BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009080 


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 military records by showing that his nonjudicial punishment (NJP) was set aside, removed from his Army Military Human Resource Record (AMHRR), and that his rank and pay grade were restored to him.

2.  The applicant states the alleged victims were coached by the investigating officer (IO) about the dates of the incident.  The IO called the victims together for questioning and stated their dates did not match.  Then both victims agreed on the same date.  The imposing commander stated to the applicant during the proceedings that there was no evidence, no witnesses, and only “he-say/she-say” statements.  However, the commander still punished him.  The commander stated if he was so innocent, why then did he go to the Judge Advocate General, or hire a $1,000.00 lawyer and not talk to the investigators.  The applicant contends that he gave the IO two names to talk to in reference to the victims' level of intoxication.  However, the IO only spoke to one of them.

3.  The applicant provides copies of:

* Memorandum, appointment to Conduct a Commander's Inquiry,          dated 13 November 2012
* Two DA Forms 2823 (Sworn Statement) dated 13 November 2012, three dated 4 December 2012, one dated 10 December 2012, two dated 
12 December 2012, one dated 13 December 2012, and three dated 
14 December 2012
* DA Form 4856 (Developmental Counseling Form) dated 14 November 2012
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG) dated 27 November 2012
* Memorandum, Appointment as Investigating Officer, dated 29 November 2012
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 
4 December 2012
* CID Form 94 (Agent's Investigation Report) dated 10 December 2012
* Memorandum for Record, Table of Contents of Army Regulation (AR) 15-6 in the matter of the Applicant, dated 14 December 2012
* Memorandum for Record, AR 15-6 Statements, dated 14 December 2012
* Memorandum for Record, Account of Phone Call IO had with Applicant on 11 December 2012, dated 14 December 2012
* Memorandum for Record, Account of Phone Call IO had with Applicant on 12 December 2012, dated 14 December 2012
* Memorandum for Record, Follow up of Phone Call with Applicant, dated 14 December 2012
* Memorandum for Record, AR 15-6 Date Clarification, dated 14 December 2012
* Memorandum for Record, Sequence of Events to Completion of AR 15-6, dated 14 December 2012
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 14 December 2012
* Memorandum for Commander, AR 15-6 Findings and Recommendations, dated 14 December 2012
* Memorandum for Record, Legal Review of AR 15-6, dated 14 December 2012
* Enlisted Record Brief, dated 2 January 2013
* Tracking sheet, NJP, dated 8 January 2013
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated    17 January 2013

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army in the rank of specialist, pay grade E-4.

2.  On 13 November 2012, the applicant's troop commander appointed an IO to conduct a commander's inquiry into allegations of inappropriate actions and comments made by the applicant toward two female enlisted Soldiers.  The IO was given 1 day to complete his investigation and submit his findings.  The officer was tasked to specifically address the following two questions:

	a.  Did the alleged actions and/or comments constitute sexual harassment, sexual assault, and/or physical assault?

	b.  Did the applicant's alleged behavior represent dereliction of his duties as the Staff Duty Noncommissioned Officer (NCO)?

3.  Two DA Forms 2823, dated 13 November 2012, written by different female Soldiers, state:

	a.  A private first class (PFC), pay grade E-3, stated that on the night of 
“16” November 2012 the applicant had sexually harassed her.  She wrote that a black male in uniform was standing by the door by C Troop and said, "Hey, come here real quick."  She thought it was a friend of hers and seeing him in uniform she thought "Why is he in uniform?  I don't think he is on duty."  She went toward the stairwell and he was standing by the wall and pushed her up against the wall and started kissing her.  She shrugged him off her to see who this person was and it was [the applicant].  She said something like "what the hell?  What are you doing?"  She wasn't shouting or yelling but she was really confused.  [The applicant] commented about her "looking really pretty and sexy" that night.  She laughed and said she had to go but he was holding her face with both hands and said "give me like 15 minutes, I'll meet you up in your room."  In her intoxicated mind she thought this was ridiculous and decided to see if his intentions were serious.  She told him "Okay, my room's on the third floor right above the troop" which was a lie.  Her room's on the other side of the building on a different floor.  He then said, “All right, I'll meet you up there" and continued to proceed up the stairwell.  She took a few steps toward the door that led outside and turned right around thinking "forget that."  She went back to the kitchen and told [another female Soldier] what had happened.  She told her to stay in the kitchen and to stay with her.  She believes when they were leaving for the cab he asked her, 
"Where were you?  I went up there and you weren't there."  She laughed and said "Oh, oops.  Oh well, I have to go" and left with her friends.  The next day she subtly told [another female Soldier] about what happened the night before.  She told her [the applicant] had made a comment to her.

	b.  A specialist (SPC), pay grade E-4, stated that on 9 November 2012 the applicant had asked her, "Is that a tongue ring?  You shouldn't mess with that in front of me.  Turns me on."  The Soldier then walked away.



4.  A DA Form 4856, dated 14 November 2012, shows that the applicant was counseled by his commander.  The applicant was informed that based on allegations of sexual harassment made by members of the command he had directed a commander's inquiry into the nature of the allegations.  This counseling was to inform the applicant that he was restricted from making any contact with specific personnel who may be associated with the ongoing investigation.  The applicant agreed with the counseling and made no written comment.

5.  A DA Form 268, dated 27 November 2012, shows that a FLAG was initiated effective 14 November 2012 for an adverse action.

6.  On 29 November 2012, the regimental squadron commander appointed an IO to investigate allegations of inappropriate actions and comments made by the applicant.  The IO was charged to investigate any related concerns that involved the applicant that arose during the investigation and to specifically answer the following questions:

	a.  Did the applicant's alleged actions and/or comments to a female PFC and to a female SPC on the night of 9 November 2012 constitute sexual harassment, sexual assault or physical assault or violate any other provision of the Uniform Code of Military Justice?

	b.  Did the applicant's alleged behavior represent dereliction of his duties as Staff Duty NCO?

	c.  Was the applicant intoxicated or otherwise impaired while performing his duties on the night of 9 November 2012?

7.  A DA Form 3881, dated 4 December 2012, indicates that the IO advised the applicant of his rights.  The applicant indicated he did not want to give up his rights and wanted a lawyer.

8.  On 4 December 2012, the IO took sworn statements from two female Soldiers.

	a.  The first statement, given at 0924 hours, confirmed that the Soldier had previously made a comment to a staff sergeant about the applicant's inappropriate comments to her.  She stated that while performing her physical training (PT) walk one morning, the applicant, who was in charge of profile PT, started to ask her inappropriate questions that made her uncomfortable.  He repeatedly asked her how often she had sex with her husband.  He said his wife never wanted to have sex with him.  He also repeatedly asked her if she was freaky in bed.  She kept ignoring the comments/questions only because they were almost back to the company area where she would no longer have to feel uncomfortable.  A few months later, she was working with the applicant in the transportation motor pool (TMC).  She had just returned from the café with a cup of coffee and the applicant jokingly asked where his coffee was.  She told him that she wouldn't mind bringing him coffee if he gave her the money.  The next day he gave her money for coffee and she put it on his desk.  Later that day, he said to her that there are other ways he could pay her back for the coffee.  She then left the room they were standing in and she avoided him daily until she finished her rotation in the TMC

	b.  The second statement, given at 0955 hours, discussed the last time she had duty with the applicant.  When asked if there was anything out of the ordinary, she said he was pretty normal but was annoying and she didn't really pay attention to half of what he says.  There were no incidents that she could recall.  He did go to in-processing and stayed a long time due to a large number of new Soldiers.  There was the normal group in the kitchen that evening but wasn't sure if the applicant had interacted with any of them.

9.  A CID Form 94, dated 10 December 2012, reported that a female PFC had notified the regimental sexual assault response coordinator that the applicant had kissed her without her consent, and against her will.

10.  A DA Form 2823, dated 13 December 2012, written by the applicant states he had consulted with an attorney and wanted to make a statement under oath.  He wrote, in effect, that on 9 November 2012 a female PFC came into the kitchen with a bottle of alcohol in the afternoon.  Later that evening she and a group of Soldiers went to another Soldier's party.  Later that night he poked his head into the kitchen where he saw two people sitting on the couch and the female PFC standing near the counter with a bottle of alcohol and listening to music.  He had a conversation with her about music and then sat back at the charge of quarter's desk.  He got up to do security checks in the troop area.  When he came back into the building, the female PFC walked out of the kitchen and saw him.  She asked what he was doing.  He told her he was doing checks.  She said she was going to her room and asked him to meet her.  He told her OK and that she was messed up.  He continued his checks.  When he came back through the building, she saw him again and asked where he had been.  He said that he had told her before he was doing checks.  She said she had waited for him.  He told her she was crazy and messed up.  She went back into the kitchen. Later, another Soldier told her she needed to put her speakers away.  Another female Soldier told her she would take the speakers to her room and she could pick them up later.  Later that night the female PFC returned to the kitchen.  When the applicant asked her what she was looking for, she stated that maybe it was him.  He told her she was really messed up and should go to bed.  The applicant talked to another female Soldier about her tongue ring, telling her that he did not think she was permitted to wear it.  She left for about 20 minutes with a male friend of hers.  When they returned, they were both adjusting their clothes.  The applicant contended that he was not intoxicated or impaired.  Multiple members of the command had seen him throughout the day and had spoken to him.  He spoke to the noncommissioned officer in charge and to the staff duty officer throughout the entire day.  He performed his duties in accordance with the standing operating procedures.

11.  A DA Form 1574, signed by the IO and dated 14 December 2012, indicates that he was appointed on 29 November 2012 and had completed his investigation on 14 December 2012.  In an attached memorandum he provided the following findings and recommendations:

	a.  The IO found the allegations made against the applicant to be credible and to constitute sexual harassment, sexual assault, or physical assault.  He also found that the applicant had failed to obey his second general order in that he did not perform all of his duties in a military manner.  He was derelict by performing his duties in a negligent manner.  He did not find that the applicant had been intoxicated or impaired while performing his duties.  In a separate incident a Soldier had come forward and told the IO that the applicant had made inappropriate comments to her as well.  The IO found the allegations to be credible and noted that the applicant had not mentioned this incident in his statement.

	b.  The IO recommended the command take adverse action against the applicant for:

* Violation of the Army's policy on sexual harassment
* Dereliction of duties as charge of quarters
* Maltreatment of Soldiers
* Assault of a female Soldier

12.  On 14 December 2012, the Administrative Law Attorney reviewed the investigation and determined it complied with legal requirements, had sufficient evidence to support the findings, and the recommendations were consistent with the findings.

13.  A DA Form 2627 indicates that on 17 January 2013 the applicant accepted NJP for misconduct for his maltreatment toward two female Soldiers by saying on or about 16 November 2012, "you are looking pretty and sexy, " or words to that effect; and by saying on or about 9 November 2012, "is that a tongue ring?  You shouldn't mess with that in front of me.  It turns me on" or words to that effect.  The record further shows:

	a.  he did not demand trial by court-martial;

	b.  he requested a closed hearing;

	c.  he did not offer any matters in defense, extenuation, and/or mitigation;

	d.  the imposing commander found that the applicant was guilty of some specifications;

	e.  the punishment imposed consisted of reduction to specialist, pay grade 
E-4, forfeiture of $1201.00 pay per month for 2 months (suspended), and extra duty for 45 days;

	f.  the applicant appealed the NJP and submitted additional matters;

	g.  the appeal was denied on 31 January 2013.

14.  On 11 February 2013, the applicant's spouse wrote a letter wherein she stated that she had known her husband for almost 13 years and had been married to him for about 11 years.  She contends that the applicant is a very respectable man toward any woman and has no reason to seek attention outside of his home.  She stated she questioned him about the incidents and is satisfied he did not lie.  She feels the young women got upset with him because he had corrected them and they then made false reports to get him into trouble.  She speaks to how this event has turned their life upside down.  His punishment has been very damaging to their home life.  Their child has been adversely affected.  The applicant's reduction in rank has caused a load of stress and worry about how they will pay their bills.  She really does not believe anymore in the Army and its values.  She argues that the Army speaks of ethics, morals, and professionalism, but some people lack it.  She questions how the commander can punish him based on his gut feeling.  What happened to proof beyond a reasonable doubt?  She just wants justice for her husband.

15.  On 12 July 2013, a private first class wrote a memorandum in support of the applicant concerning the subject NJP.  The Soldier stated that he was on extra duty with the applicant and another Soldier.  All three of them are minorities.  They discussed their NJPs and discovered that they were each told by the commander that they received 45 days of extra duty based on a gut feeling and a lack of evidence to prove the accusations.

16.  On 12 July 2013, a captain, who states he sat on the applicant's NJP hearing, wrote a memorandum for record.  He contends that his initial thoughts were that the investigation was not well done.  There were no witnesses who documented seeing or being actual witnesses to any wrongdoing by the applicant.  After the hearing had begun, the commander asked why the applicant had invoked his rights.  The applicant answered that he was taught to seek legal assistance and to not blindly give statements.  The commander did not seem to agree and this weighed heavily on his decision to determine the applicant was guilty.  The commander also asked questions about the applicant's church attendance and relationship with his wife, wanting to know if she knew she had a flirtatious husband?  

17.  On 25 July 2013, the applicant submitted a memorandum to the regimental commander requesting his NJP be set aside and the restoration of his rank.  He argued that due to financial hardship, he would be forced out of the Army without options.  He and his wife were unable to maintain their finances with the reduced rank and debts.  Restoration of rank by changing the NJP to a suspended reduction for a period of 6 months would relieve some of the stress placed on his family.  He also argued that his financial status was not reviewed during his appeal.  The applicant argues that the commander had only his gut feeling that he was guilty and that had he known he was not going to get an impartial hearing with all of the evidence, he would not have accepted the NJP.

18.  On 25 July 2013, the applicant's Trial Defense Counsel submitted a memorandum highlighting various inaccuracies at different stages of the NJP process and mentioned the regulatory cites requiring the commander to be convinced beyond a reasonable doubt before rendering a guilty decision.

19.  In an undated memorandum, the regimental commander, who was the successor in command to the commander who had imposed the applicant's NJP, responded to the applicant's request discussed in the preceding two paragraphs. After reviewing the applicant's request and the completed NJP packet, the regimental commander decided to adhere to the original finding, filing determination, and punishment.

20.  Army Regulation 27-10 (Military Justice) provides that:

	a.  the setting aside and restoration 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;

	b.  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; and

	c.  the basis for any set aside action is a determination that, under all of the circumstances of the case, the punishment has resulted in a clear injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing that his NJP was set aside because the imposing commander based his decision on a gut feeling.

2.  The available evidence clearly shows that the applicant accepted NJP in lieu of trial by court-martial.  His subsequent appeals were denied.  The applicant's contentions that the commander found him guilty based only on a gut feeling and not as the result of evidence showing proof beyond a reasonable doubt is not sufficiently supported by the applicant's evidence or arguments.

3.  There is no evidence of error, injustice or illegal action in this case.  What the imposing commander and the appellant authority did was proper and authorized by the provisions of the governing regulation.  

4.  In view of the above, the applicant's request should be denied.

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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