BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090008662 


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 a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from his records, that the reduction in rank and written reprimand that was imposed by the nonjudicial punishment (NJP) be considered null and void and all references be removed from his records.  He also requests that action be taken to amend or delete his Noncommissioned Officer Evaluation Report (NCOER) for the period ending 12 May 2008 from his records.

2.  The applicant states, in effect, he explained why he asked one subordinate female Soldier explicit questions and why his words were misinterpreted by another subordinate female Soldier.  The applicant also states the investigating officer (IO) withheld pertinent information which would have exculpated him of the alleged crime.  In addition, the IO would not allow his witnesses time off from work to speak in his behalf and ordered the people of the company not to write sworn statements in his behalf.  He continues that the provisions of the regulation which governs NJP were violated and he lists the regulatory deficiencies.

3.  The applicant provides in support of his application:

	a.  a DA Form 2627 with allied documents, copies of his NCOERs, and electronic mail.

	b.  a self-authored statement in which he indicates, in effect, he asked the two junior enlisted women the questions in an attempt to put to rest sexual rumors concerning one of the two women.  One of the two women was retaliating against him because of corrective action taken against her by a sergeant who worked for him.  The applicant reiterates his contention that Soldiers were not given time off from work to speak in his behalf, that people in the company were ordered not to write statements in his behalf, and the IO did not mention that his witnesses told him the applicant spoke to the junior enlisted women the way he did to put unflattering rumors to rest.  The applicant continued that he filed an Equal Opportunity (EO) complaint against his command since Soldiers of other races were given much lenient punishment for equal offenses.

	c.  a statement from a master sergeant (MSG) indicates that he brought the applicant's conduct with the two enlisted females to his superior's attention, that neither junior enlisted woman filed a formal or informal sexual harassment complaint but they did say they would like the applicant's sexual comments to stop.  Even though there were no witnesses to the conversations, the sworn statements made it clear the applicant "had, in fact, made inappropriate statements of a sexual nature to two junior female Soldiers."  The MSG believes the situation should have been handled informally, and that the applicant's comments were due in part to the applicant's lack of experience as a noncommissioned officer (NCO).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show while he was serving on active duty as a staff sergeant in Iraq, on 3 April 2008, a commander's inquiry was forwarded to the applicant's Brigade Commander.  The commander's inquiry found the applicant did initiate and participate in inappropriate sexual conversations with two junior enlisted women, one of whom he directly supervised and over one of whom he was in a position of authority.  There was no evidence the applicant actually propositioned either woman for sexual activity, and neither woman felt the applicant had created a hostile work environment, but they inferred they would like the behavior to stop.

2.  On 16 April 2008, the applicant's commander offered the applicant NJP for orally communicating to a junior enlisted female certain indecent language, to wit: I noticed the way you have been looking at me, I know you want me, do you give head and do you swallow; and by using certain indecent language to another junior enlisted female, to wit:  do you masturbate, when do you find time to do it and I can do it for you.  The applicant accepted the NJP.  His punishment consisted of a reduction from SSG to sergeant (SGT) and a written reprimand.  The applicant’s commander directed the record of proceedings be filed in the performance section of the applicant's Official Military Personnel File (OMPF).


3.  On 25 April 2008, the applicant appealed the punishment.  He requested that his rank be restored and that the NJP be filed in the restricted portion of his OMPF.  The applicant requested a legal review of the proceedings by a legal officer not previously involved with his case.  The applicant also explained that
6 out of his 8 years of service were served in combat line units, and acceptable language is much different in mixed gender units.  "If something I said was excessively vulgar and made these Soldiers feel uncomfortable, this was not my intent.  I sincerely apologize and humbly ask their forgiveness."

4.  On 25 April 2008 the applicant was issued a Memorandum of Reprimand (MOR).

5.  On 17 May 2008, the applicant was given an NCOER covering the period
1 June 2007 to 12 May 2008.  In that NCOER his rater marked the Army Value of Respect/EO/EEO, Treats people as they should be treated, as "No," indicating the applicant did not have this Army Value.  In Values/NCO Responsibilities, Leadership, his rater stated that the applicant "displayed a flaw in leadership by making inappropriate comments to junior Soldiers."  The rater ranked the applicant as needing improvement in this area.  The rater ranked the applicant as marginal for overall potential for promotion and/or service in positions of greater responsibility, and the senior rater rated the applicant as "Fair" (next to last block on a five-block rating scale) for overall performance, and "Superior (3)" (middle block of a five-block rating scale) in overall potential for promotion and or service in positions of greater responsibility.

6.  At the time the applicant submitted his request, he was serving on active duty in the rank of SGT.

7.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which nonpunitive 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 provided that the officer imposing NJP determines whether the report of NJP (DA Form 2627) is to be filed on the individual's restricted or performance fiche.



8.  Army Regulation 600-8-104, which establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF, states, in pertinent part, that the restricted portion of the OMPF is for historical data that may normally be improper for viewing by selection boards or career managers.  The restricted file ensures that an unbroken, historical record of a member's service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interest of the member and the Army.

9.  Army Regulation 623–3 (Personnel Evaluation, Evaluation Reporting System), paragraph 3–23, Unproven derogatory information, subparagraph d, states that any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an NCOER.  For all reports, if previously reported information later prove to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with 
chapter 6.

10.  Paragraph 7-2a of Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant charges that regulatory procedures were not followed in his NJP proceedings and that witnesses were not given time off to testify in his behalf, he has not submitted any evidence to support those contentions.  

2.  The applicant states that his words were misinterpreted.  However, the applicant does not contend that the words he was charged with using in his NJP were incorrect.  

3.  An NCO is expected to act in a professional manner at all times.  Part of that professionalism is expressed in the Army Values which is reflected on every NCOs' NCOER, "Respect/EO/EEO, Treats people as they should be treated."  Making racial or sexually-explicit remarks are two clear demonstrations the NCO is not exhibiting this Army Value.

4.  The applicant's NJP was given to him in accordance with the applicable regulation, he was given due process during the proceedings, and the applicant accepted NJP rather than demanding a trial by court-martial.  There is no error or injustice evident in these proceedings.

5.  As such, there is no basis for restoring the applicant's rank or removing the MOR from his records.  As for moving the MOR and record of proceedings to the restricted portion of his OMPF, these documents chronicle a failure of the applicant to adhere to Army Values.  As such, these documents would not be improper for viewing by selection boards or career managers.

6.  As for the applicant's NCOER, this evaluation was given to the applicant after he accepted his NJP.  As such, the evaluation did not contain any unproven information.  The evaluation appears to accurately reflect the applicant’s rater and senior rater's honest assessment of his performance and potential.  As such, there is no reason to alter or remove this NCOER.

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)                                         AR20090008662



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ABCMR Record of Proceedings (cont)                                         AR20090008662



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