IN THE CASE OF:
BOARD DATE: 21 May 2015
DOCKET NUMBER: AR20150004682
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, the removal of a DA Form 2627 (Record of Proceedings of Nonjudicial Punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ)) from his official records.
2. The applicant states, in effect, that original charges of aggravated sexual assault against him were unfounded by an investigation conducted by the Criminal Investigation Division (CID) and amounted to a false accusation and slander against him. However, his commander instead chose to impose NJP against him for having sexual intercourse with a female specialist who was a married woman, not his wife, which had no relevance to the original charges against him. Additionally, the other Soldier involved did not receive the same level of punishment.
3. The applicant provides copies of a letter to the Fiscal Year 2015 Master Sergeant Promotion Selection Board and a redacted CID Report of Investigation.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 15 June 1998 for a period of 5 years and training as a military policeman. He completed his training and has remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 December 2009.
2. The applicant was serving as a military policeman at West Point, New York when the applicant and another noncommissioned officer were titled and an investigation was initiated by the CID for conspiracy and aggravated sexual assault on 28 November 2010. The investigation involved a female specialist who was a subordinate of the applicant and who resided in an off-post apartment. The investigation concluded that the charges were unfounded and that adultery and fraternization (emphasis added) were not within the investigative guideline of CID and should be referred to the unit commander for disposition.
3. On 31 March 2011, NJP was imposed against him for wrongfully having sexual intercourse with a female specialist, a married woman, not his wife which is a violation of Article 134 of the UCMJ. The applicant did not appeal the punishment and the imposing commander directed that the DA Form 2627 be filed in the performance section of his Official Military Personnel File (OMPF).
4. A review of the applicant's OMPF shows the DA Form 2627 is filed as directed by the applicant's senior commanding officer.
5. There is no evidence in the available records to show that he applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the DA Form 2627 transferred to the restricted section of his official records.
6. Army Regulation 27-10 (Military Justice) provides that the decision to file DA Forms 2627 in the performance or restricted section of the OMPF would be determined by the imposing commander at the time punishment was imposed. The filing decision of the imposing commander is final and is indicated in item 5 of the DA Form 2627.
7. Paragraph 3-6 of Army Regulation 27-10 provides guidance for the filing determination for the DA Form 2627 and associated documents. It states that the restricted section of the OMPF is that portion of the OMPF that contains information not normally viewed by career managers or selection boards.
8. Article 134 of the UCMJ includes fraternization, relationships between senior noncommissioned officers and junior enlisted Soldiers and their subordinates, which under some circumstances are prejudicial to the good order and discipline of the organization.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that NJP was unjustly imposed against him because the investigation for which he was titled proved unfounded has been noted and appears to lack merit.
2. While it is true that the investigation was unfounded, the NJP imposed against him was for different charges, fraternization with a subordinate, and the applicant did not demand trial by court-martial or appeal the punishment. Additionally, he has not submitted sufficient evidence to show that the record of NJP was unjust or that the offenses for which the NJP was imposed were untrue.
3. Therefore, it appears that the record of NJP is properly filed in the performance section of his OMPF as directed by the imposing commander and there appears to be no valid reason to remove it.
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.
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