IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20150005068 


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 4 January 2015, was set aside.

2.  The applicant states, in effect, that:

	a.  He received NJP for violation of Article 92, UCMJ, engaging in a prohibited relationship with a subordinate Soldier.  The NJP is filed in the Performance Section of his Official Military Personnel File (OMPF).

	b.  He believes the punishment was unjust due to the fact that he has been serving in the Army for over 12 years and committed one minor infraction that will ultimately end his career.

	c.  Due to the recent changes in the Army's Retention Control Point system he will only be able to serve 14 years at his current rank.  He will be out of the Army in June 2016.  He was a promotable staff sergeant (SSG) when this happened; however, he was reduced to sergeant (SGT).  In his 12-year career he has been deployed to Iraq twice, Afghanistan once, and most recently Africa to help fight the Ebola outbreak. 

	d.  He was inducted into the Sergeant Audie Murphy Club in 2013.  He is unclear why his rank was taken and he will be ultimately put out of the Army instead of being given some kind of suspension of rank or probation period.  He fully admits and understands he made a mistake and should be punished in some manner; however, he believes taking his rank and forcing him out of the Army for a minor first offense is too extreme.  

	e.  He appealed the punishment and the next day his appeal was denied.  He received this NJP in Monrovia, Liberia.  He had very limited resources and agencies to assist him due the location and the situation with the Ebola outbreak in Africa.

3.  The applicant provides copies of:

* a letter to the Board
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
4 January 2015, with allied documents
* DA Form 4856 (Developmental Counseling Form), dated 2 December 2014
* Standard Form (SF) 600, dated 9 December 2014
* All Army Activities Message 026/14, subject:  Change to Retention Control Points (RCP) 
* email note concerning his interest in becoming a warrant officer
* Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation, findings and recommendations, dated 
12 December 2014
* A portion of his military personnel records (evaluation reports, award certificates, orders, training certificates, and his official photograph)
* his Enlisted Record Brief (ERB)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army SGT.

2.  His ERB shows he served in Afghanistan and in Iraq twice.  He was awarded the Meritorious Service Medal, Army Commendation Medal (7 Awards), Army Achievement Medal, Valorous Unit Award, Army Good Conduct Medal 
(4 Awards), National Defense Service Medal, Afghanistan Campaign Medal with one bronze service star, Iraq Campaign Medal with two bronze service stars, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Noncommissioned Officer (NCO) Professional Development Medal with Numeral 3, Army Service Ribbon, Overseas Service Medal (2 Awards), North Atlantic Treaty Organization Medal, Air Assault Badge, and the Driver and Mechanic Badge with Mechanic Bar. 

3.  On 5 December 2014, the Commander, Joint Forces Command-United Assistance, Task Force Gladiators, appointed an investigating officer (IO)  to conduct an informal investigation pursuant to AR 15-6 into the facts and circumstances surrounding whether or not the applicant sexually harassed another Soldier in violation of AR 600-20 (Army Command Policy), 
chapter 7.  The IO was also directed to investigate whether the leaders within the 194th Military Police (MP) Company failed to properly respond to a sexual harassment complaint in accordance with Army directives.

4.  In a 12 December 2014 memorandum, subject:  AR 15-6 Investigation Findings and Recommendations, the IO reported:

a.   Findings:

		(1)  The applicant unquestionably pursued an inappropriate sexual relationship with a private first class (PFC).  This relationship was inappropriate because of the differences in rank and the direct supervisory relationship (company motor SGT/mechanic), and the fact that the applicant was married to another SSG in the unit. 

		(2)  While the pursuit of the sexual relationship was grossly inappropriate, the IO did not substantiate conduct that would amount to sexual harassment as defined in AR 600-20.

		(3)  In addition to the inappropriate relationship, the applicant made several false official statements in the first interview.

		(4)  The response of the 194th MP Company command team did not violate the requirements of the Army directives. 

	b.  Recommendations:

		(1)  Adverse administrative action against the applicant should be taken.  Although there are mitigating circumstances that should be taken into consideration, the fact that this married senior SSG pursued a sexual relationship with a PFC under his direct supervision is inexcusable.  The false statements made by the applicant during the investigation should be included in the adverse action.

		(2)  The misconduct should be noted on the applicant's next evaluation report to include "no" marks in "Honor" and Integrity."

		(3)  The applicant should be removed from any leadership position.


		(4)  The company commander and first sergeant should be counseled by the battalion commander and the battalion command sergeant major (SGM), respectively, to focus on the priorities and the way ahead for their company against future sexual harassment allegations, inappropriate relationships, and professionalism in the work environment.

5.  On 31 December 2014, the Task Force Commander, a lieutenant colonel (LTC), notified the applicant he was considering whether the applicant should receive NJP for:

	a.  violating, at or near Fort Campbell, Kentucky, a lawful general regulation paragraph 4-14b, (AR 600-20), by engaging in a prohibited relationship with a subordinate Soldier, a PFC, between 20 and 30 October 2014.

	b.  Making two false official statements.

6.  The applicant indicated he did not demand trail by court-martial, requested a closed hearing with a person to speak on his behalf, and that he would submit matters in defense, extenuation, and/or mitigation in person.

7.  On 4 January 2015, in a closed hearing, the imposing authority, found the applicant guilty of engaging in a prohibited relationship with a subordinate Soldier.  He was found not guilty of the two specifications of making false official statements.  The punishment was reduction to SGT.  The imposing authority directed the NJP be filed in the performance section of his OMPF.

8.  On 4 January 2014, the applicant appealed the NJP to the appropriate authority and indicated he would not submit additional matters.  The appeal was denied.

9.  A copy of the NJP is filed in the performance section of his OMPF.

10.  In support of his request he provides a letter in which he states:

	a.  He acknowledges he made a poor decision and he is not asking not be punished.  He did have conversations that were sexual in nature with his female subordinate Soldier.  These conversations were mutual between both of them.  There was never any physical contact between them.  

	b.  The female Soldier had a plan to record their conversations and hold them against him.  Shortly after arriving in Liberia, Africa, he informed some of his Soldiers that some may have to go to more remote locations where the Ebola Virus was more likely to be.  In less than two hours his 1SG informed him that the female Soldier would no longer be under his supervision because she had accused him of sexual harassment. 

	c.  His Executive Officer put him in charge of the headquarters platoon, which was where they had moved the female Soldier.  She then filed a complaint with the Inspector General.  This began the AR 15-6 process.

	d.  He does not believe he had a fair chance from the beginning of the investigation.  All the key personnel (the IO, his defense counsel, the command sergeant major, and his commander) were from the same organization or worked together previously. 

	e.  The IO made comments in her final report that he believes were uncalled for.  She stated that even though no harassment was involved or physical contact was ever made his actions were "grossly inappropriate" even though the evidence shows otherwise.  She also stated he should receive "no" blocks on honor and integrity on his evaluation.  The female Soldier/PFC who made the allegations confessed that she had committed adultery with another Soldier.  She was never charged and her actions were not taken into account.

	f.  He asked his defense counsel if there was any way the hearing could be deferred until he got back to the United States and he was told that was not possible.  He only had one option for a defense counsel and he does not believe she supported him.  No other counsel was available because they were in Liberia.

	g.  On 4 January 20015, he had his final NJP hearing and was reduced to SGT.  He was not charged with making false official statements because he had been under heavy medication and was still told he needed to provide a statement.  He provides the medical slip which indicates the time and date of his visit and the medications he was prescribed.  He was required to give his statement just hours after taking the medications,  The common effects of the medication cause drowsiness, unclear thinking, and tiredness.  The IO should have taken all this into consideration.

	h.  After much research, he has learned that the Soldier's performance should be taken into account when considering the type and severity of the punishment.

	i.  He has faithfully served the country for over 12 years, serving two combat tours on Iraq, one in Afghanistan, and a humanitarian aid mission in Africa.  He has never had any type of infraction in his 12-year career.  He is a member of the Audie Murphy Club.  His wife also served in the Army.  He returned from Afghanistan in January 2014 and went to Africa in October 2014.  Only 7 months between deployments has caused trouble between him and his wife because she felt he should have fought to keep from going to Africa and he was putting the Army before her.  He always has done what the Army has asked of him.  Had he been allowed the 12 months of dwell time he would not have been in this situation.

	j.  He knows he made a mistake and owns up to that mistake.  He cannot believe the severity of the punishment he received.  Reduction in rank should be reserved for major offenses or for Soldiers who have had multiple infractions on their record.  Given his current rank and his years of service he will soon hit the RCP and will be forced out of the Army all because of a mutual inappropriate conversation.   

11.  AR 600-20 prescribes the policy and responsibility of a command, which includes readiness and resiliency of the force military and personal discipline and conduct, the Army Equal Opportunity Program, Prevention of Sexual Harassment and the Sexual Harassment/Assault Response and Prevention Program.  Paragraph 4-14b (Relationships between Soldiers of Different Grades) states  
Soldiers of different grades must be vigilant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier, or between an NCO and a junior-enlisted Soldier.  All relationships between Soldiers of different grade are prohibited if they—

   a.  Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.

   b.  Cause actual or perceived partiality or unfairness.

   c.  Involve, or appear to involve, the improper use of grade or position for personal gain.

   d.  Are perceived to be exploitative or coercive in nature.

   e.  Create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

12.  Under the UCMJ, the maximum punishments allowed for violation of Article 92, failure to obey a lawful general order or regulation, include a dishonorable or bad conduct discharge, 2 years in confinement, and total forfeiture of pay and allowances.

13.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  
	a.  Paragraph 3-4 states that 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.  Setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  The 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.

14.  Table 3-1 (Maximum Punishments for Enlisted Members and Commissioned Officer), AR 27-10 states the following authorized maximum punishments may be imposed as NJP by field grade and general officers on enlisted members in the rank of SSG –

* extra duty for 45 days
* restriction for 60 days
* reduction of one grade in peace time 
* forfeiture of 1/2 of 1 months pay for 2 months:

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 and the factors that were raised concerning the applicant's guilt and the severity of the offense.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.
3.  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 was a SSG.  Therefore, the applicant's reduction to SGT was within the imposing officer's authority.  There is no documentary evidence indicating the punishment was unfair or inequitable.

4.  The applicant repeatedly refers to his behavior as a minor offense, but the authorized punishment provided by the UCMJ indicates otherwise.  The applicant could have demanded trial by court-martial.

5.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, the applicable law, and regulations, the NJP punishment 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 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)                                         AR20120021528



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ABCMR Record of Proceedings (cont)                                         AR20150005068



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