BOARD DATE:	  22 September 2009

		DOCKET NUMBER:  AR20090007108 


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requests, in effect, that the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 13 February 2009, be repealed and removed from his Official Military Personnel File (OMPF) and that his rank and pay grade of staff sergeant (SSG)/E-6 be reinstated and that he be given his original date of rank.

2.  The applicant states, in effect, that he believes the punishment he received was overly severe for a first time infraction of that nature and that he feels that he was targeted out of the entire company to receive this unjust punishment.

3.  In support of his request, the applicant provides Article 15 paperwork, letters of support, summary of circumstances, and photocopied evidence from the company level investigation.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) and entered active duty on 18 October 1996.  He has remained in service through a series of reenlistments and is currently serving on active duty at Fort Bliss, TX, in the rank/grade of Sergeant (SGT)/E-5.  The evidence shows that he was trained in and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The applicant's current expiration of term of service is scheduled for 29 October 2011.

2.  The applicant provided a DA Form 268 (Report to Suspend Favorable Personnel Action (Flag)).  The DA Form 268 shows that the applicant was "flagged" effective 21 November 2008 for an adverse action.

3.  The applicant provided a DA Form 4137 (Evidence/Property Custody Document) showing he relinquished custody of a Motorola V3m cell phone on 3 November 2008.  The DA Form 4137 also shows the cell phone was returned to him on 5 November 2008 by a person who identified herself as an investigating officer.

4.  The DA Form 2627 the applicant provided shows he was notified by his battalion commander on 11 February 2009 that consideration was being given whether he should be punished under Article 15 for sending out explicit pictures via a cell phone to several Soldiers in his unit which under the circumstances was prejudicial to good order and discipline of a nature to bring discredit upon the armed forces.  On 13 February 2009, the applicant indicated he elected not to demand a trial by court-martial, he elected to have a closed hearing and he elected to have a person speak in his behalf.  He further indicated that matters in defense, mitigation, and/or extenuation would not be presented.

5.  After hearing all matters presented in defense, mitigation, and/or extenuation and after having considered the violation of the UCMJ, the battalion commander imposed the following punishment on the applicant:  a reduction in rank and pay grade from SSG/E-6 to SGT/E-5; forfeiture of $1,414.00 pay per month for two months; and extra duty and restriction for 45 days.  The battalion commander, the officer administering the punishment, directed that the original DA Form 2627 be filed in the applicant's restricted section in his OMPF.  On 13 February 2009, the applicant indicated with his initials in the appropriate space on the DA Form 2627 that he elected not to appeal the punishment.

6.  On 17 February 2009, the applicant requested reconsideration of the punishment that had been imposed upon him during the Article 15 proceedings.  He requested that the reduction be suspended for no less than 180 days to allow him to demonstrate that he had learned his lesson and to allow him the opportunity to rebuild his reputation as a professional noncommissioned officer in the U.S. Army.  The applicant indicated that he accepted responsibility for his actions and completely understood the seriousness of the matter and further indicated that the incident demonstrated a lapse of judgment on his part as a leader and a Soldier; however, he believed that the punishment was not commensurate with the act of misconduct.


7.  The applicant continued that first, he did not believe the misconduct was serious enough to warrant receiving the maximum punishment possible.  He submitted that it was not an egregious criminal act worthy of maximum punishment allowed.  Secondly, the applicant stated that two key leaders - his first sergeant and his platoon leader - were not present during the Article 15 hearing to offer their recommendations with regard to the punishment.  He advised that their recommendation would have been the same as those of his platoon sergeant who was present and who had recommended against the reduction.  Lastly, the applicant stated that the photographs provided in the Article 15 were only in his 
in-box and had not been forwarded.  He stated that he had been honest when he had admitted to having passed inappropriate material from his cell phone to others' personal cell phones in the unit in the past when he was asked by the investigating officer.

8.  The applicant admitted that he was deeply remorseful for the embarrassment he had caused to the unit and to his family.  He had no excuse for his actions and he took full responsibility for them.  He regretted not having taken firm action to stop the practice in the section.  He stated that he had become a better person and Soldier because of the experience and respectfully requested that consideration be given to the whole Soldier concept and his past duty performance when deciding the appeal.  He concluded by stating that he had learned his lesson with regard to his immature and stupid activity and he could say without a doubt that it would never happen again.

9.  The applicant's appeal was submitted to the judge advocate for review and on 19 February 2009 an officer in the judge advocate's office rendered an opinion.

10.  On 20 February 2009, the applicant's appeal was denied by the commander, 5th Brigade Combat Team, based on legal advice and counsel he received from the judge advocate.  The judge advocate stated that in his opinion the proceedings had been conducted in accordance with law and regulation and the punishments were not unjust or disproportionate to the offense. 

11.  The applicant submitted a copy of an unsigned letter, dated 3 March 2009, his spouse wrote to their Member of Congress (MOC) from the 21st Congressional District in Florida, in her and in his behalf.  In her letter to the MOC, she stated, among other things:

   a.  they [she and her husband] did not agree that the punishment fit the charge nor did the evidence that they had chosen to show them support what he was being charged with;
      
   b.  they had sought advice from the Trial Defense Service and had been advised to not go to court-martial because they did not know if the unit had any other supposed evidence than what they had been shown and that could lead to more severe punishment.  When they returned from the hearing the same person said he suggested the Article 15 because it was a clear case of unsupported evidence and the battalion commander would see right through it and dismiss the case.  Unfortunately, she states, that is not how it played out;

   c.  they were most upset by the fact that there are a multitude of Soldiers who commit this same offense on a daily basis and some are shown from the same evidence they are using against her husband; yet, her husband was the only one who got charged.  If they are going to charge her husband, then everyone who does this needs to be charged  -  it is unfair to single out her husband;

   d.  they feel there was a personal vendetta against her husband who in his
12 years of active duty had received many commendations and awards for his service, has been deployed to Iraq twice, and always puts his Soldiers and the mission first.  He, she states, has never gotten in trouble, at least not until the most recent change of company commanders;

   e.  they have requested a copy of the "15-6 investigation results" to no avail.  Excuses are constantly being given.  His direct command refuses to show it to him saying he cannot see what is in the "15-6" or he can't have it because other peoples' names are on it or that there are pictures that he cannot see.  The applicant's spouse questions, if it was on his cell phone, hasn't he seen the pictures already?  Or, if there are pictures from other peoples' cell phones, why haven't they been charged?  No one else has yet been charged with anything from the initial investigation and although the evidence they have seen clearly shows that others are partaking in the same infraction that her husband is being accused of, they have not been investigated, charged, or punished;

   f.  they state that although the noncommissioned officer chain of command claims to support her husband, and they will agree that the punishment is overly severe for the charge, no one will support him past a verbal affirmation;

   g.  they made an appeal to the next in line in the chain of command, the brigade commander, but to no avail.  They were forewarned that appeals to Article 15s were rarely granted.  Representatives of the legal office kept telling them that was as far as they could take the appeal.  They knew it just couldn't end there so they contacted the post commander's office and they were turned over to the Inspector General who said they couldn't do anything because the Article 15 was over with; even though they explained the situation, the cruel and unusual punishment, the fact that he alone in that unit was charged with this when this is such a common activity not only among Soldiers but adult cell phone users and the fact that the phone in question is his personal phone and if he sent out text/pics it would be to another cell phone and to people over the age of 21.  He never sent any pictures to people who did not send him one first and never to anyone in the unit and never of anything illegal; and

   h.  they conclude their appeal to the congressman by asking him to help in getting the Article 15 reversed because it was an unjust ruling and not even the worse Soldier deserved this.

12.  On 3 April 2009, the Adjutant General, Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, responded to an inquiry from the applicant's MOC from the Florida 10th Congressional District.  In this reply the MOC was advised that a hostile workplace investigation had been conducted on 10 December 2008 and the applicant had been punished for admitting to sending inappropriate text messages to subordinates and condoning inappropriate behavior in a workplace environment.  This type of behavior from a noncommissioned officer, the MOC was advised, was not conducive to maintaining good order and discipline within the Army.

13.  On 6 April 2009, the applicant's commander responded to a congressional inquiry from the applicant's MOC from the 10th Congressional District.  In the response, the commander indicated that on 28 October 2008 he was conducting a standard counseling session with one of his noncommissioned officers about staying in the Army.  It was at this time he learned that there might be a hostile work environment within one of his company workspaces and possible sexual harassment as well.  He brought the concern to his battalion commander and he immediately assigned an investigator to confirm or deny the possibility of a hostile work environment and sexual harassment offenses.  The investigation, the commander indicated, included the entire company and began on 28 October 2008 and it was concluded on 10 December 2008.  During the investigation, numerous Soldiers were interviewed.  Twenty-nine sworn statements were collected and twenty-four rights waiver statements were administered.  Five personal cellular phones were confiscated.  After the investigation was completed and after all the evidence was reviewed and opined upon by the Fort Bliss legal office, five field grade Article 15s were administered (all were to noncommissioned officers).  Two of these noncommissioned officers were reduced in rank.  One Article 15 was dismissed and the punishment was suspended for two noncommissioned officers.  One letter of reprimand and two letters of concern were also issued as well.  The applicant, the commander stated, was punished for sending inappropriate texts to subordinates and condoning the inappropriate behavior by allowing subordinates to send inappropriate texts to him as well.  The type of behavior from a noncommissioned officer in a leadership position was not conducive to maintaining good order and discipline within the Army.

14.  The applicant provided a copy of a letter his spouse wrote to their MOC from the 10th Congressional District in Florida, dated 16 April 2009.  In this letter the applicant's spouse stated they were disappointed with the outcome and that he had not been able to help them get more information than they already had.  She stated they knew that the punishment was within legal parameters but their issue was that the commander had the choice of how severely, or not, to punish a Soldier and for a first time seemingly minor infraction by one of the most dedicated, knowledgeable, hardworking, and caring noncommissioned officers, they chose to punish him alone for this infraction and they did it quite severely.  She continued her venting and signaling her disappointment by stating they would like to know if what he did was more inappropriate than noncommissioned officers having extramarital affairs with lower enlisted Soldiers and if it was more conducive to maintaining good order and discipline in the work place.  She stated she was ashamed, but not surprised to see that the Army was more tolerant of marital infidelities and sexual relations between noncommissioned officers and lower enlisted Soldiers than stupid text messages between adult friends on their personal phones.  It is hard enough, she said, being a military family moving every few years, having to establish friendships from scratch, especially ones you can trust your family with, the majority of whom will come from the Soldier's unit.  Now, she stated they had to live in fear that the silly things they did within their friendships could ruin their career.  That, she concluded, was no way to live an already stressful life.  If they believed this infraction was so severe and the punishment was warranted then they needed to start implementing phone checks Army-wide the same way they do urinalysis to check for drug abuse to try to eliminate the problem because this is a rampant activity among Soldiers, noncommissioned officers and officers alike.  Neither her husband, she stated, nor anyone else should have been used as an example.  She objected to the statement in the Article 15 that her spouse's actions had brought discredit to the Armed Forces.  She stated she believed instead that the Armed Forces brought discredit upon itself by choosing this action.

15.  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 3-16d (4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  



16.  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 the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the 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, and 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.  In addition, it states that 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, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence.

17.  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 there is 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.

18.  Paragraph 3-34 of the military justice regulation provides guidance on action by the judge advocate.  It states, in pertinent part, that the judge advocate rendering the advice should be the judge advocate providing legal advice to the officer taking action on the appeal.

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.  The applicant's contention that the punishment he received was overly severe for a first time infraction of that nature and that he feels that he was targeted out of the entire company to receive this unjust punishment has been given consideration and has been found to lack merit.

3.  The applicant, according to the evidence, sought the advice and counsel of attorneys at the Trial Defense Service; however, the applicant, then serving in the 
rank of SSG, knew or should have known that the decision he ultimately made was his own.  The applicant, after considering all the possibilities, elected to accept non-judicial punishment rather than face a court-martial and risk having a felony on his record.  The applicant waived his opportunity to appear before a court-martial.  When he decided to allow his battalion commander to dispose of the charges, he apparently relied on advice from a person who suggested he take the Article 15 because it was a clear case of unsupported evidence and the battalion commander would see right through it and dismiss the case.

4.  The applicant also contends that when he sought advice from the Trial Defense Service he had been advised not to go to court-martial because he did not know if the unit had any other supposed evidence than what he had been shown and that could lead to more severe punishment; however, paragraph 3-18 of the military justice regulation specifically states that in addition to notifying an individual of his or her rights, the Soldier will be informed of and allowed to examine the available evidence.  It is believed that the applicant already knew when he sought the advice of the Trial Defense Service what evidence would be presented at the hearing that would follow.  To have decided to accept non-judicial punishment because he did not know if the unit had any other supposed evidence than what he had been shown and that could lead to more severe punishment is not sufficiently compelling.

5.  The applicant contends that he was singled out of the entire company to receive unjust punishment; however, this statement is contradicted by the applicant's unit commander who was required to respond to the applicant's MOC about the applicant's situation.  The applicant's unit commander specifically informed the applicant's MOC that as a result of the investigation which led to the applicant receiving non-judicial punishment the following resulted:  five field grade Article 15s were administered; two letters of concern were written and given to Soldiers; and one other letter of reprimand was written and administered.

6.  Initially, the applicant opted not to appeal the punishment that had been imposed upon him; however, four days later, the brigade commander apparently accepted the applicant's appeal.  The Article 15 and all associated documentary evidence were reviewed by an officer of the judge advocate's office and it was his opinion the proceedings had been conducted in accordance with law and regulation and the punishments were not unjust or disproportionate to the offense.  Based on this opinion and based on his review of the case, the brigade commander denied the applicant's appeal and left the punishment unchanged.


7.  The evidence of record confirms the applicant's Article 15 proceedings were accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the process.  The applicant was granted and took advantage of all appellate rights, and there is no indication that he was targeted out of the entire company to receive unjust punishment.

8.  The applicant's Article 15 was appropriately reviewed through the appellate process.  The evidence of record and the independent evidence submitted by the applicant fail to constitute clear and convincing evidence that he was singled out for punishment and that he was treated cruelly and unjustly.  Accordingly, the regulatory burden of proof necessary to support repeal or removal of the applicant's Article 15 and to reinstate his rank and pay grade of SSG/E-6, and that he be given his original date of rank back has not been satisfied in this case.  Thus, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20090007108



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ABCMR Record of Proceedings (cont)                                         AR20090007108



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