 the applicant’s request for voluntary retirement was favorably endorsed and forwarded to the U.S. Army Human Resources Command (HRC) by the DIA, U.S. Army Element. 

9.  His voluntary request for retirement was referred to the AGDRB.  On 6 December 2012, the appropriate authority directed the applicant’s retirement in the rank and grade of MAJ/O-4.
10.  The applicant retired on 31 March 2013 in the rank of MAJ/O-4.  He had completed 20 years, 6 months and 6 days of creditable service.  He served three overseas deployment tours in Iraq, one tour in Afghanistan, and one tour in Bosnia.  Among his awards were the:

* Bronze Star Medal
* Iraq Campaign Medal with two bronze service stars
* Combat Infantryman Badge
* Ranger Tab
* Special Forces Tab

11.  In support of this application the applicant submitted: 

   a.  Four documents associated with the Article 15 and directed to the CG, MDW. 
   
          (1)  A memorandum for the record from a civilian (GS-15) who identified himself as the Supervisory Intelligence Officer, Countering WMD Division, DIA.  He wrote that he was personally and professionally attesting to the applicant’s service, duty and leadership over the past 9 years.  He described the applicant as the finest military officer with whom he had worked and related that he had been in charge of a force of 50 plus military and civilian intelligence specialists engaged in high-risk intelligence operations.  He had a unique ability to combine technical and tactical operations.  His leadership had provided support to WMD and improvised explosive devices (IED) operations in Iraq and Afghanistan.  

         (2)  A 2 May 2012 memorandum for record from a sergeant first class who wrote that the applicant’s presence was inspiring.  He believed that, during his last operational deployment, the applicant had maintained an operational tempo that would have challenged officers who were 15 years younger.

      (3)  A 21 May 2012 character reference letter from a colonel who wrote that he had known the applicant since 2007.  He had supervised the applicant while deployed and had observed the applicant’s performance since then in graduate school and at the DIA.  He had found that the applicant?s "character had been in line with our expected norms."  He asked the CG to be lenient when considering the NJP.
   
      (4)  An undated letter to the CG, MDW from a retired colonel who wrote that he had worked with the applicant early in the Iraq war and then again in 2007.  He requested the CG consider the applicant’s years of service as a Special Forces officer and as a nuclear counter proliferations officer.  He recommended the applicant be allowed to retire as a lieutenant colonel.
   b.  Six documents associated with the applicant’s AGDRB case.  

       (1)  An undated memorandum from a civilian family therapist who reported that she had been providing the applicant with personal and family counseling.  She stated that his risk seeking personality had drawn him to the Special Forces and to combat.  He thrived in that environment.  Recently he had had to readjust and reintegrate himself into his family on top of his earlier difficulty of adjusting to fatherhood and infant twins.  He began to experience recurring premonitions that he would be killed on his next deployment.  He handled this by seeking risk stimulation through reckless sex.  
   
This was not a lifelong pattern of behavior, and in my professional opinion this was a symptom of PTSD and should be recognized as such.  (The applicant) is clear that his choices were wrong and inappropriate.  He went to considerable lengths to isolate his personal life from his private life and the only victims of his actions were himself and his family… (The applicant) and those like him are heroes and I believe he has earned the honor.  I ask that you not punish him further for what was essentially a work-related injury.

       (2)  By memorandum, a Judge Advocate General MAJ wrote that he had known the applicant since 2000 and that the applicant had been a key mentor and his primary motivation for becoming a commissioned officer.  The applicant would be disinclined to try to explain or excuse his behavior.  However, he accepted responsibility for his actions and continued to work with his family to improve their situation.  The applicant has "served at the cutting edge of some of our nation’s most sensitive national security decisions in the past decade."
   
       (3)  A civilian contractor with the Special Operations Forces Task Force reported that the applicant, "admitted his mistake – a mistake that involved no breach of integrity or leaked security.”  He contended that the applicant had served honorably as a LTC and asked "the board to consider the whole man and not pass judgement on the basis of one mistake."
   
       (4) A 9 November 2012 memorandum for the record by a civilian employee of the DIA who worked under the applicant’s supervision, highly praised the applicant for his professional performance and also related that the applicant had contributed his personal time to him while he was assigned to the DIA as an intern.  He considered the applicant a priceless asset to the country, the Army and the intelligence community.
   
       (5)  A 15 November 2012 memorandum to the President of the AGDRB relates that the author and the applicant shared multiple combat tours.  The effect of those deployments and the significant distance from family was difficult for the applicant.
   
       (6)  A 13 November 2012 letter from a retired U.S. Navy captain relates that the applicant had been his operations officer at the Office of Forensic Intelligence Directorate between August 2009 and August 2011 at the time when that DIA unit was "responsible for the daily execution of its global mission including operations in Iraq and Afghanistan."  He praised the applicant’s abilities, judgement and leadership but admitted that he did not know the details of his indiscretion and it was surely an anomaly perhaps related to the strain of these last few years.
   
12.  Army Regulation 27-10 (Military Justice), paragraph 3-6 discusses the importance of filing determinations regarding records of punishment under Article 15, UCMJ.  It states 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.  In such cases, the Article 15 should be filed in the performance section of the OMPF.

13.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of personnel records.  It provides that once an official document has been filed, 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, the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the record. 

14.  The Army Personnel Records Division (APRD), HRC, updates the list of Authorized Documents for filing in the AMHRR quarterly.  The new list of Authorized Documents will supersede the list in Table B-1, Appendix B of Army Regulation 600-8-104.  The filing instructions for allied documents related to an Article 15 should be filed in the restricted folder of the OMPF.  The decision to file an Article 15 rests with the imposing commander at the time the punishment is imposed. 

15.  The Table of Maximum Punishments in the Manual for Courts-Martial shows that a dishonorable discharge is authorized for an offense of violation of a lawful general regulation, adultery, pandering or sodomy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his record of NJP and all allied documents be removed from his OMPF or in the alternative that the record of NJP be retained in the restricted file and the supporting documents be expunged.     

2.  There is no indication in any of the correspondence to the CG, MDW that the authors of the character reference letters were aware of the nature and extent of the applicant’s misconduct.  

3.  The applicant submitted no probative evidence that the intent of the NJP was to have him retire.  Given that he was still under court-martial charges for numerous offenses for which he could have received a punitive discharge at the time he requested retirement, it seems more reasonable to conclude that the intent of the NJP was to allow him to retire rather than face a probable punitive discharge.

4.  The support of those who provided matters in mitigation to the general who imposed the NJP and those who wrote in favor of allowing him to retire as an LTC have been noted.  However, all the mitigating factors to include his duty performance and combat deployments were applied when he was allowed to retire rather than face a trial by court-martial or elimination. 

5.  Even if the applicant believes the intent of the NJP has been served, the supporting documents in his restricted folder provide a record of the nature and extent of the applicant’s misconduct.  Any embarrassment and degradation arises from his own actions and not from the record thereof.  

6.  The regulatory guidance clearly states the interests of the Army are compelling.  A permanent record of this egregious behavior by a senior officer and respected member of the intelligence community should be maintained and filed as directed by the imposing official and authorized by regulatory guidance.  The applicant has provided insufficient evidence to show an error or an injustice in the imposing official’s decision to file the Article 15 in his performance section and the allied documents, to include the DIA, IG report, in the restricted section of his OMPF.


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)                                         AR20150001233





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ABCMR Record of Proceedings (cont)                                         AR20150001233



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