IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140020527 


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, in effect, correction of his records to show the nonjudicial punishment (NJP) he received under Article 15, Uniform Code of Military Justice (UCMJ), dated 24 September 2013, was set aside.

2.  The applicant states:

* he was wrongfully demoted from sergeant/pay grade E-5 to specialist four/pay grade E-4 as a result of an NJP for being falsely accused of sexual harassment
* he held the rank of sergeant and passionately performed all of his duties as a noncommissioned officer for 8 of his 14 years in the Army
* he worked hand-in-hand, side-by-side with various men, women, and children from all over the world in different countries without any cause for demotion
* the female Soldier who accused him of sexual harassment had accused other male Soldiers of sexual harassment on two previous occasions
* she malingered daily and knew how to use the system to her advantage with no regard for who it affected which eventually resulted in her negative discharge from the Army
* the chain of command that imposed his punishment was very new to the brigade and used him as an example with no concern for his ability to take care of his family
* he felt bullied and taken advantage of
* the whole situation made him suicidal and homicidal
* he was admitted to the psychiatric ward at Carl R. Darnall Army Medical Center, Fort Hood, TX, on two occasions, transferred to the Warrior Transition Battalion, and medically retired from the Army
* he is currently dealing with anger, animosity, anxiety, trust issues, depression, suicidal/homicidal thoughts, other mental issues, and an increase in debt and possible home foreclosure due to the situation

3.  The applicant provides

* B Detachment, 90th Personnel Services Battalion, Unit 23133, Germany, Orders 322-306, dated 18 November 2005
* eight DA Forms 2166-8 (NCO Evaluation Report) covering the periods December 2005 through October 2012
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* Article 15 appeal, dated 21 October 2013
* letter to a Member of Congress
* two Standard Forms 600 (Chronological Record of Medical Care)
* Headquarters ,III Corps and Fort Hood, TX, Orders 199-0129, dated 18 July 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 July 2000.

2.  B Detachment, 90th Personnel Services Battalion, Unit 23133, Germany, Orders 322-306, dated 18 November 2005, promoted him from specialist four to sergeant with an effective date of rank of 1 December 2005.

3.  The applicant provided eight DA Forms 2166-8, all of which are favorable in nature, rating him as Among the Best or Fully Capable, Successful, and Superior, which cover the following periods:

* December 2005 through June 2006
* 1 July 2006 through 31 May 2007
* 31 May 2007 through 3 April 2008
* 4 April 2008 through 3 April 2009
* 4 April 2009 through 3 April 2010
* 3 April 2010 through 3 October 2010
* 4 October 2010 through 3 October 2011
* 4 October 2011 through 3 October 2012

4.  On 24 September 2013, he accepted NJP under the provisions of Article 15 of the UCMJ for sexually harassing a female private first class.  His DA Form 2627 shows that having been afforded the opportunity to consult with counsel; he did not demand a trial by court-martial; he did not desire a spokesman to accompany him; he elected to present matters in defense, extenuation, and/or mitigation in person; and he requested an open hearing.

5.  The DA Form 2627 contains several hand-written comments made by the applicant.  He writes:

* the allegations were false
* he did not direct any words at all to the female private first class
* she was the only female in a tent full of males
* no one was even close to her or looked in her direction
* no question was deliberately directed toward her
* the commander presiding over the Article 15 proceedings would not let him explain the whole situation and what was said
* he was promotable to staff sergeant at the time and the commander said his punishment would have been different had he known that at the time

6.  He was found guilty of all specifications by a field grade officer.  His punishment consisted of reduction to the rank/pay grade of specialist four/E-4; a forfeiture of $1,201 pay for 2 months, suspended, to be automatically remitted if not vacated before 14 April 2014; extra duty for 45 days; and restriction to the limits of the company area, dining/medical facility, and place of worship for 30 days.  His commander advised him of his right to appeal his punishment within 5 days of the date of imposition.  On 16 October 2013, he elected appeal of his NJP.

7.  In a memorandum to the Commander, 13th Expeditionary Sustainment Command, dated 21 October 2013, subject:  Article 15 Appeal, he requested suspension of the restriction to Fort Hood, reduction in rank, and a forfeiture of pay; reduction of the extra duty days; and an administrative move out of the 4th Sustainment Brigade.  He based his request on the following:

* he had been mentally ill for a few years and not in his right mind at the time of the incident
* he had sought and received medical attention and medication for his condition since May 2013
* he was seen by a psychiatrist and therapist and was admitted to the psychiatric ward at Carl R. Darnall Army Medical Center for 1 week
* he was not mentally, physically, or emotionally stable enough to handle more stress
* he and his spouse of 6 years with whom he had four children were separated and going through a divorce
* being on extra duty and restriction prevented him from spending time with his children
* he was in debt, amounting to roughly $233,352
* $3,400 a month went toward bills and necessities, including two mortgage payments, two vehicle loans, gas, food, clothes, and daycare for the children
* a reduction in rank and forfeiture of pay would put more strain, stress, and problems on him than he already had and hinder his performance as a Soldier
* this was his first offense in 13 years of service, 8 of which he spent as an outstanding noncommissioned officer
* he contributed very much to every unit he had been in and he had a passion for taking care of Soldiers
* in this particular situation, the female Soldier used false allegations to get out of participating in a field mission
* the statements he made were not directed toward anyone in particular and were definitely not intended to harass anyone
* it was merely playful conversation between males during lunch break to lighten the mood during a hot and miserable field training exercise

8.  The commander's consideration of the appeal is not in the available records for review.

9.  In an undated, unsigned letter to a Member of Congress, the applicant sought help with his situation arising from the NJP, reiterating some of the points made in his appeal.  He additionally added that he participated in multiple deployments in Pakistan, Angola, and twice to Iraq.  While understanding the sensitive nature of sexual harassment/sexual assault issues in the Army, he still thought countless female Soldiers used the Army Sexual Harassment/Assault Response and Prevention system to their benefit with no regard for the careers they ruined, of which he was a victim.  The accuser was a private first class and had only been on active duty for 8 to 10 months.  She did not once ask anyone to stop the conversation or make known that she was uncomfortable or offended.  His comments were not sexual in nature and not intended to offend.  The entire situation made him feel mentally unstable, incriminated, bullied, and embarrassed.  He felt the command's intentions were to make an example of him, thus the punishment was too harsh.

10.  A Standard Form 600, dated 18 October 2013, shows the applicant was referred to the Carl R. Darnall Army Medical Center Resilience and Restoration Center Triage Clinic as he was experiencing symptoms of depression, little sleep, not eating, dizziness, anger at his command, and alcohol dependence.  He was referred to psychiatric therapy family counseling, behavioral health counseling and therapy, and alcohol and/or drug services.  

11.  A Standard Form 600, dated 19 December 2013, contains comments by his Army Substance Abuse Program counseling psychologist attesting to the major positive changes he made since he first saw him, to include showing appropriate emotions and the early full remission of his alcohol dependence.

12.  Subsequent to a medical evaluation board, an informal physical evaluation board (PEB) convened on 20 June 2014 and found the applicant physically unfit due to major depressive disorder, lumbar spine with stenosis (degenerative disc disease), and neurogenic claudication to the left lower extremity (inflammation of the nerves emanating from the spinal cord).  The PEB recommended a disability rating of 80 percent and permanent disability retirement.

13.  On 29 September 2014, he was honorably retired due to permanent disability in the rank/pay grade of specialist four/E-4.  He was credited with 14 years, 2 months, and 4 days of active service.

14.  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 (MCM).  Chapter 3 implements and amplifies Article 15 of the UCMJ and chapter XXVI of the MCM.

	a.  Paragraph 3-4 states a commander will personally exercise discretion in the NJP process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated;

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and

		(3)  determining the amount and nature of any punishment, if punishment is appropriate.

	b.  Paragraph 3-17 states the purpose of suspending punishment, ordinarily, will be to grant to a deserving member a probationary period during which he/she may show he/she deserves remission of the suspended portion of his/her NJP.  If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed.  Action vacating a suspension will be recorded in accordance with notes 10 and 11, Part III, DA Form 2627.  Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action.

	c.  Paragraph 3-20 describes setting side of punishment and restoration of rights, privileges, or property.  This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored.

		(1)  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.

		(2)  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

	d.  Table 3-1 (Maximum Punishments for Enlisted Members and Commissioned Officers) states the following authorized maximum punishments may be imposed as NJP by field grade and general officers on enlisted members in the rank of sergeant –

* extra duty for 45 days
* restriction for 60 days
* reduction of one grade in peacetime
* forfeiture of 1/2 of 1 month's pay for 2 months

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the NJP he received was too harsh for the offense committed and in consideration of his overall record.

2.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process based on the applicant's offense and considered all mitigating factors, to include his mental condition as well as the factors that were raised concerning the applicant's guilt, the severity of the offense, and prior faithful service.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.

3.  The evidence of record also shows he was given the right to demand trial by court-martial and he was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant exercised his right to appeal, but waived his right to trial by court-martial.  Although the commander's consideration of the appeal is not in the available records for review, administrative regularity is presumed.

4.  The governing Army regulation provides for the maximum punishments that may be imposed as a result of NJP.  The imposing officer in this case was a field grade officer and the applicant held the rank of sergeant.  Therefore, the applicant's reduction to specialist was within the imposing officer's authority.  There is no documentary evidence indicating the punishment was unfair or inequitable.

5.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, the applicable law, and applicable regulations, the NJP was appropriately imposed.

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)                                         AR20140020527



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ABCMR Record of Proceedings (cont)                                         AR20140020527



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