IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130021028 


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)) dated 8 August 2003 from his official military personnel file (OMPF)
* restoration of his previous date of rank and subsequent promotion to sergeant first class (SFC)/pay grade E-7

2.  The applicant states:

	a.  His medical condition (traumatic brain injury (TBI)) affected his judgment.  He now suffers from military sexual trauma (MST) from this event as well as post-traumatic stress disorder (PTSD) caused by the event.

	b.  Ms. L____ K____ E____ was the real perpetrator; she lied to investigators, police, and the recruiting command.  Ms. L____ K____ E____ could never produce any evidence that she was the victim; she set this up so she could collect from the government.

	c.  The charge that he made a false official statement that he did not touch Ms. L____ K____ E____ was false; he did not have contact with Captain (CPT) J____ N. F____, the investigating officer (IO).

	d.  The charge that he made a false official statement to CPT J____ N. F____ that he did not kiss or attempt to kiss Ms. L____ K____ E____ is also false.  It was Ms. L____ K____ E____ who sexually assaulted him and threatened to claim rape if he did not have sexual relations with her.  He did not have free will; he was forced to kiss or touch Ms. L____ K____ E____ for her own self-satisfaction.  No inquiry into his mental capacity was applied despite his diminishing mental capacity due to his TBI.

	e.  The charge that he made a false official statement to a special agent that he did not kiss or attempt to kiss Ms. L____ K____ E____ was also false.  He would never have sexual contact with this female of his own free will.  Pressure from U.S. Army Criminal Investigation Command (CID) agents created the conditions under which his TBI clouded his judgment.  The MST and PTSD affected his judgment.

	f.  The charge that he committed an indecent assault upon Ms. L____ K____ E____ by kissing her and touching her breasts with intent to gratify his desire was also false.  Ms. L____ K____ E____ lied to investigators by setting him up with a false claim.

	g.  He had already been promoted to SFC/E-7, but Lieutenant Colonel (LTC) W____ L. R____, his battalion commander, held the orders to punish him.  In fact, during the Article 15 proceedings, the battalion commander admitted that he had been promoted to E-7 and the battalion commander told the staff he would not take any money (pay).  He was already punished with restriction and extra duty.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 2007
* contested Article 15, dated 8 August 2003
* appointment orders for the IO, dated 25 January 2003 
* excerpt from the Army Times, dated 4 August 2003
* DA Form 4856 (Developmental Counseling Form), dated 18 June 2003
* Grant of Testimonial Immunity and Order to Testify, dated 11 October 2006
* IO's interview of Ms. L____ K____ E____, dated 31 January 2003
* Report of Investigation (ROI), dated 1 February 2003
* email correspondence with his former commander, dated November 2013
* U.S. Court of Federal Claims Docket Number 05-XXXL, Ms. L____ K____ E____ versus United States of America, dated 28 April 2008
* Ms. L____ K____ E____'s psychiatric evaluation, dated 3 June 2007 (part of the lawsuit)
* Department of Veterans Affairs (VA) Rating Decision, dated 16 January 2008
* VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance), dated 1 October 2013
* VA Continuity of Care Document, dated 13 November 2013
* Department of Rehabilitation Services Clinical Evaluation, dated 13 March 2008
* VA letter pertaining to applicant's employability, dated 3 January 2013
* VA letter pertaining to applicant's PTSD diagnosis, dated 20 May 2013
* DD Form 2697 (Report of Medical Assessment), dated 11 May 2007
* DD Form 2807-1 (Report of Medical History), dated 20 June 2007
* multiple character reference letters

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 1 September 1987 and he held military occupational specialties 13F (Fire Support Specialist) and 93P (Aviation Operations Specialist).

3.  He served through multiple extensions or reenlistments in a variety of stateside and overseas assignments and he was promoted to staff sergeant (SSG)/E-6 on 1 March 1997.  He was assigned as a field recruiter to the U.S. Army Recruiting Battalion, Minneapolis, MN, with duty in Rapid City, SD.

4.  The complete facts and circumstances which occurred on 7 January 2003 are not in the applicant's OMPF.  It appears the applicant allegedly had abusive sexual contact with Ms. L____ K____ E____.


5.  The applicant provided the following documents in support of his request:

	a.  A memorandum from the U.S. Army Recruiting Battalion Minneapolis, dated 14 January 2003, subject:  Appointment as IO, shows the battalion commander appointed an IO to conduct an informal investigation into allegations of recruiter misconduct by the applicant toward Ms. K____ L. E____ (also shown as Ms. L____ K____ E____ throughout this Record of Proceedings).  At a minimum, the investigation should answer the question:  "Did [Applicant] sexually assault K____ L. E____?"

	b.  A memorandum for record from the IO, dated 31 January 2003, subject:  Interview of Ms. L____ K____ E____, is highlighted in yellow and states Ms. L____ K____ E____'s mother wanted to know why Ms. L____ K____ E____ received shots the last time she went to the Sioux Falls Military Entrance Processing Station (MEPS).  Ms. L____ K____ E____'s mother stated her daughter had told her she received a smallpox vaccine at the MEPS.  The IO verified that no shots were administered to Ms. L____ K____ E____.

	c.  A memorandum from U.S. Army Brainerd Recruiting Company, dated 1 February 2003, subject:  ROI, shows:

		(1)  The IO stated that a special investigator of the Bureau of Indian Affairs was notified of the charges and had interviewed Ms. E____ as well as the applicant.  He presented his findings to the Deputy U.S. Attorney who declined to prosecute the matter and asked to have the information sent to the U.S. Army.

		(2)  The IO stated Ms. E____ lied to her parents about her enlistment process into the Army.  She told her parents she received the smallpox vaccine and other shots.  This led him to conclude that she has and will lie to her parents again and to anyone in a matter that benefits her.  The IO stated the accusation comes from a young woman who was obviously having troubles at home.  The IO could not prove with physical or corroborating evidence the charge of assault.  However, the IO believed the applicant showed poor judgment in his dealings with Ms. E____.

	c.  The IO agreed with the decision of the Deputy U.S. Attorney not to prosecute the matter.  He recommended reassignment of the applicant's recruiting area and ordering him not to go on the reservation or have any contact with Ms. E____ or her family.  He also recommended counseling the applicant in writing and having the battalion commander meet with the tribal counsel to mend relations.

6.  On 8 August 2003 in a closed hearing, the applicant declined trial by court-martial.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for:

* making a false official statement to CPT F____ on or about 7 January 2003 in that he did not touch this female
* making a false official statement to CPT F____ on or about 29 January 2003 in that he did not kiss, attempt to kiss, or touch Ms. E____
* making a false official statement to Special Agent T____ on or about 3 June 2003 in that he and Ms. E____ did not have any type of physical contact of a sexual nature on 7 January 2003
* committing an indecent assault upon K____ L. E____, a person not his wife, by kissing her and touching her breasts on 7 January 2003 with intent to gratify his sexual desires

7.  The applicant's NJP consisted of reduction to the rank/pay grade of sergeant (SGT)/E-5.  The imposing officer directed filing the Article 15 in the performance folder of his OMPF.  A review of his OMPF reveals that the contested DA Form 2627 is, in fact, filed in the performance folder.

8.  On 13 August 2003, he submitted an appeal to the Article 15.  He stated his punishment was too harsh and unfair.  He had been working hard for 2 1/2 years as a recruiter with no pattern of misconduct.  He had solid evaluations and awards and he was already on the E-7 standing promotion list.  He stated that taking his rank away would cause him severe financial hardship.  This turmoil had made him stronger with God and his family, and made him a better noncommissioned officer.

9.  On 15 August 2003, a judge advocate general officer opined that the Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense committed.

10.  On 19 August 2003 after considering all matters presented in appeal, the 3d Recruiting Brigade Commander denied the applicant's appeal.  The applicant acknowledged notification of this denial on 4 September 2003.

11.  The applicant was later reassigned to another installation (Fort Riley, KS) and he was again promoted to SSG/E-6 effective 1 August 2006.

12.  He retired on 31 December 2007 and he was placed on the Retired List in the rank/pay grade of SSG/E-6 effective 1 January 2008.  He completed 20 years, 2 months, and 2 days of active service.

13.  It appears that Ms. L____ K____ E____ filed a lawsuit with the U.S. Court of Federal Claims on 28 April 2009.  The case was brought before the court following a trial in Rapid City, SD.  Ms. L____ K____ E____, the plaintiff and a member of the Oglala Sioux Tribe, sought relief under Article I of the Fort Laramie Treaty of 29 April 1868 which provides that if "bad men" among the whites commit "any wrong" upon the person or property of any Sioux, the United States will reimburse the injured person for the loss sustained.  Based on the evidence adduced at trial, the court found the plaintiff sustained a loss within the meaning of this clause and she was therefore entitled to monetary relief from the United States under the Treaty of 1868 in the amount of $590,755.06.  According to the U.S. Court of Federal Claims case file/docket:

	a.  During Ms. L____ K____ E____'s junior year in Red Cloud High School when she was 16 years old, she requested enlistment information from the Army, hoping, as she testified, "to be the first female in [her] family in the military."  The applicant, an Army recruiter from the local recruiting station in Rapid City, SD, was assigned to work with Ms. L____ K____ E____ and came to Red Cloud to provide her with the information she had requested.  Ms. E____ indicated that she wanted to be assigned in the nursing field.  During her final 2 years of high school, she spoke regularly with the applicant on the telephone and, on occasion, in person at the recruiting station, her school, and her parents' house.  While their conversations initially focused only on military service, they eventually became more personal.  He asked her about her family, college plans, and boyfriends, and shared information about his wife and children.

	b.  Over time, the applicant's behavior increasingly suggested that he had more than a professional interest in Ms. E____ – he brought her flowers at the hospital where she worked, attended her high school volleyball games, and repeatedly asked her to the movies.  Ms. E____ declined the latter invitations and, in general, was uncomfortable with his personal advances.  During this same general time period, she was briefly treated for depression.

	c.  In May 2002, Ms. E____ graduated from school.  She was accepted to four colleges, three of which offered her full scholarships.  In August 2002 prior to starting college, she accompanied the applicant on a recruiting trip.  At one point during that trip while in Martin, SD, he told Ms. E____ to come to his hotel room so he could measure and weigh her as part of her military application process.  While Ms. E____ was holding out her arms to be measured, he hugged her around the waist; he then turned off the light, grabbed her, and kissed her.  Ms. E____ became angry and pushed him away.  He relented for the moment, but on the drive home he pulled off the road on two occasions and asked Ms. E____ if she liked him.  She again reacted angrily, resisting the advances, at which point the applicant apologized and promised that it would not happen again.  Though disturbed, Ms. E____ did not report the incident because she still trusted the applicant and thought "it was over."

	d.  In January 2003, the applicant arrived at Ms. E____'s home in a government vehicle.  He informed her father that she needed to return to the MEPS in Sioux Falls for another height and weight evaluation, contending that her "paperwork had been lost again."  He instructed her to bring a change of clothes because they would stay overnight in Sioux Falls and return the next day. 
She packed a bag of clothes and departed with him.  After telling her that he needed to visit a recruit in Manderson, SD, before going to Sioux Falls, the applicant instead drove for several miles on the secluded White Horse Creek dirt road to a remote part of the reservation.  The applicant then turned onto an unmarked trail.  While driving through this barren and desolate area, the applicant alarmingly asked, "if somebody hid a body out there, would anybody find it?" a comment that Ms. E____ took as a threat.  The applicant parked the car behind a hill, turned off the engine, and locked the doors.  Because of the remote location, miles from the nearest house or building, Ms. E____ felt trapped and scared.

	e.  It is undisputed that the applicant then sexually assaulted Ms. E____.  First, he grabbed her hand and tried to kiss her.  Ms. E____ protested, telling him "no" and pushing him away.  But this time the applicant would not stop.  He started to rub Ms. E____'s hand and leg, pulled her close, and said, "[c]ome on, I thought you liked me."  The applicant moved out of his seat to position himself on top of Ms. E____.  He put his hand between her legs, rubbed her vagina through her pants, then unbuttoned her pants and tugged at the zipper.  The applicant next reached his hands up Ms. E____'s shirt, slid it under her bra, and began grabbing her breasts.  Ms. E____ cried, repeatedly tried to push the applicant away, and kept telling him "no."  He continued to assault her – using one hand to pin her arms above her head and another to grope her.  At one point, apparently in an attempt to coerce her into having sex, the applicant told Ms. E____ he could get her any military position she wanted.  Ms. E____ continued to resist and, after about 30 minutes, the applicant finally relented.  He turned the car's engine back on and drove back to the dirt road and then onto the main road, heading towards Kyle, SD.

14.  It also appears that the applicant filed claims with the VA for service-connected disabilities after his retirement.  In January 2008, the VA awarded him service-connected disability compensation for PTSD, degenerative arthritis, left shoulder injury, right knee condition, and hypertension.  The VA rating decision indicates that during his VA examination in October 2007, he explained how his PTSD symptoms began after he was wrongly accused of rape and the subsequent stress and difficulties this brought on him and his family.

15.  It further appears that after his retirement he began and continues to receive care from the VA relating to PTSD, sexual abuse of an adult, erectile dysfunction, and trouble sleeping.  The VA certified him as unemployable on 3 January 2013.

16.  The applicant also provided:

	a.  an excerpt from the Army Times, dated 4 August 2003, titled, "SFC Selections" with the applicant's name highlighted in yellow;

	b.  email correspondence from and/or to his former commander who previously issued him a "No Travel Order" to the reservation, dated November 2013.  The applicant now solicits help from the former commander relating to his current petition with the Board;

	c.  a DA Form 4856, dated 18 June 2003, wherein his station commander counseled him on being flagged (suspension of favorable personnel actions) and relieved from recruiting duties pending the CID investigation into the matter concerning Ms. L____ K____ E____; and

	d.  a memorandum from the Commanding General, Headquarters, 1st Infantry Division and Fort Riley, Fort Riley, KS, dated 11 October 2006, subject:  Grant of Testimonial Immunity and Order to Testify, wherein the commanding general granted him testimonial immunity from any statements made during the investigation and any judicial proceedings into the alleged indecent assault of Ms. L____ K____ E____.

	e.  Extract of the applicant's testimony, dated 23 March 2007.

17.  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 folder of a Soldier's OMPF 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.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance folder or restricted folder of the OMPF 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 for the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further states there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

18.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. 
Table B-1 is a compilation of all forms and documents which have been approved by the Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System.  Table B-1 states a record of an Article 15 is filed in either the performance or the restricted folder as directed by item 4b or item 5 of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant violated the UCMJ while serving as an SSG and a recruiter in a leadership position and subsequently accepted NJP on 8 August 2003 for making various false statements to an IO regarding his alleged misconduct with a civilian female applicant.  The imposing commander directed filing the Article 15 in the performance folder of his OMPF.  This is where the subject Article 15 is currently filed.

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the 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 a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant further appealed this Article 15 to the next higher commander and his appeal was denied.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted folder of his OMPF as directed by the imposing commander.  There is no evidence of record and he provides insufficient evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.

4.  The applicant may have been selected for promotion to SFC/E-7 as shown by the Army Times article, dated 4 August 2003.  However, he was pending an investigation as of January 2003 and as such he would have been flagged and in a non-promotable status.  Even if promotion orders were published – which the evidence of record does not support – the orders would have been revoked because he was flagged.  More importantly, he was reduced to SGT/E-5 on 8 August 2003 and could not possibly be promoted from SGT/E-5 to SFC/E-7.

5.  Since there was no error in his presumed placement in a non-promotable status and since there was also no error in his reduction to SGT/E-5 on 8 August 2003, there is no reason to reinstate his original date of rank to SSG or promote him to SFC/E-7.

6.  After a comprehensive review of the applicant's case, together with the evidence of record and the evidence he provides, there is insufficient evidence to grant him the 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)                                         AR20130021028



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ABCMR Record of Proceedings (cont)                                         AR20130021028



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