IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220004109 APPLICANT REQUESTS: * removal of the Article 134, Uniform Code of Military Justice (UCMJ), violation from the DA Form 2627 (Record of Proceedings under Article 15, UCMJ), 3 November 2021 * award of the Army Good Conduct Medal (AGCM) for the period of service from 1 September 2018 through 31 August 2021 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Form 2627, 3 November 2021, with associated documents * Memorandum (Field Grade Article 15 Appeal – Legal Memorandum (Applicant)), 8 November 2021 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 1 December 2021 (initiated) * DA Form 268, 1 December 2021 (removal) * Memorandum for Record (Notice of Disqualification for the Award of the AGCM), 28 January 2022 * Memorandum for Record (Notice of Disqualification for the AGCM), 30 March 2022 FACTS: 1. The applicant states, in effect, the violation of Article 134 needs to be removed from her field-grade Article 15 proceedings. Her command found her guilty violation of Article 134, not adultery, but "having a romantic relationship with a married man." Her command decided to lessen the offense of extra-marital sexual conduct because there was not sufficient evidence. The evidence did not support all of the required elements needed to prove adultery so they charged her with a novel offense, which cannot be done according to the preemption doctrine. a. She is currently assigned to the U.S. Army Recruiting Command (USAREC) and just received nonjudicial punishment (NJP) in November 2021. She was accused of adultery/extra-marital sexual conduct and, as a result of this, she was suspended from recruiting because adultery is a type II positions of significant trust and authority (POSTA) offense. A commander's investigation was completed, and the adultery accusation was unfounded. She has a signed memorandum from her battalion commander stating she was cleared of the adultery accusation and could return to recruiting duty, but she was still charged under Article 134 for "having a romantic relationship with a married man," which is not covered under UCMJ other than "extra- marital sexual conduct." Since the chain of command did not find evidence of adultery, the chain of command decided to lessen the offense, which is unlawful and covered by the preemption doctrine that Congress intended to limit prosecution for a particular area. The rationale for the doctrine is to prohibit prosecutors from eliminating "vital elements" from offenses Congress has expressly defined and charging the remaining elements of those under Article 134, UCMJ. The chain of command charged her with "having a romantic relationship with a married man," which is wholly covered under Article 134 (Adultery/Extramarital Conduct). The novel offense removed the word "penetration" from the required elements needed to prove adultery, which allowed her chain of command to charge her illegally. She tried to rebut this twice, but her chain of command chose to ignore the preemption doctrine and her rebuttal. b. Her end goal is to have the Article 134 offense removed from her Article 15 proceedings for illegal insufficiency. She also had her AGCM taken away as a result of the NJP. An AGCM denial memorandum was uploaded into her Army Military Human Resource Record (AMHRR) with incorrect information entered in it. The memorandum states she was being denied an AGCM because she was placed under a law enforcement investigation, which is incorrect. She has all her flagging paperwork from the time she was flagged for a Commander's Investigation, changed to an adverse action flag, then changed to a punishment-phase flag. She was never placed under a law enforcement investigation flag. She informed her chain of command that the memorandum was incorrect and, therefore, she refused to sign the document. The denial memorandum was signed by Captain (CPT) her old commander, who made the decision to deny her AGCM. Her action was not closed out prior to CPT leaving the Army and her chain of command should have not allowed him to sign the memorandum. The chain of command allowed CPT to sign this memorandum, even though he was no longer her commander and no longer being in the Army. Hence the reason why the memorandum has a wet signature and not a digital signature. The action occurred outside her eligibility date for the AGCM. 2. She enlisted in the Regular Army on 1 September 2015. She was promoted to the rank/grade of sergeant/E-5 effective 1 October 2018. 3. Headquarters, III Corps and Fort Hood, Fort Hood, TX, Orders L294-003, 20 October 2020, assigned her to the U.S. Army Recruiting Company Madison, Madison, WI, with duty at the Madison West Recruiting Station and a reporting date of 23 November 2020. 4. On 12 July 2021, she became the subject of an Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation into allegations that she engaged in an inappropriate relationship and/or extramarital sexual conduct with a married service member. 5. On 21 September 2021, the investigating officer (IO) completed the Army Regulation 15-6 investigation and determined the following (see attachment with auxiliary documents): a. Findings. (1) Upon review of the evidence, it most likely and all but certain that the applicant has been engaged in extramarital sexual conduct with Staff Sergeant) SSG as defined in the Manual for Courts-Martial, 2019, under Article 134. However, no in flagrante delicto (caught in the act) evidence exists or is likely to be discovered that definitively proves a sexual relationship as would likely be demanded by any formal court-martial proceeding. Nonetheless, considerable circumstantial evidence has been collected to make the assessment that extramarital sexual conduct exists, and is most likely continuing: • SSG remained legally married, if separated, from his spouse • SSG And the applicant continue to reside together • text messages from the applicant to strongly infer a romantic/sexual relationship on the part of the applicant • a photograph posted to social media that is highly suggestive of a romantic relationship cannot easily be explained away • the applicant, of her own volition, admitted the romantic relationship to CPT before she received formal legal counsel (2) Both SSG and the applicant deny ever having been in a romantic or sexual relationship and even have the support of a friend, SSG who substantiates that they are merely friends and roommates. Both SSG And the applicant went to some effort to explain away the incriminating text messages and photograph. Many of these statements stretch credulity and are most likely defensive, made with the correct assessment that the IO was most likely not able to gain the evidence required to legally prove extramarital sexual conduct. A lack of certainty, however, should not prevent a sound assessment. (3) The current status of the relationship between SSG and the applicant is unclear, but it is most likely that the extramarital sexual conduct is continuing, given that the two took leave to together in August 2021 despite the ongoing investigation. According to SSG his divorce from his spouse will be finalized in or around November 2021, at which point their relationship could no longer be defined as extramarital. Given the legal and very personal nature of divorce proceedings, it is likely best to assess that the divorce is ongoing without a definitive decision date until the divorce is indeed complete. b. Recommendations. (1) In pursuit of good order and discipline and so as to avoid discredit toward the U.S. Army, the IO recommended that SSG and the applicant cease to cohabit with one another as soon as possible. This could be accomplished by ordering them to find separate living arrangements, and thereby using a lawful order to break the lease on their apartment in if necessary. As it stands, their lease ends in December 2021. Whatever their relationship, by ordering them to no longer live together and ensuring this is affected, the more brazen discredit to the Army due to their cohabitation would come to an end. (2) The Military Protective Order preventing the applicant from further contact with should remain in effect indefinitely. This will prevent unnecessarily antagonizing SSG legal spouse, and thereby prevent discredit upon the Army. (3) The IO recommended that leaders with purview over SSG and the applicant should remember that clear-cut evidence proving extramarital sexual conduct between the two has not been obtained from this investigation, and that legally the bar for determining this seems quite high, but at the same time, the situation should not be allowed to pass without action or comment from leadership. Company-level leaders should formally counsel both noncommissioned officers (NCOs) that even the appearance of impropriety can be damaging to the Army and be warned that the investigation regarding them both has had the potential to damage and even ruin their military careers. The IO also recommended that such counseling include a legal order forbidding any contact, either in person, by phone, or otherwise, between the two, as soon as they no longer live together, until such time as the divorce between SSG and his spouse is finalized. Although it may not be practically possible to prove extramarital sexual conduct between SSG and the applicant, it will be possible to prevent even the possibility of a continued romantic/sexual relationship between both NCOs, for if they were to be discovered again together for any reason, it would be in violation of a lawful order, which could be punished. Such an order would likely satisfy the acrimony of an embittered spouse, and thereby prevent discredit to the Army by preventing the known possibility of extramarital sexual conduct continuing within the ranks of the and battalions.? (4) Regarding the loss of POSTA (positions of significant trust and authority) the IO recommended that unit leadership consider all circumstances and facts, and their own estimation of the value and potential of both SSG and the applicant, in making their balanced decision on how to proceed. According to the leadership of both their recruiting stations, both NCOs are performing well and have promise. (5) It should not be forgotten that SSG has filed for divorce and lives out of state from his spouse. The loss of POSTA would likely only damage both NCOs' careers and remove them from recruiting duty, which the IO is not certain is necessary or appropriate. Even the complainant and genesis of this investigation, has no wish to ruin either her husband's or the applicant's career. Rather, simply wishes the open extramarital sexual conduct to stop. The IO recommended the pertinent leaders at least consider this more forgiving and liberal path, and that the Army's focus should be to stop the relationship as well. Once given the order, if SSG and the applicant defy the mandate to stay apart and cease their relationship until the divorce is finalized, then perhaps more weighty consequences should commence at that point. (6) Regarding any administrative flags against SSG and the applicant, the IO recommended lifting these flags no later than once the legal separation of the two NCOs is affected, and once they no longer live with one another. As SSG is outside the administrative purview of the recruiting battalion, the IO recommended that the recruiting battalion be advised that SSG should now be flagged until such time as he no longer shares a residence with the applicant. (7) Lastly, the IO recommended that upon concluding any actions taken, senior leadership selected by the appointing authority should reach out to and inform her, to a suitable degree of detail and consideration, of the conclusions and consequences of the investigation, to assuage the choler of an Army spouse, and to maintain the public credit of the U.S. Army. 6. The DA Form 1574-1 (Report of Proceedings by IO), 4 October 2021, shows the approving authority, Lieutenant Colonel RCommander, U.S. Army Recruiting Battalion Milwaukee, approved the findings and recommendations with the following modifications: * deleting: extramarital sex, miscellaneous * adding: the applicant/SSG committed conduct of a nature to bring discredit on the Armed Forces by having an intimate relationship while SSG was married * adding: both NCOs made false official statements 7. She was considered for imposition of NJP under the provisions of Article 15, UCMJ, on 3 November 2021 for the following offenses: a. wrongfully having a romantic relationship with SSG a married man, not her husband, at or, on or about 6 July 2021, and that said conduct was of a nature to bring discredit upon the Armed Forces. This is in violation of Article 134, UCMJ; b. making an official statement to the IO on or about 14 September 2021, to wit: that she did not have a romantic relationship with SSG a married man, not her husband, with intent to deceive, which statement was false in that she admitted to CPT that she developed a romantic relationship with SSG a married man, not her husband, and s then known by her to be false. This is a violation of Article 107, UCMJ [Note: This offense was crossed out with the words "Not Guilty" handwritten beside the entry.]; and c. behaving with disrespect toward CPT her superior commissioned officer in command, on or about 5 October 2021, then known by her to be her superior commissioned officer in command, by continuously interrupting and talking over him while he was talking. This is a violation of Article 89, UCMJ. 8. The applicant appealed the NJP on 8 November 2021 through her counsel (see attached memorandum (Field Grade Article 15 Appeal – Legal Memorandum (Applicant)), 8 November 2021). a. Counsel objected and requested that the applicant be found not guilty of the remaining two specifications or, in the alternative, reduction of her suspension of punishment to 1 month. b. Counsel noted specification 1 of the command's finding of "guilty" for the specification is legal error and must be overturned. The use of a novel Article 134 offense for the alleged misconduct is preempted by Article 134 (Adultery/Extra-Marital Conduct), UCMJ, and is therefore unlawful and the applicant must be found not guilty. This specification is legal error on its face, no consideration needs to be given on the factual insufficiency. c. Counsel noted the applicant must also be found not guilty of specification 3 as the applicant was not disrespectful and CPT behavior resulted in a divestment of his protected status as a superior commissioned officer. To find the applicant guilty, one must find beyond a reasonable doubt from the evidence; however, her commander was the one being disrespectful, and she was only responding to him, which did not amount to disrespect. She should be found not guilty of this specification. d. Counsel noted the disparity of treatment between the applicant and SSG as a result of the investigation. SSG was given a reprimand that would not be filed in his permanent file, impeding his future service. e. Counsel noted that if, despite the above, the commander finds the applicant guilty of the remaining offenses, she respectfully requested reduction in the time of suspension of punishments to 1 month. All punishments given by LTC were suspended for a period of 6 months. This means the applicant will be flagged and her promotable status removed for a period of 6 months. This additional punishment is significant, and yet another significant departure from the punishment SSG received, not to mention severely disproportionate to the alleged offenses committed. 9. The DA Form 2627, 3 November 2021, shows: a. She was afforded the right to consult with counsel. She also declined trial by a court-martial. In an open hearing and having considered all matters presented, the imposing commander found the applicant guilty of the specifications. The punishment included reduction in rank/grade to specialist/E-4, suspended for 6 months; forfeiture of $500 pay per month for 1 month, suspended for 6 months; and an oral reprimand. b. The imposing commander directed filing the DA Form 2627 in the restricted folder of her AMHRR on 18 November 2021. She elected to appeal to the higher-level commander on the same date. c. The higher-level commander granted the applicant's appeal on 30 November 2021 by suspending the reduction to E-4 from 6 months to 1 month and suspension of forfeiture of $500 for 1 month was lessened from 6 months to 1 month. All other findings and punishment imposed by the battalion commander remain unchanged. The applicant was notified and acknowledged the appeal results on the same date. 10. A review of the applicant's AMHRR shows the DA Form 2627, 3 November 2021, and allied documents are filed in the restricted folder. 11. The applicant provided: a. the DA Form 268, 1 December 2021, showing a flag was initiated against her records for adverse action effective 21 October 2021; b. the DA Form 268, 1 December 2021, showing the adverse action flag, effective 21 October 2021, was removed from her records effective 30 November 2021; c. the DA Form 268, 1 December 2021, showing a transferable flag was initiated against her records for the punishment phase that was completed on 30 December 2021; d. the DA Form 268, 1 December 2021, showing the flag, effective 7 July 2021, was removed from her records effective 21 October 2021 with a disposition of final action unfavorable; e. the memorandum for record from the Commander, U.S. Army Recruiting Command Madison (Notice of Disqualification for the Award of the AGCM), 28 January 2022, noting her ineligibility for award of the AGCM for the period of service 1 September 2018 through 31 August 2021 due to being flagged for adverse action and receiving a suspended punishment. This memorandum was digitally signed by the commander on 28 March 2021. The applicant did not sign the memorandum; and f. the memorandum for record from the Commander, U.S. Army Recruiting Command Madison (Notice of Disqualification for the Award of the AGCM), 30 March 2022, noting her ineligibility for award of the AGCM for the period of service 1 September 2018 through 31 August 2021 due to being flagged and found guilty of a law enforcement investigation, resulting a suspended punishment. This memorandum was hand-signed by the commander. The applicant did not sign the memorandum. The commander initialed the following paragraph: On 3/30/2022, 4/5/2022 and 4/7/2022 [30 March 2022, 5 April 2022, and 7 April 2022] the above Soldier has been presented with the unfavorable information and refused to acknowledge by signature OR failed to provide statement within the allotted time. (Must be initial by the commander if the Soldier refuses to check one of the above statements). 12. A review of her AMHRR contains only the memorandum for record from her commander (Notice of Disqualification for the Award of the AGCM), 30 March 2022. 13. The applicant is currently serving in the rank/grade of sergeant/E-5 at the Madison West Recruiting Station, Madison, WI. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered a. The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an open Article 15 hearing after considering all the evidence submitted. The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for an Article 15 hearing. In an open hearing, the commander found the applicant guilty of UCMJ violation. The resultant punishment was a suspended reduction to E-4, a suspended forfeiture of pay, and an oral reprimand. The applicant elected to appeal. The next higher commander partially approved her appeal regarding a portion of her punishment. b. The Board does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander's function, and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, she was given the right to demand trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels. c. The Board determined the applicant did not provide convincing evidence that shows the imposing commander denied her the right to speak or bring issues in her defense during the proceedings. The argument she now presents is not sufficient to change the determination of guilt made by the commander. She violated the UCMJ, and she was punished for it. There is neither an error nor an injustice and there is no reason to set the Article 15 aside. In view of the foregoing, the Board determined there is an insufficient evidentiary basis for granting the applicant's requested relief. d. As far as the Army Good Conduct Medal, her commander disqualified her from receiving the Army Good Conduct Medal and documented the reasons in a memorandum of notification, noting her ineligibility for award of the AGCM for the period of service 1 September 2018 through 31 August 2021 due to being flagged and found guilty of a law enforcement investigation, resulting a suspended punishment. This memorandum was hand-signed by the commander. The applicant did not sign the memorandum. She was presented with the unfavorable information and refused to acknowledge by signature or failed to provide statement within the allotted time. The Board did not find an error or an injustice. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 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. ? REFERENCES: 1. Army Regulation 15-6 (Procedures for Administrative Investigations and Board of Officers), 1 April 2016, establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 2. Army Regulation 27-10 (Military Justice), 11 May 2016, 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 non-punitive 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 non-punitive measures are considered inadequate or inappropriate. 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 3-6a 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 Official Military Personnel File (OMPF) is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must carefully weigh 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, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. 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 OPMF. The decision to file the original DA Form 2627 in the performance folder or restricted folder 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. However, the superior authority cannot direct filing a DA Form 2627 in the performance folder that the imposing commander directed to be filed in the restricted folder. c. Paragraph 3-43 contains guidance for transfer or removal of DA Forms 2627 from the OMPF. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). There must be clear and compelling evidence to support removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR. 3. Army Regulation 600-37 (Unfavorable Information), 2 October 2000, sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. Unfavorable information will not be filed in the AMHRR unless the recipient has been given the opportunity to review the documentation that serves as the basis for the proposed filing and a reasonable amount of time to make a written statement in response. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 May 2014, prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance- related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 states that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B states the original DA Form 2627 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 the 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 any superior authority. However, the superior authority cannot direct that a report be filed in the performance folder that the imposing commander directed to be filed in the restricted folder. Records of NJP presently filed in either the performance or restricted folder of the OMPF will remain so filed, subject to other applicable regulations. c. Appendix B states the disqualification memorandum for the AGCM is to be filed in the performance folder of the Soldier's OMPF. 5. Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, AGCMs, service medals and ribbons, combat and special skill badges and tabs, unit decorations, trophies, and similar devices awarded in recognition of accomplishments. The AGCM is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service. It is awarded on a selective basis to each Soldier who distinguishes himself or herself from among his or her fellow Soldiers by exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military servicer. There is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders. a. While any record of NJP or unfavorable action could be in conflict with recognizing the Soldier's service as exemplary, such record should not be viewed as automatically disqualifying. The commander will analyze the record, giving consideration to the nature of the infraction, the circumstances under which it occurred and when. b. A suspension of favorable personnel action does not automatically terminate the eligibility period. The reason for suspension must be considered by the unit commander (for example an adverse action flag may disqualify the eligibility period whereas, a flag for weight control program that results in a Soldier achieving Army standards, typically does not result in disqualification). The approving commander must consider the totality of the Soldier's performance. c. In instances of disqualification as determined by the unit commander, the commander will prepare a memorandum stating the rationale for his or her decision. This memorandum will include the period of disqualification and will be referred to the individual. The unit commander will consider the affected individual's statement. If the commander's decision remains the same, the records manager will web upload the memorandum and the individual statement for filing in the Soldier's OMPF. d. Disqualification for an award of the AGCM can occur at any time during a qualifying period (for example, when manner of performance or efficiency declines). The personnel office will establish the new "beginning date" for the Soldier's eligibility for award of the AGCM, enter the new date and code on the Soldier's record, and submit the electronic military personnel office transaction. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004109 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1