IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090000161 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).
 
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from his official records and restoration to his former grade with back pay and allowances.

2.  The applicant states, in effect, that he would like the Article 15 removed from his official military personnel file (OMPF) because he was wrongfully found guilty of sexually harassing Private L____.  He also states, in effect, that the text messages were the evidence he was not able to submit at his Article 15 hearing.

3.  The applicant provides two self-authored statements, a rebuttal to a Noncommissioned Officer Evaluation Report (NCOER) for the period ending 12 June 2008, two witness statements, an electronic copy of his telephone records, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military personnel records show he entered active duty on 25 March 2004.  The highest grade held on this active duty tour was sergeant/pay grade E-5.

2.  On 12 June 2008, the applicant appealed the nonjudicial punishment (NJP) he received under Article 15, UCMJ, for the following offenses:

	a.  on or about 2 October 2007 and on or about 15 October 2007, maltreatment of Private K____ L____, a person subject to his orders, by harassing her with inappropriate text messages;

	b.  between 1 August 2006 and on or about 31 August 2006, maltreatment of Specialist K____ M. L____, a person subject to his orders, by telling her she looked good, that he wanted to have sex with her, and by harassing her with inappropriate text messages;

	c.  on or about 1 August 2006, maltreatment of Specialist M____ F____, a person subject to his orders, by harassing her with inappropriate text messages; and

	d.  between on or about 1 August 2006 and on or about 31 August 2006, maltreatment of Specialist A____ R____, a person subject to his orders, by harassing her with inappropriate text messages.
      
3.  His punishment was reduction to private/pay grade E-4; a forfeiture of $1023.00 per month for 2 months, one month suspended; 45 days of extra duty; and 45 days of restriction.  On 17 June 2008, the applicant's request for an appeal was denied because the proceedings were conducted in accordance with the law and regulations and the punishments imposed were neither unjust nor disproportionate to the offenses committed.  The commander imposing the NJP directed that it be filed in the performance portion of his OMPF.

4. On 27 November 2008, the applicant retired with a temporary disability after serving for a total of 4 years, 8 months, and 3 days of active duty.

5.  The applicant submitted a copy of a telephone log which was printed on 2 June 2008 and listed calls from 1 October 2007 to 23 October 2007.

6.  The applicant submitted statements from Specialist J____ and Sergeant D____ W____, dated 8 December 2008, in support of his request to correct his records.

7.  The applicant submitted a self-authored statement, dated 22 December 2008, requesting that the Board not consider his NCOER for the period ending 22 December 2008 because he did not sign it and because of his inability to appeal it.

8.  Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice.  Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which non-punitive 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.  It also provides that the officer imposing NJP determines whether the DA Form 2627 is to be filed in the Soldier’s restricted or performance fiche.

9.  Army Regulation 27-10, paragraph 3-17c(2), states, in pertinent part, that the applicant has the right to appeal and to request a reasonable time, normally 24 hours, to decide whether to demand a trial by court-martial and to gather matters in defense, extenuation, and/or mitigation.

10.  Army Regulation 623-3 (Evaluation Reporting System) states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Article 15 imposed against him for sexually harassing a female Soldier who was under his authority should be removed from his record and that he be restored to his former rank was carefully considered.

2.  Army Regulation 27-10 clearly states that a Soldier must be given 24 hours to gather matters in his defense, extenuation, and/or mitigation.  The evidence of record shows that the applicant 's NJP was due to the maltreatment of four subordinate Soldiers and the applicant only requested the removal of the Article 15 that pertains to PVT L____.  The evidence of record also shows that the applicant had 5 days to gather matters in his defense, extenuation, and/or mitigation.  The telephone records submitted by the applicant were printed on 2 February 2008, more than 6 months after the Article 15 was imposed.  The witness statements submitted by the applicant were dated 8 December 2008, 

6 months after the applicant's Article 15 was imposed on 17 June 2008.  The record of NJP is filed in accordance with the applicable Army regulation.
3.  The applicant has not provided convincing evidence that the Article 15 is untrue or unjust, in whole or in part, to support his request for removal from his OMPF.  By regulation, there must be compelling evidence to support the removal of a properly completed, facially valid Article 15 from a Soldier’s record.  Absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   x_______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20090000161



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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