MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 July 2000
	DOCKET NUMBER:   AR2000042867

	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. Carl W. S. Chun		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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:  Removal of a Record of Proceedings under Article 15, Uniformed Code of Military Justice (UCMJ) Department of the Army (DA) Form 2627 dated 11 August 1997 and a Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) dated 20 October 1997 from his official military records.

APPLICANT STATES:  That it is his intent to clear his name and military record of all the false allegation, charges and unjust punishment that he has painfully suffered and that the entirely obliterated version of the truth has cost him much more than can ever be restored.  He states that his punishment was clearly unwarranted due to unsubstantiated and uncorroborated written testimonies of sexual harassment and conduct unbecoming of an noncommissioned officer.  He further states that he was assumed to be guilty from the beginning of the investigation and that the investigation was not conducted thoroughly by the Criminal Investigation Division (CID).  He states that evidence that was potentially exculpatory was ignored, while conflicting sworn statements/testimonies by extremely biased witnesses were admitted into the record.  He contends that there were items that were confiscated and lost and one missing item in particular was his planning guide, which showed a detailed account of his daily activities.  He states that the planning guide was proof that that there were no times that he was alone with any recruits or potential enlistees.  He goes on to state that he was forced to accept an Article 15 by a colonel that plainly stated that his hands were tied and that he did something wrong even if the evidence didn’t show it.  He states that the preponderance of evidence was not met in his case, yet he was severely punished for crimes he did not commit.  He concludes by stating that he is not satisfied with being condemned for actions that are inconsistent with his integrity and that he should not be made to suffer continuously because of what has been referred to as politically correct punishment due to the scandal at Aberdeen Proving Ground.  In support of his appeal he submits five undated statements from associates attesting to his character.

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

On 31 July 1984, he enlisted in the Army for 3 years and 14 weeks.  He successfully completed training as an infantryman and has remained on active duty through a series of continuous reenlistments.

On 22 November 1996, while the applicant was serving in the pay grade of E-6 and performing the duties of a recruiter, an Army recruit contacted a CID special agent alleging that she had consensual sexual intercourse with her recruiter (the applicant).  As a result of the allegations an investigation was initiated.  In a sworn statement, the recruit stated, in effect, that sometime in September 1995, while her husband was at Fort Drum, she and the applicant began having an extra-martial affair that lasted until 2 weeks before Christmas (December 1995).  The recruit stated that she got angry with the applicant because she found out that he was seeing someone else and she called his wife and told her about the affair that she was having with her husband.  During the investigation the recruit was asked by the interviewing agent if her relationship with the applicant had anything to do with her joining the Army.  She answered yes and stated that originally she was not really intending to join the Army, but the relationship definitely had an impact on her decision.  The recruit stated that she believed that the applicant used her as well as others.

The recruit’s roommate was also interviewed on 22 November 1996 and she corroborated the sworn statement provided by the recruit.

The applicant’s ex-wife was interviewed on 5 December 1996.  She stated that after the recruit called her in December 1995 and told her about the affair she was having with her husband, he admitted to having the affair with the recruit.  The applicant’s ex-wife also stated that she contacted her husband’s immediate supervisor who she believed knew about the affair and told him that the applicant was having an affair with a recruit.  She further stated that the supervisor responded by stating that he would talk to the applicant about it.  She stated that she filed for a divorce on 18 March 1996.

There were sworn statements provided by numerous individuals during the course of the investigation.  However, those statements provided no information to either corroborate or dispute the allegations made by the recruit.

On 29 April 1997, the investigation was concluded and the results of the investigation established probable cause to believe that the applicant committed the offenses of adultery and sodomy when he had consensual sexual intercourse and performed sodomy with one of his recruits.  The supporting Staff Judge Advocate was of the opinion that sufficient admissible evidence was available to prosecute the applicant for the offenses.

On 11 August 1997, nonjudicial punishment (NJP) was imposed against him for wrongfully engaging in an unauthorized relationship with a Delayed Entry Program (DEP) participant, committing sodomy and wrongfully having sexual intercourse with a married woman not his wife.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.  The Record of Proceedings under Article 15, UCMJ shows that the applicant opted not to demand trial by court-martial and that the hearing during his Article 15 proceedings be closed.  He also opted to submit an appeal to the Article 15.  In the appeal, he stated that his punishment was unjust because the investigation produced no physical evidence supporting the allegations made by the recruit and that the legal office never conducted an investigation on his behalf as he was never allowed to present his case.  He further stated that his punishment was unjust because trial by a 

court-martial was never initiated because of lack of evidence.  He stated that a planning guide that was taken by the CID during the investigation would have shown his day to day activities during the time period of the alleged charges.  He also outlined what he believed to be discrepancies in the statements made by his ex-wife, the recruit and the recruit’s roommate.  The Staff Judge Advocate determined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed.  The commander recommended that the Record of Proceedings Under Article 15, UCMJ be filed on his performance fiche.

On 20 October 1997, the applicant was furnished a relief for cause NCOER for the period covering June 1996 through August 1997.  The NCOER reflects that he was relieved of recruiting duty for failing to maintain acceptable standards of conduct.  The NCOER also reflects that he set a poor example as a recruiter by involving himself with a female member of the DEP, that he displayed unsuitable performance as a soldier and that he lacked good judgement and standards of personal conduct.

On 12 November 1997, the portion of the 11 August 1997 NJP pertaining to the forfeiture of pay was set aside by the commander because he believed that the applicant should have a fresh start at his new unit.

The applicant was again promoted to the pay grade of E-6 on 1 June 1998.

Army Regulation 623-205 sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.  

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative or factual inaccuracy.

Army Regulation 27-10 prescribes the guidelines for the filing of NJP.  Paragraph 3-37b(1) states, in pertinent part, that for soldiers in pay grades E-4 and below 
(prior to punishment) who have been in the Army less than 3 years as of the date 
punishment is imposed, the original DA Form 2627 will be filed in local NJP files and destroyed at the end of 2 years or upon transfer of the soldier from the unit, whichever occurs first.  For all other soldiers, the original will be forwarded to the appropriate custodian for filing in the Official Military Personnel File as directed by the imposing commander.
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The contested report appears to represent a valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his records.

2.  At the time the NJP was imposed, the applicant was an E-6 with over 3 years of active service.  In accordance with applicable law and regulation the NJP is properly filed on his performance fiche.

3.  The applicant’s contentions have been noted by the Board.  However, they are unsubstantiated by the evidence of record.  The records clearly show that the investigation performed by the CID was proper and the supporting Staff Judge Advocate was of the opinion that sufficient admissible evidence was available to prosecute the applicant for the offenses.  Notwithstanding his claim that the Relief for Cause NCOER and the NJP were unjust due to unsubstantiated and uncorroborated written testimonies, he has failed to show that the CID investigation was not thorough and that the NJP and the NCOER were in error or unjust.  The records also show that he was afforded the opportunity to demand trial by court-martial and he opted not to do so.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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

___klw __  __sac ___  ___amc _  DENY APPLICATION

						Carl W. S. Chun
				     Director, Army Board for Correction
					        of Military Records

INDEX

CASE ID	AR2000042867	
SUFFIX		
RECON		
DATE BOARDED	2000/07/20	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  277	126.0000	
2.  281	126.0400	
3.  193	111.0000	
4.  207	111.0200	
5.		
6.