BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20170003885 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20170003885 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20170003885 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: 1. The applicant requests removal of a 31 January 2014 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), from his official military personnel file. 2. The applicant states: a. He was accused of having an inappropriate relationship with a Soldier (not his wife), which was unfounded. The investigator asked questions and he responded honestly and with integrity. During a second interview the investigator asked if he ever had an affair. He told the truth by stating he had during a very rough time both he and his spouse were unsure of their marriage. For this confession he was given a field grade Article 15. b. He believes the record is unjust because his wife brought the infidelity accusations forward and later confessed that she was not being truthful. The accusations brought against him were not only false but unfounded. He believes he was punished for something that was not relevant to the investigation. He told the truth about a previous affair that was an isolated event and had been resolved. He is still married to his wife. c. His punishment was suspended and his brigade commander was going to remove the NJP, but the legal branch advised him the process involved more than a "set-aside.” Therefore, the NJP is still a stain on his record. 3. The applicant provides: * e-mail, dated 7 November 2014, referring to the set-aside of the applicant’s punishment * statement from the applicant's defense counsel, dated 27 January 2014 * memorandum written to the U. S. Army Human Resources Command, dated 18 May 2015 * statement from the applicant's wife recanting her allegations CONSIDERATION OF EVIDENCE: 1. On 22 May 2012, the applicant, a staff sergeant (E-6) with 13 years of prior Regular Army and Army National Guard (ARNG) active and inactive service, enlisted in the Regular Army. 2. On or about 5 October 2013, Mrs. W____, the applicant's wife, called MSG J____ P____, the Division Assistant Chaplain, and informed him that she and her husband had an argument, which resulted in the applicant pushing her to the floor. MSG P____ informed Mrs. W____ to call law enforcement; however, she refused to do so. Mrs. W____ continued talking with MSG P____ and made accusations of adultery against her husband with a fellow Soldier. 3. On 25 October 2013, a no contact order with SPC N____ C____ was issued following the applicant's wife's allegation the applicant was having an affair with her. 4. On 14 November 2013, an investigating officer (IO) was appointed under Army Regulation 15-6 to conduct an informal investigation into the facts and circumstances of a reported domestic dispute between the applicant and his spouse in October 2013 concerning the applicant’s involvement in an inappropriate relationship with a Soldier in the brigade. The IO was to investigate at a minimum, the following issues and determine whether/if the applicant: a. abused his spouse in October 2013 as a result of an argument; b. committed an act of adultery with another Soldier in the 1st Armored Brigade Combat Team, violating Article 134 of the UCMJ; and/or c. had been involved in any previously unreported misconduct concerning inappropriate relationships or spousal abuse. 5. In his statement to the IO, the applicant indicated: a. He and his wife had filed for divorce twice in the last 2 years. The first attempt was called off by the applicant just before he deployed in October 2012. The second attempt was called off so they could work out their differences. b. When asked about the effect of his wife's church had on their marriage; the applicant stated his wife considers the church before their marriage. His wife has neglected him sexually at times stating (the church) considered sex as unholy. Because of the church he had gotten out of two Permanent Change of Station (PCS) moves. The church doesn't believe God wants them to leave the area of the church. c. When asked about his marriage and infidelity, he stated his wife had two affairs, the last one where she indicated she became pregnant by a fellow member of her church who was also a Soldier. d. The applicant admitted to having had three incidents of infidelity during his marriage, all with civilians. 6. The applicant's wife was contacted by the IO on 21 November 2013. She refused to answer any questions and terminated the conversation. 7. The IO contacted SPC N____ C____, the Soldier the applicant's wife alleged the applicant was having an inappropriate relation with. SPC C____ stated her interaction with the applicant was of a professional nature. Her social interaction was terminated when the applicant told her he was married. She physically saw the applicant on one occasion at a club when they both attended a gathering, and they danced together once. 8. A Memorandum for Record, dated 21 November 2013, shows Master Sergeant (MSG) P____ (the Division Assistant Chaplain and the applicant’s supervisor) stated to the IO: a. Mrs. W____ called him on 5 October 2013 claiming the applicant had pushed her to the floor during an argument and he had committed acts of adultery against her. She did not feel her physical safety was at risk and she had called the MSG to discuss the issue of adultery. On 14 October 2013, she called again and said things were not improving between her and the applicant and he was still seeing other women. b. Mrs. W____ is involved with a church that has particularly strict rules in which the applicant is not involved. Her continued involvement with this church has been a consistent source of friction between the two. The church believes that it is a mistake for the applicant to PCS and leave the area. Consequently, SSG Wright has had previous PCS orders cancelled because his wife wants to stay connected with this church. 9. The IO completed his investigation on 22 November 2013 noting: a. The applicant and his spouse have had history of issues within their marriage including incidents of domestic arguments in which the police were called to their residence. Although several of these incidents involved minor physical altercations, no arrests or charges were filed against the applicant or his spouse. b. On or about 5 October 2013, the applicant's wife called MSG J____ P____, the Division Assistant Chaplain, and informed him that she and the applicant had an argument which resulted in the applicant pushing her to the floor. MSG P____ informed Mrs. W____ to call law enforcement; however, she refused to do so. Mrs. W____ continued talking with MSG P____ and made additional accusations of adultery against the applicant. Mrs. W____ specifically named a female Soldier within the brigade with whom she suspected the applicant was having extramarital relations. c. The Soldier in question is SPC N____ C____, and she was assigned to Company C, 3rd Regiment, Brigade Support Battalion. Mrs. W____'s accusation of adultery between the applicant and this Soldier are based on conversations between the Soldier and photographs of this Soldier in a bathing suit on Facebook. d. The applicant and his spouse belong to an extremely conservative and intense church. This church has been a source of contention between the two and has been the source of friction within the marriage. The applicant has been on two separate PCS orders, each of which he cancelled because of his wife's involvement with this church and her refusal to leave. More recently, the applicant has come down on PCS orders following the brigade's redeployment from Afghanistan in August 2013. The events which transpired between SSG Wright and his spouse correlate with him being on PCS orders. e. There is no evidence that supports the accusation the applicant has committed an act of adultery with another Soldier violating Article 134 of the UCMJ. f. By his own admission, in a sworn statement, he indicate he had three separate affairs outside of his marriage. The first was in 2004 as a civilian, the second in 2005 during a deployment, and the third in 2012 prior to his most recent deployment. None of the individuals he had affairs with were Soldiers. His wife also had extramarital affairs with the last one resulting in a pregnancy, although she lost the child. 10. The IO found that: a. There was no evidence to support the accusation the applicant committed an act of adultery with SPC C____ or any another Soldier. b. The contact between the applicant and SPC C____ was, with the exception of one brief chance encounter, solely on Facebook and ended when the applicant told SPC C____ he was married. The two did not have any additional communication until SPC C____ requested assistance with the submission of her terminal leave form because she was having difficulty getting status updates through her chain of command. 11. The IO recommended the applicant: a. be given a letter of admonishment by the Brigade Command Sergeant Major for his behavior outside of his marriage; b. be removed from his position as the Brigade Chaplain's Assistant and reassigned until the issues surrounding his marriage can be resolved; c. be ordered to attend family counseling through the Family Advocacy Program (FAP) and his wife should be strongly encouraged to attend; and d. attend the following classes through the FAP as soon as possible: Marriage LINKS, Love Without Hurt Boot Camp, and Scream Free Marriage. 12. The IO recommended the findings and recommendations be forwarded to the appropriate authority to have the applicant's PCS orders reviewed and his orders to serve as an NCO instructor at the Chaplains' Schoolhouse be reconsidered. The IO did not believe that it would be appropriate for the applicant to serve as an instructor at the Chaplains' Schoolhouse at any point; however, once he completes mandatory marriage counseling through FAP, he recommended that the applicant be allowed to PCS to a new duty station. The IO opined that giving the applicant punishment under UCMJ was not going to solve any of his problems. In fact, UCMJ action may just inflame his already volatile marriage. 13. The commanding officer accepted and approved the finding and recommendations with the following exceptions: * Article 15 proceedings would be initiated in place of the recommended admonishment * the FAP had been attempted without success due to the applicant's wife's failure to attend * the Command Sergeant Major was to follow up on the applicant's assignment to instruct at the Chaplains' School, which was not appropriate given the issues uncovered in the investigation 13. On 22 January 2014 the applicant received NJP under the provisions of Article 15, UCMJ, for wrongfully having an inappropriate relationship with a woman other than his wife between on or about 1 and 29 February 2012. The punishment imposed was reduction to the rank/grade of sergeant/E-5, a forfeiture of $1,547 pay for 2 months (both suspended for 180 days to be automatically remitted if not vacated before 30 July 2014), and an oral reprimand. The NJP was filed in the restricted portion of the applicant's record. 14. The applicant's records show award of the: * Bronze Star Medal * Meritorious Service Medal (2nd Award) * Army Commendation Medal (2nd Award) * Army Achievement Medal (5th Award) * Army Good Conduct Medal (4th Award) * National Defense Service Medal (2nd Award) * Armed Forces Expeditionary Medal * Kosovo Campaign Medal with one bronze service star * Afghanistan Campaign Medal with one bronze service star * Iraq Campaign Medal with seven bronze service stars * Global War on Terrorism Service Medal * Korean Defense Service Medal * Noncommissioned Officers (NCO) Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with "M" Device * North Atlantic Treaty Organization Medal (2nd Award) * Meritorious Unit Commendation * Driver and Mechanic's Badge with Mechanic's Clap and Driver Clasp with Wheeled Vehicle Bar * 3rd Logistics Task Force (Kosovo) Certificate of Achievement (2nd Award) * Task Force Legion, United States Division North, COB Speicher, Iraq, Certificate of Achievement (2nd Award) * U.S. Army NCO Academy Distinguished Leadership Award * U.S. Army NCO Academy Commandant's List Certificate REFERENCES: 1. Army Regulation 600–37 (Unfavorable Information) sets forth policies and procedures for placement of unfavorable information about a Soldier in their individual official personnel files: a. To ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldier is served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making personnel decisions. 2. Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice. This regulation states that: a. NJP is appropriate in all cases involving minor offenses in which non-punitive 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. b. The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case. Furthermore, whether to impose punishment and the nature of the punishment is the sole decision of the imposing commander. c. Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports. If, after the preliminary inquiry, the commander determines, based on the evidence currently available, that the Soldier probably has committed an offense and that a nonjudicial punishment procedure is appropriate d. An NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted. A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the Soldier. New evidence unquestionably exculpating the individual is a cited example whereas the fact that a Soldier's subsequent performance has been exemplary or that the punishment adversely affects career potential is expressly excluded from the definition of clear injustice. 3. The Manual for Court-Martial and the UCMJ, provide the following for actions under Article 134 (General Article): a. Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. b. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134: (1) Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. (2) Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. (3) Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. c. Article 134, paragraph 62 (Adultery), provides that: (1) The accused wrongfully had sexual intercourse with a certain person; (2) At the time, the accused or the other person was married to someone else; and (3) Under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (4) To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a service member. Adultery may also be service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline. Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem. While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline. Commanders should consider all relevant circumstances, including but not limited to the following factors, when determining whether adulterous acts are prejudicial to good order and discipline or are of a nature to bring discredit: (a) The accused’s marital status, military rank, grade, or position; (b) The co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces; and (c) The military status of the accused’s spouse or the spouse of the co-actor, or their relationship to the armed forces; (d) The impact, if any, of the adulterous relationship on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces. DISCUSSION: 1. The applicant accepted NJP for having an inappropriate relationship with a woman not his wife during the period 1 through 29 February 2012. 2. The initial investigation was directed due to the applicant's wife's allegation that he was having a sexual relationship with a female Soldier in his command. This portion of the allegation was determined to have no merit; however, during the investigation the applicant admitted to having had affairs on three occasions. The last affair, with a civilian, was during the period covered by the NJP. 3. The IO determined that due to the nature of the applicant's position as a senior chaplain's assistant his admission of having had affairs did warrant action and the convening officer issued the NJP not for adultery but for an inappropriate relationship. While the affair appears to have been private and discreet in nature and may not have met the standard of being discrediting service, under the circumstances, the commander determined it to be conduct prejudicial to good order and discipline. As a senior chaplain's assistant the applicant held a position of special trust and responsibility; his actions betrayed that special trust. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170003885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170003885 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2