IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018829 


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 15 December 2008 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) be removed or transferred to the restricted section of his file. 

2.  The applicant states that the punishment has served its purpose and he has moved on to new responsibilities.  He admits that he made mistakes and has learned from them.  He took several Equal Opportunity (EO) courses to better himself.  He is currently serving in a sergeant major's billet and is concerned that the Article 15 will negatively impact his advancement potential.

3.  The applicant provides a copy of his Department of Army Suitability Evaluation Board (DASEB) request and denial, his Enlisted Record Brief, 2 Army Achievement Medal certificates, a certificate of training, a 1st Armored Division Coin of Excellence award, 2 Noncommissioned Officer Evaluation Reports (NCOER's), and 15 letters of character.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a career Soldier with over 24 years of service.  He was promoted to his current rank and grade (master sergeant, E-8) on 1 November 2002.

2.  While assigned to Headquarters and Headquarters Company, United States Army Reserve Center, Fort McPherson, Georgia he was charged with violation of Article 80, attempt to assault; violation of Article 107, making a false official statement; violation of Article 128, simple assault; and 16 specifications of violation of Article 134, conduct prejudicial to good order and discipline in the armed forces.  All of his reported misconduct was related to his comments or actions reported as sexual harassment.  The offenses involved at least seven individual female Soldiers and two formations which included several additional females.  The events occurred between 1 March 2007 and 31 January 2008 at or near Cairo, Egypt and/or Fort McPherson, Georgia. 

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 15 December 2008 for all of the charges and specifications except the Article 80 charge, which was dismissed on appeal.  The imposed punishment was forfeiture of $2,249.00 per month for two months.  

4.  The NCOER's, for the periods of November 2008 though April 2009 and April 2009 July 2009, show the applicant served in the positions of Operations Sergeant Major and Brigade Operations Sergeant Major, respectively.  Both NCOER's show the applicant was rated in the top blocks and considered as among the best. 

5.  The applicant's awards are shown as the Bronze Star Medal, Meritorious Service Medal (5th award), Army Commendation Medal (8th award), Army Achievement Medal (9th award), Joint Meritorious Unit Award, Meritorious Unit Commendation, Army Superior Unit Award, Army Good Conduct Medal (7th award), Army Reserve Components Achievement Medal, National Defense Service Medal (2nd award), Korea Defense Service Medal, Southwest Asia Service Medal with two bronze service stars, Kosovo Campaign Medal with one bronze service star, Iraq Campaign Medal with one campaign star, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Humanitarian Service Medal, Noncommissioned Officers Professional Development Ribbon (3rd award), Army Service Ribbon, Overseas Service Ribbon (4th award), Missouri Meritorious Service Medal, Kuwait Liberation Medal - Kuwait, NATO Medal, Combat Action Badge, Parachutist Badge, Air Assault Badge, and the Driver and Mechanics Badge.  He also received 11 Certificates of Achievement, Appreciation, or Commendation.  

6.  The applicant's eighth and ninth Army Achievement Medal and a 1st Armored Division Coin of Excellence were awarded following the NJP.

7.  Other than the incidents that led to the 15 December 2008 NJP, there are no derogatory entries in the available records.

8.  The applicant provides 15 letters of character from diverse personnel: a lieutenant colonel, a second lieutenant, a sergeant first class, four staff sergeants, five sergeants, and three specialists.  These Soldiers report having known the applicant for periods ranging from four months to four years.  All describe the applicant using terms like: very professional, uniquely qualified, epitome of the Noncommissioned Officers Creed, meticulous in carrying out his duties, highly regarded and respected, and having proficiency and professionalism well above his peers.  Of the 15 letters, 6 are from female Soldiers.

9.  Army Regulation 27-10 (Military Justice), paragraph 3-43, sets forth the policies and procedures for enlisted Soldiers (SGT and above) to petition the DA Suitability Evaluation Board (DASEB) for transfer of records of nonjudicial punishment from the performance to the restricted portion of the OMPF.  Requests normally will not be considered until a minimum of 1 year has elapsed and at least one nonacademic evaluation report has been received since imposition of the punishment.  To support the request, the person must submit substantive evidence that the intended purpose of Article 15 has been served and that transfer of the record is in the best interest of the Army.  If the DASEB denies the request the applicant may then request review by the Army Board for Correction of Military Records.  

10.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures for filing of unfavorable information in a Soldiers Official Military Personnel File (OMPF).  It states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.  These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions.  Unfavorable information that has been directed for filing in the restricted portion of the OMPF may be considered in making determinations under this regulation.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the punishment has served its purpose and he has moved on with new responsibilities.  He admits that he made mistakes and has learned for them, taking several Equal Opportunity courses to better himself.  He is currently serving in a sergeant major's billet and is concerned that the Article 15 will negatively impact his advancement potential.

2.  The Army does not and can not condone sexist comments or actions especially from senior personnel.  The NJP was warranted for the offenses.

3.  The reported misconduct occurred over an 11 month period.  Based on the number of incidents and the period covered, the misconduct can't be considered to be isolated events but rather shows a pattern of misconduct and what appears to be a basic negative attitude toward females.  

4.  The record does not contain and the applicant has not provided any evidence or documentation to support his contention that he has taken additional EO training.

5.  While the character letters speak highly of the applicant, none are from either senior command personnel or from Soldiers who might have had knowledge of the incidents and NJP.  They do not address any change in his attitude and/or behavior toward females or speak to his expressed position relative to the sexual harassment issue.  Therefore, they are of little use in demonstrating the NJP has served its purpose.  

6.  The fact that the applicant has been assigned to duties of greater responsibility in a position normally filled by a more senior NCO shows that the NJP in his OMPF has not impeded his career progression.  

7.  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 or to show it is in the best interest of the Army to remove or transfer the record of the Article 15 proceedings.

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)                                         AR20090018829





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ABCMR Record of Proceedings (cont)                                         AR20090018829



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