IN THE CASE OF:  

		BOARD DATE:  4 August 2015

		DOCKET NUMBER:  AR20150008448


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 requests correction of his military records by removing the 
18 August 2014 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and all resulting suspensions of favorable personnel actions from his Official Military Personnel File (OMPF).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the 18 August 2014 NJP record and related documents from the applicant's OMPF.   

2.  Counsel states:

	a.  The applicant received a field-grade NJP for the alleged offenses of maltreating a female Soldier, Specialist (SPC) S______ W____, by sending her unwelcomed text messages and taking her flowers between 1 April 2013 and 
11 July 2013.  In the same NJP action he was charged with allegedly maltreating another female Soldier, SPC Y_____ L_____, by sending her unwelcomed text messages of a sexual nature. 

	b.  The applicant, unfortunately, elected to accept NJP and further elected to proceed with a closed hearing, but without the presence or assistance of a spokesperson.  He was found guilty despite his explanations of the facts surrounding the allegations and his plea of not guilty.  His appeal was denied on 28 August 2014.

	c.  The NJP record should be removed from the applicant's OMPF because:

		(1)  He emphatically denied he maltreated SPC W____ or any other Soldier in his unit as alleged in the NJP record.

		(2)  The female Soldier who made the allegations of maltreatment failed to make any complaints until it was to her advantage to do so approximately 9 months after the fact. 

		(3)  The female Soldiers who made the allegations of maltreatment have very poor reputations in their unit and among co-workers for truthfulness and honesty.

		(4)  After being transferred from the applicant's supervision to another noncommissioned officer (NCO), SPC W____ made Sexual Harassment/Assault Response and Prevention (SHARP) complaints about the new NCO.

		(5)  The majority of the applicant's male and female Soldiers agree that he is an exceptional NCO who demonstrated his sincere concern for their welfare and assists them with their personal problems if called upon to do so, even at his own inconvenience.

		(6)  The female Soldier who made the complaint of maltreatment against the applicant has a reputation among her co-workers as being promiscuous and using the Army's SHARP and Equal Opportunity (EO) programs to her advantage.

		(7)  The applicant's wife confirms her opinion that her husband openly spoke to her about SPC W____'s personal problems and his efforts to try to help her and that her husband is a loving and caring husband and father.

		(8)  The applicant has demonstrated an exceptional respect for all Army Values and all his raters and senior raters have rated him as an exceptional and superior Army NCO.

		(9)  Neither the investigating officer (IO) nor the officer presiding over the closed hearing for the subject NJP interviewed the majority of the witnesses who have provided sworn affidavits in support of the applicant, calling into serious question the truthfulness and motivations of the two female Soldiers who made the complaints of maltreatment.



3.  Counsel provides copies of:

* 18 August 2014 NJP
* five sworn statements and an email note relating to the EO/SHARP complaint
* two sworn statements and one unsworn statement relating to the applicant's conduct as concerns SPC W____
* ten statements in support of the applicant and describing the character and reputation of SPC W____
* sworn affidavit from the applicant's spouse
* letter of recommendation from the Commanding General, Southern Regional Medical Command 
* applicant's NCO Evaluation Reports (NCOERs) for 1 October 2009 through 28 October 2013 
* applicant's Service School Academic Evaluation Reports for the Warrior Leader Course and the Health Care Advanced Leader Course

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a staff sergeant (SSG)/E-6.

2.  On 11 August 2014, the applicant, then a staff sergeant/E-6, received notice of pending NJP for:

	a.  violation of Article 93, maltreating a Soldier subject to his orders by deliberately and repeatedly by sending her unwelcomed text messages and taking her flowers, such conduct constituting a hostile work environment.

	b.  violation of Article 93, maltreating a Soldier subject to his orders by deliberately sending her unwelcomed text messages of a sexual nature.

3.  The NJP further shows:

	a.  he did not demand trial by court-martial;

	b.  he requested a closed hearing and to not have someone speak on his behalf; and

	c.  he indicated that matters in defense, extenuation, and/or mitigation would be presented.

4.  On 18 August 2014, the imposing commander found the applicant guilty of the charges and directed the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the performance section of his OMPF.  The following punishment was imposed:

* Forfeiture of $1,817.00 pay 
* Extra duty for 45 days
* Oral reprimand

5.  His appeal was denied on 28 August 2014.

6.  Counsel provides statements and an email note relating to the EO/SHARP complaint and to the applicant's character and professionalism:

	a.  Captain (CPT) D_____ D_______, the unit commander, states that in the June/July 2013 timeframe SPC W____ made a verbal sexual harassment complaint about the applicant and another NCO.  SPC W____ indicated at that time she did not want any action taken or anyone outside of her and her unit's command team to know anything about the situation.  She went so far as to say that she would deny the complaint should action be taken by the Headquarters and Headquarters Battery (HHB) Command Team.  No action was taken at that time.  CPT D_______ further stated that he had never witnessed the applicant make any comments of a sexual nature to or about any Soldiers.  CPT D________ did note that numerous complaints were received that SPC W____ was receiving special treatment from CPT T_____ M______, the battalion Physician's Assistant. 

	b.  CPT M______ relates that SPC W____'s sexual harassment complaint was first brought to her attention near the end of June 2013.  At that time SPC W_____ stated she would deny the complaint and did not want any action taken.  CPT M_______ denied any knowledge of any special treatment for SPC W____.

	c.  Sergeant First Class B_____ L. B_____ reveals he first heard about the sexual harassment complaint by SPC W_____ around March 2013 and at that time it was determined not to be a sexual harassment issue.  He had no knowledge of any other issues of a sexual nature involving the applicant.

	d.  First Lieutenant J____ L. H_____, the Battalion Medical Officer, states he received word that there was a complaint made by SPC W____ against the applicant and another NCO.  He is not sure of the exact nature of the complaint.  To the best of his knowledge no SHARP complaint was filed and the matter was handled at the battery level.  SPC W____ was moved from the applicant's supervision to that of another NCO.  SPC W____ had an issue with that NCO 
so she was placed under the supervision of another NCO, Staff Sergeant (SSG) N_____ S_____.  In June 2014, 1LT H_____ learned of a SHARP investigation being done on the applicant that had been field by SPC W____.  As a result, a no contact order was issued to the applicant to not contact SPC W____ in any way.  1LT H_____ indicated he had known the applicant to be a dedicated and competent NCO who possesses a strong work ethic.  He never witnessed the applicant commit any SHARP violations.

	e. A 14 March 2014 email note from CPT D________, subject:  Potential EO/SHARP Complaint show CPT D_______ alerted addressees that on
14 March 2014 he had been informed by CPT M_______ that SPC W____ wanted to file an EO and SHARP complaint against three Aid Station personnel.  SPC W____ complained that she was being treated unfairly by her current NCO supervisor.  She also complained that approximately 9 months ago the applicant made advances to her (verbally and through text) and acted inappropriately on several occasions.  She reported that none of his behavior was sexual in nature, but more of an overly-friendly nature that crossed the professional superior-subordinate line.  After SPC W____ told the applicant his behavior made her feel uncomfortable, he ceased and apologized. 

	f.  Master Sergeant J_____ J. G_____ revealed that on 31 July 2014, he asked SPC W____ if she wanted to file a SHARP complaint against the applicant for his unwanted advances towards her.  She indicated she did not want to file a SHARP complaint and wanted the issue handled at the lowest possible level.  SPC W____'s husband was stationed at Camp Lejeune and their children were being taken away.  As a gesture of kindness during her troubled time, the applicant had brought SPC W_____ flowers on Mother's Day.  

	g.  Fourteen other Soldiers provided statements and memoranda attesting to the applicant's stellar character and exceptional professionalism.  He is consistently described as a great host for unit gatherings, including some when SPC W____ was a guest.  He always takes a personal interest in his Soldiers often going out of his way to visit them.  He is very respectful of women and has a great reputation for being easy to talk to.  Several describe SPC W____ as a person with a reputation for being less than truthful and less than honest.  She uses her children as an excuse to be late for formations and to leave work early.  She is also described as very manipulative, using the SHARP Program for her advantage.  

	h.  SSG C____ J______, the applicant's spouse, states that they have been happily married since 2009 and have three children.  She is aware that her spouse has been accused by SPC W____ of creating a sexual and hostile work environment in his workplace.  SPC W____ has been to their home for holiday functions on several occasions.  If her husband has any character defect it is that he is too willing to help others.  He is a very caring person.  He has spoken with his spouse about trying to help SPC W____ with some of her child care issues in the past.  She has never known the applicant to be anything other than a loving, caring husband and father.

	i.  Brigadier General B______ R. H______, Commanding General, Southern Regional Medical Command, states she met the applicant when she was commander of the 21st Combat Support Hospital (CSH) in 2009.  The CSH deployed in 2010 and she observed the applicant's performance under stressful conditions.  As an E-5 he was the NCO in charge (NCOIC) of the Emergency Treatment (EMT) Section, the busiest EMT in North and Central Iraq.  He provided continuous training for his medics as well as unit medics across the forward operating base (FOB), cross-training with other hospital sections, and worked closely with other elements.  He demonstrated constant compassion and care for his Soldiers, yet held them to a high standard.  His leadership, motivation, and how he worked with his Solders throughout the deployment set him apart as a stellar NCO.

6.  The applicant's NCOERs for 1 October 2009 through 28 October 2013 consistently show ratings of "Excellence", "Success, "Among the Best" and "Superior."

7.  His Service School Academic Evaluation Reports show he exceeded course standards for both the Warrior Leader Course and the Health Care Advanced Leader Course.

8.  Under the UCMJ, the maximum punishments allowed at a trial by court-martial for violation of Article 93 include a dishonorable or bad conduct discharge.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM (Manual for 
Courts-Martial).  Paragraph 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that 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 there is 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. 

10.  Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that the decision whether to file a record of NJP in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the NJP record in question from his OMPF has been carefully considered.  However, there is insufficient evidence to support his request.

2.  Notwithstanding the counsels and the statements submitted in the applicant's behalf, the evidence shows he elected to not demand trial by court-martial for the charges of violating Article 93, UCMJ, for maltreating two of his Soldiers.  The maximum punishment includes a dishonorable or bad conduct discharge if tried by court-martial.

3.  The evidence of record confirms the applicant's NJP processing was accomplished in accordance with the applicable law and regulation and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offense.  There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision by the imposing commander.

4.  Further, the applicant's appeal of the punishment was properly processed and considered in the appellate process by the proper appellate authority.  The evidence submitted by the applicant was either included or available for him to include in his appeal of the NJP and it does not support revising the appeal authority's decision.

5.  The governing regulation requires that there must be evidence the document is untrue or unjust in whole or in part in order for the ABCMR to support removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record.

6.  Absent evidence of an error or injustice in the Article 15 processing or the appellate process, the regulatory burden of proof necessary to set aside the Article 15 or to remove it from the applicant's OMPF has not been satisfied in this case.  As a result, there is an insufficient evidentiary basis to support removal of the Article 15 from the applicant's 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)                                         AR20120008325



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ABCMR Record of Proceedings (cont)                                         AR20150008448



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