IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140019460 


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 removal of the applicant's record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), from his Official Military Personnel File (OMPF) and reinstatement to his prior grade of sergeant (SGT) with retroactive pay and allowances.

2.  Counsel states:

* the applicant has taken and passed a comprehensive polygraph examination proving he did not speak the words "I am sorry I did not mean to drag my sac across your face" to Specialist (SPC) F------- as she alleged
* he denies that he placed a plastic bag over SPC F------’s head
* SPC F------could not be offended by sexual innuendo in other’s conversation because she frequently used such language and she had a poor reputation for honesty and truthfulness
* SPC F-------’s complaint against the applicant is the direct result of her receiving a formal written counseling statement from the applicant
* SPC F-------’s allegations are also not credible because she had a poor reputation for honesty and truthfulness and she was not able to produce the alleged text messages she claimed to have received from the applicant
* the applicant had enjoyed an exemplary military career as an Army medic
* his decision to accept NJP rather than proceed to a court-martial should not be considered an admission of guilt
* most of the witnesses who provided affidavits in his case were never interviewed by the investigating officer nor were they called as witnesses' by the presiding officer at the NJP proceedings
* the investigating officer (IO) did not investigate the reputations of the complaining female Soldiers for truthfulness and honesty
* the IO did not explore the possibility that the complaining female Soldiers were motivated to make complaints against the applicant because he held them to the same work standards as males 

3.  The applicant's counsel provides a 13-page brief with exhibits containing:

* sworn statements
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* Memorandum, subject:  Finding and Recommendations from Commander’s Inquiry into the Suspected Sexual Harassment of SPC F------- by [Applicant], dated 7 July 2014
* text messages
* DA Form 2627 (Record of Proceedings under Article 15, UCMJ)
* résumé of polygraph examiner
* polygraph test results
* DA Form 4856 (Developmental Counseling Form)
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)
* certificates
* letter of certification

CONSIDERATION OF EVIDENCE:

1.  The applicant is a SPC/E-4 currently serving on active duty at Fort Bragg, NC as a 68W (Health Care Specialist).  His record contains awards and citations for exemplary service.

2.  A memorandum, subject:  Findings and Recommendations from Commander’s Inquiry into the Suspected Sexual Harassment of SPC F------by [Applicant], dated 7 July 2014, shows an IO was appointed to conduct an inquiry into suspected sexual harassment that occurred on 16 June 2014.  The IO was directed to investigate comments made by the applicant to SPC F-------.

	a.  The IO found:

* the applicant had attended Sexual Harassment/Assault Response and Prevention (SHARP) training prior to the allegations
* the allegations against the applicant were substantiated
* he knowingly violated policy by making verbal comments of a sexual nature around Soldiers
* he contacted Soldiers through text messages in an unprofessional manner making what can be deemed sexual comments and unprofessional advances towards Soldiers

	b.  The IO recommended:

* the applicant be removed from any position where he is in direct leadership of Soldiers within the Consolidated Aid Station
* adverse action be taken against him for conduct unbecoming of an NCO
* he be reduced to the rank of SPC/E-4

3.  A DA Form 2627 shows the Commander, 3rd Battalion, 321st Field Artillery Regiment, 82d Airborne Division, imposed NJP against him on 11 August 2014 for:

* maltreatment of SPC S----- F-------by making unwelcomed comments 
and gestures of a sexual nature
* assaulting SPC S----- F-------by touching her face with a plastic bag
* maltreatment of SPC J----- M-----, SPC J---- D----, SPC A----- E--------, and SPC G----- P-----by making unwelcomed comments through text messages of a sexual nature and by making deliberate comments and gestures of a sexual nature

4.  The DA Form 2627 also shows the applicant was advised of his rights and afforded the opportunity to consult with counsel.

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

	b.  On 21 August 2014, having considered all matters presented, the Commander, 3rd Battalion, 321st Field Artillery Regiment, 82d Airborne Division, Fort Bragg, NC, found the applicant was guilty of the misconduct.  The imposing authority directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.  The following punishment was imposed:  reduction to SPC (E-4); forfeiture of $1,164 pay; extra duty for 45 days; and an oral reprimand.  He appealed the findings.  The reviewing judge advocate determined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offenses committed.  His appeal was denied by the appropriate authority on 3 September 2014.

5.  The DA Form 2627, allied documents, and documents relating to the appeal authority's action have not been filed in the performance section of the applicant's OMPF. 

6.  Counsel submits several sworn statements of support.  These statements suggest that the character and reputation of the victims make them untrustworthy.

7.  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.  

	a.  Chapter 3 states 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.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	b.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section 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 section.  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 section.

	c.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the Official Military Personnel File (OMPF) based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

8.  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 regulation provides that 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 available evidence does not support the counsel's request for removal of a record of NJP from the applicant's OMPF or for reinstatement to his prior grade of SGT with retroactive pay and allowances.

2.  Counsel argues the applicant passed a polygraph test which proves he did not make certain statements to the victim.  The polygraph test taken after the acceptance of the NJP does not mitigate the findings of the IO that he committed sexual harassment of subordinate Soldiers.

3.  The imposing authority determined that the applicant violated the UCMJ and subsequently accepted NJP, rather than demand trial by court-martial.  On 
21 August 2014, he was found guilty of making unwelcomed comments and gestures of sexual nature to other Soldiers, and assaulting another Soldier.  The imposing commander directed filing the Article 15 in the performance section of his OMPF.  However, the Article 15 has not been filed.

4.  Counsel argues that there was no assault committed on the alleged victim.  He points to numerous statements concerning the victim’s character and the character of the other complaining Soldiers.  Further, counsel argues that injustice exists because reasonable doubt existed as to the credibility, truthfulness, and honesty of the accusers.  The victims’ alleged reputation and character does not mitigate the behavior of the applicant, who was an NCO in a position of authority.
5.  The ABCMR 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 ABCMR 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 he was afforded the opportunity to appeal the Article 15 through the proper channels, which he elected to do so.  Further, the applicant had attended SHARP training and was well aware of conduct that constituted sexual harassment and/or assault.

6.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents should be filed in the performance folder of his OMPF as directed by the imposing commander.  Although his performance prior to the NJP had been outstanding, as evidenced by his awards and evaluations, there is no evidence of record and he provides none 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.  In the absence of an error or an injustice, there is basis upon which to set aside the portion of the NJP pertaining to reduction to SPC.  There is also no evidentiary basis for removing the record of NJP from his OMPF.

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)                                         AR20140019460



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ABCMR Record of Proceedings (cont)                                         AR20140019460



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