BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130000092 


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 the following documents be removed from his Army Military Human Resource Record (AMHRR), (formerly known as the Official Military Personnel File (OMPF)), or at a minimum, moved to the restricted folder of his AMHRR:

   a.  All associated documents pertaining to the investigation and the resulting nonjudicial punishment (NJP) imposed against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 6 October 2009.

   b.  The Relief for Cause (RFC) DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 31 March 2009 through   5 October 2009.
   
2.  The applicant states:

   a.  The records are unjust due to contradictions found throughout the investigation conducted in accordance with Army Regulation (AR) 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers).  According to his RFC NCOER, he engaged in an inappropriate relationship with an officer.  The charge was based on an accusation that was unfounded.  However, he was still charged with two counts of pursuing a romantic relationship of which one count was dropped when he produced evidence from his phone records that showed 1LT Hxxx excessively called him.  In addition, the officer outranked him, but he was charged under the UCMJ.
   
   b.  He accepts full responsibility for his actions.  However, he asks the Board to look at the dates from the time the texts were sent to the date 1LT Hxxx filed her complaint.  He believes the Board will see that something was not right.  He admits his friendship with an officer in his battalion was wrong, but the text messages that he sent were jokes about someone else that she had confided with him who was pursuing her.  Although he just repeated to her what she told him in confidence in a text, unfortunately for him, it looked as if he was the one doing the pursuing.
   
   c.  He states he did not support an RFC NCOER on 1LT Hxxx's supply sergeant and believes this is what led her to come after him.  The texts were sent in March, but were not brought forward until August.  
   
   d.  He never pursued a romantic relationship with 1LT Hxxx.  Throughout the investigation no one with the exception of CW2 Txxxx confirmed that he did anything inappropriate.  The common theme from everyone who was questioned stated that he was always professional and/or they never witnessed him doing anything inappropriate.  
   
3.  The applicant provides:

* a self-authored statement
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* Page 1 of 2 DA Forms 2166-8
* Numerous associated documents pertaining to the investigation from the performance folder of the applicant's AMHRR  

CONSIDERATION OF EVIDENCE:

1.  The applicant retired honorably on 31 August 2010, in the rank of command sergeant major (CSM) after completing 26 years, 3 months, and 15 days of service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued upon his retirement states the applicant is subject to active duty recall by the Secretary of the Army.

2.  On 6 October 2009, while holding the rank of CSM and in a closed hearing, he accepted NJP under the provisions of Article 15, UCMJ for pursuing a romantic relationship, while a married man, with 1LT Hxxx, between on or about 1 January and 31 March 2009.  His punishment consisted of forfeiture of $2,800.00 pay per month for two months, suspended, to be automatically remitted if not vacated before 4 April 2010.

3.  The DA Form 2627 that he was furnished shows he elected not to demand trial by court-martial; however, he did elect to submit an appeal to the Article            15 and to submit additional matters.  His commanding officer directed that the DA Form 2627 be filed in the performance folder his OMPF.  

4.  On 25 October 2009, the appellate authority denied the applicant's appeal and concluded the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense committed.  The DA Form 2627 currently resides in the performance folder of his AMHRR.

5.  A DA Form 2166-8, for the period from 31 March to 5 October 2009, evaluated the applicant's duty performance as a battalion CSM.  The report currently resides in the performance folder of his AMHRR.

   a.  The report indicates in Part IVa (Army Values/Attributes/Skills/Actions) that he had successfully met all of the Army values standards, with the exception of  "Integrity."  The bullet comments stated he breached his trust and loyalty among members of the chain of command and that he engaged in an inappropriate relationship.

   b.  In Part IVb (Values/NCO Responsibilities) he was rated as excellence in competence and training; as success in physical fitness and military bearing, and as needing some improvement in leadership and responsibility/accountability.  The bullet comments for needs improvement included the following statements:

* exercised poor judgment during duties as CSM 
* rated NCO has been notified of the reason for the RFC; engaged in an inappropriate relationship with an officer
   
   c.  Part V (Overall Performance and Potential) indicates that his rater considered his overall potential for promotion was marginal.  The senior rater evaluated his performance as fair and his potential for promotion as poor.  The negative senior rater comments included:

* lost my trust and confidence after a substantiated inappropriate relationship with an officer in his unit resulting in his relief from his duties
* no potential to serve in positions of greater responsibility or future service in the Army
* Soldier refused to sign

6.  There is no indication he appealed the contested NCOER through the U.S. Army Human Resources Command (HRC) to the Enlisted Special Review Board.

7.  The applicant provides a self-authored statement in which he argues:

   a.  His request is based on factual and legal errors made during the AR 15-6 investigation which caused him to receive a negative and damaging NCOER and Article 15.  It would be unjust to maintain the documents in the AMHRR based on untrue facts.  Furthermore, to the extent that his behavior was inappropriate, the purpose of the NCOER and Article 15 have already been served, and it would be unjust to allow them to remain in his AMHRR due to the potential damage they could do to his reputation were his coworkers at HRC to access his file.

   b.  The investigation that brought about the RFC NCOER stemmed from allegations of inappropriate communication and sexual harassment filed by a one-time friend, 1LT Hxxx.  The officer based her allegations on four text messages he sent her between 16 March and 18 March 2009, which were intended as jokes, as well as several alleged conversations which were uncorroborated in the investigation, and never happened.  

   c.  The IO did not consider the possibility that he had merely been engaging in a friendship that had become too casual and familiar without any intention of pursuing a sexual relationship.  Based on only these text messages and the sworn statements of 1LT Hxxx and CW2 Txxxx, the IO determined that he had pursued an inappropriate relationship with an officer.  It is the applicant's belief that this evidence is not legally sufficient to justify the findings of the IO.

   d.  The IO uniformly took the word of the officers he interviewed over his own.  The IO believed 1LT Hxxx's version of events, and the allegations of conversations that he adamantly told him never occurred.  When the applicant's testimony contradicted CW2 Txxxx's testimony the IO told him "Command Sergeant Major, do you expect me to believe that an officer lied on a sworn statement?"  The applicant believes this sort of automatic faith in officers over enlisted personnel is both inappropriate and unjust, and constitutes legal error.
   
   e.  The findings of the investigation were biased, unfounded, and unjustly misconstrued.  The applicant admits to sending 1LT Hxxx text messages and developing an overly-familiar friendship with her.  He accepts full and complete responsibility for his error in that respect.  However, he never sought to engage in an inappropriate relationship with her.  He believes 1LT Hxxx sought to discredit him because he did not support a negative NCOER she wanted to give her supply NCO (without substantiated counseling).
   
   f.  The most significant inaccuracy was the IO's belief that he had intentionally given him the wrong cell phone in an attempt to hide incriminating evidence.  This is patently untrue.  On 2 September 2009, the IO and SFC Lxxxxxx entered his office to secure his cell phone.  At no point did the IO state he was referring to his personal cell phone.  Additionally, the IO did not provide him with a copy of the DA Form 3745 (Search Warrant) signed by his battalion commander stating which phone was being investigated.  Without providing me with the DA Form 3745, the IO lacked the authority to confiscate his personal property, so the assumption that he meant my government cell phone was an understandable one.  However, in his statement, dated 9 September 2009, the IO implies that the applicant intentionally and deceptively gave him the wrong cell phone.  This incredible leap of logic is not supported by the evidence and is speculation by an IO who throughout the investigation consciously chose to construe everything in the worst possible light for the applicant.  This incident led him to be unjustly perceived as guilty by the IO.
   
   g.  He is currently retired and working at HRC.  If he were working in any other civilian position, the NCOER and Article 15 would be irrelevant to him; however, because of his work at HRC, his coworkers have access to his AMHRR.  While not officially permissible, the people he works with poke around in their coworker's personnel files.  He has accepted the consequences of his error in judgment with dignity and respected the IO's findings.  However, the punishment has been paid and he has since completed his career in the Army and moved on to civilian life.  It serves the Army no purpose whatsoever for the documents to remain in his AMHRR.  The documents are no longer relevant to his employment, but the longer they remain in his record, the greater the chance they may unfairly damage his reputation in his civilian position.  He further states he has nothing to gain from their removal other than to protect himself from being unjustly punished by improper access to the documents, and the Army has nothing to lose in removing them.
   
   h.  His career in the Army was stellar with the exception of this one isolated incident.  He attended and successfully completed numerous military courses, deployed to Iraq, and was awarded 2 Bronze Star Medals, 3 Meritorious Service Medals, and 8 Army Good Conduct Medals among many other awards.  In the NCOER prior to the incident, his senior rater remarked he was "the best sustainment CSM he has seen in 25 years of service" and further remarked that he "lives our Army values; trust him completely and would fight and serve with him again."  He does not feel that now that he is retired, his exemplary record needs to be tarnished with the blemish of an RFC NCOER and Article 15.

   i.  He is not attempting to shirk responsibility for his shortcomings.  His friendship with 1LT Hxxx was unprofessional and was below the standard that would be expected of a CSM.  He only wishes that now that he has accepted the consequences of his actions and dealt with the repercussions, the negative NCOER be removed so that he can finally move on from the incident.  He feels most strongly about this because the NCOER mischaracterizes his conduct as having been in pursuit of a romantic relationship, which he knows to be untrue.

8.  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 a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  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 Soldier'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 less time and personnel than trial by court-martial:

	a.  Paragraph 3-28 describes setting aside and restorations.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

	b.  Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority. 

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states that applications for removal of an 
Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates  there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.

	a.  This regulation states that only those documents listed in Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), Table   B-1 (Authorized Documents) are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.  Table B-1 shows the DA Form 2627 is filed in either the performance or restricted folder of the AMHRR, as directed in item   5 of the DA Form 2627.

	b.  Paragraph 3-6 (AMHRR folders) provides that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully examined and are noted; however, the evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the evidence submitted by the applicant.  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.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing.

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15, UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided the opportunity to consult with legal counsel, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant appealed this Article 15 to the next higher commander; however, his appeal was denied.  The imposing commander directed filing the Article 15 in the performance folder of his AMHRR.  This is where the subject Article 15 is currently filed.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the performance folder of his AMHRR as directed by the imposing commander.  There is insufficient evidence of record and he provides insufficient evidence to show the Article 15 is untrue or unjust.

4.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, 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 or moved to another part unless directed by an appropriate authority.

5.  The evidence of record shows the applicant received an RFC NCOER that covered 6 months of rated time from 31 March 2009 through 5 October 2009.  The NCOER is filed in the performance folder of his AMHRR.

6.  The report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence the report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  

7.  The applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the RFC NCOER or that they exercised faulty judgment in evaluating him as they did.  In addition, he did not provide evidence which clearly and convincingly establishes that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  

8.  The applicant has not demonstrated that either action was unjust or untrue, or that their removal would be in the best interest of the Army.  On the contrary, as evidenced by the applicant's DD Form 214, he is subject to active duty recall.  Therefore, it would be inappropriate to remove or transfer the documents to the restricted folder at this time.  

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)                                         AR20130000092





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130000092



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1