MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 June 2002                  
	DOCKET NUMBER:   AR2001065967

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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 the reduction in rank from Sergeant (SGT/E-5) to Specialist (SPC/E-4) and the forfeiture of $1,652.00 in pay he received as a result of nonjudicial punishment (NJP) administered on 5 November 2001 be rescinded and that his rank and money be restored.

APPLICANT STATES:  That he was administered NJP under Article 15, Uniform Code of Military Justice, for fraternization with a junior enlisted female soldier.  He states that he was punished because of a rumor, with no actual proof that he committed an offense.  In support of his application, he submits:  DA Form 2627 (Record of Proceedings Under Article 15, UCMJ); an undated copy of an Army Regulation (AR) 15-6 (Report of Proceedings by investigating Officer/Board of Officers) with 6 continuation pages; a copy of DD Form 457 (Investigating Officer's Report) with 16-page verbatim transcript; a copy of the applicant's 8 November 2001 Article 15 appeal; and numerous statements.

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

He was a Regular Army SGT serving in military occupational specialty (MOS) 63G (Fuel and Electrical Systems Repairer) at Fort Stewart, Georgia.

Based upon rumors that the applicant and a Chief Warrant Officer Two (CW2) had engaged in sexual intercourse with a female Private First Class (PFC), two investigations were conducted -- one under the provisions of AR 15-6 and the other under the provisions of Article 32, UCMJ.  During the investigations, the PFC admitted to having consensual sexual intercourse with the applicant and the CW2 at the CW2's residence after she returned the CW2's car that he loaned her.  She stated that the CW2 had a camera and that photographs were taken of the three of them having sexual intercourse.  A female Sergeant stated during the AR 15-6 investigation that she discovered five pornographic photographs in the applicant's belongings after she allowed him to store some of his things in her garage.  She described in graphic detail the sexual acts depicted in the five photographs.

Following completion of the investigations, the applicant's battalion commander offered the applicant NJP which he accepted on 5 November 2001.  He was charged with violating a lawful general regulation by:  wrongfully engaging in a personal relationship with a female PFC; wrongfully committing an indecent act with a female PFC by engaging in sexual intercourse with her in the presence of a CW2; wrongfully committing an indecent act with a female PFC and a CW2 by photographing his engagement of sexual intercourse in a ménage à trios; wrongfully having sexual intercourse with a married woman not his wife; and three specifications of wrongfully and unlawfully making under oath a false statement.  Following a closed hearing, the applicant's battalion commander imposed punishment of reduction to SPC, forfeiture of $826 per month for 2 months, and 45 days of extra duty.
Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member'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 fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of 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.  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.

2.  As its name indicates, NJP is different from a trial by court-martial.  An NJP hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before the applicant elected to accept NJP he was made aware of these differences and of his right to demand trial by court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at NJP.

3.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The applicant has not presented a valid reason for rescinding the forfeiture or reduction.

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

__rvo___  __rwa___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065967	
SUFFIX		
RECON		
DATE BOARDED	20020620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.0200	
2.		
3.		
4.		
5.		
6.