BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120020397 


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:

* removal of an Article 15, dated 26 May 2011, from his Official Military Personnel File (OMPF), now known as the Army Military Human Resource Record (AMHRR)
* restoration of his rank/grade to staff sergeant (SSG)/E-6, effective 26 May 2011
* entitlement to all pay and allowances due based on the restoration of his rank to SSG 

2.  The applicant states he was denied due process of law regarding the Article 15.  He also states:

	a.  On 25 January 2011, he and several friends, including SSG RL, spent the evening at a nightclub in San Antonio, TX.  They all drank alcohol that evening.  At the club, he and SSG RL interacted at length.  They danced a lot and she led him to believe she was romantically interested in him.

	b.  After they left the club, SSG RL invited him to spend the night at her house.  She led him to the couch and went upstairs; he believed she was going to come back downstairs and engage in a romantic encounter with him.  She did come downstairs and approached him on the couch.  He assumed she was going to kiss him, so he leaned in and they kissed and touched each other for a 


few minutes.  When SSG RL realized he was intoxicated, she changed her mind and went back upstairs.  The following morning she took him to get his car.  At no time that evening did he do anything against SSG RL's will or force her to do anything.  He believed she was romantically interested in him, but he was obviously mistaken.  He does not believe he did anything wrong or criminal that night.  Since that evening, they have remained friends and continued to interact with each other on a nearly daily basis.

	c.  On 26 May 2011, he was summoned to his battalion commander's office for a second reading of his Article 15.  His legal counsel, Captain (CPT) AH, told him he would get a fair opportunity to present his side of the story and to call witnesses.  He had previously not elected to make a statement.  SSG RL had agreed to speak on his behalf by telephone during the second reading.  He requested the imposing commander, Lieutenant Colonel (LTC) TH, afford him the opportunity to call her and several other witnesses in his behalf but he refused to allow him to do so.

	d.  The other witnesses were not interviewed by the U.S. Army Criminal Investigation Command (CID) at the time of their initial investigation and several were at the nightclub on 15 January 2011.  The CID investigation was so brief and incomplete that he never had the chance to fully exonerate himself.  CPT AH tried to get CID to provide copies of their file but they refused.  He believes if the CID file was available numerous witness statements and other investigative evidence would make it clear that he did nothing wrong or criminal on 15 January 2011.

3.  The applicant provides:

* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 26 May 2011
* two memoranda
* DA Form 2823 (Sworn Statement)
* DA Form 4856 (Developmental Counseling Form), dated 30 July 2012
* DA Form 2166-8 (NCO (Noncommissioned Officer) Evaluation Report (NCOER), dated 22 May 2012
* fifty pages of text messages, dated between 30 November 2010 to 16 March 2011, to a phone number from an unidentified number
* two certificates
* orders


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 September 1999.  He completed training and he was awarded military occupational specialty 68J (Medical Logistics Specialist).  He was promoted to the rank of SSG on 1 October 2006.  He was assigned as a small group leader at the Advanced Leader Course, Army Medical Department NCO Academy, Fort Sam Houston, TX.

2.  On 19 May 2011, he was notified he was being considered for punishment under Article 15, UCMJ, for misconduct for the following offenses:

* on or about 1 January 2011, by engaging in sexual contact with SSG MP by touching her buttocks and groin area with his hands without her permission
* on or about 16 January 2011, by engaging in sexual conduct with SSG RL by touching her buttocks with his hands and kissing her without her permission

3.  On 26 May 2011, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for misconduct on or about 16 January 2011, by engaging in sexual conduct with SSG RL by touching her buttocks with his hands and kissing her without her permission.  The 1 January 2011 offense was dismissed.

4.  The DA Form 2627 shows that at the 26 May 2011 hearing the applicant requested an open hearing; a person to speak on his behalf was requested; and matters in defense, extenuation, and/or mitigation would be presented.

5.  The punishment imposed included reduction to sergeant (SGT)/E-5, forfeiture of $1,473.00 pay per month for 2 months (suspended, to be automatically remitted if not vacated before 21 November 2011), and an oral reprimand.  The imposing commander, LTC TH, directed the DA Form 2627 be filed in the restricted section of the applicant's AMHRR.

6.  The applicant elected not to appeal the Article 15.  He was subsequently reduced to SGT/E-5 effective 26 May 2011.

7.  The applicant provides a memorandum from his trial defense counsel,
CPT AH, dated 29 May 2011, wherein he stated:

	a.  The applicant received a field grade Article 15 for two specifications of wrongful sexual conduct.  On 20 May 2011, after consulting with him (counsel), the applicant decided to accept the Article 15 and he would have witnesses to present matters in defense, mitigation, and extenuation.  They decided he would not request anyone to speak in his behalf as CPT AH would be present to assist him in presenting matters of defense.

	b.  On 26 May 2011, at the second reading, the applicant indicated to LTC TH that his counsel wanted to speak.  LTC TH's first questions were did he (CPT AH) know the applicant personally and did he know him when he was drunk; he replied no.  After CPT AH stated he wanted to address some legal concerns regarding the burden of proof, rules of evidence, and hearsay, he was cut off by LTC TH.  LTC TH stated it was not necessary to brief the commander on legal matters and asked him what else he had to say.  CPT AH began to talk about the problems with the investigation when LTC TH interrupted and repeated that he did not want to be told about legal issues.  LTC TH then told him if he did not have matters in defense, extenuation, or mitigation, he would be "thrown out of his office."  LTC TH asked him again if he had anything to say and CPT AH told him no.  No other witness/speaker that followed raised the ire of LTC TH.

	c.  The applicant was given the opportunity to close the hearing where he would address questions by LTC TH without the presence of the witnesses.  He accepted the opportunity to do so and all witnesses were dismissed.  When he asked the applicant about the closed hearing, the applicant told CPT AH that bringing his counsel almost messed it up.

	d.  The applicant was found guilty of one specification and as a result, he was reduced in rank.  He was denied permission to call the alleged victim of the charge for which he was found guilty.  Her testimony was relevant.  Although he was found guilty, he elected not to appeal the Article 15.

8.  The applicant provides a sworn statement, dated 21 September 2012, wherein a fellow Soldier, SSG LO, stated:

	a.  She thought the applicant was an excellent duty performer and had unlimited potential for promotion and continued service in the Army.  She did not believe the truth of the allegations that led him to receiving NJP under Article 15, UCMJ.  She observed the applicant hanging out with SSG RL after 15 January 2011 and they interacted normally, as friends.  This was not how the true victim of a sex offense would behave.

	b.  She was present at the second reading of his Article 15 when LTC TH refused to listen to the applicant's side of the story, denied the applicant's counsel the right to call SSG RL, and repeatedly cut off CPT AH.  She does not think he got a fair hearing and does not think justice was served.
9.  The applicant also provides a memorandum from his civilian defense counsel, dated 29 October 2012, wherein his counsel states:

	a.  The applicant was deprived of his fundamental due process right of demonstrating his innocence when LTC TH refused to allow him to call a key witness.  SSG RL was prepared to telephonically testify that the applicant had not committed the charged offense and that she was essentially coerced by CID into providing the sworn statement upon which the adverse action rested.  He also stated that LTC TH deprived the applicant of his right to be assisted by counsel in the presentation of his defense by refusing to allow CPT AH to speak substantively about the case, the evidence, the burden of proof, or any other matter.

	b.  In addition, the applicant's constitutional, statutory, and regulatory rights were violated because LTC TH had an inelastic predisposition to find guilt and assess punishment and he was not a fair and impartial commander.  The applicant's ability was further hampered by the fact that CID did not provide him with the entire contents of its investigative file.

	c.  There is insufficient evidence to prove the applicant guilty of the alleged misconduct.  The Article 15 was based on a single piece of evidence, a sworn statement by SSG RL on 18 April 2011, that she later recanted alleging she only provided the statement to CID under implied pressure of punishment if she refused to do so.  (The sworn statement by SSG RL was not available for review with this case).

	d.  However, even if there were sufficient evidence to prove the applicant engaged in the charged misconduct, it was so minor that the devastating sanction of punishment under Article 15 is patently excessive.  The allegation and the sworn statement that allegedly supports it demonstrated, even if it was true, the applicant was guilty of only a minor indiscretion.  At the most, he made an unwanted romantic overture to a fellow Soldier.  The Soldier, by her own words, did not appear to feel threatened, upset, or even mildly offended by the applicant's conduct and did not withdraw her invitation for him to spend the night on her couch.  Coupled with the sheer volume of subsequent contact she had with him, it demonstrated that what occurred was simply a harmless romantic overture that was rejected.

	e.  At the time he was wrongfully accused of sexual misconduct, he was eligible for consideration by the sergeant first class (SFC)/E-7 promotion selection board.  As a result of his reduction to SGT/E-5, he was no longer eligible to be considered for promotion to SFC.  He was and has been a stellar Soldier and outstanding NCO.  His NCOERs, from before the Article 15 and since that time, have remained stellar.  Despite the injustice he suffered, the applicant has remained positive and has excelled in his duties.  Except for the stigma of the Article 15 and the corresponding reduction in rank, he would be an SFC with unlimited upward career potential.

10.  Army Regulation 600-8-104 (AMHRR Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the AMHRR.  Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the AMHRR.  Table B-1 (Authorized documents) shows the DA Form 2627 will be filed in either the performance or the restricted section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the AMHRR is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from the AMHRR unless directed by an appropriate authority.

2.  The Army Board for Correction of Military Records (ABCMR) does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless evidence exists which demonstrates error or injustice to a degree justifying removal of the Article 15.

3.  The evidence of record shows the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an Article 15 hearing after considering the evidence.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  In addition, as the imposing commander found the applicant not guilty of one of the misconduct charges against him, it does not appear he had an inelastic predisposition to find guilt, or that he was unfair and impartial.

4.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing and he was afforded the opportunity to appeal his punishment through the proper channels.  He did not provide sufficient substantiating evidence that shows the Article 15 proceedings were improper or that his punishment was unjust.  If he and/or his legal counsel 


felt the imposing commander was unfair, he had the right to appeal the Article 15 to the next higher commander and present any mitigating issues at that time.  However, he elected not to do so.

5.  He violated the UCMJ and he was accordingly punished.  His punishment included a reduction of one grade.  There is insufficient evidence that shows the Article 15 is untrue or inaccurate.

6.  The Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  As required by the applicable regulation, the Article 15 is properly filed in the restricted section of his AMHRR.  

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120020397



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ABCMR Record of Proceedings (cont)                                         AR20120020397



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