IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20130008076 


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 correction of his Army Military Human Resource Record (AMHRR) to:

* remove non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), dated 15 March 2012, (hereinafter referred to as the contested NJP)
* restore his date of rank (DOR) to 1 August 2011 as his DOR to staff sergeant (SSG)
* remove the Noncommissioned Officer Evaluation Report (NCOER) for the period ending on 24 March 2012

2.  The applicant states he accepted NJP while deployed to Afghanistan.  During his deployment several charges of harassment were levied against him.  The charges were dropped due to a lack of evidence; however, he was found guilty of two counts of indecent language and given the unjust punishment of 45 days restriction, 45 days extra duty, reduction to the rank/grade of sergeant (SGT)/E5, and forfeiture of $1,506.00 for two months.  The Division Commander did not allow him to call witnesses to prove his innocence and the trial defense services lawyer did not examine his appeal packet prior to forwarding it to the Commanding General.

3.  The applicant provides:

* Memorandum for Record, dated 13 January 2011
* DA Form 4856 (Developmental Counseling Form), dated 13 January 2012
* Memorandum for Record, dated 15 January 2011
* 3 DA Forms 2873 (Military Protective Order), dated 18 January 2011
* DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)), dated 25 January 2011
* Copy of a conversation or modified email, dated 13 February 2011
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
15 March 2011
* Memorandum, undated
* Enlisted Record Brief (ERB) , dated 8 February 2012
* Numerous DA Forms 2823 (Sworn Statement) 

CONSIDERATION OF EVIDENCE:

1.  With respect to the removal of the contested NCOER for the rating period
27 April 2011 through 24 March 2012:

	a.  The applicant's request is premature.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines the applicant has not exhausted all administrative remedies available.  

	b.  There is no evidence that the applicant appealed this NCOER through the Commander, U.S. Army Human Resources Command (HRC), Fort Knox, KY, to the Army Enlisted Special Review Board, and was denied relief.  The applicant is directed to exhaust his administrative remedies before applying to the Army Board for Correction of Military Records.  The NCOER issue will not be discussed further in the Record of Proceedings.

2.  After having had previous military service, the applicant enlisted in the Regular Army on 13 July 2004 and holds military occupational specialty 42A (Human Resources Specialist).  He has served through several extensions and reenlistments, currently holds the rank/grade SSG/E-6, with a DOR of 
1 December 2012.

3.  He provided an ERB, dated 8 February 2012, which shows he was assigned to:

* Fort Hood, TX from 7 December 2004 to 16 November 2008
* Cleveland, OH Recruiting Battalion from 18 November 2008 to 19 January 2010 
* Yongsan, Korea from 20 January 2010 to 2 May 2011
* Joint Base McChord/Lewis, WA from 3 May 2011 to present

4.  On 18 September 2009, while serving as a recruiter in Cleveland, OH, in the rank of SGT, he accepted NJP under the provisions of Article 15 of the UCMJ for:

* wrongfully transporting a female prospect in a government vehicle without a qualifying person present 
* wrongfully sending text messages of an inappropriate nature to a female applicant

5.  On 23 June 2010, while serving in Yongsan, Korea, in the rank of SGT, he accepted NJP under the provisions of Article 15 of the UCMJ for:

* wrongfully sexually harassing Private First Class (PFC)/E-3 ME
* wrongfully sexually harassing Specialist (SPC)/E-4 KDW

6.  On 15 March 2012, while deployed to Afghanistan and serving in the rank of SSG, he accepted the contested NJP (field grade Article 15) for:

* communicating indecent language through the use of a social network (Facebook) to PFC CRR by saying "Hey pretty eyes" and "send me some pictures of yourself" or words to that effect
* orally communicating indecent language to private (PV2)/E-2 AET by saying "How does it feel to have a Black man between your legs" or words to that effect
* being derelict in the performance of his duties by failing to ensure the "command properly approved action of removing the FLAG for adverse action" was properly/timely accomplished

	a.  Item 3 of the DA Form 2627 contains the statement "Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page 3 of this form, my decisions are as follows."  

* He did not demand a trial by court-martial
* He requested a closed hearing
* He did not request a person to speak in his behalf
* Matters presented in defense would be presented in person

	b.  His commander found him guilty of the above charges and directed the contested NJP be filed in the performance section of his AMHRR.

	c.  His punishment consisted of a reduction to SGT, forfeiture of $1,505.00 of pay a month for two months, extra duty for 45 days, and restriction for 45 days.

	d.  He appealed the contested NJP on 15 March 2010; however, his appeal was denied on 21 March 2012.

7.  He provided a Memorandum for Record, dated 13 January 2011, which shows his company commander initiated a commander’s inquiry to investigate verbal sexual harassment allegations against the applicant made by PFC CRR and PFC AET.  The company commander, Captain (CPT) Kxxxxx, appointed First Lieutenant (1LT) BR as the investigating officer (IO).

8.  He provided a DA Form 4856, dated 15 January 2012, which shows his first sergeant (1SG) counseled him regarding allegations made against him for fraternizing with two female Soldiers.

9.  He provided DA Forms 2823 from himself and 10 other Soldiers which were considered by the IO, his legal counsel, and his commander.

10.  He provided a Memorandum for Record, dated 15 January 2011, wherein the IO rendered his findings with regard to the commander’s inquiry pertaining to the verbal sexual harassment allegations against the applicant made by PFC CRR and PFC AET.  The IO stated:

	a.  "As the IO for the commander’s inquiry in regard to verbal sexual harassment and subsequent threats by [Applicant], I find [Applicant] to be an immediate threat to PFC CRR and all other females attached to…[the battalion].  [Applicant] possesses a threat to all females and should be counseled and punished under UCMJ regardless. "

	b.  Army Regulation 600-20 (Army Command Policy), chapter 7a, "defines sexual harassment as unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between the same or opposite genders.”  Chapter 7b of this regulation “categorizes three forms of sexual harassment; verbal, non-verbal, and physical contact.  Based on the 
victims’ accounts on [their] DA Form[s] 2823, the subject, [Applicant] consistently verbally sexually harassed PFC RCC directly, via Facebook, and through a third party.  The Facebook messages sent to PFC CRR by [Applicant] included, “Hey pretty eyes” or “Send me pictures of yourself. "  PFC CRR deleted all the Facebook messages sent by [Applicant], according to her sworn statement.  The accusation began as far back as... on or about December 2011…… in Camp Montrond… as stated in PFC CRR’s, SPC MSL’s, PFC TRG’s, and PV2 AET’s sworn statements.  Thereafter, the female medics avoided [Applicant] at all times due to his unprofessionalism."  

	c.  "On or about 27 December 2011, [Applicant] also directly verbally sexually harassed PVT AET while on a C-130 aircraft on the flight to FOB Sharana from Camp Montrond…according to PFC CRR’s and PV2 AET’s sworn statements.  The statement [Applicant] made to PV2 AET was, "I bet you have never had a Black man in between your legs."  [Applicant] made every female medic to include PFC TRG feel uncomfortable throughout the entire time at Camp Montrond… and Camp Patriot because of their growing friendship. 

	d.  "[Applicant] was counseled for fraternizing on 13 January 2012 by the HHC 1SG… [Applicant], however, repeated his inappropriate and unprofessional behavior by threatening his Soldier, PFC TRG, to tell the female medics to “retract their statements," or else there would be repercussions on PFC TRG’s career in the Battalion S1 shop.  CPT EBF, 1LT DAD, PFC CRR, SPC MSL, PV2 AET, and PFC TRG’s sworn statements all concur with that phrase made by [Applicant].  The female medics would not have known about such statements from [Applicant] had PFC TRG not told them at the chow hall."

	e.  "According to [Applicant’s] sworn statement, he stated that conversations such as love life, sex life, and life in general between the female medics and himself did take place at Camp Montrond between 10 December 2011 and 
27 December 2011.  He also agreed to becoming Facebook friends.  [Applicant] also states that he agrees [to] "crossing the line" with the female medics by having "loosely" conversation with them, but denies any sexual advances on them.  Regardless of the situation, [Applicant] acted unprofessionally towards the female medics by engaging in such conversations while at Camp Montrond and thereafter."

	f.  "The recommended course of action is for the HHC commander to issue a Military Protective Order… against [Applicant].  The subject shall be prohibited from having any face to face, telephone, or written contact with the victim, 
including those conducted through third parties.  He shall be barred from being in close proximity of the victims.  The subject shall be counseled by his chain of command regarding his inappropriate actions, and shall be punished under UCMJ.  I recommend a company grade Article 15 to be imposed on [Applicant].  I also recommend that [Applicant] re-trains in the Prevention of Sexual Harassment "POSH" immediately."

11.  He provided three DA Forms 2873, dated 18 January 2012, and showing he was prohibited from any contact with PFC CRR, PV2 AET, and SPC MEL.

12.  He provided a FLAG, dated 25 January 2012, showing his company commander signed and initiated a FLAG for adverse action effective that same day.
13.  He provided what appears to be email traffic between himself and another individual on or around 13 February 2012.  The context behind the conversation was not available; however, it appears they are discussing an illegal transaction involving the initiation and removal of FLAG actions and whether or not they have occurred within their chain of command. 

14.  The applicant submitted an undated memorandum issued by his military counsel to the Task Force Commander, a colonel, wherein counsel requested the contested NJP and the punishment imposed by the contested NJP be set aside.  

15.  The command's response to the set aside request was not available for review in this case; however, as the contested NJP was not set aside it appears the request was denied.   

16.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) establishes the responsibilities, policies, and procedures for maintaining and controlling the AMHRR.  It states that once a document is placed in the AMHRR, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  Table B-1 of this regulation states all UCMJ, Article 15 documents and forms will be filed in accordance with Army Regulation 27-10.  File the UCMJ, Article 15 in either the "Performance" or "Restricted" folder as directed by item 5 of the DA Form 2627.

17.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, provides that once an official document has been properly filed in the AMHRR, 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 AMHRR.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his Article 15 should removed from his AMHRR and the DOR he held for SSG, 1 August 2011, prior to his reduction in rank to SGT, and sequent promotion to SSG on 1 December 2012, should be restored because the imposing commander violated his rights and the UCMJ.  

2.  The evidence of record confirms the commander administering the Article 15 proceedings determined during a closed Article 15 hearing, after considering all the evidence, that the applicant committed the offenses in question.  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 charged offense(s).  

3.  The imposing commander’s function is to make a decision as to whether or not a Soldier committed the offense in question and render an appropriate punishment if necessary.  These decisions will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence or they failed to follow the applicable regulations.  

4.  The evidence of record shows he was provided a defense attorney, 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.  However, the applicant waived his right to a trial by court-martial, opted for a closed Article 15 hearing, and exercised his right to an appeal, which after careful consideration was denied.  Additionally, his attorney later requested the contested NJP be set aside and his rank/DOR be restored based on new evidence.  However, it appears that the evidence present was insufficient in his commander’s eyes.

5.  He did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings or that he violated the UCMJ in any way.

6.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and was punished for it.  There is neither an error nor an injustice and there is no reason to remove the contested NJP or to restore his DOR.

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)                                         AR20130008076



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ABCMR Record of Proceedings (cont)                                         AR20130008076



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