BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130000796 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) and the Punitive Reprimand, dated 19 October 2012, from the performance folder of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  The applicant states the documents should be removed from his AMHRR because:

	a.  They are materially unfair, unjust, inaccurate, unlawful, retaliatory, and a reprisal for winning an Article 138 Complaint of Wrong, prevailing in a successful Army Regulation 15-6 investigation, filing an Inspector General complaint, and winning a previous Army Board for Correction of Military Records (ABCMR) appeal of an Officer Evaluation Report--all actions taken against his Military Intelligence Readiness Command (MIRC) chain of command, which includes both major general (MG) LP and colonel (COL) JD.

	b.  There is legal error in the career-ending nonjudicial punishment (NJP) imposed by the U.S. Africa Command (AFRICOM).  MG H and vice admiral (VADM) L railroaded a wholly political "guilty" finding as part of a general officer/foreign officer conspiracy and back-room "whispering campaign" by AFRICOM Individual Mobilization Augmentee COL JD because the applicant won a sustained Article 138 complaint against her which removed her from the 


approved 2010 Army Brigadier General Promotion List.  As a result, AFRICOM unlawfully failed to consider conflicting evidence in a fair and balanced manner and applied the incorrect legal standard of proof (mere "preponderance of the evidence" vs. "beyond a reasonable doubt").

3.  The applicant provides:

* a self-authored statement
* ABCMR Docket Number AR20120000429
* 3 DA Forms 67-9 (Officer Evaluation Report)
* Memorandum - Complaint of Wrong Under Article 138
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Memorandum of Review and Final Action, Article 138, UCMJ
* DA Form 2627
* Punitive Reprimand
* Memorandum - Article 15 Appeal (Senior Defense Counsel)
* Memorandum - Article 15 Appeal (applicant)
* Memorandum - Supplemental Response Requested by Commander L
* Memorandum - Article 15 Proceedings
* Rebuttal Statement of Facts
* 5 letters of support
* 7-page electronic mail statement of support
* DA Form 4037-E (Officer Record Brief)
* DA Form 4980-5-WT (Bronze Star Medal (BSM) Certificate)
* BSM Narrative and Citation
* DA Form 638 (Recommendation for Award)
* DD Form 2412 (Defense Meritorious Service Medal (DMSM) Certificate)
* DMSM Citation
* Permanent Order 212-002
* 3 photographs
* 7-page AM IMT 1168, 19980401, V2 (Statement of Suspect/Witness/Complainant)
* Orders A-09-217022
* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* Orders A-09-217022A01

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a COL in the U.S. Army Reserve (USAR) Military Intelligence Corps.


2.  On 4 September 2012, he was ordered to active duty for operational support and he subsequently served in Germany until 24 October 2012.  He was assigned to U.S. Army Europe AFRICOM, Stuttgart, Germany.

3.  On 13 October 2012, while holding the rank of COL and in a closed hearing, the applicant accepted NJP under the provisions of Article 15, UCMJ for:

	a.  On 11 September 2011, assaulting a female Airman First Class by repeatedly touching her on her stomach, legs, arm, and back, cupping her face and pulling it towards him, and hugging and kissing her on the cheek.

	b.  On 11 September 2011, while wearing his uniform, going to "Club 7," a location in which junior enlisted personnel were present, where he repeatedly touched (the same) female Airman First Class on her arm, thigh, and stomach, and told her how beautiful, smart, and skinny she was knowing she was an Airman in pay grade E-3.  He then asked the Airman to accompany him to his car where he showed her a shirtless picture of himself and hugged her and kissed her on the cheek, thereby detracting from his character as a gentleman and from his standing as a commissioned officer.

4.  The applicant was found not guilty of engaging in sexual contact with the Airman in question on 11 September 2011, by placing his hand on her upper thigh and placing his arm around her shoulder, causing her bodily harm.

5.  His punishment consisted of a substantial forfeiture of pay per month for two months and a General Officer Memorandum of Reprimand (GOMOR).  The imposing commander directed the original DA Form 2627 and reprimand be filed in the performance section of the his AMHRR.  The applicant did not demand trial by court-martial, as was his right; however, he elected to appeal his punishment to the next higher commander, VADM L.

6.  On 29 October 2012, after a military attorney reviewed the Article 15 and found it legally sufficient, and after consideration of all matters presented in the appeal, the next higher commander denied his appeal.

7.  A review of his AMHRR reveals the DA Form 2627 and punitive reprimand is in fact filed in the performance folder of his AMHRR.

8.  The applicant provides a 24-page sworn statement in support of his application wherein he argues:


	a.  His current request is a related follow-on to his previously successful application approved by the ABCMR on 18 September 2012 that granted him the full relief he requested relating to his OER for the period 18 May 2008 through
29 January 2009.

	b.  A substantiated conspiracy between COL JD and BG LP, his former commanders at the MIRC for winning a UCMJ Article 138 Complaint of Wrong against them in 2009; prevailing in an Army Regulation 15-6 investigation against them; the removal of COL JD from the 2010 BG Army Promotion List; filing complaints against them with the Inspector General for violations of the Whistleblower Act and other laws and regulations; and his successfully obtaining OER relief from the ABCMR to disqualify them both from his OER rating chain due to their demonstrated unfair bias and specific acts of retaliation and reprisal.

	c.  The basis for his new application is substantive inaccuracy, unfairness, bias, prejudice, retaliation, reprisal, error, and injustice all flowing from an unlawful conspiracy and collusion centered around COL JD, who was assigned in Stuttgart, Germany to AFRICOM at the time.  MG H and VADM L each independently committed a "discretionary act or omission" that adversely affected him in violation of law and regulation and is arbitrary, capricious, and abuse of discretion, and materially unfair due, in part, to improper collusion with COL JD.

	d.  As the Deputy J2, AFRICOM, COL JD is and has been in the inner circle of senior leadership of AFRICOM and is well-placed to inflict additional harm against him and his career through a backroom "whispering campaign."   COL JD had both motive and opportunity to prejudice the AFRICOM chain of command against him just as she did previously at the MIRC.  The astonishing arbitrariness of MG H and VADM L in the handling of the NJP process strongly support the inference that COL JD continued her campaign of retaliation against him.

	e.  Crucial exculpatory evidence was not considered.  He claims MG H failed to review his videotaped CID interview, used the NJP proceedings to berate and humiliate him, and never asked an open-ended question or asked for an explanation at all.  Both MG H and VADM L committed the same legal errors, due in part to undue command influence and improper interference.  As a result of COL JD's unlawful campaign of retaliation against him, MG H and VADM L were derelict in their duties under applicable regulations.

	f.  MG H conducted an improper NJP hearing.  His conduct, demeanor, and words during the emotionally charged Article 15 proceeding were more like an oral reprimand and a one-sided rush to judgment than a genuine search for the 


truth.  He violated the spirit and letter of the law by failing to consider the evidentiary matters presented by the applicant and merely "checked the block" on the formality of the hearing.  Thus, by law and regulation, the trier of fact was required to consider all fair and rational hypotheses and enter a finding of not guilty if any competing alternative hypothesis could be plausibly be true.

	g.  The evidence shows that reasonable doubt existed as a matter of law and fact.  The only evidence against him was a single self-authored statement from a mentally unstable teenager, completely lacking in credibility, due to an improper bad faith motive.  He presented two fair and reasonable hypotheses contradicting the charges in the Airman's statement:  the events did not transpire as alleged as supported by the applicant's statement and CID interview; and the allegation was manufactured by an unstable 19-year-old seeking to exit the military as soon as possible.  Her decision to check herself into a hospital claiming suicidal thoughts and ideations is evidence of real or contrived emotional problems affecting her credibility as opposed to his spotless 28-year record of honorable service, progressive assignments of increasing responsibility, graduation from War College, battalion command and civilian service as a supervisory attorney.  Based on the conflicting evidence in the case, substantial doubt exists as a matter of law, but because of COL JD undermining his credibility with the decision-makers, they failed to consider his statement or the exculpatory evidence he offered in his defense.

	h.  The objectivity of AFRICOM leaders was clouded since the previous AFRICOM commander was relieved of command and replaced by a commander who seemed anxious to prove he was implementing a zero-tolerance policy.  As a result, there is a hypersensitivity and overreaction to any allegation against a senior official at AFRICOM, no matter how weak or contradictory the evidence.  Issues of military suicide and sexual assault are especially hot-button issues for the Army and raises immediate alarm, causes panic, and prompts knee-jerk overreaction in which all reason and judiciousness go out the window.  According to an email from MG H's trial counsel, MG H was notified the night before the applicant's hearing that the Airman had been admitted into the psych ward claiming suicidal thoughts.  It was reported to the applicant's counsel that MG H decided not to consider the Airman's claim that she was having suicidal ideations despite the fact that it was indicative of mental instability that undermines the credibility of her written statement.  His refusal to consider this exculpatory evidence constitutes further legal error and injustice.

	i.  It is a fair and reasonable inference that the late-breaking news of a suicide risk caused a visceral response in MG H.  At the proceedings the following 


morning, he issued the applicant a scathing oral reprimand for visiting a chaplain's fellowship club as an O-6, found him guilty based on flimsy and inconsistent evidence, and imposed the maximum punishment option available to him under the UCMJ.  No reasonable trier of fact could have reached a finding of guilt beyond a reasonable doubt based on the dubious evidence in this case.

	j.  The case was tainted by the politically charged issue of sexual assault reporting.  Importantly, he was found "not guilty" of any form of sexual assault which never should have been charged in the first place.  AFRICOM's pursuit of a baseless Article 120 charge provides further support for the interference that COL JD exploited the opportunity to press her campaign of retaliation and reprisal against the applicant behind the scenes.  The Airman never once alleged any sexual touching whatsoever.  The prejudicial word "sexually" was inserted by pushy law enforcement and only due to the fact that he is male and she is female.  This police tactic is a highly improper and inflammatory attempt by CID to put words in the Airman's mouth.  AFRICOM's senior leaders later effectively condoned the action and titling decision by CID in their charge decision.  The result was an unsupported and unsupportable Article 120 charge - and serious prejudice to his case - even though he was ultimately found not guilty of the offense.

	k.  Ultimately, the net result of the hysteria at AFRICOM was unfairness and injustice.  Political considerations drove the two guilty findings against (perhaps as a perverse "compromised verdict").  The dangerous words suicide and sexual assault inflamed passions and were materially prejudicial to his case.  As a result he was denied due process.  Whether due to the political pressure surrounding suicide and sexual assault or the retaliatory personal agenda of COL JD, or a combination of both, the result was material error and injustice, which require correction to his military record.

	l.  At the end of the day, he was found guilty of assault, battery, and conduct unbecoming (Articles 128 and 133) for little more than going to a Chaplain's Bible study fellowship club and having a friendly, supportive conversation with a troubled teen in a fatherly manner that included a touch on the arm and a brief platonic hug goodbye, both of which had every outward appearance of being fully consensual and not the least bit unwelcome at the time.  The finding of criminal wrongdoing on these facts is utterly preposterous.

	m.  The consequences of the severe injustice in this case are utterly devastating, as both his military and civilian careers depend on his security clearance.  The adverse information will most assuredly result in the revocation 


of his security clearance.  Without a clearance, he will be rendered both unemployed and virtually unemployable.  There are numerous independent legal theories that each support the same conclusion:  he was wronged by his chain of command and his military record is currently inaccurate, creating error and injustice.

9.  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.  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 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-37b states that for Soldiers in the rank of sergeant (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 or restricted folder 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.  Additionally, records directed for filing in the restricted folder will be redirected to the performance folder if the Soldier has 


other records of NJP reflecting misconduct in the rank of SGT or higher that have not been wholly set aside and recorded in the restricted folder.

	c.  Paragraph 3-43 contains guidance for 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 ABCMR.

10.  Army Regulation 600-8-104 (AMHRR 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 AMHRR and/or Interactive Personnel Electronic Records Management System (iPERMS)), 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offenses 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 where he accepted NJP for assaulting a female Airman and for conduct unbecoming an officer and gentleman.

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 and reprimand in the performance folder of his AMHRR.  This is where the subject Article 15 and reprimand are currently filed.

3.  The contentions made by the applicant have been noted.  However, he could have requested trial by court-martial if he believed his commander was incapable of fairly judging the evidence.  Insufficient evidence has been submitted to show he was erroneously issued the Article 15, that it is inappropriately filed in his AMHRR, or that the punishment imposed against him was improper.  Despite the applicant's contentions, his NJP proceedings appear to have been 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 no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.

4.  His spotless 28-year record of honorable service, progressive assignments of increasing responsibility, graduation from War College, battalion command and civilian service as a supervisory attorney are also noted.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance folder of the AMHRR.  It appears the imposing officer considered all circumstances at the time and ordered filing the Article 15 in the performance folder of the applicant's AMHRR.

5.  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.  In order to remove documents from the AMHRR, there must be clear and convincing evidence showing the documents are untrue or unjust.  In the absence of an error or an injustice, there is no reason to remove them from his records.


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)                                         AR20130000796



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ABCMR Record of Proceedings (cont)                                         AR20130000796



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