IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140015919 


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 a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 25 April 2014 from her Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  She believes the DA Form 2627 is unjust due to ineffective counsel and failure to appoint a "disinterested party" as the investigating officer (IO).

	b.  According to the Article 15 proceedings, she was found in violation of allegedly sexually harassing two female Soldiers in her unit of assignment.  The alleged harassment was said to have occurred during mobilization training at Fort Hood, Texas, and at Camp Arifjan, Kuwait, about 21 January 2014 or thereafter.

	c.  She believes she had ineffective assistance of counsel during her Article 15 proceedings.  She believed at the time and still believes that the government could not prove its case beyond a reasonable doubt.  However, her trial defense counsel advised her not to decline the Article 15.  It was only due to that advice that she did not decline the Article 15.  She appealed the findings of the Article 15 on or about 29 April 2014 and was notified by the battalion commander on or about 6 May 2014 that the appeal was denied by the brigade commander.

	d.  The IO did not approach the investigation from a position of neutrality and had a preconceived notion of the facts prior to the investigation.  At the time of her (the IO's) appointment, the IO was the Support Operations Officer (SPO).  The IO was in charge of operations where she (the applicant) and the complaining witnesses worked and the company commander directly reported to her (the IO) on a daily basis regarding SPO operations.  The IO also worked out of the same tent and interacted with them as a section day in and day out.  She (the IO) knew or should have known of the rumors circulating in the work area regarding the allegations raised by the complaining witnesses prior to her appointment.  These issues surrounding the IO's appointment as a conflict of interest were discussed with legal counsel early on.  The counselor's response was basically to roll the dice, perhaps it would go in her (the applicant's) favor because what she (the applicant) described was not substantial enough to request a new IO.  Despite her efforts, the request for removal of the IO never came to pass.

	e.  When the IO initially interviewed her, she had not seen legal counsel, but was planning to do so that same morning to request removal and appointment of a more suited IO.  This was expressed to the IO immediately upon her arrival.  She handed the IO her memorandum for record requesting the IO's removal and the IO said she (the IO) agreed with her (the applicant) on the issue of her (the IO's) appointment being a conflict of interest, but the battalion commander was adamant about her appointment.  The IO went on to say that she (the IO) had interviewed everyone on her list and she (the applicant) was the last to be interviewed – and unless she (the applicant) was going to incriminate herself, the IO hadn't found any evidence of sexual harassment.  With this assurance, she (the applicant) waived her rights and agreed to answer the 10 questions the IO had for her.

	f.  Several days later, the IO came back with 20 more questions and mentioned that the Judge Advocate General had rejected the findings memorandum she (the IO) submitted.  They gave her (the IO) additional documents related to the case that they originally had not released to her and told her she (the IO) needed to do more digging.  She (the applicant) declined to answer any additional questions until she spoke with legal counsel.  Legal counsel's advice was not to answer any more questions and to accept the Article 15 because she had already answered the 10 previous questions.  According to legal counsel, she (the applicant) had already admitted to making a joke that one found offensive and was therefore guilty.

	g.  Had she been provided with effective legal counsel, there is no doubt she would have been advised against accepting the Article 15.  The government would not have found her guilty beyond a reasonable doubt of sexual harassment at a court-martial.  The IO's appointment and the circumstances surrounding it would not have been an issue as the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation would never have been conducted.

3.  The applicant provides:

* DA Form 2627
* Army Regulation 15-6 investigation findings
* Army Regulation 15-6 supporting documents
* U.S. Army Forces Central Command case disposition
* email correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 31 May 1996 for 8 years under the delayed entry program (DEP).  She was discharged from the DEP on 30 September 1986 and she immediately enlisted in the Regular Army on 1 October 1996.  She was released from active duty on 21 August 2000 and transferred to the USAR.  She was promoted to staff sergeant (SSG) on 1 June 2010.

2.  An Army Regulation 15-6 investigation commenced on 27 March 2014 to determine whether the applicant conducted herself in an inappropriate manner under Army policy regarding sexual harassment.

3.  On 11 April 2014, the IO found the applicant violated the Army's sexual harassment policy by:

	a.  displaying pornographic or sexual images in the workplace (on her phone) and making sexual remarks to a subordinate Soldier (specialist (SPC)); and

	b.  making sexual remarks or making sexual requests to an SSG.  In addition, the conduct of the applicant by indecently viewing an SSG, whether as an act intended to embarrass, intimidate, demean, or degrade, is sexual harassment as well.

4.  The IO recommended:

* requiring the applicant to attend Sexual Harassment/Assault Prevention Program (SHARP) training
* considering the applicant for administrative and/or punitive action for her sexually-harassing behavior toward an SPC and SSG
* considering the applicant for attachment outside the unit for the remainder of the deployment
* giving the unit a SHARP refresher training course
* mentoring leadership on establishing standards and policies to enforce and build discipline and respect within their ranks

5.  A DA Form 2627, dated 25 April 2014, shows she accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for sexually harassing a service member on multiple occasions at Fort Hood, Texas, and at Camp Arifjan, Kuwait.  The imposing commander directed filing the DA Form 2627 in the restricted folder of her OMPF.  She appealed the NJP, but her appeal was denied.

6.  A review of her OMPF on the interactive Personnel Electronic Records Management System contains a copy of the DA Form 2627 in the restricted folder.

7.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

8.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial.  It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time NJP is imposed.

9.  Army Regulation 27-10, paragraph 3-43, contains guidance for transfer or removal of records of NJP 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 Army Board for Corrections of Military Records (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.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the OMPF and Army Personnel Qualification Records.  The regulation states a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627).  Allied documents accompanying the Article 15 will be filed in the restricted folder.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627 is unjust due to ineffective counsel and failure to appoint a disinterested party as the IO relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in the court-martial appellate process.  However, she did not demand trial by court-martial and accepted the NJP.  She provides no evidence, such as an Inspector General complaint, that could have substantiated her contentions.

2.  The evidence shows the applicant, an SSG, accepted NJP under the provisions of Article 15, UCMJ, for sexually harassing a service member on multiple occasions at Fort Hood, Texas, and at Camp Arifjan, Kuwait.  The imposing commander directed filing the DA Form 2627 in the restricted folder of the applicant's OMPF.

3.  There is no evidence showing the DA Form 2627 was improperly imposed.  The DA Form 2627 imposed on 25 April 2014 is properly filed in the applicant's OMPF.  Therefore, there is an insufficient evidentiary 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)                                         AR20140015919



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ABCMR Record of Proceedings (cont)                                         AR20140015919



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