IN THE CASE OF:	  

		BOARD DATE:	       7 May 2009

		DOCKET NUMBER:  AR20090002352 


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 that the 21 September 2008 nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) be set aside and that his rank and pay be restored. 

2.  The applicant states, in effect, that his defense counsel determined that the elements were not met in the charge of wrongful sexual contact in violation of Article 120 of the UCMJ and that the appeal authority did not consider the supportive statement about the applicant's good character or his prior record of service.

3.  The applicant provides copies of the various forms, memoranda, and sworn statements identified in paragraph 10 below as items "a" through "p." 

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Regular Army sergeant (SGT) with approximately 
11 years and 7 months of active duty service at the time of the incident at issue.  He was an automated logistical specialist in primary military occupational specialty (MOS) 92A and was assigned to the 58th Military Police Company in Iraq. 

2.  His date of rank as a SGT was 1 January 2005.  He was 37 years old and was on his second Iraq deployment.  He had been awarded the Army 
Achievement Medal for service in Kosovo from June to November 1999 and the Army Commendation Medal for his "selfless service and personal courage" in Iraq from March 2004 to March 2005.  

3.  Private First Class (PFC) S_________, a medic, was assigned to the company on 7 August 2008.  Because of operational commitments, SGT A____ W___, her supervising noncommissioned officer (NCO), asked the applicant to help her to in-process and prepare for missions.  
      
4.  The applicant's Interactive Personnel Electronic Records Management System (iPERMS) record is incomplete.  There is no documentation concerning this incident currently located in the applicant's iPERMS.  

5.  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) submitted by the applicant shows that, on 13 September 2008, he was informed that the battalion commander was considering whether he should be punished under Article 15, UCMJ for sexual contact by kissing PFC S_________ on the lips in violation of Article 120, UCMJ and for orally communicating certain indecent language to SGT T_____ O. W______, in violation of Article 134, UCMJ.

6.  The applicant was afforded an opportunity to consult with counsel and waived his right to demand a trial by court-martial.  He requested a closed hearing; requested to have another person speak in his behalf; and he indicated that matters in defense, mitigation and/or extenuation would be presented in person.  

7.  On 21 September 2008, the battalion commander imposed punishment consisting of reduction to the grade of E-4, forfeiture of $1170.00 pay per month for 2 months, and extra duty for 45 days.  He directed that the DA Form 2627 be filed in the performance section of the applicant’s Official Military Personnel File (OMPF).  

8.  The applicant appealed and indicated that he was submitting additional matters.  

9.  Trial counsel, in a 3 October 2008 memorandum to the appeal authority, found that the applicant must be found not guilty of the wrongful sexual contact offense since his actions of kissing another Soldier on the lips did not constitute sexual contact.  He also opined that the punishment imposed was not unjust nor disproportionate to the remaining charged offense of which he was found guilty. On 6 October 2008, the brigade commander considered the case and denied the applicant's appeal.


10.  The applicant's submissions with his application to this Board include the following items:

	a.  The Brigade Judge Advocate (JA), in a memorandum to the Brigade Equal Opportunity Office, opined that the NJP had not been conducted in accordance with law and regulation.  He noted that Captain B_______ O____-F_____, JA, trial counsel for the 18th Military Police Brigade, had "determined that the elements were not met in the first charge (wrongful sexual touching in violation of Article 120, UCMJ)."  He continued, "There is no evidence at all of 'wrongful sexual contact' of the accused toward the victim in this case, as there is no evidence of 'intentional touching of the genitals, groin, breasts, buttocks, or inner thighs' as defined in Article 120, UCMJ."  He recommended that the applicant apply to this Board for removal of the Article 15 from his OMPF.

	b.  The applicant described his impressions of the investigation and of the NJP.  He specifically complained because a sworn statement by Staff Sergeant (SSG) X_____ S. S_____ was not contained in the packet that the command had prepared for the brigade commander.  

	c.  The applicant's defense counsel's 3 October 2008 memorandum for the brigade commander also complained about the absence of and the lack of  due consideration having been given to SSG S_____'s statement.  Counsel noted the applicant's 11 years of honorable Army service, that he was on his second deployment, and that the chain of command had supported his retention despite the reduction in rank.  Counsel also argued that the applicant had received a more severe punishment in part because he was exercising his right and because he could not explain why the complaining witnesses would be untruthful in their allegations.

	d.  An unsigned 3 October 2008 memorandum from the trial counsel, Captain B_______ M. O____-F_____, to the brigade commander opined that the applicant's behavior did not constitute wrongful sexual contact as charged in the Article 15.  He stated that sexual contact is defined as the "intentional touching of the genitals, groin, breasts, buttocks, or inner thighs" and that the applicant "must be found not guilty of wrongful sexual contact, and the specification on the DA 2627 must be lined out."  However, he opined that the punishment imposed was not disproportionate to the remaining charged offense of which he was found guilty.

	e.  The company commander wrote a 3 September 2008 memorandum for record concerning the Army Regulation 15-6 investigation.  He detailed the reported instances of the applicant twice kissing PFC S_________ on the lips 

and SGT T_____ W______'s sworn statement of the applicant's inappropriate behavior and comments such as, "I want to be between your legs."  The company commander noted that the applicant denied ever kissing PFC S_________ and that, when he was warned of the ramifications of making false official statements, he chose to invoke his rights and to consult a lawyer.  At that time, the "No Contact Order" was prepared.  The company commander also summarized the provisions of Army Regulation 600-20 (Army Command Policy) and included the definition of sexual harassment as including unwelcomed sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature.  He concluded that the applicant did sexually harass PFC S_________ by kissing her on two occasions and that her allegations tended to be corroborated by the statements of Specialist (SPC) B____ and SGT W______ .

     f.  The applicant's DA Form 2627, dated 13 September 2008, with "Field Grade Punishment Worksheet."

	g.  The applicant's undated appeal stated that he had been a model Soldier for 11 1/2 years.  He admitted having made a mistake but promised to never again engage in misconduct.  He said that his three children and loving wife had always been his motivation to succeed in the Army.

	h.  SSG X_____ S. S_____, the applicant's supervisor, made a sworn statement to the effect that the applicant was a hard working NCO who could be counted upon when needed.  He had never heard any complaint about the applicant's treatment of female Soldiers and knew nothing of the current incident except that the applicant had related that he had been accused of kissing a female and had been required to make a statement.  
   	
   i.  DA Form 2823, sworn statement by the applicant, dated 16 August  2008; 
   
   j.  DA Form 2823, sworn statement by PFC S_________, dated 16 August 2008; 
   
   k.  DA Form 2823, SPC T_____ L___ B____'s sworn statement, dated
16 August 2008, to the effect that the applicant had observed that, if he were going to fool around that he would like to do it with someone like her, because she would not talk about it.  She responded that she was not interested.  He had not repeated this behavior, so she had not reported it.  She related that PFC S_________ had mentioned to her that the applicant made her uncomfortable.  They then discovered that he delivered the very same line to her; that she was a good prospect for a liaison because she did not gossip.
   
   l.  The sworn statement by SSG K____ S. K_____, dated 28 August 2008 relates that SGT A____ L. W___ had come to him for advice.  PFC S_________ had reported to him that she had been just been kissed by the applicant, and that previously this had happened on 11 August 2008.  
   
   m.  A sworn statement by SGT A____ L. W___, dated 26 August 2008, to the effect that PFC S_________ had reported that the applicant had kissed her and that it had happened before.  He reported these incidents to SSG K_____ who informed the company commander.  That same evening, the applicant had approached him and reported that he had taken PFC S_________ to chow and had confronted some unidentified Soldiers who "were giving him looks."  PFC S_________ denied that this incident had happened and SGT A____ W___ felt that the applicant was somehow "trying to cover himself."
     
   n.  SGT T_____ O. W______, in a 1 September 2008 sworn statement, reported that she had observed the applicant with PFC S_________ when they were supposed to be assembling her protective vest.  She considered the applicant's behavior on that occasion to be flirtatious and consistent with the way he had previously treated her until she had made it clear that she did not condone such behavior.

   o.  Report to Suspend Favorable Personnel Actions (Flag), dated 
5 September 2008.
   
   p.  No Contact Order, dated 16 August 2008, issued by the company commander, informed the applicant that he was to have no contact with PFC S_________, including by message or proxy.  The applicant acknowledged this order by signature.

11.  The 2008 edition of the Manual for Courts-Martial (MCM) provides the text of the statute covering Article 120 - Rape, sexual assault, and other sexual misconduct.  In pertinent part, subparagraph (m) states, "Wrongful sexual contact.  Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission is guilty of wrongful sexual contact and shall be punished as a court-martial may direct."

12.  The sample specifications provided in the MCM include the following for wrongful sexual contact, "In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about (time/date), engage in sexual contact with _____, to wit: _____, and such sexual contact was without legal justification or lawful authorization and without the permission of _____."
13.  Article 120, UCMJ states that, "sexual contact" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of another person. 

14.  Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice.  Chapter 3 states that nonjudicial punishment 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.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed 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.

15.  Chapter 3 of the same regulation further provides 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 un-waived 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 affects career potential is expressly excluded from the definition of clear injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that his defense counsel determined that the elements were not met in the charge of wrongful sexual contact in violation of Article 120 of the UCMJ and that the appeal authority did not consider the supportive statement about the applicant's good character or his prior record of service.
 
2.  The applicant's current contentions were fully available to the appellate authority.  However, according to the applicant, the record of NJP proceedings remains in his record and unchanged.

3.  The definition of "sexual contact" that the applicant wants applied is applicable. 

4.  Prior to accepting NJP the applicant was offered the right to consult with counsel who was obliged to advise him of his rights, including his right to demand trial by court-martial where, with the assistance of counsel and the safeguards of the rules of evidence, he could have asserted the presently proffered defense.

5.  The policies and procedures governing the imposition of nonjudicial punishment are set out in Title 10, U.S. Code, section 815 (Article 15, UCMJ), and in Army Regulation 27-10, chapter 3.  In this case there is no evidence of significant departure from those established policies or procedures.

6.  However, the finding of guilty for the "sexual contact" was not supported by the evidence and must be removed.  The charge of violating Article 120, UCMJ should be lined through indicating that the applicant was found not guilty.  Nevertheless, the punishment imposed is still appropriate to the remaining charged offense of which he was found guilty.  Therefore, further relief is precluded.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X ___  ___X ___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by lining through the following charge from the applicant's DA Form 2627, initiated on 13 September 2008, indicating the applicant was found not guilty of violating Article 120 of the UCMJ:

   "In that you, did at or near Forward Operating Base Normandy, on or about 11 August 2008 and on or about 16 August 2008, engage in sexual contact with Private First Class B_____ S. S_________, to wit:  kissing her on the lips, and such sexual contact was without legal justification or lawful authorization and without the permission of Private First Class B_____ S. S_________.  This is in violation of Article 120, UCMJ."
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to setting aside the NJP and restoring the applicant's rank and pay.



      __________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)                                         AR20090002352



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002352



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1