IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100015589 


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 reconsideration of his earlier request for:

* Restoration of his rank/grade to staff sergeant (SSG)/E-6
* Reimbursement of all lost pay and allowances
* Removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 April 2008, from his official military personnel file (OMPF)
* Removal of an Administrative Letter of Reprimand from his OMPF
* Removal of a substandard DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period from 1 June 2007 through 12 May 2008 from his OMPF

2.  The applicant states the battalion executive officer imposed an Article 15 punishment against him on 22 April 2008 in the absence of the battalion commander without a written memorandum of delegation authorization to do so.  Based on Army Regulation 27-10 (Military Justice) the Article 15 is therefore illegal.  He believes the memorandum would have been on file and included with the allied documents pertaining to the Article 15.  He adds that he has no new evidence because none exists.  He cannot present a copy of the delegation memorandum because it does not exist.  The above regulation clearly states the battalion commander was required to provide the imposing authority exercising Article 15 power a written memorandum delegating UCMJ authority.  No other evidence is required to determine his Article 15 was unjust and not in compliance with applicable the regulation.  Nevertheless, if such a document "suddenly" becomes available and is placed with all of the other allied documents it would appear suspicious and questionable to him. 

3.  The applicant provides the following previously-submitted documents:

* A copy of his DA Form 2627 with allied documents
* A copy of his DA Form 2166-8
* A copy of the Administrative Letter of Reprimand
* A copy of an extract from Army Regulation 27-10, dated 6 September 2002
* A copy of a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG), dated 1 April 2008
* A copy of his Enlisted Record Brief, dated 12 April 2008

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090008662, on 4 August 2009.

2.  The applicant did not submit any new evidence which was not previously reviewed by the ABCMR.  However, he submitted a new argument; therefore, it warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 15 November 2000 and he held military occupational specialty 68W (Health Care Specialist).  He executed 4-year reenlistments on 21 October 2004 and 14 March 2008 and he attained the rank/grade of SSG/E-6 on 1 October 2006.

4.  His records further show he served in Iraq from 2 April 2003 to 22 April 2004 and from 1 February 2005 to 17 January 2006.  

5.  On 3 April 2008, while serving with the 2nd Battalion, 1st Aviation Regiment, in Iraq it was reported that the applicant had initiated and participated in inappropriate sexual conversations with two junior subordinate enlisted Soldiers. During these conversations he was suspected of propositioning the two Soldiers for sexual activities.  




6.  A subsequent commander's inquiry was initiated and after obtaining sworn statements the commander determined that the applicant initiated and participated in inappropriate sexual conversations with the two subordinate Soldiers.  The recommendation was that the applicant be given a memorandum of reprimand, that he participate in corrective training related to sexual harassment, and that he not commit any reprisal against the two Soldiers.

7.  On 16 April 2008, the applicant's executive officer, Major JFS, conducted the initial reading of the applicant's nonjudicial punishment (NJP) under Article 15 of the UCMJ.

8.  On 22 April 2008, at a closed hearing, he accepted NJP under the provisions of Article 15 of the UCMJ, from his battalion commander, for orally communicating to a junior Soldier certain indecent language, and orally communicating to another junior Soldier certain indecent language.  His punishment consisted of a reduction to sergeant (SGT)/E-5 and a written reprimand.  The imposing commander, a lieutenant colonel, directed that the Article 15 be filed in the performance section of the applicant's OMPF.

9.  On 25 April 2008, he appealed the punishment.  He requested that his rank be restored and that the NJP be filed in the restricted portion of his OMPF.  He further 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."

10.  On 25 April 2008, he was issued an Administrative Letter of Reprimand by his battalion commander for failing to conduct himself in a professional manner by initiating and participating in inappropriate sexual conversations with subordinate Soldiers.  The battalion commander informed the applicant the letter was part of his punishment under Article 15 and that it would be filed in his OMPF.

11.  On 27 April 2008, a military attorney performed a legal sufficiency review and opined that the NJP proceedings were conducted in accordance with applicable law and regulation and that the punishments imposed were not unjust or disappropriate to the offenses committed.  

12.  On 5 May 2008, the applicant's brigade commander, denied the applicant's appeal.

13.  During the month of May 2008, the applicant received a change of rater NCOER which covered 11 months of rated time, from 1 June 2007 through 
12 May 2008, for his duties as an Air Ambulance NCO.  His duties included, in pertinent part, being responsible for the development, training, welfare, and morale of four NCOs and Soldiers.  The NCOER shows the following entries:

	a.  In Part IVb (Army Values/Attributes/Skills/Actions) he received a "No" rating for "Respect/EO/EEO."  His Rater entered the following bullet comments:  "displayed disrespect to Soldiers through inappropriate comments."

	b.  In Part IVd (Leadership) he received a "Needs Some Improvement" rating. His Rater entered the following bullet comments:  "displayed a flaw in leadership by making inappropriate comments to junior Soldiers." 

	c.  In Part Va (Overall potential for promotion and/or service in positions of greater responsibility) he received a "Marginal" rating.

	d.  In Part Vc (Overall Performance) he received a "Fair" rating, in Part Vd (Overall Potential) he received a "Superior 3" (middle block of a five-block rating scale), and in Part Ve (Senior Rater Bullet Comments) the senior rater entered the following comments:  "exhibited low standards of personal and professional behavior; suffered a lapse of judgment and discretion." 

14.  The NCOER shows the rater and senior rater authenticated this form by placing their digital signatures in the appropriate places, and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place.  The applicant also authenticated this NCOER by placing his digital signature in the appropriate block.

15.  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 provides that the officer imposing NJP determines whether the report of NJP (DA Form 2627) is to be filed in the individual's restricted or performance file.


16.  Paragraph 3-7 outlines who may impose NJP.  It states that unless otherwise specified in this regulation or if authority to impose NJP has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term commander, as used in this chapter, means a commissioned or warrant officer who, by virtue of that officer’s grade and assignment, exercises primary command authority over a military organization or prescribed territorial area, that under pertinent official directives is recognized as a command.  The authority given to a commander under Article 15 is an attribute of command and, except as provided in this paragraph, may not be delegated.  Delegations of authority to exercise Article 15 powers will be made in writing; for example, a memorandum.  It will designate the officer on whom the powers are conferred by name and position. Unless limited by the terms of such delegation, an officer to whom this authority is granted may exercise any power that is possessed by the officer who delegated the authority.

17.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) 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. 

18.  Paragraph 7-2a of Army Regulation 600-37 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. 

19.  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 proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with chapter 6.

20.  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.  The applicant contends the Article 15 he was issued is illegal and that the Article 15 and subsequent letter of reprimand and substandard NCOER that he was issued should all be removed from his OMPF.  He also contends his rank should be restored and he should be entitled to back pay and allowances. 

2.  The evidence of record shows that the applicant, a SSG in a leadership position, received an Article 15 on 22 April 2008 for orally communicating to junior Soldiers certain indecent language.  His punishment consisted of a reduction to SGT/E-5 and a written reprimand.  The imposing commander directed that this Article 15 be filed in the performance portion of his OMPF.  The applicant appealed his punishment and his appeal was denied.  

3.  He argues that the imposing commander (the battalion executive officer) was not issued a written memorandum delegating her Article 15 authority.  However, his argument is faulty.  The battalion executive officer was not the imposing commander.  She simply read the applicant the Article 15.  It was his battalion commander who presided at the hearing, considered the evidence, found him guilty, and imposed the punishment.  

4.  With respect to the letter of reprimand, a portion of the applicant's punishment was to receive a letter of reprimand.  It is an allied document that is correctly filed on the restricted portion of his OMPF.  This is neither an error nor an injustice.

5.  With respect to the NCOER, an NCO is expected to act in a professional manner at all times.  The applicant was responsible for the development, training, welfare, and morale of four NCOs and Soldiers.  He failed to live up to Army values and conducted himself in an unprofessional manner by initiating and participating in inappropriate sexual conversations with subordinate Soldiers.   Making sexually-explicit remarks to subordinates is a clear demonstration of an NCO not exhibiting Army Values.
6.  The NCOER was rendered subsequent to his acceptance of NJP.  As such, the evaluation did not contain any unproven information.  The NCOER 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 it.

7.  The Article 15, letter of reprimand, and NCOER properly documents his misconduct and potential for service as an NCO.  He has offered no mitigating evidence or equitable argument to support the relief he requests.  He has yet to acknowledge his leadership failure and lapse of judgment with respect to his responsibility as an NCO and Soldier. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20090008662, dated 4 August 2009.



      _______ _  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)                                         AR20100015589



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ABCMR Record of Proceedings (cont)                                         AR20100015589



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