IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20180011592 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20180011592 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests: a. the removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 14 April 2016 (hereafter referred to as the contested Article 15), from his official military personnel file (OMPF). b. correction of his DA Form 2166-9-1 (Noncommissioned Officer Evaluation Report (NCOER) (Sergeant (SGT)), for the period 1 September 2015 through 14 April 2016. 2. The applicant states, in effect, that because his fiancée was seven months pregnant with their son KL at the time the new fraternization policy was published in Army Regulation (AR) 600-20 (Army Command Policy) on 6 November 2014, his circumstances should have been adjudicated using the fraternization policy outlined in the earlier version of this regulation, effective 18 March 2008. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * DA Form 2627, dated 14 April 2016 * DA Form 4856 (Developmental Counseling Form), dated 25 February 2015 * DA Form 1574 (Report of Proceedings of Investigating Officer/Board of Officers), with allied documents, completed 22 February 2016 * Judgement of Divorce, ordered 5 April 2016 * Lease for Residential Property * Letter of Recommendation, dated 13 June 2017 * Paragraph 4-14, Army Regulation (AR) 600-20 (Army Command Policy), dated 18 March 2008 * Paragraph 4-14, AR 600-20, dated 6 November 2014 * Enlisted Record Brief, dated 3 July 2018 * Birth Certificate, for KL * NCOER, for the period September 2013 to February 2018 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 25 February 2016 * DD Form 93 (Record of Emergency Data), dated 27 January 2016 * Servicemembers' Group Life Insurance (SGLI) Election and Certificate, dated 27 January 2016 * DA Form 5305 (Family Care Plan), 6 June 2015 * Privacy Act Statements, dated 10 February 2016 * AR 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation with allied documents 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * Regular Army Enlistment Contract * Marriage License, dated 28 April 2011 * Consent Order of Paternity, dated 5 January 2017 * Case Management Division memorandum, dated 7 September 2018 REFERENCES: 1. Paragraph 2-5, Section II, Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states that the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available. 2. AR 623-3 (Evaluation Reporting System) states that substantive appeals will be submitted to within 3 years of an OER, NCOER, or AER “THRU” date to the Evaluation Appeals Branch. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR, in accordance with AR 15-185. 3. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. a. Paragraph 3-2 provides that a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (NJP). Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. NJP may be imposed to correct, educate, and reform offenders whom 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. b. Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance folder of a Soldier's OMPF is as important as the decision on whether to impose NJP punishment itself. In making a filing determination for a record of NJP which does not include a finding of guilty to a sex-related offense, 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 folder. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, evidence of serious character deficiency, or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. c. Paragraph 3-37b(1)(a) states that for Soldiers in the ranks of SGT 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 folder or restricted folder in 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. d. Paragraph 3-43, Table 3-2 (Removal of NJP from the Military Personnel Files), Rule 3, states that if the Soldier applies to ABCMR for transfer of records of NJP punishment from the performance portion of the OMPF on the basis that evidence exists which demonstrates error or injustice to a degree justifying removal, then the record of NJP (DA Form 2627) filed in the performance portion of the OMPF will, on approval of the member’s application, be processed in accordance with the instructions of the ABCMR. 4. AR 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program. It states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. 5. AR 600-20 (Army Command Policy), paragraph 4-14, Relationships between Soldiers of different rank – a. effective 18 March 2008, states the term "officer," includes both commissioned and warrant officers unless otherwise stated. The provisions of this paragraph apply to both relationships between Army personnel (to include dual-status military technicians in the Army Reserve and the Army National Guard) and between Army personnel and personnel of other military services. Certain types of personal relationships between officers and enlisted Soldiers, are prohibited, to include dating, shared living accommodations other than those directed by operations requirements, and intimate or sexual relationships between officers and enlisted personnel, or NCOs and junior enlisted Soldiers. b. effective 6 November 2014, clarified the fraternization policy between noncommissioned officers and junior enlisted Soldiers. The term “noncommissioned officer” refers to a Soldier in the grade of corporal to command sergeant major/sergeant major. The term “junior enlisted Soldier” refers to a Soldier in the grade of private to specialist. The provisions of this paragraph apply to both relationships between Soldiers in the Active and Reserve Components and between Soldiers and personnel of other military Services. This policy is effective immediately, except where noted below, and applies to opposite-gender relationships and same-gender relationships. Certain types of personal relationships between officers and enlisted Soldiers, or NCOs and junior enlisted Soldiers, are prohibited, to include dating, shared living accommodations other than those directed by operations requirements, and intimate or sexual relationships between officers and enlisted personnel, or NCOs and junior enlisted Soldiers. DISCUSSION: 1. The applicant enlisted in the Regular Army on 21 October 2009. He married BL on 28 April 2011. 2. He was the subject of an Army Regulation 15-6 (Procedure for Investigating Officers and Boards of Officers) investigation on 29 January 2016 to determine if he was involved in an adulterous relationship with a woman who was not his wife, which resulted in the birth of a child in violation of Article 134 (Adultery). 3. The documents gathered during the investigation include the following: a. A NC birth certificate for KL, showing the child was born on 16 February 2015. The applicant and Specialist (SPC) JL are listed as the child's parents. b. A telephonic interview with the applicant's spouse, BL, wherein she stated that the applicant admitted having an affair with J___ and fathering a child after being questioned as to why he was paying for daycare. c. Privacy Act Statements from the applicant and JL, acknowledging that any information provided would be used to assist authorities in determining what action to take with regard to allegations of adultery and fraternization. d. Sworn statements from the applicant and SPC JL, both of which reported that they never had a sexual relationship and that she became pregnant after a one time casual sexual encounter with a man she did not know and never saw again. The applicant stated he was a mentor to SPC JL and served as a "father figure" to the child. He also admitted to providing minimal support in the way of gifts or assistance with child care payments. 4. After reviewing all the evidence, the IO determined that the applicant committed adultery with SPC JL between March and April 2014, resulting in the birth of a son, KL. In addition, the IO found that the applicant and JL fraternized with each other from 2014 to 2016 by sharing an intimate relationship of undue familiarity between an NCO and a junior-enlisted Soldier. 5. On 22 February 2016, the IO recommended that the applicant and SPC JL receive adverse action for violating Articles 134 (adultery) and 92 (fraternization), of the UCMJ. 6. The applicant and his spouse, BL, were divorced on 5 April 2016. 7. The applicant received notification that he was being considered for punishment under the provisions of Article 15, UCMJ, for violating paragraph 4-14b, AR 600-20, dated 6 November 2014, by wrongfully sharing an intimate relationship of undue familiarity between an NCO and a junior enlisted Soldier from on or about 6 November 2014 to on or about 15 January 2016. a. The applicant indicated with his initials that, after having been afforded the opportunity to consult with counsel, he elected: * not to demand trial by court-martial * to have a closed hearing * not to have someone speak on his behalf * to present in person matters in defense, mitigation, and/or extenuation b. The proper authority, having considered the matters presented by the applicant, imposed the punishment of reduction to SGT/E-5, forfeiture of half of one month's pay for one month, and extra duty for 45 days. He also directed the original DA Form 2627 be filed in the restricted section of the applicant’s OMPF. The applicant accepted the punishment, without appeal, on 14 April 2016. 8. His record, with the exception of matters related to this incident, shows that his performance, leadership abilities, and capabilities were proven to be at a consistently high level. 9. He was promoted to staff sergeant on 1 October 2017. 10. As of 15 November 2017, the applicant and SPC JL occupied the same residence, in Loganville, Georgia. 11. On 7 September 2018, the Director, Case Management Division, Army Review Boards Agency, notified the applicant that because he failed to appeal his NCOER in accordance with AR 623-3, that the Board could not take action on the portion of his application. 12. AR 600-20, dated 8 March 2008, did not specifically speak to a relationship between an NCO and a junior enlisted Solder as being inappropriate and the applicant's relationship with the junior enlisted Soldier clearly began under the provision of this regulation and continued after changes to the policy became effective on 6 November 2014. These changes included clarifying that the relationship between an NCO and a junior enlisted Soldier was fraternization. 13. The contested Article 15 only covers the period of the relationship that continued after the effective date of the new policy. Removal of NJP requires that a preponderance of the evidence demonstrate the presence of error or injustice. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180011592 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2