MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  1 November 2001
	DOCKET NUMBER:  AR2001058440

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Arthur Omartian		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:  In effect, reinstatement of his rank SPC/E4 with an effective date of 17 December 1998.

APPLICANT STATES:  That his rank should be reinstated with an effective date of 17 December 1998.  In support of his application, he submits two DA Forms 2627 (Record of Proceedings under Article 15, UCMJ), five witness statements, telephone records, a copy of a DA Form 1594 (Daily Staff Journal or Duty Officer’s Log), and a copy of his DA Form 1574 (Record of Proceedings by Investigating Officer/Board of Officers).

COUNSEL CONTENDS:  Attorney, as counsel for the applicant, contends that 
the applicant’s rank was unjustly taken away as a result of two Article 15s that were given in error.  The applicant was re-promoted to SPC/E4 on 27 May 2001, and requests that his date of rank be restored to the date of his first Article 15.  The applicant received an Article 15, for unlawfully touching his spouse and violating a no contact order given by his commander.  The applicant did not unlawfully touch his spouse; however he restrained his spouse in an act of self defense on the evening of 9 October 1998.  His spouse was heavily drinking and attacked him.  He restrained his spouse by holding her arm behind her back, and it was unjust to characterize the applicant’s actions as unlawful touching.  The second Article 15 was given for a violation on 14 October 1998, of the no contact order previously given, which he did not violate.  The applicant called his spouse on 5 October 1998, several times and the no contact order was given after that date.  Phone records verify that the applicant did not call his spouse on 14 October 1998, as alleged.  The only evidence to prove that the applicant was on the phone with his spouse on 14 October 1998, was a statement from the duty officer.  The applicant believes that the duty officer confused the days he was on duty and that he was on duty on 5 October 1998, the day the applicant called his spouse.  The applicant appealed the Article 15, which was denied, and as a result, was reduced to the pay grade of E-3, and received extra duty.  

The applicant received a second Article 15 for wrongfully using a government computer.  He did not view, download, or receive pornographic sites off the Internet as alleged.  The applicant shared a computer with a German National, who was employed in his office.  The applicant was required to log into his computers for others to access a system that was not available on other computers.  There was one pornographic file titled “wow” that was found under
the applicant’s profile.  The applicant does not know who downloaded this file onto his profile.  However, statements were prepared from others working in the office regarding the German National viewing pornography.  There was no way of 

knowing who downloaded this file.  Because of the unfortunate situation with others needing to access the applicant’s computer, it is unjust to hold him liable based solely on the fact that this material was on a computer he used.

On 28 August 2000, an administrative separation board convened.  The applicant, with the assistance of counsel, provided evidence arguing that the 
two Article 15s were unjust.  The board found that allegations of patterns of misconduct were not supported by a preponderance of evidence and 
recommended that the applicant be retained and allowed to transfer to another 
unit.

Counsel contends that the standard of proof used at the separation board was “preponderance of evidence”.  In order to separate a soldier, the separation authority must prove that it is more likely than not, that the soldier committed the acts that were the basis for the separation, which was a very minimal standard to meet.  After reviewing all evidence before the separation board, the board chose not to separate the applicant.  The evidence presented in favor of separating the applicant could not meet the “preponderance of evidence” standard.  The standard of proof properly used in the imposition of an Article 15 was “beyond a reasonable doubt.”  According to regulation, the definition of “beyond a reasonable doubt”, the commander could not impose this punishment unless he was fully satisfied or entirely convinced that the soldier in question committed the alleged acts.  This was a very difficult standard to prove.  In this case, this was an error, due to lack of evidence, for the commander to find the applicant guilty beyond a reasonable doubt.  

Counsel concludes that the incident of unlawful touching of his spouse on 9 October 1998, was a simple domestic dispute.  It was impossible with conflicting witness statements to determine beyond a reasonable doubt that the applicant was the aggressor and that his actions were unlawful.  There was clear reasonable doubt as to who downloaded pornographic material onto the applicant’s computer when many individuals had access to his computer.  The two Article 15s were apparently the basis of the separation board which were unjustly given without proper evidence.  The proper standard of proof was not
met in order to properly impose the two Article 15s.  Therefore, recommend that the applicant’s rank of SPC/E4 be restored to the date of the first Article 15.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 
15 October 1992, as a medical supply specialist.  He continues to serve and is presently assigned to Headquarters and Headquarters Detachment, 61st Area Support Medical Battalion, at Fort Hood, Texas.

On 17 December 1998, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for unlawfully touching his spouse on 9 October 1998,
and for disobeying a lawful order from his superior commissioned officer on 14 October 1998.  His punishment consisted of a reduction to the pay grade
of E-3, a forfeiture of pay (suspended), and 14 days extra duty.  The applicant indicated that he would appeal the punishment.  Legal review indicated that the proceedings were conducted in accordance with law and regulation and that the punishment was neither unjust nor disproportionate to the offenses committed.

The applicant appealed the punishment to the battalion commander.  On 29 December 1998, the appeal was denied.

On 15 March 2000, the applicant was punished under Article 15, UCMJ, for violation of a lawful general regulation, by wrongfully using government property, a computer, for other than authorized purposes on or about 11 to 14 February 2000.  The battalion commander provided the applicant the opportunity to consult with legal counsel.  The applicant elected not to demand trial by court-martial and requested a closed hearing.  The applicant submitted three statements, which explained the mitigating circumstances in his case.  It appears that no punishment was imposed as a result of the Article 15.

On 31 July 2000, the Commander, of the 21st Theater Support Group (Provisional), appointed an administrative separation board, to determine if the allegations that led to the board were supported by a preponderance of evidence. 

On 28 August 2000, the applicant was considered for separation by an administrative separation board.  The board found that the allegations of patterns of misconduct were not supported by a preponderance of evidence and that the Article 15s he received did not warrant separation from the Army.  The board recommended that the applicant be retained in the service and allowed to transfer to another unit.

In the processing of this case, a staff advisory opinion was provided by the Total Army Personnel Command Judge Advocate. 

The opinion stated that on 17 December 1998, the applicant’s commander determined by proof beyond a reasonable doubt, that the applicant assaulted his spouse, and that he violated his commander’s order to have no contact with his
spouse.  His punishment included a reduction to the pay grade of E-3, which was appealed.  His appeal and Article 15, UCMJ, were reviewed by a judge advocate officer who determined that the proceedings were conducted in accordance with law and applicable regulations, and that the punishment was neither unjust nor disproportionate to the offenses committed.  The appeal was denied by the battalion commander.  The applicant asserts that he did not assault his spouse, but rather lawfully restrained her while she attacked him in a drunken state.  He 
also asserts that he did not make any telephone calls in violation of his commander’s order not to have contact with his spouse and provided telephone records from the relevant period supporting his contention.  He had full opportunity to provide evidence regarding both offenses at his Article 15 proceedings and in the ensuing appeal.  His commanders and appeal authority were in the best position to assess the credibility of the evidence and to determine the true facts.  After legal review, the appeal authority determined that there was sufficient evidence to conclude that the applicant committed both offenses.  Guilt of either offense could have supported reduction in grade.  

The applicant received a second Article 15, UCMJ, based on allegations that he violated a lawful general regulation by reviewing and downloading pornographic
materials on his government computer.  He asserts that his computer was used by another individual who viewed and downloaded pornography.  The imposing commander properly determined that the evidence was sufficient to prove beyond a reasonable doubt that the applicant personally engaged in the offense.

The opinion further stated that the applicant was considered for separation on 28 August 2000, by an administrative separation board, which was required to
determined whether the allegations that led to the board were supported by a preponderance of evidence. The administrative separation board was required to determine whether separation was warranted.  The applicant asserts that the
administrative separation board found that the allegations against him were not supported.  His commanders’ Article 15 findings were necessarily in error given the fact that the standard of proof applicable to those proceedings was more stringent than the standard of proof applicable to separation boards.

The documents provided reflected a finding by the administrative separation board that the applicant did not engage in a pattern of misconduct and that the Article 15 punishments he received did not warrant his separation from the Army. It was also unclear, whether the board was concluding that the applicant did not commit the conduct for which he was punished at the Article 15, UCMJ, proceedings, or rather that such misconduct did not constitute a pattern warranting separation. The separation board’s findings were arrived at independently based on the evidence presented to the board.  Those board findings were not determinative of the validity of the Article 15 findings.  The opinion concluded that this Board might properly find that no error or injustice occurred.

The applicant was provided 30 days to submit matters in rebuttal to this opinion;
However, the applicant had not responded in over 30 days.

Army Regulation 27-10 states, in pertinent part, that non-judicial punishment (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 a record of court-martial conviction; and for further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

The same regulation also states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offence (s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the soldier.

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(s), it is concluded:

1.  The evidence of record shows that the two Article 15s were imposed in compliance with applicable laws, regulations and policies.  Legal review 
of the first Article 15 also indicates that punishment was neither unjust nor disproportionate to the offense and that there was no evidence of any substantive violation of any of the applicant’s rights.

2.  The applicant appeared before an administrative separation board to determine whether the allegations that led to the board were supported by the preponderance of evidence and was required to determine whether separation was warranted.  The administrative separation board found that the allegations against the applicant were not supported, that he did not engage in a pattern of misconduct, and that the Article 15 punishments he received did not warrant his separation from the Army.  The administrative separation board recommended that the applicant be retained and allowed to transfer to another unit.

3.  The Board also notes that the standard of proof used in the imposition of the
Article 15, was “beyond a reasonable doubt.”  The commander could not impose punishment unless he was fully satisfied or entirely convinced that the applicant in question committed the alleged acts.  However, in the applicant’s case, the commander was convinced that the applicant was guilty of his offenses.  The standard of proof used at the administrative separation board was “preponderance of evidence.”  However, the separation authority, after reviewing all evidence before the board, chose not to separate the applicant, and the evidence presented in favor of the applicant could not meet the “preponderance of evidence” standard.

4.  The Board notes that it is unclear whether the administrative separation board was concluding the applicant did not commit the conduct for which he was punished, or rather that such misconduct did not constitute a pattern warranting separation.  The administrative separation board’s findings were arrived at independently based on the evidence presented to the board and were not determinative of the validity of the Article 15, UCMJ, findings.

5.  Based on the preponderance of evidence provided, this Board concurs with 
the advisory opinion and finds that no error or injustice has occurred in the applicant’s case.  Therefore, there is no basis for granting the applicant’s request for reinstatement of his rank with an effective date of 17 December 1998.

6.  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 this requirement.

7.  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

__wm____  __cg___  __ao____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058440	
SUFFIX		
RECON		
DATE BOARDED	20011101	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	ACTIVE DUTY	
DISCHARGE AUTHORITY	AR .  .ACTIVE DUTY	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1021		
2.		
3.		
4.		
5.		
6.