RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 JUNE 2006
      DOCKET NUMBER:   AR20060006759


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Scott Faught                  |     |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 the removal of a Record of Nonjudicial
Punishment (DA Form 2627) dated 1 November 2003 from his Official Military
Personnel File (OMPF).

2.  The applicant states, in effect, that the nonjudicial punishment (NJP)
was unjustly imposed against him based on false accusations and his due
process rights were denied in the processing of the NJP.

3.  The applicant provides six memorandums, an unsigned statement to the
Criminal Investigation Division (CID), copies of orders related to the
revocation of his promotion, an Army Commendation Medal (ARCOM)
Certificate, his appeal of the removal action from the E-7 list, with
letters of support, and an Enlisted Records Brief.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the removal of the NJP from the applicant’s records.

2.  Counsel states, in effect, that the NJP was unjustly imposed against
the applicant based on erroneous and fabricated allegations against the
applicant and contends that the applicant’s due process rights were
violated because he was not allowed to face his accusers, to consult with
civilian counsel or to have others testify in his behalf.  He goes on to
state that military counsel advised him to accept the NJP rather than to
litigate the case at trial because he was deployed and to fight it later.
He was only given 1 day to prepare his case and then was denied the
opportunity to have character witnesses to testify in his behalf.  He also
states that the applicant’s record attests to the fact that the applicant
is an exceptional Soldier who was selected for promotion to the pay grade
of E-7 in only 10 years, only to have dreams crushed as a result of the
false accusations made against him.

3.  Counsel provides a five-page brief explaining his contentions.

CONSIDERATION OF EVIDENCE:

1.  He enlisted on 19 February 1992 for a period of 4 years, training as a
food service specialist and received a cash enlistment bonus of $5,500.  He
successfully completed his training and has remained on active duty through
a series of continuous reenlistments.  He was promoted to the pay grade of
E-6 on 30 March 1998.

2.  On 9 July 2003, a female commissioned officer was appointed to conduct
an informal investigation under the provisions of Army Regulation 15-6 into
allegations made by five female Soldiers that the applicant had committed
sexual harassment against them.

3.  On 9 July 2003, orders were also published at the Total Army Personnel
Command (now known as HRC-Alex) that announced the applicant’s promotion to
the pay grade of E-7 on 1 August 2003.  However, the applicant was under a
suspension of favorable personnel actions (FLAG) and his orders were
revoked on 1 August 2003.

4.  On 12 July 2003, the investigating officer submitted her findings and
recommendations and found that the applicant had misused his power, that
his conduct was unbecoming of a noncommissioned officer, that he had
committed fraternization and that he had violated three unit policy
letters.  She recommended that action be taken against the applicant under
the Uniform Code of Military Justice (UCMJ), that he be removed from the E-
7 promotion list and that he be barred from reenlistment and administrative
discharged under the appropriate chapter.  The investigating officer’s
report of investigation was reviewed by the Equal Opportunity Advisor who
concurred with the findings and recommendations on 15 July 2003.  The
applicant elected to appeal the findings on 16 July 2003.

5.  The report of investigation was reviewed by the Regimental Judge
Advocate on 16 July 2003 and was found to be legally sufficient.

6.  The applicant’s regimental commander provided the applicant with a copy
of the updated investigation and advised him that he had 7 days from
receipt to appeal the investigation to the General Court-Martial Convening
Authority (GCMCA).  The applicant waived his right to appeal the findings
of the investigation.

7.  However, on 3 August and 14 August 2003, the applicant submitted
memorandums to the commander where he highlighted several points and
requested that additional information/statements be obtained from five
other personnel.

8.  The available records also indicate that the commander conducted a
commander’s inquiry into the Equal Opportunity Investigation during period
of 18 to 28 September 2003.  However, the results of that inquiry are not
present in the available records.

9.  On 20 October 2003, the applicant’s Regimental Commander advised the
applicant that he was considering whether to impose punishment under
Article 15, UCMJ, in that he, while at or near Baghdad, Iraq, between 1
June and 30 June 2003, did maltreat a subordinate Soldier by saying to her
“Your walls aren’t deep enough”, or words to that effect and by maltreating
another female Soldier by showing her a pornographic movie without her
consent.

10.  On 22 October 2003, the applicant elected not to demand trial by court-
martial.  He also elected an open hearing and to have a person speak in his
own behalf.

11.  On 1 November 2003, the Regimental Commander imposed a forfeiture of
pay in the amount of $1,000.00 per month for 2 months (suspended until
29 January 2004, unless sooner vacated).  The applicant elected not to
appeal the punishment and the commander directed that it be filed on the
performance fiche of the applicant’s OMPF.

12.  On 13 February 2004, a memorandum was dispatched from the HRC-Alex
through the chain of command to the applicant informing him that an
enlisted standby advisory board (STAB) would review his records to
determine whether he should be removed from the E-7 Promotion Selection
List.  The applicant was provided 30 days in which to submit matters in his
behalf and he submitted a statement in his own behalf to the STAB.  There
is no indication in the available records as to the outcome of that board;
however, the applicant is currently serving in Iraq in the pay grade of E-
6.

13.  There is no indication in the available records to show that he
applied to the Department of the Army Suitability Evaluation Board (DASEB)
to have the record of NJP transferred to the restricted fiche of his OMPF.

14.  AR 27-10 prescribes the guidelines for the filing of NJP.  It states,
in pertinent part, that the decision to file the original DA Form 2627 on
the performance or restricted fiche of the OMPF will be determined by the
imposing commander at the time punishment is imposed.  Personnel serving in
the pay grade of E-4 or below, with less than 3 years of service will have
the Record of NJP (DA Form 2627) filed in the local unit military justice
files.  Personnel serving in the pay grade of E-4 or above with 3 or more
years of service will have the DA Form 2627 filed in the OMPF.  The filing
decision of the imposing commander is final and will be indicated in item
5, DA Form 2627.

15.  That regulation also provides, in pertinent part, that the commander
of an alleged offender must ensure that the matter is promptly and
adequately investigated.  The investigation should provide the commander
with sufficient information to make an appropriate disposition of the
incident.  The investigation should cover whether an offense was committed,
whether the Soldier was involved and the character and military record of
the Soldier.  If after the preliminary inquiry, the commander determines,
based on the evidence currently available, that the Soldier has probably
committed an offense and that a NJP procedure is appropriate, the commander
should take the necessary action.

16.  Army Regulation 27-10 also provides, in pertinent part, that in
regards to NJP, the Soldier will be advised of their right to consult with
counsel and the location of counsel.  For the purpose of NJP, counsel means
a judge advocate, a Department of the Army civilian attorney or an officer
who is a member of the bar of a Federal court or of the highest court of a
State.  In regards to civilian counsel related to trial by courts-martial,
it provides that the accused has the right to be represented in his or her
defense before a general or special court-martial or at an investigation
under Article 32, UCMJ, by civilian counsel, if provided by the accused at
no expense to the government.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  It appears that the NJP was imposed in compliance with applicable laws,
regulations, and policies by a commander empowered to do so.  The
punishment was not disproportionate to the offense and there is no evidence
of any violations of the applicant’s rights.

3.  The applicant’s contention that his due process rights were violated
has been noted.  However, he has failed to show through the evidence
submitted with his application or the evidence of record that such was the
case.

4.  The applicant was afforded the opportunity to demand trial by court-
martial, whereas he could have asserted his innocence for accusations he
claims he was not guilty of committing and he elected not to do so.
Additionally, he did not elect to appeal his punishment to the GCMCA.

5.  The available evidence also suggests that the imposing commander took
the necessary steps to investigate the matter to the point where he was
convinced that there was sufficient evidence to establish that the
applicant had committed the offense that required punishment of some sort.

6.  Accordingly, the commander was within his authority to impose NJP
against the applicant once he had determined that the applicant had
committed offenses that so warranted and there appears to be no basis to
remove the record of NJP from his records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RD __  ____JR  _  ___SF __  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.





                                  ______Richard Dunbar______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006759                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060608                                |
|TYPE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A AC Soldier on AD                    |
|DISCHARGE REASON        |N/A AC Soldier on AD                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |281/EXP RCD OF NJP                      |
|1.126.0400              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]