IN THE CASE OF: BOARD DATE: 22 February 2012 DOCKET NUMBER: AR20110018227 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers her request and statement to counsel COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the following documents be expunged from the applicant’s official military personnel file (OMPF): * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 6 May 2011 * General Officer Memorandum of Reprimand (GOMOR), dated 12 April 2011 2. Counsel states: * The Article 15 charged the applicant with three specifications of fraternization by consensual sexual relationship and one charge of uttering a false statement that she did not have sex with three men * There was no proof the applicant engaged in sexual contact with three enlisted men * None of the three enlisted members signed any sworn statements 3. Counsel provides: * DA Form 2627 * GOMOR * DA Form 3881 (Rights Warning Procedure/Waiver Certificate) * Multiple DA Forms 2823 (Sworn Statement) * Memorandum for Record * Email exchange CONSIDERATION OF EVIDENCE: 1. With respect to the GOMOR: a. Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that applicant has not exhausted all administrative remedies available to her. There is no evidence the applicant petitioned the Department of the Army Suitability Board (DASEB) for a transfer or removal of the GOMOR from her records and was denied relief. b. The portion of her application that pertains to the GOMOR, together with all the documentary evidence she or her counsel provides, was forwarded the DASEB for consideration. Therefore, the issue of the GOMOR will not be discussed further in the Record of Proceedings. 2. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 18 December 2004. She completed the Military Police Officer Basic Course from 22 May to 14 September 2005. She was promoted to captain (CPT) on 25 March 2010. 3. She was ordered to active duty as a member of her Reserve unit on 11 July 2010 and she subsequently served in Kuwait/Iraq from 16 August 2010 to 22 June 2011. She was assigned to the 305th Military Police, 36th Infantry Division. 4. An investigation was conducted by an investigating officer (IO) of the 36th Infantry Division into allegations that the applicant was involved in fraternization. The complete investigation is not available for review with this case. However, a legal review, dated 26 February 2011, of the investigation was conducted by a military attorney of the 36th Infantry Division. The attorney stated: * The proceedings complied with the legal requirements of the governing regulation * The evidence presented by the IO supports the findings that the applicant engaged in an inappropriate relationship with enlisted Soldiers * The IO recommended the applicant be reprimanded, removed from her position, and provided a mentor; the findings support this recommendation 5. On 6 May 2011, while holding the rank of CPT and in a closed hearing, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for: * Between July and August 2010, fraternize with sergeant DF, an enlisted person by engaging in a consensual sexual relationship with * Between July and August 2010, fraternize with sergeant DB, an enlisted person by engaging in a consensual sexual relationship with * Between July and August 2010, fraternize with specialist MMA, an enlisted person by engaging in a consensual sexual relationship with * On or about 21 February 2011, with intent to deceive, making a false statement to an investigation officer wherein she denied having had sexual relationships and/or fraternization with any enlisted Soldiers 6. Her punishment consisted of a forfeiture of $2,947.35 pay per month for 2 months. The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF. The applicant elected not to appeal her punishment. 7. A review of her OMPF reveals the DA Form 2627 is in fact filed in the performance section of her OMPF. 8. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. 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 record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial: a. Paragraph 3-6 addresses the filing of an NJP and provides that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section. c. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF. It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. There must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR. 9. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF. This document states that only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant, a CPT, violated the UCMJ and subsequently accepted NJP on 6 May 2011 for various infractions. The imposing commander directed this Article 15 be filed in the performance section of her OMPF. She elected not to appeal her punishment. 2. Her NJP proceedings were conducted in accordance with law and regulation and her Article 15 and allied documents are properly filed in the performance section of her OMPF as directed by the imposing commander. There is no evidence of record and the applicant provides insufficient evidence to show that the DA Form 2627 is untrue or unjust. 3. The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. 4. When an NJP action reflects unmitigated moral turpitude or lack of integrity, or evidence of character deficiency or substantial breach of military discipline, the interests of the Army are compelling and in such cases the record should be filed in the OMPF. The fact that the applicant engaged in an inappropriate relationship with enlisted Soldiers is evidence of a lack of integrity. 5. She has not demonstrated the NJP action was unjust or untrue, or that this NJP should be removed because of the length of time, or that a removal would be in the best interest of the Army. Therefore, she is not entitled to relief in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20110018227 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110018227 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1