BOARD DATE: 14 April 2011
DOCKET NUMBER: AR20100030254
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 he be restored to the rank of staff sergeant (SSG)/
E-6.
2. The applicant states he was reduced from SSG to sergeant (SGT)/E-5 as a result of field grade nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). He believes the evidence was too weak and the punishment too harsh. He adds he was new to the unit and his chain of command was not familiar with him and his character. The female Soldier who accused him of sexual harassment was a miscreant; she was AWOL (absent without leave) 2 years and an alcoholic. She was administratively discharged.
3. The applicant provides:
* a statement
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* Article 15 Counseling Memorandum, dated 22 March 2010
* Enlisted Record Brief
* Memorandum for Record (MFR), Equal Opportunity Training, dated 15 February 2010, with sign-in rosters
* DA Form 4856 (Developmental Counseling Form), dated 19 February 2010
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 3 March 2010
* MFR, Clarification of Attached material, dated 5 March 2010
* DA Form 268 (Report to Suspend Favorable Personnel Actions), dated
1 March 2010
* Memorandum, Request for NJP, dated 1 March 2010
* Excerpt from Army Regulation 600-20 (Army Command Policy)
* Text messages from Army Knowledge Online Webmail
* DA Form 2823 (Sworn Statement), dated 3 March 2010
CONSIDERATION OF EVIDENCE:
1. The applicant is a Regular Army SGT. In early 2010, he was a SSG newly assigned to Fort Campbell, KY from Camp Carroll, Korea.
2. A female subordinate Soldier accused the applicant of sexually harassing her and provided text messages sent to her by the applicant.
3. The applicant was notified of the allegation against him. He was also notified of his commander's decision to seek NJP against him. On 15 March 2010, his battalion commander offered him NJP. He was afforded the opportunity to seek counsel and on 25 March 2010, he accepted the NJP and requested a closed hearing.
4. The applicant was found guilty and punished by reduction to SGT, a forfeiture of $600 pay for 2 months, extra duty for 45 days, and an oral reprimand. He appealed to his brigade commander and the forfeiture of pay was suspended for 180 days commencing on 8 April 2010.
5. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that use of NJP is proper in all cases involving minor offenses in which nonpunitive, administrative measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldiers 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 less time and personnel than trial by court-martial. Chapter 3 implements and amplifies Article 15, UCMJ, and part V, Manual for Courts-Martial (MCM). The following rules and limitations concerning the kinds and amounts of punishment authorized under Article 15, UCMJ apply as related to reduction in grade:
* Promotion authority the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander
* Reduction (E-1 through E-4) one grade by company grade officers; one or more grades by field grade officers
* Reduction (E-5 through E-6) one grade in peacetime by field grade officers
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant was charged with sexual harassment and offered NJP. He elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with his battalion commander. He had the opportunity to decline the Article 15 at any time prior to the imposition of punishment being announced and demand trial by court-martial. His election to accept the Article 15 was his choice. He was further afforded the opportunity to appeal and did so. There is neither an error nor an injustice during the processing of his NJP.
2. The applicant's contentions have been considered and are rejected.
a. The evidence against him consists of suggestive text messages which could be construed in a sexual way and certainly could have made the female subordinate Soldier uneasy. The fact the female Soldier may have been a substandard Soldier is irrelevant.
b. The punishment meted out by the applicant's battalion commander was appropriate and well within the limits authorized by Army Regulation 27-10 and the MCM. The applicant's contention the punishment was overly harsh is rejected.
3. The applicant's reduction to SGT was proper.
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.
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