RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 January 2005
      DOCKET NUMBER:   AR2004104215


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of a Record of Proceedings
Under Article 15, UCMJ (DA Form 2627) from his records; that the punishment
imposed by the Article 15 nonjudicial punishment (NJP) action be set-aside,
to include return of the $500.00 of pay per month for two months
forfeiture; removal of the adverse Noncommissioned Officer Evaluation
Report (NCOER) covering the period August 2002 through May 2003; and
reinstatement of his rank of sergeant (SGT).

2.  The applicant’s evidence and arguments are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s relief requests be granted by the
Board.

2.  Counsel states, in effect, that the applicant’s record of service has
been outstanding and his career has been dealt a death-blow by an
allegation that he indecently assaulted two female Soldiers in his unit,
allegations the applicant has denied since the beginning.  Counsel states
the applicant elected to personally appear at the Article 15 hearing, where
he explained his side of the story, which was that one female and he had
engaged in consensual kissing and hugging in her room until they were
disturbed by someone knocking on the door.  However, most importantly, the
commander imposing the Article 15 informed the applicant he was considering
two other interactions between the applicant and female Soldiers, for which
the applicant had not previously received advance notice and had not been
provided written statements.  Counsel states that despite the applicant’s
truthful statements to his commander, NJP that included a reduction to the
pay grade E-4, forfeiture of $500.00 per month for two months and 45 days
of extra duty was imposed.

3.  Counsel states the applicant appealed the punishment to the brigade
commander and cited two legal errors committed by the battalion commander
during the Article 15 proceedings, which were the insufficiency of the
evidence and consideration of evidence not contained in the package
provided the applicant prior to the hearing.  The brigade commander was
advised on the merits of the appeal by the brigade trial counsel, a
partisan judge advocate general (JAG) assigned to prosecute brigade
Soldiers for alleged misconduct.

4.  Counsel claims that by finding the applicant guilty of two allegations
of indecent assault, the commander violating the governing regulation by
considering evidence that had not been provided to the applicant prior to
the  hearing and by not calling witnesses.  The failure to provide evidence
to the applicant in advance of the Article 15 hearing denied him his right
to procedural and military due process, which requires the Article 15 be
set aside.

5.  Counsel also states the governing regulation provides that Article 15
punishment is reserved for minor offenses.  Offenses for which the maximum
punishment at a general court-martial would be greater than 1 year
confinement and a dishonorable discharge are not considered minor.  More
importantly, counsel claims it is a defense of an indecent assault
allegation that the person consented to the touching.  Where consent is an
issue, the defense of consent must be absent beyond a reasonable doubt.
Moreover, a female who does not consent must manifest her lack of consent
in some meaningful and tangible way or consent may be inferred.  Finally,
if the accused reasonably believed that the other participant consented,
that too is a complete defense to the allegation of indecent assault.
Counsel claims the evidence in this case regarding consent clearly raises a
reasonable doubt on whether the female Soldier involved in the
7 April 2003 incident consented to the kissing and hugging she engaged in
with the applicant.  Counsel claims the evidence regarding the second
incident of approximately 10 March 2003 is even less compelling.  Counsel
claims it is not an assault to touch another person to get their attention,
yet that is exactly what the female Soldier involved in this incident
alleged.

6.  Counsel claims that the governing regulation also requires that the
legal advice obtained by the commander considering an appeal should be
provided by a JAG officer providing legal advise to the officer taking
action on the appeal, rather than a partisan trial counsel who drafted the
charges.  Counsel claims that it is clear based on the facts provided that
the applicant was both legally and factually not guilty of indecent assault
and no NJP should have been imposed.

7.  Counsel provides the following documents in support of the application:
 Enlisted Record Brief (ERB); NCOERs ending in July 2002, November 2001,
November 2000, November 1999, August 1999 and Academic Evaluation Report
(AER) ending on 12 February 1999; Sworn Statements of involved female
Soldiers; DA Form 2627; and Article 15 appeal.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting through counsel that a NCOER for the period
August 2002 through May 2003 be removed from his record.  However, there is
no evidence of record that indicates he has appealed the NCOER to the
Deputy Chief of Staff, G-1, Enlisted Special Review Board (ESRB), under the
provisions of Army Regulation 623-205 (Evaluations).

2.  Army Regulation 15-185, the regulation governing the operations of the
Army Board for Correction of Military Records (ABCMR), stipulates that the
ABCMR will not consider an application until the applicant has exhausted
all administrative remedies to correct the alleged error or injustice.  As
a result,
it is necessary for the applicant to exhaust his administrative remedies on
the NCOER issue by following the regulatory appeal procedures outlined in
Army Regulation 623-205 prior to this issue being considered by the Board.
Thus, his request for removal of the NCOER in question will not be
discussed further in this Record of Proceedings.

3.  The applicant’s record shows he served in the Army National Guard
(ARNG) from 17 March 1989 through 28 March 1991.  He was trained in and
awarded military occupational specialty (MOS) 67T (Aircraft Maintenance)
and he enlisted in the Regular Army on 30 April 1996.  As of the date of
his application to this Board, he was still serving on active duty.

4.  On 9 May 2003, while he was serving as a sergeant (SGT) in Korea, the
applicant was notified that his battalion commander was considering whether
he should be punished under Article 15 of the UCMJ for the following two
specifications of violating Article 134:  committing an indecent assault on
a female private first class (PFC), a person not his wife, by touching her
on the back of the thigh, with intent to gratify his lust and sexual desire
on or about
10 March 2003; and by committing an indecent assault on a female private/E-
2 (PV2), a person not his wife, by rubbing his crotch against her, with
intent to gratify his lust and sexual desires on or about 7 April 2003.

5.  On 15 May 2003, the applicant elected not to demand a trial by court-
martial, and instead chose for the matter to be handled by his battalion
commander at a closed hearing.
6.  On 15 May 2003, the applicant’s battalion commander, after having
considered all matters presented in defense, mitigation and/or extenuation
at a closed hearing, imposed the following punishment on the applicant:
reduction to the grade of E-4, forfeiture of $500.00 pay per month for two
months and 45 days of extra duty.

7.  On 15 March 2003, the applicant appealed the punishment imposed.  In
his appeal, the applicant stated that relief in his case was justified for
two reasons.  The first was that there was insufficient evidence to find
him guilty and second the commander imposing the punishment considered
evidence that was not presented at the Article 15 hearing and was not
included in his Article 15 packet. He further indicated that the indecent
assault finding for the 7 April 2003 incident was false because the
encounter was consensual and provided his explanation of the incident.

8.  In his appeal, the applicant also claimed that the 10 March 2003
incident was a misunderstanding and that he only touched the female Soldier
involved to get her attention because he was concerned for her safety.  He
further indicated that the commander who imposed the NJP improperly
considered evidence that was not presented at the Article 15 hearing and
not included in his packet, as he indicated in his explanation of why he
imposed the punishment he did.

9.  On 3 June 2003, the brigade trial counsel, the JAG representative,
reviewed the applicant’s appeal and opined that the Article 15 proceedings
were conducted in accordance with the applicable law and regulations.  He
further stipulated that the punishment imposed was not disproportionate to
the offenses committed.

10.  On 13 June 2003, the applicant’s brigade commander, the appeal
authority, considered all matters presented and denied the applicant’s
appeal.

11.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.  Paragraph 3-9 contains guidance
on minor offenses.  It states that generally, the term "minor" includes
misconduct not involving any greater degree of criminality than is involved
in the average offense tried by summary court-martial (SCM). It does not
include misconduct of a type that, if tried by GCM, could be punished by
dishonorable discharge or confinement for more than 1 year.

12.  Paragraph 3-9 of the military justice regulation further stipulates
that the general minor offense rule is not hard and fast and that the
circumstances of the offense might indicate that action under Article 15
would be appropriate even in a case falling outside the normal identified
categories.

13.  Paragraph 3-18 of the military justice regulation contains guidance on
notification procedures and explanation of rights.  It states, in pertinent
part, that the imposing commander will ensure that the soldier is notified
of the commander's intention to dispose of the matter under the provisions
of Article 15. It further stipulates that Soldier will be informed of the
following:  the right to remain silent, that he/she is not required to make
any statement regarding the offense or offenses of which he/she is
suspected, that any statement made may be used against the Soldier in the
Article 15 proceedings or in any other proceedings, including a trial by
court-martial.  It further states the Soldier will be informed of the right
to counsel, to demand trial by court-martial, to fully present his/her case
in the presence of the imposing commander, to call witnesses, present
evidence, request to be accompanied by a spokesperson, an open hearing and
to examine available evidence.

14.  Paragraph 3-28 of the military justice regulation provides guidance on
setting aside punishment and restoration of rights, privileges, or property
affected by the portion of the punishment set aside.  It states, in
pertinent part, that the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment has resulted
in a clear injustice.  "Clear injustice" means that there exists an
unwaived legal or factual error that clearly and affirmatively injured the
substantial rights of the soldier. An example of clear injustice would be
the discovery of new evidence unquestionably exculpating the soldier.

15.  Paragraph 3-28 further states that clear injustice does not include
the fact that the soldier's performance of service has been exemplary
subsequent to the punishment or that the punishment may have a future
adverse effect on the retention or promotion potential of the soldier.  It
further states that normally, the Soldier's uncorroborated sworn statement
will not constitute a basis to support the setting aside of punishment.
DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and his counsel that the applicant was
not guilty of the charges upon which the Article 15 in question was based
and the supporting argument and evidence presented were carefully
considered.  However, there is insufficient evidence to support these
claims.

2.  The evidence of record confirms that the applicant was notified of the
battalion commander’s intent to handle the offenses in question under the
provisions of Article 15.  After being afforded the opportunity to consult
with legal counsel, the applicant elected not to demand a trial by court-
martial and chose to have his case disposed of through Article 15
proceedings at a closed hearing with his battalion commander.

3.  The record further shows that subsequent to the hearing, at which the
applicant presented matters of defense, mitigation, and/or extenuation, NJP
action was imposed for the applicant’s violations of Article 134 of the
UCMJ.  The applicant appealed the NJP action and after a legal review
determined it was legally sufficient, the appellate authority denied this
appeal.

4.  In view of the evidence of record, there is insufficient evidence to
support counsel’s assertion that the applicant was denied due process.  The
minor offense rule referred to in the regulation is not hard and fast and
the imposing commander had the prerogative to dispose of the matter through
the Article 15 process.  Further, the JAG representative who conducted the
appellate legal review was a member of the brigade commander’s staff.
There is no indication that he was acting as an advocate for the imposing
commander and counsel’s presumption that he was biased based on his
position is not supported by the evidence in this case.

5.  By regulation, the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment resulted in a
clear injustice. "Clear injustice" means that there exists an unwaived
legal or factual error that clearly and affirmatively injured the
substantial rights of the Soldier.  There is no such evidence of a fatal
legal or factual error that would support setting aside the NJP action
imposed upon the applicant.

6.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM __  __FE___  __RTD___  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.





            ____Fred Eichorn ______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104215                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/06                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  267  |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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