BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20150005321 


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 record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), and all allied documents from his Official Military Personnel File (OMPF).

2.  The applicant states:

* the Article 15 is a negative document in his professional record and poses a threat to his career
* the Article 15 was not supported by the investigating officer (IO)
* he has letters of support from his chain of command and from various senior leaders who support removal of these documents, to include the battalion commander who imposed the punishment

3.  The applicant provides:

* seven letters of support
* two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* Enlisted Record Brief
* DA Form 1059 (Service School Academic Evaluation Report)
* Army Review Boards Agency letter, dated 29 May 2015
* self-authored letter, dated 1 September 2014
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 February 2003.

2.  On 8 October 2004, he married R____ L____ H____.

3.  On 18 May 2010, the Chief, Family Advocacy Program, identified the applicant as an abuser with a low risk level.  He was directed to participate in a 90-day treatment plan.

4.  An email, dated 15 October 2012, shows Sergeant (SGT) B____ D____, husband of Staff Sergeant (SSG) E____ K____ D____ at the time, requested assistance and notified his commander that his wife was having an affair with the applicant.  He also provided his commander with text messages and an extract of a telephone record.

5.  A Headquarters, 82d Airborne Division, incident report, dated 13 February 2013, shows:

	a.  A colonel in the Tennessee Army National Guard Inspector General's Office contacted the applicant's commander regarding a complaint filed by the applicant's his wife.

	b.  The applicant's wife stated she had seen email from an unknown source indicating the applicant is/was having an extramarital affair with SSG E____ K____ D____.

	c.  The applicant's wife had received an explicit picture text message of a female's lower half that was also apparently sent to the applicant.

	d.  SGT B____ D____ sent an email to all the Family Readiness Group spouses soon after the deployment, including the applicant's wife, claiming that his wife, SSG E____ K____ D____, had an affair while she was deployed.  It was unstated as to whom the affair was with.

	e.  The applicant's wife revealed an earlier domestic violence incident by the applicant while they were stationed at Fort Bliss, TX.

	f.  The applicant's wife indicated she was in fear for her safety.

6.  On 13 February 2013, the applicant was issued a no-contact order to cease and desist any and all contact with his wife.  He acknowledged he understood the terms of the order.

7.  On 14 February 2013, both the applicant and SSG E____ K____ D____ were issued no-contact orders.  They both acknowledged they understood the terms and they were to cease and desist any and all contact with each other.

8.  On 19 February 2013, the applicant's records were flagged pending a Commander's Inquiry (CI).

9.  On 20 February 2013, the applicant' commander appointed an IO for a CI surrounding allegations of assault consummated by battery and an inappropriate relationship.

10.  On 20 February 2013, SSG E____ K____ D____ was notified of her rights and advised she was suspected/accused of an inappropriate relationship.

11.  On 20 February 2013, SSG E____ K____ D____ issued a sworn statement indicating she never had an inappropriate relationship with the applicant.  She stated the applicant was her platoon sergeant and mentor for a year in Afghanistan.  She further stated she was deployed with the applicant and she, along with others, would work out and eat together, and that the relationship was professionally maintained.

12.  On 21 February 2013, the applicant's wife issued a sworn statement in which she indicated:

	a.  On 10 February 2013, she received an email with a screen shot of a text message conversation between her husband and another individual.  The email contained his first name and cell phone number.  The text message conversation showed them both saying, "I love you and talking about going thru a difficult time."  She confronted the applicant and he denied having an affair and stated it must have been a joke.

	b.  On 11 February 2011, she received the password for the phone online account from the applicant.  She accessed the accounted and noted there were numerous calls and text messages to an area code 302 telephone number after midnight until early in the morning.  She confronted the applicant about the number and asked him if the number belonged to SSG E____ K____ D____.  She stated he told her he did not know because he deleted it the day before.  She asked him if he was cheating on her with SSG E____ K____ D____.  He denied it.

	c.  In 2012, there were some things that took place that led her to believe the applicant was cheating on her with SSG E____ K____ D____ since SSG E____ K____ D____'s husband sent an email to the entire Family Readiness Group stating his wife was having an affair while she was deployed.

	d.  The applicant always talked about SSG E____ K____ D____ and then there was an email in November 2012.

	e.  She and the applicant have a joint email account and he received an email with the subject line, "here you go my Love," containing a picture of a naked female from the waist down with her legs open revealing her vagina.  She confronted the applicant about it and he responded to the email, deleted it, and told her it was spam.

13.  On 4 March 2013, the applicant's wife issued a sworn statement in which she stated:

	a.  The applicant received a text message from Specialist (SPC) M____, one of his Soldiers, on 30 December 2009.  The text message stated, "I love you."  She confronted him about the text message and he said it must have been sent to the wrong person.

	b.  She checked their online account and noted the applicant was texting and talking to SPC M____ when he was in the bathroom or when she was not in the same room.  Before he received the "I love you" text message, he was in the bathroom at the restaurant for almost 30 minutes.  He deleted all the text messages from SPC M____; however, she saw a text message that he sent to SPC M____ that stated, "ha ha everyone was pretty drunk last night, we didn't hook up, did we?"  When asked about it, he stated she misread it and deleted it.  She even took a picture of the text message, but he took her phone and deleted it so she would not have proof.

	c.  The applicant told her that he and SSG E____ K____ D____ went running during deployment and got lost, which made no sense to her.  Most of the pictures he sent to her from his deployment had SSG E____ K____ D____ in them.

	d.  The applicant suddenly closed the email account they had had for over 9 years which looks suspicious.

	e.  She asked the applicant to place a three-way conference call with her and SSG E____ K____ D____, but he said the call didn't work.

	f.  She believed the reference to the "difficult sacrifice" in the text message conversation with SSG E____ K____ D____ referred to one of them ending the affair.  The applicant also threatened to divorce her if she brought the text message up to his chain of command.

	g.  The applicant would get off the telephone with her around 7:00 p.m. "to go to sleep," but according to his phone records, he would call and talk to SSG E____ K____ D____ or text her and they would send picture messages back and forth.  He denied ever sending her a picture text message or talking to her at night.  He said the phone records were wrong, then he changed the password when she tried to go back in and print them.

14.  On 4 March 2013, the applicant issued a sworn statement in which he stated:

	a.  He had never had an inappropriate relationship with any Soldier of any rank in any unit in which he had been assigned.  He was a mentor to SSG E____ K____ D____ and the relationship they had was strictly professional.

	b.  The text messages that were brought up from Fort Bliss, TX, were previously discussed and cleared with his wife and his previous command.

	c.  SPC M____ apologized to his wife and explained the text message was sent to him in error.

	d.  The Yahoo email account that was once shared with his wife was used as a spare email account and one that was given to businesses in order to receive random junk mail.  It was given to the unit as contact information.  His wife changed the password to the account while they were stationed at Fort Bliss, TX, and he did not access to the account.

	e.  He never struck, kicked, or choked his wife in any way.  Family Advocacy was involved due to bruising that was seen on her arm at an appointment.  His wife bruised extremely easily.  He went through all the individual counseling as well as the couple counseling sessions and they were told they were good to go.

	f.  Prior to issuance of the no-contact order, his wife withdrew $10,000.00 from his savings account and it was during the no-contact period that she continued to attempt to make contact with him, mainly by text messages but also through other means like Skype and telephone calls.  The messages she sent were very offensive and hurtful.  Because of this, he protected himself by moving his finances to controlled individual accounts and closing any shared amenities like Netflix and the Yahoo account.


15.  On 6 March 2013, the IO issued the following findings:

	a.  The allegation of the applicant committing domestic violence against his wife while they were stationed at Fort Bliss, TX, was unsubstantiated.

	b.  The allegation of the applicant engaging in an inappropriate relationship with SSG E____ K____ D____ was unsubstantiated.

	c.  The IO recommended that the applicant and his wife seek marriage counseling for the sake of their daughter and that any investigation into the allegations be suspended for lack of merit.

16.  On an unknown date, a legal review of the CI was conducted and determined that the recommendations of the IO were commensurate with the findings.

17.  On 26 May 2013, E____ K____ D____ filed a complaint with the State of North Carolina Cumberland County Magistrate against the applicant for threatening her children's life, her life, and putting his hands on her.  In her complaint, she identified the applicant as a friend and she indicated:

	a.  On the same date as her complaint, the applicant was sitting in her living room discussing how he did not want to lose his relationship with his daughter.

	b.  She asked him about his son and he immediately screamed an obscenity at her three times, punched the floor, and told her she had no right to ask him about his son.

	c.  She went to her children's bathroom and started crying and the applicant came in later and said he was sorry.

	d.  She then asked the applicant a question about his wife and son and he grabbed her arms and slammed her against the wall and told her to never talk about his wife like that again and that his wife was always there for him and he would never let anyone come between him and his child again.

	e.  The applicant told her he would kill her, her kids, and her whole family if anyone ever tried to come between his family.

	f.  She asked the applicant to leave over and over and he would not.  When he left the bathroom she grabbed her phone and told him to leave or she was going to call the cops.  The applicant said he didn't care and she asked him again to leave.  She shut the door and he left the house.  She then called the police.

18.  On 26 May 2013, the General Court of Justice, District Court Division, State of North Carolina, issued a warrant for arrest of the applicant for assault on a female and communicating a threat.

19.  On 11 June 2013, the applicant issued a sworn statement in which he explained his relationship with SSG E____ K____ D____ and events leading up to her accusation against him for communicating a threat to her.

	a.  He stated his wife told him she was receiving anonymous email and they had become threatening and she believed the email was coming from SSG E____ K____ D____.  His wife pressed and pressed the matter so he decided to speak with SSG E____ K____ D____ considering what all parties had just been through with the last investigation just being closed.  He figured a conversation in person would be best so he went to her house to speak to her.

	b.  SSG E____ K____ D____ invited him inside and he asked her if the email was coming from her.  She answered no and became upset.  He apologized and explained how important his family was.  She asked about his son and he became upset and she walked down the hall and asked him a question.  He couldn't hear her so he followed her down the hall to a restroom where she was washing her hands.  He explained his feelings about his daughter and that his career was how he provided for his family.  She tried to leave the room and as she did, he put his arms out in a pleading manner.  She told him to leave and go away and she threatened him with calling the police as well as her ex-husband.  He told her to go ahead if she wanted to, but there was no need and he left the house.

	c.  He did not know what threats SSG E____ K____ D____ was accusing him of making.  All he knew was from the arrest warrant.  He never threatened SSG E____ K____ D____.

20.  On 15 June 2013, the applicant's commander appointed an IO for a CI surrounding allegations of assault consummated by battery and an inappropriate relationship.

21.  On 25 June 2013, the IO provided a memorandum for record in response to the CI which shows:

	a.  On 28 May 2013, the Cumberland County Police Department arrested the applicant on charges of assault on a female by a male over 18 years of age and communicating threats.


	b.  The findings were as follows:

		(1)  The applicant did not commit domestic violence.

		(2)  There was no proof of an intimate relationship between the applicant and SSG E____ K____ D____.

		(3)  The applicant did commit assault and communicate a threat to SSG E____ K____ D____.

		(4)  The events surrounding the incident suggest the applicant did have an inappropriate relationship with SSG E____ K____ D____.

		(5)  The warrant for arrest was labeled for domestic violence.  The report of domestic violence was removed.  The magistrate was unable to state the line of reasoning behind the omission.  The applicant had a trial date of 9 July 2013.

		(6)  The facts and circumstances of the incident indicate an unprofessional relationship.

22.  The IO recommended maintaining the no-contact order and flag against his records as well as considering UCMJ or administrative action according to the findings from the applicant's trial date.

23.  On 28 August 2013, the applicant accepted NJP under the provisions of Article 15, UCMJ, for violating a lawful general regulation by wrongfully having an inappropriate relationship with SSG E____ K____ D____ between on or about 13February 2013 to on or about 30 June 2013.

24.  The commander directed filing the NJP in the performance section of his OMPF  It was filed accordingly on 24 February 2014.

25.  The applicant provided seven letters of support, two of which were from his former company commander and the UCMJ imposing authority.

	a.  His former company commander stated he was a gifted noncommissioned officer who constantly mentors younger Soldiers.  He further stated the applicant made a mistake but he believed the applicant had learned from that mistake and the mistake should not hold him back from having a successful Army career.

	b.  The UCMJ imposing authority stated she supported removal of the NJP from the applicant's OMPF.  She further stated she was profoundly proud of the applicant's resolve over the past 18 months and he had demonstrated continued exceptional dedication to his unit, commitment to his Soldiers and mission, and assumed full responsibility for his past decisions.

26.  The applicant provided a copy of his Enlisted Record Brief and a DA Form 1059, dated 21 November 2013, which shows he exceeded course requirements and he had a grade point average of 100 percent.

27.  He provided two NCOERS for the periods 4 September 2013 to 15 March 2014 and 16 March 2014 to 29 August 2014 which show he was rated among the best and given successful and superior ratings from his senior rater.

28.  In a self-authored memorandum to the Department of the Army Suitability Evaluation Board, dated 1 September 2014, he requested removal of the NJP and he described his accomplishments.  He stated Army Regulation 600-37 (Unfavorable Information) allows such transfers when the Article 15 has served its intended purpose, has been in OMPF for at least 1 year since imposition of the Article 15, the Soldier is at least an SSG, and the Soldier has received at least one NCOER since the filing of the Article 15.  He further stated the Article 15 had served its intended purpose because he possessed a better understanding of what can be considered as an in appropriate relationship and how it can deter from the good order and discipline of a unit.

29.  He provided a copy of the Army Review Boards Agency letter, dated 29 May 2015, informing him that his request had to be directed to the ABCMR.

30.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

31.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

32.  Army Regulation 27-10, paragraph 3-37a, states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the OMPF will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.

33.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program.  It states that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the DA Form 2627 from his OMPF was carefully considered.

2.  The evidence of record clearly shows the applicant violated a no-contact order and, after weighing all the evidence, the UCMJ imposing authority determined the applicant had an inappropriate relationship.

3.  Army Regulation 27-10 states NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  There is no evidence of a clear injustice in this case.  There is no documentary evidence indicating the NJP he received was improperly imposed or retaliatory in nature.  In the absence of substantive evidence showing error or injustice in the imposition of the NJP, there is an insufficient basis upon which to grant the 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 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)                                         AR20150005321



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ABCMR Record of Proceedings (cont)                                         AR20150005321



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