APPLICANT REQUESTS:  In effect, the applicant requests that the nonjudicial punishment under Article 15, UCMJ, be set aside, that he be restored to the rank of sergeant (Promotable), pay grade E-5, that he be reimbursed the $1000 he forfeited as a result of nonjudicial punishment, that he be allowed to attend the basic NCO course (BNCOC) once his requests have been approved, that his record be corrected and his relief for cause NCO evaluation report be removed from his official file.   

APPLICANT STATES:  That he was unjustly punished for something he did not do.  He states, in effect, that a female soldier made complaints against him of sexual harassment on two occasions; however, she could not remember when it happened or all of the details, and although she had a witness, that individual stated one of the incidents happened on a different day than the day the female complainant said it happened.  He denounces the character of both the complainant and her witness, and claims her complaints were made in reprisal - she made the complaint two days after the applicant counseled her on her apathetic attitude; he did not select her for duty with a salute battery, a duty which she sorely desired.  He also implies that the commander who recommended the nonjudicial punishment action was prejudiced, because he, the applicant, reported that official for being involved in an unfavorable incident while in Greece.   

In an undated letter to a member of congress the applicant states that he was innocent of the charges against him, and had been prepared to request trial by court-martial to prove his innocence.  However, on 17 November 1995 he was informed by his mother that his father was having surgery (amputation).  His wife (also a soldier) and child were already scheduled to leave Germany; his first sergeant stated that once the nonjudicial punishment action was completed he [the applicant] could leave, consequently, he decided to accept the nonjudicial punishment.


The applicant submits statements from soldiers and civilians, both male and female, attesting to his good character.  Three of the soldiers state that the applicant’s female accuser was a substandard soldier, of questionable morality.

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

The applicant entered the Army in 1988, attained the rank of Sergeant E-5 in November 1992, and has received the Army Commendation Medal, three awards of the Army Achievement Medal, and two awards of the Good Conduct Medal, in addition to numerous certificates of appreciation.

On 9 August 1994 the applicant received nonjudicial punishment under Article 15, UCMJ, for willfully disobeying lawful orders from an NCO.  

On 17 November 1995 the applicant’s battalion commander notified him that he [the battalion commander] was considering whether he should be punished under Article 15, UCMJ for committing an indecent assault upon a female soldier by brushing up against her thigh with his pelvic area with intent to gratify his sexual desires; and by maltreating that same female soldier by putting his hands on his hips and placing his pelvic area in her face.  The applicant indicated that he had been afforded an opportunity to consult with counsel and that he did not demand trial by court-martial.  He requested a closed hearing, indicated that he did not request a person to speak in his behalf, and did not present matters in defense, mitigation, or extenuation.  The applicant was reduced to pay grade E-4, required to forfeit $500.00 per month for two months, and required to perform extra duty for 21 days.  The applicant did not appeal. 

On 18 December 1995 the applicant received a relief for cause NCO evaluation report for the period June 1995 through November 1995.  That report indicated that the applicant failed to place the goals of the Army above his personal needs, that his conduct on duty was unacceptable, and that he did not practice equal opportunity.

In a 4 January 1996 response to an inquiry made by a member of Congress, an official in the office of the Chief of Legislative Liaison indicated that the applicant had been held [in Germany] beyond his reassignment date due to possible discharge proceedings and extra duty punishment imposed as a result of proceedings under Article 15.  Once a determination had been made to discontinue the administrative proceedings, the applicant departed Germany for reassignment to Fort Drum, New York on 23 December 1995. That official stated that as a result of an investigation, and after legal review by a military lawyer, the applicant’s company commander recommended to the battalion commander that the applicant receive nonjudicial punishment.  This action was held in abeyance because of allegations made by the applicant against his company commander.  The applicant’s company commander ultimately received adverse administrative action for his conduct; however, an investigation also revealed that the recommendation for nonjudicial punishment against the applicant for sexual harassment was not a result of reprisal.  The battalion commander then administered nonjudicial punishment against the applicant. 

During the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the legal advisor to the Army Review Boards Agency.  That official stated that the nonjudicial punishment action against the applicant was proper, that the applicant had the opportunity to appeal that punishment and the NCO evaluation report predicated upon it, but did not do so.  

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment 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 courts-martial rules of evidence and may consider any matter, including unsworn statements the commander reasonably believes 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.

Chapter 3 of the regulation sets forth the policy and procedures for nonjudicial punishment under Article 15, UCMJ.  It provides in pertinent part that 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 effects the career potential is expressly excluded from the definition of clear injustice.

Army Regulation 623-205 establishes the policies and procedures for the preparation and submission of the NCO evaluation reports.  Chapter 4 of that regulation sets the policies and procedures for the appeals system, and states in pertinent part that a rated NCO may appeal any report that he believes in incorrect, inaccurate, or in violation of the regulation.  Substantive appeals must be submitted within 5 years of the evaluation report’s completion date.  That chapter and appendix F to the regulation provides detailed guidance for the submission of appeals. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:


1.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence and could have exercised the right to cross-examination of witnesses.  Instead he chose to have the matter settled at nonjudicial punishment.  The applicant had the opportunity to appeal, as do all soldiers who receive nonjudicial punishment, and he elected not to do so. The applicant was aware of the charges against him and the dates of those offenses, as attested to by his signature accepting the nonjudicial punishment, and his signature again when he elected not to appeal.  The rights of the applicant were not violated.
    
2.  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 his rights.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request that the nonjudicial punishment be set aside and that all his rights and privileges be restored. 

3.  The applicant has presented no evidence nor a cogent reason to set aside his relief for cause NCO evaluation report.  

4.  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 the aforementioned requirement.

5.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director