IN THE CASE OF:  

		BOARD DATE:  19 May 2015	  

		DOCKET NUMBER:  AR20150002514 


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:

* set aside and dismissal of the findings and sentence for specifications 1, 
3 (sic), 7, and 10 of charge II of the applicant's general court-martial
* set aside of the applicant's conviction of charge II of his general court-martial with prejudice

2.  Counsel states:

	a.  The applicant was tried before a military judge in a general court-martial.  Contrary to his plea, he was convicted of four specifications of violation of Article 92, Uniform Code of Military Justice, Title 10, U.S. Code, section 907.

	b.  The convening authority approved the adjudged sentence of a written reprimand and a forfeiture of $1,000.00 pay for 4 months.  The applicant appealed his convictions to the Office of the Judge Advocate General of the Army and that office erred in affirming the convictions on 18 February 2014.



	c.  Private (PVT) S____ R____ (former Ms. C____) testified that:

* the applicant ran his finger or a pen from her neck down to her hips while she was working in the barracks storage room and she then jumped around facing the him
* her battle buddy was with her, yet her battle buddy saw and heard none of the events
* the applicant asked her if she would cheat on her fiancé
* the applicant licked his lips and stared at her 10 times during formation

	d.  No noncommissioned officers (NCOs) had reported any such events and no other Soldiers supported her claim.

	e.  PVT S____ R____ was a friend of PVT S____ D____, a Soldier who made false statements against the applicant and had a strong personal grudge against the applicant.

	f.  Former PVT D____ R____ claimed she was sexually harassed by the applicant's licking and biting of his lips.  She testified his licking of the lips happened 10 to 12 times, including with other people around.  No other NCOs reported any such incident and no other Soldiers reported this claim.  She testified that she took it as being sexual rather than being something that was inherently sexual.

	g.  Sergeant First Class (SFC) S____, a platoon leader in Company D, testified that the applicant had a habit of biting and licking his lips and that it was not sexual.

	h.  Private First Class (PFC) M____ was not present at Fort Gordon after August and her testimony was that the buttocks touching took place in the spring or early summer of 2010.  She was influenced by PVT D____ and she testified in Article 32 proceedings that there were many NCOs in the unit who had done far worse than the applicant.

	i.  None of the Government's witnesses filed an equal opportunity complaint or a complaint through the chain of command.  The complaints were made after a sensing session was conducted over a false complaint of excessive punishment by PVT B____.  PVT D____ was a friend of PVT B____ and encouraged other Government witnesses to come forward.  PVT D____ proudly admitted during her testimony to cursing the applicant.

	j.  The evidence is legally and factually insufficient to support the finding of guilty of violating Army regulations by wrongfully touching and sexually harassing trainees.  The evidence failed to prove the applicant sexually harassed or wrongfully touched trainees on the dates alleged.

	k.  The only evidence of the applicant's guilt was the unreliable testimony of trainees who were angry at the applicant's upholding of Army standards.

	l.  The testimony contained numerous implausible points that rendered the testimony of the trainees without merit.

	m.  With regard to specification 10 of charge II, the evidence is undisputed that the applicant had no contact with PFC M____ during the period 14 August to 24 November and that conviction must be set aside and that specification must be dismissed.

	n.  The standard of review for questions of both legal and factual sufficiency is de novo (from Latin, meaning "from the new" – when a court hears a case "de novo," it is deciding the issues without reference to the legal conclusions or assumptions made by the previous court to hear the case).

	o.  The military judge's finding is blatantly and obviously incorrect.

3.  Counsel provides:

* a brief 
* memorandum, dated 26 December 2014
* court-martial transcript
* memorandum from the Staff Judge Advocate (SJA), Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, dated 16 April 2012
* Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, General Court-Martial Order Number 3, dated 11 May 2012
* letter from the Office of the Judge Advocate, dated 18 February 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 21 November 1995.  He is presently serving in the rank/grade of staff sergeant (SSG)/E-6.

2.  On 23 January 2002, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for disobeying an order from a noncommissioned officer and treating him with contempt.

3.  On 3 February 2011, a Headquarters, Department of the Army Standby Advisory Board recommended removal of the applicant's name from the Fiscal Year 2011 SFC Selection List.  The Director of Military Personnel Management approved the recommendation.

4.  On 16 April 2012, the SJA provided a memorandum to the Commander, U.S. Army Signal Center of Excellence, subject:  Addendum to the SJA's Post-Trial Recommendation in the General Court-Martial Case of the United States versus (Applicant), which shows he fully reviewed the defense submissions and recommended approval of the sentence as adjudged.

5.  Headquarters, U.S. Army Signal Center of Excellence, General Court-Martial Order Number 3, dated 11 May 2012, shows the applicant was charged as follows:

Charge I.  Article 120.  Plea:  Not Guilty; Finding:  Not Guilty.

Specification 1:  On or about 13 October 2010, engaged in wrongful sexual contact with PFC D____ K____ R____.  Plea:  Not Guilty; Finding:  Not Guilty.

Specification 2:  On or about 14 August 2010 and 18 November 2010, engaged in wrongful sexual contact with PFC J____ S____ M____.  Plea:  Not Guilty; Finding:  Not Guilty.

Charge II.  Article 92.  Plea:  Not Guilty; Finding:  Guilty.

Specification 1:  Between on or about 14 August and 18 November 2010 while a permanent party personnel and cadre member, wrongfully engaged in physical contact with PFC S____ A____ C____, to wit:  running his finger from her neck down to her hips.  Plea:  Not Guilty; Finding:  Guilty, except the words, "running his finger from her neck down to her hips."  Substituting therefore the words, "touching her on the back."  Of the excepted words:  Not Guilty; of the substituted words:  Guilty.

Specification 2:  Between on or about 14 August and 18 November 2010 while a permanent party personnel and cadre member, sexually harassing PFC S____ A____ C____ and asking her, "Will you cheat on your fiancée?  Will you cheat for the right price, such as rank?" or words to that effect.  Plea:  Not Guilty; Finding:  Guilty, except the words, "will you cheat for the right price, such as rank?"  Of the excepted words:  Not Guilty; of the remaining words:  Guilty.

Specification 3:  Between on or about 14 August and 18 November 2010 while a permanent party personnel and cadre member, sexually harassing PFC S____ A____ C____.  Plea:  Not Guilty;  Finding:  Not Guilty.

Specification 4:  Between on or about 14 August and 18 November 2010 while a permanent party personnel and cadre member, sexually harassing PVT S____ T____ D____.  Plea:  Not Guilty; Finding:  Not Guilty.

Specification 5:  Between on or about 14 August and 18 November 2010 while a permanent party personnel and cadre member, sexually harassing PVT S____ A____ M____ and calling her "baby back" or words to that effect.  Plea:  Not Guilty; Finding:  Dismissed on motion of trial counsel.

Specification 6:  Between on or about 14 August and 18 November 2010 while a permanent party personnel and cadre member, sexually harassing PVT C____ M____ R____ and asking her, "What would you do for me if I give it back," or words to that effect, in a sexually suggestive manner.  Plea:  Not Guilty; Finding:  Not Guilty.

Specification 7:  Between on or about 14 August 2010 and 18 November 2010 while a permanent party personnel and cadre member, sexually harassing PVT D____ K____ R____.  Plea:  Not Guilty; Finding:  Guilty.

Specification 8:  On or about 16 October 2010 while a permanent party personnel and cadre member, wrongfully engaging in physical contact with PVT K____ K____ R____.  Plea:  Not Guilty; Finding:  Not Guilty.

Specification 9:  Between on or about 14 August and 18 November 2010 while a permanent party personnel, wrongfully engaging in a prohibited relationship not required by the training mission with PVT J____ S____ M____ by sending personal email and text messages.  Plea:  Not Guilty; Finding:  Not Guilty.

Specification 10:  Between on or about 14 August and 18 November 2010 while a permanent party personnel and cadre member, wrongfully engaging in physical contact with PFC J____ S____ M____.  Plea:  Not Guilty; Finding:  Guilty.

6.  He also received a written reprimand for wrongfully engaging in inappropriate physical contact and sexually harassing initial-entry Soldiers while in the capacity of cadre.  His sentence consisted of a written reprimand and a forfeiture of $1,000 a month for 4 months.  His sentence was adjudged on 24 January 2012.

7.  On 4 May 2012, the Commanding General, Headquarters, U.S. Army Signal Center of Excellence, approved the sentence and ordered the execution of punishment.

8.  On 20 November 2012, the Chief, Enlisted Promotions Branch, U.S. Army Human Resources Command, advised the applicant that his name had been removed from the Fiscal Year 2011 SFC Selection List.

9.  On 18 February 2014, the Office of the Judge Advocate General of the Army, Criminal Law Division, Washington, DC, notified the applicant that:

* his record of trial contained sufficient legal and competent evidence to support the approved findings of guilty and the sentence
* the findings and sentence were final and conclusive

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the Office of the Judge Advocate General of the Army erred in affirming the applicant's conviction was noted.  However, the ABCMR may not entertain a challenge to the finality of a court-martial conviction.

2.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

3.  The applicant's behavior violated the special trust and confidence placed in him as an NCO.  Given the seriousness of the offense for which he was convicted, clemency is not warranted in this case.

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)                                         AR20150002514



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ABCMR Record of Proceedings (cont)                                         AR20150002514



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