IN THE CASE OF:  	  

		BOARD DATE:  20 October 2015	  

		DOCKET NUMBER:  AR20150005594 


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 reconsideration of the applicant's previous request for:

	a.  removal of the record of nonjudicial punishment (NJP) proceedings initiated on 11 August 2014 by the Commander, 3rd Battalion, 321st Field Artillery Regiment, Fort Bragg, NC, from his Official Military Personnel File (OMPF);

	b.  in effect, setting aside the portion of the punishment resulting in him being reduced from sergeant (SGT)/E-5 to specialist (SPC)/E-4 due to NJP under Article 15, Uniform Code of Military Justice (UCMJ) on 11 August 2014; and

	c. reinstatement of his rank of SGT/E-5 with all back pay and allowances.

2.  Counsel states that among the stated rationale for denying the previous application, the ABCMR stated, "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."  Counsel cites the alleged misconduct as recorded on the NJP proceedings in question.  

3.  Counsel states the record previously provided in the applicant's original application to this Board will reflect that, although the applicant agreed to accept NJP for these alleged offenses at an open hearing, he denied the allegations and presented documents and evidence to support his pleas of not guilty.  The record will also reflect that following imposition of the field grade NJP, the applicant appealed imposition of the NJP based on the grounds that such allegations were not supported by proof beyond a reasonable doubt.

4.  Counsel also states that subsequent to imposition of the NJP, the applicant received formal notification of his case being referred to an involuntary separation board in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for the same alleged misconduct as recorded in the NJP.  On 14 January 2015, an involuntary separation board was convened by the Deputy Commanding General, 82nd Airborne Division, Fort Bragg, NC.  During this proceeding, the applicant appeared with a legal defense team.  The applicant and other defense witnesses testified under oath and documentary evidence was presented to the board for consideration in its deliberations.  After hearing all the evidence, the board deliberated and by a majority vote concluded that the applicant didn't maltreat Specialist (SPC) M------, SPC J---- D----, SPC E--------, SPC P----- or SPC F------, and didn't assault SPC S------- F------, as alleged.  The separation board further found these findings didn't warrant separation.  The separation board's findings and recommendations were approved by the Commanding General, 82nd Airborne Division.

5.  Counsel further states the findings and recommendations of the formal involuntary separation board concluded that the very same allegations of misconduct contained in the subject record of NJP were not substantiated by even a preponderance of the evidence presented during the separation board proceedings, which is required by Army Regulation 635-200, paragraph 2-12a(1).  Therefore, the board found the evidence presented during the hearing was factually insufficient to support a finding of "misconduct" by the lowest burden of proof, proof by a preponderance of the evidence, a far lower burden of proof in military law than the burden of proof in an NJP proceeding of "beyond a reasonable doubt."

6.  Counsel provides:

* ABCMR Record of Proceedings, dated 29 January 2015
* memorandum, subject:  Separation Under Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense, SGT [Applicant], Headquarters and Headquarters Battery, 3rd Battalion, 321st Field Artillery Regiment, Fort Bragg, NC 28310
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140019460 on 29 January 2015.

2.  Counsel provided new evidence and arguments that will be considered by the Board.

3.  The applicant is currently serving on active duty in the rank of SPC/E-4.  

4.  The applicant enlisted in the Regular Army on 3 February 2009 and has continued to serve on active duty through reenlistment.

5.  Headquarters, 2nd Brigade and 502nd Infantry Regiment, 101st Airborne Division (Air Assault), Orders 11-356-020, dated 22 December 2011, show he was promoted to SGT/E-5 with an effective date and DOR of 1 January 2012.

6.  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 investigating officer (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 toward 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 noncommissioned officer
* he be reduced to the rank of SPC/E-4

7.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice)) 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

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

	a.  The applicant didn't 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.

   c.  The imposing authority directed filing the DA Form 2627 in the performance section of the applicant's OMPF.  The following punishment was imposed:  reduction to SPC (E-4), forfeiture of pay, extra duty for 45 days, and an oral reprimand.  He appealed the findings.

   d.  The reviewing judge advocate determined 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 appellate authority on 3 September 2014.

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

10.  Counsel provided an undated memorandum, subject:  Separation Under Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense, SGT [Applicant], which shows the applicant's unit commander notified him of his intent to recommend discharge under the provisions of Army Regulation 
635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  The unit commander cited as the reasons for the proposed separation action as the applicant's maltreatment of SPC  J----- M-----, SPC J---- D----, SPC A----- E--------, SPC G----- P-----, and SPC S----- F-------, subordinate junior enlisted Soldiers in his unit and between on or about 15 May 2014 and on or about 30 June 2014, he assaulted SPC S----- F-------.  The unit commander recommended the applicant's service be characterized as under other than honorable conditions.  He was advised of his rights.  The applicant's election of his rights is not available.

11.  Counsel provided a DA Form 1574 which shows a board of officers met on 14 January 2015.  After careful consideration of the evidence, the board of officers found that the applicant didn't, between on or about 12 October 2013 and on or about 30 June 2014, maltreat SPC J----- M-----, SPC J---- D----, SPC A----- E--------, and SPC G----- P-----, and SPC S----- F-------, subordinate junior enlisted Soldiers in his unit.  Also, the board found the applicant didn't, between on or about 15 May 2014 and on or about 30 June 2014, assault SPC S----- F-------.  The board recommended the applicant be retained in the U.S. Army.  

12.  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 3-2 (Use of NJP) states NJP may be imposed to correct, educate, and reform offenders whom 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; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.
   
   
	c.  Paragraph 3-6 (Filing Determination) 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.

   d.  Paragraph 3-18 (Notification and Explanation of Rights) states, in part, punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.

   e.  Paragraph 3-28 (Setting Aside and Restoration) states:
   
		(1)  This 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.  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.
   
   (2)  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.  "Clear injustice" means that 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. 

   (3)  Normally, the Soldier's uncorroborated sworn statement will not
constitute a basis to support the setting aside of punishment. 

   (4)  In cases where administrative error results in incorrect entries on 
DA Form 2627 or DA Form 2627-1 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment. 

   f.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment, the commander will record the basis for this action according to notes 11 and 12, DA Form 2627; notes 9 and 10, DA Form 2627-1; or DA Form 2627-2 (see paragraph 3-38b).  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action. 

   g.  Paragraph 3-37b(1) states that for Soldiers in the rank of SPC or corporal (CPL) and below (prior to punishment), the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.

	h.  Paragraph 3-37b(2) states that for all other Soldiers, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP under Article 15, UCMJ for maltreatment of SPC J----- M-----, SPC J---- D----, SPC A----- E--------, SPC G----- P-----, and SPC S----- F------- by making unwelcomed comments through text messages of a sexual nature and by making deliberate comments and gestures of a sexual nature and assaulting SPC S----- F-------by touching her face with a plastic bag.  He did not demand trial by court-martial.  

2.  The imposing authority determined the applicant violated the UCMJ.  On 21 August 2014, the applicant 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 in his OMPF.  

3.  Counsel's contention that although the applicant agreed to accept NJP for the alleged offenses at an open [should read closed] hearing, he presented documents and evidence to support his pleas of not guilty is acknowledged.  However, the imposing authority considered all matters presented during the closed hearing and determined the applicant was guilty of all specifications.  

4.  Counsel contends the applicant appealed imposition of the NJP on the grounds such allegations were not supported by proof beyond a reasonable doubt.  However, based on the governing regulation, punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  

5.  Counsel's statement that subsequent to imposition of the NJP, the applicant received formal notification of his case being referred to an involuntary separation board in accordance with Army Regulation 635-200, paragraph 
14-12c, for the same alleged misconduct as recorded in the NJP is acknowledged.

6.  The evidence provided by counsel confirms that, on 14 January 2015, an administrative separation board found that the applicant didn't maltreat the five subordinate junior enlisted Soldiers in his unit nor did he assault one subordinate junior enlisted Soldier in his unit.  As a result, the separation board recommended the applicant be retained in the U.S. Army.  The purpose of an administrative separation board (board of officers) is to make findings and to recommend retention in the service or separation of a Soldier.  

7.  By regulation, 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.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  Additionally, the governing regulation states the power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  Absent evidence which shows unusual circumstances existed, it is beyond the timeframe to set aside an executed punishment.  

8.  Based on the available evidence, it appears the imposing commander determined the applicant committed the offenses and imposed the appropriate punishment authorized under his jurisdiction.  That a subsequent administrative proceeding made different findings does not invalidate the findings reached by the imposing commander.  

9.  Accordingly, there is no basis for setting aside the applicant's reduction in rank from SGT/E-5 to SPC/E-4 that resulted due to NJP, or restoring his rank to SGT/E-5 and providing him back pay and allowances.

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 to amend the decision of the ABCMR set forth in Docket Number AR20140019460, dated 29 January 2015.



      _______ _   _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)                                         AR20150005594





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