IN THE CASE OF:	  

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20150005496 


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 a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 December 2012 and all allied documents be removed from his official military personnel file (OMPF).

2.  He states, in effect, the imposed nonjudicial punishment (NJP) was outside the statute of limitations.  According to the laws and regulation punishment may not be used for offenses which were committed more than 2 years before the date of imposition.  He explains that he received NJP in December 2012 for an offense committed between 1 July 2010 and 4 April 2011.  He was deployed to Kuwait from 18 October 2010 through 17 October 2011.  Therefore, he could not have committed the offense listed on the Article 15 within the statute of limitations.  The offense stemmed from a paternity action following the birth of his daughter, who was born on 4 April 2011. 

3.  He provides:

* Self-authored statement
* DA Form 2627
* Child's Birth Certificate
* Congressional correspondence 
* Deoxyribonucleic Acid (DNA) Lab Results, dated 16 July 2012 and allied documents
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 
23 October 2012
* DA Form 2823 (Sworn Statement), dated 25 October 2012
* DA Forms 4856 (Developmental Counseling Form)
* Memorandum, Subject:  Initial Counseling of [Applicant], dated 19 October 2012
* Memorandum, subject:  Letter of Continuity for [Applicant], dated
23 March 2011
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 29 October 2012
* Two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)
* DA Form 2166-8-1 (NCOER Counseling and Support Form)
* Enlisted Record Brief 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 July 1998.  He served in Kuwait from 18 October 2010 to 17 October 2011.  

2.  In a letter from the South Carolina Department of Social Services, Child Support Enforcement Division, dated 8 August 2012, the Child Support Specialist stated the genetic test results show there was a 99.99 percent chance that the applicant was the father of M.L.J.  The DNA lab test results and allied documents were included with the letter.

3.  On 15 November 2012, the applicant was counseled by his first sergeant (1SG) for having an inappropriate sexual relationship with a person other than his spouse.  Additionally, he was reminded of his responsibilities to provide support for the child.  The 1SG stated the inappropriate relationship resulted in the birth of a child outside of the applicant’s marriage.  

4.  The 1SG stated the applicant advised him that during the relationship that resulted in the birth of the child the applicant was legally separated from his wife pending a divorce.  The 1SG indicated even though he was separated, he was still married until the divorce was final and a sexual relationship with anyone other than his wife was considered to be adultery.  The applicant signed the counseling statement on 15 November 2012 agreeing with the information provided.

5.  On 13 December 2012, while in the rank/grade of staff sergeant (SSG)/E-6, NJP was imposed against the applicant.  The Article 15 reads "In that you, a married man, did, at or near Fort Gordon, GA, between, on or about 1 July 2010 and on or about 4 April 2011, wrongfully have sexual intercourse with Ms. [M.L.E.], a woman not your wife.” 
6.  In item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions are as follows) the applicant initialed "I do not demand trial by court-martial:  A person to speak in my behalf is requested and matters in defense, extenuation, and/or mitigation will be presented in person."  

7.  In item 4a (In a Closed hearing, having considered all matters presented, I hereby make the following finding), the commander initialed "Guilty of All Specifications."

8.  The commander directed the DA Form 2627 be filed in the restricted section of his OMPF.  The applicant initialed the block indicating that "I do not appeal." Block 10 (Allied Documents and/or Comments) of his DA Form 2627 lists the:

* DA Form 4856
* DA Form 2823, dated 25 October 2012
* DA Form 3881, dated 23 October 2012
* Letter from Ms. M.L.E., dated 19 October 2012. 

9.  A birth certificate, issued by the State of South Carolina, lists the applicant as the father of M.L.J. who was born on 4 April 2011.  The birth certificate was issued on 3 March 2015.

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

   a.  Paragraph 3-2 states that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

   b.  Paragraph 3-12 states NJP punishment may not be imposed for offenses which were committed more than 2 years before the date of imposition. Computation of this 2-year limitation is in accordance with the UCMJ, Articles 43(c) and (d).  The period of limitations does not run when the Soldier concerned is absent without authority fleeing from justice outside the territory where the United States has authority to apprehend, in the custody of civil authorities, or in the hands of the enemy.

11.  Part V of the MCM “Nonjudicial Punishment Procedure” of paragraph 1 states, in effect, whether an offense is minor is a matter of command discretion and generally does not include offenses that include the possibility of a dishonorable discharge.

12.  Part IV of the MCM “Punitive Articles” and Article 134 (Adultery) includes a possible maximum punishment of a dishonorable discharge and 1 year of confinement.  

13.  Per Article 43(b)(1) of the UCMJ, the statute of limitations for adultery is 
5 years.

14.  Rule for Courts-Martial 909 makes the statute of limitations waiverable.

15.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  The regulation states that once an official document has been properly filed in the OMPF, 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that the DA Form 2627 was imposed outside the statute of limitations as specified by regulation and therefore it should be removed from his OMPF. 

2.  In accordance with paragraph 9a, as cited above, NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.  The Article 15 was rendered on 13 December 2012 for his actions between 1 July 2010 and 4 April 2011.  Therefore the date of imposition
(13 December 2012) was within 2 years of the offense (14 December 2010 to 
4 April 2011).

3.  The applicant also argues that he was deployed from 18 October 2010 through 15 October 2011 in Kuwait and could not have committed the offense listed on the Article15 within the statute of limitations.  Based on the applicant's daughter's date of birth, the date of conception may have been outside of the
2 year date of imposition of the Article 15; however, the date of birth and the date of the paternity test were not.

4.  The applicant was given an Article 15 for wrongfully having sexual intercourse with someone other than his wife.  He was afforded the opportunity to consult with counsel and accepted the Article 15.  He did not demand trial by court-martial.  The imposing commander considered all matters presented and determined that the applicant was "Guilty of All Specifications."  The applicant initialed the document indicating that he did not wish to appeal the action.

5.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the restricted section of his OMPF as directed by the imposing commander.  There is no evidence of record and he has not provided any evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  

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)                                         AR20150005496



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150005496



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1