IN THE CASE OF:  

		BOARD DATE:  14 April 2015

		DOCKET NUMBER:  AR20140021758


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)) (nonjudicial punishment (NJP)) from the restricted folder of his Official Military Personnel File (OMPF).

2.  The applicant states that the evidence he presents will provide enough conflicting information to raise enough doubt to warrant the removal of the NJP from the restricted folder of his OMPF.  He contends that he has first-hand knowledge that the alleged equal opportunity (EO) violation is false.  He never created a hostile work environment or made decisions based on a person's race, gender, color, religion, or national origin.  His sworn statement and appeal document dated in 2004 delved into the details of the issue.  To retain this judgment in his OMPF, along with false sworn testimony, creates a monstrous blight on his career, especially because he is an EO leader.  He does not believe it is just to have something in his OMPF that inaccurately paints a negative picture of who he is as a Soldier.  Having this NJP in his records for the last 10 years has hurt his career.  At every duty station he has met someone who somehow knows about this incident.  Furthermore, this NJP has prevented him from attending either the Warrant Officer Career School or the Officer Candidate School (OCS).  He asks that the Board remove this NJP which was intended to be a 45-day punishment that has ran for 10 years.  All of the testimony was not considered by the imposing commander and his appeal was never completed.  He never received a reply concerning his appeal and would now like this issue revisited.

3.  The applicant provides copies of:

* Enlisted Record Brief (ERB) dated 31 December 2003
* A DA Form 2823 (Sworn Statement) from another Soldier, dated 16 June 2004
* A DA Form 4856 (Developmental Counseling Form) written by the applicant, dated 1 July 2004
* A DA Form 4856, written by the applicant, dated 27 July 2004
* A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 9 August 2004
* A DA Form 4856, written by the applicant's first sergeant, dated 9 August 2004
* A DA Form 2823, from another Soldier, dated 14 August 2004
* A DA Form 2823, from another Soldier, dated 15 August 2004
* A DA Form 2823, from another Soldier, dated 22 August 2004
* A DA Form 2823, from another Soldier, dated 25 August 2004
* A DA Form 2823, from the applicant, dated 25 August 2004
* A Memorandum for Record, subject: Equal Opportunity Investigation, dated 26 August 2004 (8 pages)
* A DA Form 4856, written by the first sergeant, dated 4 October 2004
* A DA Form 1559 (Inspector General (IG) Action Request), subject: Reinstatement of rank to sergeant, pay grade E-5, dated 3 November 2004
* An email communication from the applicant to his battalion commander, dated 3 November 2004
* A DA Form 2627 initiated on 29 October 2004 with continuation page
* An Appeal for Remission of Article 15, submitted on 6 December 2004 with a one-page addendum attached
* A Memorandum for the Commander from Social Worker Services, dated 14 December 2004
* A Memorandum for the Board, written by the former battalion commander, dated 18 January 2008

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a staff sergeant, pay grade E-6.



2.  The available evidence, as provided by the applicant, is summarized below:

	a.  Another Soldier, subordinate to the applicant at the time, stated in a sworn statement dated 16 June 2004 that the applicant had made a statement about how only minorities were selected for attendance at OCS.  The author also stated that he had overheard the applicant make 15 to 20 racist statements about how non-white Soldiers had got their jobs.  He advised the applicant to control his language and to use a code word such as "bomar" if he could not gain control of his statements.

	b.  On 1 July 2004, the applicant counseled a subordinate Soldier regarding acts of being disrespectful in language and behavior.  He stated he was recommending the Soldier receive NJP and that he attend anger management training.  The form was not signed by the counseled Soldier and does not indicate his agreement or disagreement with the content of the counseling.

	c.  On 27 July 2004, the applicant counseled a subordinate Soldier regarding  his flagrant disrespect towards the applicant and about four counts of failing to obey a direct order.  The subordinate disagreed with the counseling and argued that the applicant lied about the events that took place.

	d.  On 9 August 2004, the applicant's company commander initiated a Flag due to adverse action by the applicant.

	e.  On 9 August 2004, the applicant's first sergeant counseled him about disobeying his orders to not make comments, ask questions or say anything to the Soldiers who were involved with a pending EO investigation against the applicant.  The applicant agreed with the content of the counseling but did not believe he was as bad as the counseling inferred.  He argued that he had not discussed the EO investigation with the other Soldier.

	f.  On 14 August 2004, a Soldier made a sworn statement contending that he had witnessed on more than one occasion the applicant make comments pertaining to race, ethnicity and gender that were inappropriate or offensive.  The statement provided details of the applicant making statements on various days during the previous months.

	g.  On 15 August 2004, a Soldier made a sworn statement concerning the applicant's making multiple racial and sexist remarks in front of other Soldiers.  He referred to black people as “Tree Folk”, "Jungle People," "Niggers and Nigroes."  He referred to Spanish people as "Spics" and expressed his belief that they were either stupid or dirty.

	h.  On 22 August 2004, a Soldier made a sworn statement concerning the applicant's racially derogatory comments and sexually suggestive comments made during field exercises in May and July 2004.

	i.  On 25 August 2004, a Soldier of Latin-American dissent made a sworn statement concerning the applicant's derogatory comments about Mexicans and about the accent of a commissioned officer.  The Soldier contended that the applicant's racial slurs resulted in an uncomfortable work environment.

	j.  On 25 August 2004, the applicant made a sworn statement.  He contended that this statement was not a defense because he did not feel like he was being attacked.  He asserted he was not a racist or a sexist.  He conceded that he had met smart and talented blacks, Asians, and Hispanics.  He had also met whites who were not as smart or talented as some blacks, Asians, or Hispanics and vice versa.  He admitted he was not perfect.  He was guilty of making mistakes and of not being politically wise.  He had failed to take into consideration his audience when speaking to his Soldiers.  He was not guilty of racism, sexism, or bias.  He was of the opinion that his accusers were guilty of malfeasance.  They intentionally fabricated non-truths for their own ulterior motives.  The truth is a combination of his perspective and the perspective of his accusers.

	k.  In an eight-page memorandum, the EO investigator provided the results of his inquiry.  He looked into the accusations against the applicant and into the possible motives of the accusers.  He determined that many of the accusers had had personal problems with the applicant and disciplinary problems under his leadership.  The investigator found that the major issue was that the applicant had made racist statements from a position of power.  As a supervisor he created a culture that could move Soldiers in the direction of finding his racist comments acceptable.  Accordingly, the investigator concluded the applicant was guilty of EO violations and recommended he be given sensitivity training, be reprimanded at the battalion level, be moved to another battalion for rehabilitation, and that the battalion's leadership be reeducated on the EO process.

	l.  On 4 October 2004, the first sergeant counseled the applicant regarding the findings of the EO investigation and advised him that he was recommending him for punishment in accordance with the EO investigator's recommendation.  The applicant disagreed with the contents of the counseling.  He argued that he had not made racially prejudiced comments and he was not seeking mental health in regard to this incident.

	m.  On 29 October 2004, the applicant was informed by the battalion commander that he was considering whether he should be offered NJP for the following acts of misconduct:
* Failing to obey a lawful order (two counts)
* Making inappropriate racial and sexual comments that were prejudicial to good order and discipline in the armed forces

	n.  On 3 November 2004, the applicant submitted an IG Action Request to have his rank of sergeant, pay grade E-5, restored.  He was concerned because he felt he had been the victim of reverse discrimination and injustice.  He thought he was doing well.  However, it did not take too long for the Soldiers to become disgruntled because they could no longer go to their rooms and take naps or play video games all day.  He names five subordinate Soldiers who he said had rebelled in an organized manner.  They started rumors and made up lies about his being incompetent.  He lost the respect of his first sergeant.  When he counseled these Soldiers, the first sergeant refused to even read the statements.  The first sergeant remarked that he could not trust him based on his reputation.  It was unjust that all of the evidence in his favor was ignored.  He argued that he was a college-educated, open-minded leader who never believed in judging someone based on race, gender, or creed.  He had received extensive EO training at Fort Bragg.  He felt he should not have received this punishment because he did not commit any crimes.

	o.  On 3 November 2004, the applicant sent an email communication, stating in essence, to the battalion commander, who was imposing the subject NJP, that he was not a racist and had not made racially derogatory remarks.  He argued that he had evidence in the form of counseling statements written prior to the EO investigation showing that at least two of the involved Soldiers were attempting to avoid receiving NJP.  The Soldier who had initiated the EO complaint against him was pending a discharge because of an administrative problem.  He contended that his evidence had mysteriously disappeared from his packet.  He thought it was extreme to have his case brought to the field grade level the first time that something went awry.  He thought that his losing rank or pay did not fit the crime.  He admitted that he was not a perfect noncommissioned officer.  He made mistakes regarding his leadership which put him in an awkward situation.  He concluded by saying that if he were to be offered a discharge he would take it.  He was sad that all of his hard work and honesty had led to his name being dragged through the mud because of a few jealous and disgruntled Soldiers.  He believed he had become unfit for duty because he had lost his motivation and respect for the military.  He also was sad that the communication among his chain of command was degraded to the extent that he had not received a single quarterly counseling since December 2003.



	p.  A DA Form 2627 shows that on 4 November 2004 the applicant accepted the commander's offer of NJP.  He requested a closed hearing and wanted a person to speak on his behalf.  Additional matters in defense, mitigation and/or extenuation were not presented.  The applicant was found guilty.  His punishment included a reduction to specialist, pay grade E-4; a forfeiture of $907.00 pay per month for 2 months (suspended), and extra duty for 45 days.  The applicant indicated on 4 November 2004, by his initials and signature, that he did not intend to appeal the punishment.  A legal review showed that the proceedings were conducted in accordance with law and regulation and the punishment as imposed was just and not disproportionate to the offenses committed.  

	q.  On 1 December 2004, the applicant submitted a 4-page appeal to the brigade commander.  It indicates that there were two enclosed packets comprised of relevant sections of regulations and a copy of the document he sent to the IG which are not available for review.

	r.  On 14 December 2004, a social worker wrote to the brigade commander to provide information about five Soldiers who had plotted by filing trumped up charges against the applicant.

	s.  The proceedings indicate that the applicant's appeal had been denied on 
4 January 2005.  The proceedings do not contain the applicant's signature in the block pertaining to whether he had seen the action taken on his appeal.

	t.  On 18 January 2008, the imposing battalion commander wrote a memorandum stating that he had been informed about a sworn statement that had not been included in the NJP packet.  He contends that had he seen the social worker's memorandum it may have impacted the outcome of the NJP proceedings.  Accordingly, the commander supported the applicant's request for a review of this issue.  The commander further stated that the applicant's subsequent performance of duty was solid and that he never quit.  He described the applicant as a model citizen and a top-notched performer.

3.  Army Regulation 27-10 prescribes the policies and procedures pertaining to administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive 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 non-punitive 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.  It further states:

	a.  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.  For Soldiers in the rank of sergeant and above the original copy of the NJP is sent to the appropriate custodian for filing in the OMPF.  The decision to file this form in the performance or restricted folder of the OMPF will be made by the imposing commander at the time NJP is imposed.

	c.  Applications for removal of NJP from the OMPF based on an error or injustice will be made to the ABCMR.  There must be clear and compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record by the ABCMR.

4.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.

	a.  It identifies those documents that are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  It shows an NJP is filed in either the performance or restricted folder of the OMPF as directed in item 5 of the document.

	b.  It provides that the restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  This regulation also provides that documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NJP should be removed from the restricted folder of his OMPF because it is unjust.

2.  The available evidence shows that the EO investigator determined that the applicant had made racist statements from a position of power.  As a supervisor he had created a culture that could move Soldiers in the direction of finding his racist comments to be acceptable.  Accordingly, the investigator concluded the applicant was guilty of EO violations and recommended he be given sensitivity training, be reprimanded at the battalion level, be moved to another battalion for rehabilitation, and that the battalion's leadership be reeducated on the EO process.

3.  The evidence of record confirms the applicant accepted NJP in lieu of trial by court-martial for twice failing obey a lawful order and for making inappropriate racial and sexual comments that were prejudicial to good order and discipline in the armed forces.  The imposing commander directed filing the NJP in the restricted folder of his OMPF.

4.  His NJP proceedings were conducted in accordance with law and regulation and the NJP is properly filed in the restricted folder of his OMPF as directed by the imposing commander.

5.  The applicant has argued that a memorandum written on 14 December 2004, more than a month after completion of the NJP proceedings, by a social worker stating that a Soldier had admitted he and four other Soldiers had plotted by filing trumped up charges against the applicant was not provided to the imposing commander for consideration.  The imposing commander wrote a letter in 2008 wherein he refers to being informed of a sworn statement that was omitted from the NJP packet that may have had a bearing on his decision.  It appears that the commander may have been referring to the social worker's memorandum, which was not a sworn statement, but was sent to the brigade commander prior to completion of the appeal.  Therefore, the information in this memorandum was available for review at the time of the appeal.

6.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  In the absence of an error or an injustice, there is no reason to remove it from his records.

7.  In view of the foregoing, there is no 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)                                         AR20130014774



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ABCMR Record of Proceedings (cont)                                         AR20140021758



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