IN THE CASE OF:	  

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140010195 


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 to set aside the DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)),
dated 13 January 2014, and that his property, privileges, and rights be restored.

2.  The applicant states there were two specifications on the DA Form 2627, one that was lined out by the imposing commander because he found him not guilty of the specification.  The remaining specification failed to state an offense and cited a violation of Article 92, UCMJ for violating Army Regulation 600-20 (Army Command Policy), paragraph 7-6(b).  Paragraph 7-6(b) is not a punitive paragraph; therefore, it is not punishable under Article 92, UCMJ.

3.  The applicant provides:

* a memorandum
* a letter
* DA Form 2627

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Article 15 be set aside as it did not contain a valid charge under the UCMJ.

2.  Counsel states:

   a.  He advised the applicant regarding the Article 15 he received on             13 January 2014.  The applicant was read his Article 15 on 9 January 2014.  He came to the Trial Defense Service Office and watched a video about Article 15s.  Without speaking to counsel, he decided to accept the Article 15.  Later, he came back and spoke to an attorney about his appellate rights.

   b.  The applicant made an appeal, but it was denied on 11 February 2014.  On 21 May 2014, the applicant spoke to him about his reduction in rank and the effect it would have on his retention control point.

   c.  After reviewing the Article 15, he noticed the imposing commander found the applicant not guilty of one specification and lined through it.  The remaining specification failed to state an offense, as it was for a violation of Army Regulation 600-20, paragraph 7-6(b).  However, Army Regulation 600-20, paragraph 7-6(b) is not a punitive paragraph and thus would not be a proper basis for a charge or specification.

   d.  Had the applicant consulted an attorney prior to 21 May 2014, there may have been a chance the Article 15 would have been turned down and trial by court-martial requested.  Had that happened, he is confident the specification would have been dismissed in accordance with the Rule of Court-Martial 907(b)(1)(B). 

3.  Counsel provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 August 2000.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 November 2010.

2.  On 22 October 2013, in accordance with Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), an investigation found the applicant engaged in other sexual and non-sexual harassment toward a fellow Soldier when he anonymously sent her a text message to warn her of her apparent sexual conduct with other Soldiers, and contacted her after she filed the sexual harassment complaint against the applicant.

3.  On 9 January 2014, Colonel (COL) SAE advised the applicant that he was considering whether he should receive nonjudicial punishment (NJP) under Article 15, UCMJ, for:

   a.  failing to obey a lawful general regulation, to wit:  Army Regulation 600-20, paragraph 7-6(b), dated 18 March 2008, by wrongfully sending an offensive, unwanted, and unsolicited comment to Private First Class (PFC) SP, in violation of Article 92, UCMJ; and

   b.  for impeding an investigation by contacting PFC SP, the alleged victim in the investigation, and indirectly threatening to report her alleged misconduct to other Soldiers because she had filed a complaint against you [the applicant], such conduct was prejudicial to the good order and discipline of the armed forces, in violation of Article 134, UCMJ.

4.  On 13 January 2014, after having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by a court-martial and elected a closed Article 15 hearing.  He further indicated that he did not request someone to speak in his behalf and that he would present matters in defense in person.

5.  Presumably, at this hearing, the imposing commander found the applicant not guilty of violating Article 134, UCMJ.  The charge was subsequently lined out on the DA Form 2627.

6.  On 13 January 2014, the applicant accepted NJP under the provisions of Article 15, UCMJ, for violating Article 92 of the UCMJ.  His punishment, as indicated on the DA Form 2727, consisted of a reduction to sergeant/E-5; forfeiture of $1,547.00 pay per month for 2 months; $1,547.00 pay, suspended, to be automatically remitted if not vacated before 13 February 2014; and extra duty for 45 days.  The imposing commander directed the original DA Form 2627 be filed in the performance folder of the applicant's Official Military Personnel File (OMPF).  The applicant requested to appeal and submit additional matters.

7.  On 21 January 2014, a military attorney reviewed the applicant's appeal and determined the proceedings were conducted in accordance with law and regulation.

8.  On 11 February 2014, subsequent to a legal review, the next higher commander, Major General LVP, U.S. Army Signal Center, reviewed the applicant's appeal, including matters submitted by him and the legal review, and decided to deny his appeal.
 
9.  The DA Form 2627 and associated documents are currently filed in the performance folder of the applicant's OMPF. 

10.  The applicant provides a letter, dated 30 September 2014, from the Senior Defense Counsel, U.S. Army Trial Defense Service, Fort Gordon Field Office, Fort Gordon, GA, to COL MR, 15th Regimental Signal Brigade which states:

   a.  On 13 January 2014, COL SAE imposed an Article 15 on the applicant for a violation of Article 92, UCMJ for a failure to obey Army Regulation 600-20, Appendix 7-6(b) (Sexual Harassment).  COL SAE imposed the following punishment:  reduction to the rank of SGT; forfeiture of $1,547.00 pay per month for two months; $1547.00 pay, suspended, to be automatically remitted if not vacated before 12 July 2014; and extra duty for 45 days.

   b.  In order for specific conduct to be a violation of Article 92, the portion of the regulation charged must be punitive in nature.  However, paragraph 7-6(b), the paragraph with which the applicant was charged, is not punitive.  Thus, the Article 15 should have been dismissed because it failed to state an offense.  Appendix D-7a.(1)(b) discusses potential UCMJ action for sexual harassment under Article 93 (Cruelty and Maltreatment); however, the applicant's conduct does not meet the elements of Article 93 either.

11.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.

	a.  It states that 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.  "Clear Injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

	b.  It further states that all DA Forms 2627 of commissioned officers, warrant officers, and enlisted Soldiers filed in the OMPF reflecting that punishments have been wholly set aside since 1 September 1979 will routinely be transferred to the restricted folder.

12.  Army Regulation 600-20 implements DOD instruction (DODI) 1300.17,  DODI 1325.06; DODI 5240.06; DODI 5240.22, DODI 5240.26; and DOD directive 1350.2.  Also, it prescribes the policy and responsibility of command, which includes readiness and resiliency of the force military and personal discipline
and conduct, the Army Equal Opportunity Program, Prevention of Sexual Harassment, and the Army Sexual Assault Prevention and Response Program and the Sexual Harassment/Assault Response and Prevention Program (formerly the Prevention of Sexual Harassment and the Army Sexual Assault Prevention and Response Programs).




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to set aside the DA Form 2627, dated 13 January 2014, and that his property, privileges, and rights be restored has been carefully examined and found to be without merit.

2.  Article 92 of the UCMJ proscribes several forms of conduct.  Article 92 (1) makes punishable a violation of a lawful, general regulation.  To be punishable under this paragraph, the portion of the regulation alleged to have been violated must be punitive.  On this point the applicant's counsel is correct.  The provision of Army Regulation 600-20 cited as the offense in this case, paragraph 7-6b, defines a hostile environment form of sexual harassment.  Section 7 of the regulation, itself, does not contain a punitive statement.

3.  However, Article 92 is not limited to conduct prescribed by a punitive portion of a regulation.  Article 92 (3), dereliction of duty, prescribes a willful or negligent failure to properly execute a duty to refrain from or to perform some act.  A duty under this portion of Article 92 can be imposed by a treaty, statute, regulation, standing operating procedure, or a custom of the service.

4.  The applicant entered the Army in August 2000.  He obtained the rank/grade of SSG/E-6 in November 2010, and his conduct occurred in September 2013.  There is little doubt the applicant received ample training concerning the Army's efforts to combat sexual harassment and the type of conduct constituting sexual harassment.  Through such training, the applicant undoubtedly understood that every Soldier has a duty to refrain from conduct that constitutes sexual harassment.  The conduct alleged and confirmed in the Army Regulation 15-6 investigation clearly showed he engaged in this type of conduct.

5.  In light of the foregoing, the applicant is not entitled to 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 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)                                         AR20140010195





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ABCMR Record of Proceedings (cont)                                         AR20140010195



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