IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140016151 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's record by removing the 
DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 28 January 2014, from his official military personnel file (OMPF).

2.  Counsel states there were two errors that were substantially prejudicial to the applicant's rights.  First, the allegations were taken out of context and did not rise to the level warranting nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ.  Second, the imposing authority, Major General (MG) RCL (Retired), provided a letter of support.

3.  Counsel provides:

* a letter/statement of complaint, dated 4 September 2014
* a memorandum from MG RCL (Retired), dated 20 August 2014
* the sworn statement of Mrs. NM, dated 21 January 2014
* a memorandum/letter of recommendation from Mrs. SD, dated 22 August 2014
* a memorandum/character reference from Chief Warrant Officer Five 
(CW5) SEB, dated 20 August 2014

* a letter from Lieutenant Colonel (LTC) SLB, undated
* a letter from LTC FDM, dated 29 December 2013
* a letter from LTC WL, dated 4 December 2013
* a letter from Ms. HMD, dated 5 December 2013
* a letter from a chaplain, Major (MAJ) RSB, dated 6 December 2013
* a memorandum/character reference from MAJ SAS, dated 6 December 2013
* a memorandum/character reference from Chief Warrant Officer Three (CW3) DJD, dated 6 December 2013
* a letter from CW3 OL, dated 6 December 2013
* a memorandum/character reference from Chief Warrant Officer Two 
(CW2) LDG, dated 10 December 2013
* a letter from CW2 AB, dated 5 December 2013
* a memorandum/character reference from CW2 OM, dated 10 December 2013
* a memorandum/character reference from Master Sergeant (MSgt), U.S. Air Force, First Sergeant, JJV III, dated 8 December 2013
* a memorandum/character reference from Sergeant First Class (SFC) PAC, dated 9 December 2013
* a letter from SFC SRR, dated 6 December 2013
* a letter/ character reference from Staff Sergeant (SSG) TAR, dated 
a 6 December 2013
* a letter from SSG BWH, dated 10 December 2012
* a letter from Sergeant (SGT) DHM, dated 12 December 2012
* a character reference statement from First Sergeant (1SG) (Retired) RD, undated
* a letter from 1SG (Retired) JC, dated 12 December 2013
* a memorandum/character reference from Mr. CJC, dated 20 January 2014
* a letter from Mrs. JD, dated 13 December 2013
* a letter from Mr. JB, dated 6 December 2013
* a DA Form 2627, pages 1-5 of 6, dated 28 January 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve warrant officer on 9 June 2002.

2.  His record contains an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers)/Army Regulation 600-20 (Army Command Policy) investigation, dated 6 December 2013.  

	a.  The investigating officer (IO) found that by the preponderance of evidence:
		(1)  The applicant made comments about Mrs. BA's breasts and body during a softball tournament in the summer of 2013.  These were unwelcome, sexually harassing comments that he made to Mrs. BA and they made her uncomfortable.  Mrs. JG witnessed the event and also stated she heard the applicant tell Mrs. BA "…that if they were single he would have sex with her."

		(2)  The applicant continued making unwelcome sexual comments to Mrs. BA at public community events on multiple occasions.  He made such statements regarding  the two of them "having sex all day everyday" if they were single.  These sexually harassing comments continued to shock Mrs. BA. 

		(3)  The applicant continued by contacting Mrs. BA through the social media site "Facebook."  These unwelcome contacts continued through at least the early morning of 9 November 2013, when Mrs. BA confronted the applicant by asking "Why are you writing me?"  The applicant did not reply.

	b.  Based on the preponderance of evidence, the IO found a pattern of deliberate, repeated, and unwelcome comments of a sexual nature made by the applicant.

	c.  The IO recommended appropriate action be taken by the command.

3.  The applicant's record contains a memorandum issued by the installation sexual assault response coordinator (SARC), on 6 December 2013, wherein the SARC stated he had reviewed the IO's report for the formal sexual harassment complaint filed by Mrs. BA against the applicant, and concurred with the IO's findings and recommended the allegations of sexual harassment be found "substantiated" and appropriate actions be taken to ensure sexual harassment is prevented in the future. 

4.  His record contains an Army Regulation 15-6 investigation, dated 
16 December 2013.  

	a.  The IO found that by the preponderance of evidence that:

		(1)  The applicant initiated a conversation with Mrs. SD in mid-September 2013 and made comments to Mrs. SD regarding how he and his friend Jxxx "had been friends for years back in their ‘bachelor’ days and that they did some things that" they would never tell their wives.  The applicant told Mrs. SD about how he and his friend Jxxx used to go to swingers clubs in their single days.  He then asked Mrs. SD if she had ever gone to a swingers club.  

		(2)  The applicant contacted Mrs. SD through the social media site "Facebook" on 18 September 2013, at 0743, stating "[Mrs. SD] stood [him] up at spin [class]."  He again contacted her that day at 0839 requesting Mrs. SD's personal email "so [they] could BS throughout the day."

		(3)  The applicant contacted Mrs. SD on 18 September 2013, at 0920, from his personal email account, stating, "now this is my secret account… remember grown folks do things… so [please] don't tell anyone."

		(4)  The applicant continued contacting Mrs. SD from his government email address, on 18 September 2013.  At 0935, he wrote, "I also sent you a message to your gmail account from my secret [account]… when I say secret, no one knows about it, so [please] keep it to yourself.  Cool?  Means don't tell [Mr. FD (her husband)] [please], hate for him to be BSing with me one day and my wife to be like you have an email [account]."

		(5)  The applicant continued contacting Mrs. SD from his government email address.  On 29 October 2013, at 0935, he wrote, "Is [Mr. FD] mad at me? Reason I ask is ever since that time you told him about my secret email, he has not said one word to me."  He also asked her about "ya'lls girl's night out… [and] did the girl actually kiss the guy."

	b.  Based on the context of the emails and conversations, the IO found the applicant sexually harassed Mrs. SD by making deliberate and repeated unwelcome comments of a sexual nature.

	c.  The IO recommended that appropriate UCMJ action be taken by the command based on the evidence and the findings of the investigation.

5.  His record contains an Army Regulation 15-6 investigation, dated        
20 December 2013.  

	a.  The IO found that by the preponderance of evidence that:

		(1)  The applicant made deliberate and unwelcome sexual and verbal comments to Mrs. JG while camping in the summer of 2013 by discussing anal sex after Mrs. JG told him she found the conversation "gross and disgusting."

		(2)  The applicant continued with deliberate and unwelcomed sexual comments to Mrs. JG through the social media site "Facebook" on various occasions when:

			(a)  The applicant stated he has a private email and asked if Mrs. JG had one where he could "send a picture of his junk for [her] to analyze," and that this action was "not risky if [she deleted] it."

			(b)  The applicant wrote Mrs. JG stating, "[explicit comments about her body] and how he [would perform explicit sexual acts]" with her.  The applicant proceeded by saying he would "[perform a specific explicit sexual act repeatedly] so that [applicant] could watch [Mrs. JG's] [explicit sexual comments about her body parts and his body parts]."

			(c)  The applicant told Mrs. JG, "don't say anything to [her husband] about any of this.  I would hate to lose a friend and for my wife to find out…"  He later asked Mrs. JG if she "ever thought about how he [had sex]."

	b.  Based on the preponderance of evidence the IO found the applicant sexually harassed Mrs. JG by committing deliberate and repeated unwelcome comments of a sexual nature.

	c.  The IO recommended that appropriate UCMJ action be taken by the command based on the evidence and the findings of the investigation.

6.  His OMPF contains a DA Form 2627 which shows the charge/specification listed under subparagraph a(1) below.  However, he provided a copy of this form, which contains two additional specifications listed on a continuation sheet, under subparagraphs a(2) and a(3).  The specifications listed on subparagraph a(2) and a(3) and in fact the entire continuation sheet is missing from his OMPF.

	a.  On 14 January 2014, MG RCL informed the applicant he was considering whether he should be punished under Article 15, UCMJ for misconduct, in that:

		(1)  The applicant, a married man, did on or about 1 May 2013 to on or about 15 November 2013, publicly make sexually explicit comments to Mrs. BA, a woman married to an enlisted Soldier, to include publicly commenting about the size of her breasts, thereby compromising his character and dishonoring himself as an officer and a gentleman through moral turpitude.  

		(2)  The applicant, a married man, did on or about 1 May 2013 to on or about 20 November 2013, contact and make sexually explicit comments to 
Mrs. JG, a woman married to an enlisted Soldier, thereby compromising his character and dishonoring himself as an officer and a gentleman through moral turpitude.  

		(3)  The applicant, a married man, did on or about 17 September 2013 to on or about 18 September 2013, contact Mrs. SD, a woman the applicant knew was married, by email from both his workplace and a secret account, in which he stated, "remember grown folks do things," after an earlier inappropriate inquiry and statements to her about swingers clubs as well as what you would not share with your wife or your friend’s wife, and then requested that she not disclose his secret email to her husband or his wife, thereby compromising his character and dishonoring himself as an officer and a gentleman through moral turpitude.  

	b.  The applicant indicated he did not demand a trial by court-martial, requested a closed hearing, requested a person to speak in his behalf, and indicated that matters in defense, extenuation, and/or mitigation would be presented in person.

	c.  MG RCL, in a closed hearing, having considered all matters presented, which included a U.S. Army Criminal Investigation Command (CID) report, determined the applicant was guilty and directed the Article 15 be filed in the restricted section of the applicant’s OMPF.  

	d.  The applicant was advised of his right to appeal to the Commander, U.S. Army Europe, the next superior authority, within 5 calendar days, and advised that an appeal made after that date may be rejected as untimely.  

	f.  On 28 October 2013, the applicant indicated he did not appeal, and  elected to accept the NJP.

7.  Counsel provided 26 letters and/or memoranda of support and character references including a letter from Mrs. BA who filed a sexual harassment complaint against him and MG RCL, the imposing commander, who is now retired.  The correspondences, in general, state the writers' feel the applicant is of good character, and would not or did not make any inappropriate comments.  However, two letters in particular should be noted:

	a.  Mrs. BA stated in her letter that she does not believe the details of the emails or comments made between herself and the applicant should have resulted in NJP if the Article 15 would harm his career or chances of promotion.  

	b.  MG RCL (Retired) stated in his letter that he filed the Article 15 in the applicant's restricted folder because he felt the applicant should have an opportunity to be promoted.  However, now he feels the Article 15 should be removed from his record entirely.

8.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.

	a.  Chapter 3 provides that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  It further states that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate, and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member'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 fewer resources than trial by court-martial.

	b.  Paragraph 3–18 states the imposing commander will ensure that the Soldier is notified of the commander’s intention to dispose of the matter under the provisions of UCMJ, Article 15.  The Soldier will also be notified of the maximum punishment that the commander could impose under UCMJ, Article 15.  The Soldier will be provided a copy of DA Form 2627 with items 1 (charges) and 2 (statements of rights) completed, including the date and signature of the imposing commander and any supporting documents and statements for use during the proceedings.  The Soldier will be informed of his or her right to remain silent, right to counsel, right to demand a trial by court-martial, the right to present their case before the imposing commander, the right to call witnesses, the right to an open hearing, the right to present and examine evidence, and the right to a decision period.  Normally, 48 hours is a reasonable decision period.  If the 
Soldier does not demand trial by court-martial prior to expiration of the decision period, including any extension of time, the imposing commander may continue the proceedings.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The Soldier has the right to appeal and the appellate rights and procedures that are available to the Soldier will be explained.

	c.  Paragraph 3–29 states that only one appeal is permissible under UCMJ, Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.  A reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 5 calendar days after the punishment is imposed will be presumed to be untimely, unless the superior commander, in the superior commander’s sound discretion for good cause shown, determines it to be timely. If, at the time of imposition of punishment, the Soldier indicates a desire not to appeal, the superior authority may reject a subsequent election to appeal, even though it is made within the 5-day period.  

	b.  Paragraph 3-37b(1)(a) provides that the decision to file the report of NJP in the performance or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  

10.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant's NJP should be entirely removed from his OMPF because the allegations were taken out of context and did not rise to the level warranting NJP, and because the imposing authority MG RCL (Retired) provided a letter of support stating the NJP should be removed.

2.  There is no evidence of record that the comments, emails, or Facebook posts referred to in the Army Regulation 15-6 investigations, which resulted in the applicant's NJP, were untrue in whole or in part or were taken out of context.

3.  Statements from a commander who imposed NJP often reflect retrospective thinking, or second thoughts, prompted by an applicant’s informing them of their non-selection or other unfavorable personnel action claimed to be the sole result of the NJP.  As a result, claims by the imposing commander stating that they did not intend to file the NJP as they did, that they have changed their mind, that they feel the punishment was too severe, or that the NJP should be removed from an applicant's record, will not, alone, serve as the basis of altering, moving, or removing NJP from an applicant's OMPF.
4.  He did not demand a trial by court-martial.  Instead, he accepted the NJP after being made fully aware of his rights.  Additionally, he was advised of his right to appeal his NJP, and advised that an appeal made after that date may be rejected as untimely.  He was given 5 days to appeal the NJP and chose not to do so; furthermore, he elected, in writing, not to appeal the punishment.  

5.  This Board 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 Board 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 elected not to appeal to the next higher commander.

6.  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.

7.  Based on the foregoing, there is insufficient evidence to grant 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)                                         AR20140016151





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ABCMR Record of Proceedings (cont)                                         AR20140016151



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