MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 May 2003                  
	DOCKET NUMBER:    AR2003087862

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.. 		Chairperson	
	Mr. Stanley Kelley . 		Member	
	Ms. Gail J. Wire		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, that the judgment and punishment imposed upon him in a 3 March 2003 nonjudicial punishment (NJP) action, Article 15, Uniform Code of Military Justice (UCMJ), be overturned.  

APPLICANT STATES:  In the enclosed self-authored statement and exhibits, that the NJP action taken against him was unjust and the charges upon which it was based were false.  He claims that he has given the Army all of his time for the last three and one half years and he has not simply met the standard, but rather set the standard.  He states that he outlines his accomplishments only to point out that the effort he has made has earned him the right to be judged fairly.  The exhibits with his self-authored statement include a two page outline he titles “Formation of Presentation”, a six page presentation with what he calls his side of the story, seven pages containing what he calls “Matters in Defense”; and four pages titled “Set Tone for the Investigation.”  He also provides various witness statements, and extracts of several Army regulations and command policy statements pertaining to sexual harassment and inappropriate relationships.  

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

He is currently serving on active duty in the Regular Army, in the rank and pay grade of specialist/E-4 (SPC/E-4), and is assigned to Fort Myer, Virginia.  

On 26 February 2003, while the applicant was serving as a sergeant/E-5 
(SGT/E-5) with H Company, 3rd United States Infantry, The Old Guard, 
Fort Myer, Virginia, his commander notified the applicant that he was considering whether the applicant should be punished under Article 15, UCMJ,
for the following misconduct:  disobeying the lawful order of a superior noncommissioned officer; failing to obey a lawful order by wrongfully creating a hostile working environment due to sexual harassment; failing to obey a lawful order by wrongfully continuing a romantic relationship with a subordinate solder in the same company; and for wrongfully communicating a threat.  On this same date, the applicant was advised of his rights and specifically of his right to consult counsel and to demand trial by court-martial.  

On 28 February 2003, the applicant confirmed that having been afforded the opportunity to consult with counsel, he decided not to demand trial by 
court-martial.  He instead elected to have the matter handled by his commander in a closed hearing.  He requested a person to speak in his behalf and indicated that matters in defense, mitigation, and or extenuation would be presented at the hearing.  

On 3 March 2003, after a closed hearing at which all matters presented in defense, mitigation, and/or extenuation were considered, the commander imposed the following punishment:  reduction to SPC/E-4; forfeiture of $500.00 per month for two months; extra duty for 45 days; and restriction to the limits of Fort Myer except quarters for 45 days.  The commander also directed that the Record of Proceedings Under Article 15, UCMJ (DA Form 2627) be filed in the performance fiche of the applicant’s Official Military Personnel File (OMPF).

The applicant elected to appeal the NJP action and to submit additional matters in his defense.  On 13 March 2003, a legal representative of the Staff Judge Advocate’s office considered the applicant’s appeal and opined that the proceedings were conducted in accordance with law and regulation, and the punishments imposed were not unjust nor disproportionate to the offenses committed.  

On 1 April 2003, the appellate authority, after considering all matters presented in the applicant’s appeal, elected to modify the punishment imposed to reduction to SPC/E-4 and forfeiture of $260.00 pay per month for two months.  

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  It states that the soldier will be given the opportunity to accept the Article 15 or to request a reasonable time, normally 24 hours, to decide whether to demand trial by court-martial and to gather matters in defense, extenuation, and/or mitigation.  Further, unless the soldier demands trial by 
court-martial within the decision period, the imposing commander may proceed with the hearing, which will consist of the following:  consideration of evidence, written or oral, against the soldier; examination of available evidence by the soldier; presentation by the soldier of testimony of available witnesses or other matters, in defense, extenuation, and/or mitigation.  Finally, in making a determination of guilt the imposing commander must be convinced beyond a reasonable doubt that the soldier committed the offense(s). 

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.  Notwithstanding the extensive argument presented by the applicant in his application and the accompanying documents, the evidence of record confirms that the 3 March 2003 NJP action accepted by the applicant was accomplished in accordance with the governing regulation.  

2.  Prior to accepting NJP the applicant was offered the right to consult with counsel who was obliged to advise him of his rights, including his right to demand trial by court-martial where, with the assistance of counsel and the safeguards of the rules of evidence, he could have asserted his defense.  

3.  The evidence of record confirms that the applicant elected not to demand trial by court-martial, and that he instead elected to have the matter handled by his commander in a closed hearing.  He was afforded all rights associated with the NJP action and he was allowed to present his appeal to the proper authority.  The Board is satisfied that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the NJP process.  

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 this 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

GW___  __SK___  __RO__          DENY APPLICATION

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

INDEX

CASE ID	AR2003087862	
SUFFIX		
RECON		
DATE BOARDED	2003/05/22	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  277	126.0000	
2.		
3.		
4.		
5.		
6.