MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  27 January 2000
	DOCKET NUMBER:   AR1999024796

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That a field grade Article 15 be removed from his Official Military Personnel Record.

APPLICANT STATES:  In essence, that the Article 15 is unjust and unfair.  He, a Sergeant First Class (SFC) recruiter and single parent of two young children, was unjustly charged with two violations of the Uniform Code of Military Justice (UCMJ) Article 92, violation of a regulation, USAREC Regulation 600-25, in employing a Delayed Entry Program (DEP) recruit as a personal baby-sister for his children and allowing her to live in his residence.  He states that he began employing her as a baby-sitter and became a friend to her through church contact months before she became a recruit.  He states that he did not know that she was a high school student at that time and thought she was in college or other similar situation.  He states that he did not discuss a military career with her or recruit her as a result of these contacts.  She contacted him about a military career at a shopping mall recruiting event in August after she graduated from high school.  He then recruited her but felt that since they had prior contact as baby-sitter and friend, that their continued such relationship was within the regulation.  He states that in September, the female DEP recruit was thrown out of her mother’s home over the issue of enlisting and that he allowed her to stay with his family in their guest bedroom because she had no other place to go.  He says that his supervisory NCO, first sergeant, and company commander knew that they were acquaintances prior to recruiting but they made no objections, that everything was in order although his company commander did not know that the DEP recruit stayed with his family from September to November, and that the only thing that was not done was that his company commander did not write the regulatory letter granting the DEP recruit and himself permission to still be friends.  He says that he does not have the power to make the company commander write the authorization letter.  The applicant supplies a detailed request for correction of the records with 14 enclosures to include two investigation reports concerning the violations and a separation board concerning the same violations.

EVIDENCE OF RECORD:  The applicant's military records show:

That he enlisted in the US Army Reserve (USAR) on 25 May 1982.  He enlisted in the Regular Army on 17 February 1984 as an E-2.  He was discharged from active duty as an E-6 on 8 July 1992 as a result of a local bar to reenlistment.  He enlisted in the USAR on 1 July 1992 as an E-6.  He was promoted to SFC E-7 on 15 April 1993.  He was accepted in the Active Guard-Reserve program as a recruiter about October 1995.

On 17 October 1997, the applicant was given a field grade Article 15 by his battalion commander for two counts of violation of Article 92, violation of an order or regulation, in this case US Army Recruiting Command Regulation 600-25, in that as a recruiter he had hired a DEP recruit (a Ms. N) as a baby-sitter for his children and shared lodging with her (allowed her to lodge in his home guest room).  He did appeal the Article 15, but the appeal was denied.

An investigation was conducted on the suspected violations prior to administering the Article 15.  The investigating officer found that the applicant, “met Ms. N in a non-military capacity at St. John’s AME Church in Aurora, Illinois, sometime between August 1995 and April 1996.  The two did not discuss (the) military or talk about recruiting in their initial contact with each other.  Ms. N did watch the applicant’s children on different occasions between May 1996 and January 1997. The applicant developed a friendship and asked Ms. N to watch his children before he knew Ms. N. was in high school and before he discussed the military with her in August 1996.  Ms. N. was referred to the applicant as a recruit by one of Ms. N’s  friends during the summer of 1996.  Ms. N met the applicant on 8 August 1996 at a recruiting event at Foxvalley Mall through a meeting made (arranged) by Ms. N’s friend.  The applicant conducted the recruiting interview and initiated the recruitment paper work.  Ms. N contracted on 29 August 1996 with a ship date of 21 February 1997.  She moved into the applicant’s home around September 1996 after being thrown out of her own house by her mother.  The applicant tried to find other arrangements but was unable to find a place for Ms. N to stay.  He decided to let her stay with his family.  Ms. N moved out of the applicant’s residence around November 1996 after meeting a man at work who decided to let her live with him.  She continued to watch the applicant’s children until she left for basic training in February 1997.  The applicant went to Ms. N’s basic training graduation based upon the request to attend by Ms. N.”  The investigator did not believe that the applicant used his position as a recruiter to manipulate Ms. N in any form.

In a statement made by Ms. N to the investigating officer, she stated that she and the applicant never had any sexual relations to include kissing or holding hands.  In a statement made by the applicant to the investigating officer, he states that he did not know Ms. N was a high school student until he saw her at a high school about the last week of school.  He stated, in effect, that he thought she was in college or doing something similar.  Yet Ms. N stated in her statement that she, “knew he was a recruiter because she saw him frequently at school.”

The investigating officer initially recommended that there should be no action taken against the applicant based on the applicant’s friendship with and employment of Ms. N having begun before she became a recruit.  Upon further review of the USAREC Regulation 600-25, he changed his recommendation to recommending that the applicant receive an Article 15 for violation of USAREC Regulation 600-25 because he did not inform his commander of the relationship he had with Ms. N, whom he contracted as a DEP recruit on 29 August 1996 and for whom he received recruiting credit.

United States Army Recruiting Command Regulation 600-25, Prohibited and Regulated Activities for Recruiting Personnel, paragraph 2-1 states, “The following activities with subjects of recruiting efforts including contact and prospects (includes [to include] ALL high school students regardless of qualification for military service), applicants, and members of the DEP [Delayed Entry Program], … are prohibited: (1.b) sharing of lodging …;(3) personal employment (ie, baby-sitting, maintenance, etc.).  e.  USAREC commissioned officer commanders may, on a case-by-case basis, approve, in writing, requests from their subordinate USAREC personnel to participate in acts otherwise prohibited in this paragraph if the person already had a personal relationship with an individual who later becomes a contact, prospect, or applicant for enlistment or appointment.”

The DA Suitability Evaluation Board (DASEB) reviewed this application for correction at the request of the Army Board for Correction of Military Records (ABCMR) and rendered an advisory opinion that the applicant provided no clear and compelling evidence that the Article 15 was unfair or unjust, or that it should be set aside or removed or transferred.  The DASEB recommended denial of the request for correction.  The applicant rebutted this advisory opinion on the same bases and argument presented in his request for correction of records.  He does say that Ms. N was in high school during the time she watched (baby-sat) his children but that his commander did not give him written permission which he charges to his commander’s oversight.  His commander testified to a separation board proceedings that the applicant had never informed him of his relationship with Ms. N nor had he ever requested permission to continue the relationship.

On 14 April 1998, the applicant appeared before a separation board considering him for separation under chapter 14, AR 635-200, for commission of a serious offense.  The board heard testimony from the applicant and other witnesses to include his commander and battalion commander.  The separation board concluded that the applicant did not violate USAREC regulation by hiring Ms. N as a baby-sitter but did violate the regulation by wrongfully sharing lodging with her as a DEP recruit.  The separation board recommended retention of the applicant in the service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The applicant’s Article 15 is correct and just.  The applicant did violate UCMJ Article 92 and USAREC Regulation 600-25 by hiring Ms. N who was first a high school student and then a DEP recruit to baby-sit his children and he did share lodging with Ms. N after she had contracted with him as DEP recruit.  The applicant has not submitted sufficient evidence to show that the Article 15 he received on 17 October 1997 should be withdrawn from his record or moved to the restricted fiche portion of the record.  The Article 15 is a relevant and recent occurrence that should be considered by selection boards and assignment managers.

2.  Evidence of record and evidence supplied by the applicant demonstrates that at some point he did know that Ms. N was a high school student while he had employed her as a baby-sitter in violation of the regulation whether or not he had known that she was a high school student when he first employed her.  There is no evidence that he reported this to his company commander as he should have done to avoid suspicion of violation of the regulation and to either obtain written permission to continue this relationship or an order to terminate the relationship. The company commander testified that the applicant in fact did not notify him of this situation or request authorization to continue.  The investigating officer who recommend the Article 15 also did not find any evidence that the applicant had notified his commander of the relationship or sought permission to continue.

3.  Evidence shows that the applicant did violate the regulation by lodging with Ms. N and employing her as a baby-sitter after he had contracted her as a DEP recruit.  There is no evidence that he made this situation known to his company commander.  The investigating officer who recommend the Article 15 also did not find any evidence that the applicant had notified his commander of the relationship or sought permission to continue.  Regardless of his contended humanitarian reasons for allowing Ms. N to live in his house, by so doing he did violate the regulations without question.  In order to enter into such an arrangement, the applicant would had to have had written permission from his commander prior to entering into such an arrangement and certainly to continue it.  The regulation is very specific on these points and the applicant is without legitimate excuse.  If he did not have written permission from his commander, then by exclusion, he did not have permission and was in violation of the regulation and in violation of good judgement expected of a senior NCO.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_IW___  __SK____  ___EA__  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024796	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000127	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  126	Non judicial Punishment	
2.		
3.		
4.		
5.		
6.