IN THE CASE OF:	   

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130014774 


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)) from the restricted folder of his Army Military Human Resource Record (AMHRR).

2.  The applicant states the Article 15 currently filed in the restricted folder of his AMHRR is unjust and has a detrimental effect on his military career and future civilian employment.

	a.  He was the subject of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation resulting in nonjudicial punishment (NJP) reducing him from pay grade E-8 to E-7.  The evidence will show the rules of the Army Regulation 15-6 investigation were not followed.  He specifically contends that only certain witnesses were interviewed so as to obtain a desired outcome.  Army Regulation 27-10 (Military Justice), paragraph 
3-18(2)e, requires the Soldier to be permitted to fully present his case in the presence of the imposing commander.  However, the evidence will show the commander displayed anger toward him while attempting to present his case.  This negated any sense of impartiality.  He was ordered to leave the room while presenting witnesses.  Many witnesses described being intimidated and not allowed to testify freely.  He was not allowed to fully present his evidence.  While doing so, he was threatened with other charges because the evidence he submitted clearly disproved, beyond a reasonable doubt, the claims made in the Army Regulation 15-6 investigation.  His request to be accompanied by a spokesperson was denied.  His request to examine statements and all available evidence against him was flat-out denied even though statements made by the imposing commander and his staff indicated there were three binders of information considered in the ruling against him.  The only evidence he was allowed to view was a minimal, redacted narrative of the Army Regulation 15-6 investigation.  Furthermore, he was not informed of the maximum punishment he was subject to as required by Army Regulation 27-10.  He believes the physical evidence and the seven Soldiers who testified on his behalf overwhelmingly show the final outcome of the NJP is untrue and unjust.

	b.  Based on subsequent promotions and personnel moves, he has a strong belief that the motivation behind this action was to manipulate the promotion list for the personal gain of others.  The Soldier who received the position and promotion as a result of his reduction was on a first-name basis with the imposing commander.

	c.  Having this conviction for sexual harassment in his record has been personally and professionally devastating.  He is submitting this request in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 7-2c(1), which states:

Claims that an Article 15 is untrue or unjust, in whole or in part, will not be considered under this paragraph.  The authority to adjudicate such claims rests with the Army Board for Correction of Military Records (ABCMR) under Army Regulation 15-185 (Army Board for Correction of Military Records) after the recipient has exhausted other means for administrative remedy as contained in Army Regulation 27-10 (less paragraph 3-43).

3.  The applicant provides copies of:

* redacted copy of Rhode Island Army National Guard (RIARNG) Discrimination Complaint, dated 8 June 2012
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 17 July 2012
* DA Form 2823 (Sworn Statement) (Applicant), dated 20 July 2012
* RIARNG memorandum, dated 18 October 2012, subject:  Management Directed Detail
* RIARNG memorandum, dated 19 October 2012, subject:  Management-Directed Detail (applicant's acknowledgement)
* memorandum for record, dated 19 October 2012, subject  Testimonial of (Applicant)
* memorandum for Land Component Commander, dated 26 October 2012, subject:  Response to Accusations under "Article 15-6 [sic]" Investigation
* DA Form 2627 dated 26 October 2012 (appeal portion, dated 8 and 12 November 2012)
* DA Form 4187 (Personnel Action), Grade Change, dated 26 October 2012
* four DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the periods ending 31 May 2009, 30 October 2010, 30 October 2011, and 24 October 2012
* National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement), dated 2 October 2012
* Enlisted Record Brief, dated 3 October 2012
* Personnel Qualification Record-Enlisted, dated 3 October 2012
* memorandum for Land Component Commander, dated 2 November 2012, subject:  Appeal of Article 15 Findings and Imposed Punishment
* memorandum from defense counsel, dated 2 November 2012, subject:  Appeal of Article 15 Findings and Imposed Punishment
* memorandum for Commander, RIARNG, dated 14 November 2012, subject:  Review of Article 15 Appeal
* RIARNG memorandum, dated 20 November 2012, subject:  Termination of Management-Directed Detail
* RIARNG memorandum, dated 20 November 2012, subject:  Management-Directed Reassignment (26-13)
* RIARNG memorandum, dated 7 December 2012, subject:  Management-Directed Detail (applicant's acknowledgement)
* RIARNG memorandum, dated 7 December 2012, subject:  Termination of Management-Directed Detail (applicant's acknowledgement)
* Department of the Army Office of the Inspector General letter, dated 25 July 2013
* DA Form 2627 (applicant's copy, partially completed with no signatures or dates)
* two photographs of a tattoo

CONSIDERATION OF EVIDENCE:

1.  Orders 177-009, RIARNG, dated 25 June 2008, ordered the applicant to full-time National Guard Duty (FTNGD) with his consent and the consent of the Governor of Rhode Island, in an Active Guard Reserve (AGR) status.

2.  In March 2011, he was assigned as the Recruiting and Retention Section Chief, Recruiting and Retention Detachment, RIARNG, as a member of the ARNG Active Guard Reserve.

3.  On 1 October 2011, the applicant was promoted to the rank of master sergeant/pay grade E-8.

4.  On 8 June 2012, a female member of the RIARNG filed a formal discrimination complaint against the applicant.
	a.  The issue was gender-based discrimination and a hostile work environment naming the applicant as the responsible management officer.  An investigation into the complaint was required.

	b.  The evidence obtained during the investigation included testimony of the complainant and witnesses, as follows:

* unprofessional behavior by planting sexually-explicit photographs, written articles, or sexually-suggestive advertisements from a newspaper
* using government copiers for duplication of such material
* using government property as a prop to hold the planted items
* rating female civilians who would walk by the storefront window
* sexual harassment of a female by showing her a photograph of a tattoo of a naked woman with exposed lower genitalia after the applicant had already obtained the commander's opinion of the tattoo
* fostering a hostile work environment that prevented one recruiter from getting work done or doing interviews in the office

	c.  Allegation Number 1:  The applicant creating a hostile work environment, display of inappropriate material of a sexual nature, non-professional conduct by planting such materials in other peoples' work areas, making obvious displays of rating females as they walked by the storefront window, and harvesting/
encouraging these behaviors among peers creating a toxic work atmosphere.

	d.  Allegation Number 2:  The applicant inappropriately showed the claimant a picture of a recruiting applicant's tattoo as described above.  When asked if the claimant felt the picture was offensive, she replied it was highly offensive.  Her peers laughed at the incident.  The lack of respect from the applicant who was her noncommissioned officer in charge (NCOIC) made her feel uncomfortable and demoralized as a member of the team.  This is when she decided to leave the team.

	e.  Allegation Number 3:  The applicant started sending email to the claimant's command sergeant major about her work ethics after she left the team, slandering her to the higher leadership.  The applicant also did this in front of recruiting applicants, acting totally unprofessional in front of prospects by questioning them about her contacts with them and trying to make personal attacks in order to make her look like she was not doing her job.

	f.  The investigation findings and conclusions show:

* based on the preponderance of the evidence and witness statements, the claimant was a victim of sexual harassment
* the type of harassment was characterized as a hostile work environment
* the command climate was such that it focused on high production and ignored or created the appearance of ignoring evidence of the inappropriate behavior and toxic leadership style of the applicant
* a discrepancy between statements provided by three individuals and the corresponding actions taken or not taken may have been due to the commander not wanting to negatively impact his top producing team
* several conflicting statements exist within the witnesses' sworn statements that could not be reconciled during the course of the investigation that dealt with specifically when the leadership knew of any issues with the applicant's team
* the applicant's leadership style as an NCOIC came into question as early as May 2011 and had contributed to numerous requests for reassignment and one resignation
* there is no credible evidence showing the command staff was aware of any sexually-inappropriate behavior in the applicant's team prior to May 2012
* the evidence illustrates that there was a lack of demonstrated leadership on the part of senior NCO's within the command
* it was evident throughout the investigation that there was a serious lack of awareness of "what right looks like" regarding the expected/
professional behavior of Soldiers within the command
* the command published and posted a written policy statement for the prevention of sexual harassment, but not until the day after being informed of the claimant's intent to file a complaint

	g.  Recommendations:

* complete the processing of the claimant's complaint
* reassign three individuals, including the applicant, and discipline each as the command deems appropriate
* conduct a command climate survey each year for a minimum of 2 years
* provide guidance to all commands regarding the appropriateness of maintaining employment and pursuit of full time college studies
* ensure commanders are publishing and posting local command guidance for the prevention of sexual harassment
* appointment of an equal opportunity advisor
* establish a command philosophy that clearly provides standards, discipline, and behavioral expectations
* initiate an investigation should additional evidence comes forward

5.  On 10 October 2012, the applicant was notified by his commander that he was considering NJP against him for the following offenses:

	a.  that on or between 1 November 2010 and 8 June 2012, the applicant wrongfully created and condoned a hostile work environment as a supervisor by displaying inappropriate material of a sexual nature in an office environment, planting such inappropriate materials in other people's work areas, obvious displays of rating females as they walked by the storefront, and harvesting and encouraging these behaviors among peers and subordinates creating a toxic work atmosphere;

	b.  that during this same period the applicant displayed or showed pictures in a sexually-explicit posture to subordinates, said conduct bringing discredit upon the Armed Forces and the RIARNG; and

	c.  that during the same period the applicant wrongfully used reproachful gestures, as a supervisor, by displaying inappropriate material of a sexual nature in an office environment, planting such inappropriate materials in other peoples' work areas and showing a picture of a tattoo of a female in a sexually-explicit posture.

6.  In a DA Form 2627, dated 26 October 2012, the applicant indicated he had been afforded the opportunity to consult with counsel and understood his rights.  He elected not to demand trial by court-martial and requested the hearing be open.  He further stated that he wanted a person to speak on his behalf and to present matters in defense, extenuation, and mitigation.

7.  On 26 October 2012, the applicant was found guilty of all specifications.  The imposing commander, a brigadier general, directed his reduction to sergeant first class/pay grade E-7 and filing the Article 15 in the restricted folder of his AMHRR.

8.  On 26 October 2012, the applicant indicated he would appeal and submit additional matters.

9.  On 8 November 2012, the staff judge advocate reviewed the proceedings and indicated they were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offenses committed.
10.  On 20 November 2012, the appellant commander denied the applicant's appeal.

11.  Army Regulation 27-10 prescribes the policies and procedures pertaining to administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive 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 non-punitive 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.  It further states:

	a.  A commander's decision whether to file a record of NJP in the performance folder 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 folder.  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 folder.

	b.  For Soldiers above the rank of sergeant, the original copy of the Article 15 will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file this form in the performance or restricted folder of the AMHRR will be made by the imposing commander at the time NJP is imposed.

	c.  For the transfer or removal of an Article 15 from the AMHRR, applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  There must be clear and compelling evidence to support removal of a properly-completed, facially-valid Article 15 from a Soldier's record by the ABCMR.

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

	a.  It identifies those documents that are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three folders:  performance, service, or restricted.  It shows an Article 15 is filed in either the performance or restricted folder of the AMHRR as directed in item 5 of the document.

	b.  It provides that the restricted folder of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  This regulation also provides that documents in the restricted folder of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

13.  Title 30, Military Affairs and Defense, Chapter 13, Rhode Island Code of Military Justice, section 30-13-15, Nonjudicial punishment provides that any commanding officer may reduce personnel, other than officers, of his or her command, to the next lower grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction, or any officer subordinate to the one who imposes the reduction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Article 15 should be removed from the restricted folder of his AMHRR.

2.  The evidence of record confirms the applicant accepted NJP in lieu of trial by court-martial for committing acts of sexual harassment and causing a hostile work environment.  The imposing commander directed filing the Article 15 in the restricted folder of his AMHRR.

3.  His NJP proceedings were conducted in accordance with State law and regulation and the Article 15 is properly filed in the restricted folder of his AMHRR as directed by the imposing commander.  There is no evidence of record and the applicant provides none to sufficiently show the Article 15 is untrue or unjust.
4.  The applicant has argued that only certain witnesses were interviewed with the intent to bias the results against him and that he was not afforded the opportunity to present his case before the commander.  He also contends that he was denied a request to examine all of the evidence against him and that the imposing commander displayed anger at him negating any sense of impartiality.  However, he has not provided convincing evidence to support his arguments.  Furthermore, the procedures and processing of his Article 15 were reviewed by the staff judge advocate and found to have been properly conducted.

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

6.  In view of the foregoing, there is no 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 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)                                         AR20130014774



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ABCMR Record of Proceedings (cont)                                         AR20130014774



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