IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20150011120 


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 reconsideration of his earlier request for removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from the restricted folder of his official military personnel file (OMPF) and promotion to chief warrant officer five (CW5).

2.  The applicant states, in effect:

	a.  He believes the Article 15 in his restricted file should be permanently removed from his records.  This Article 15 was the sole reason he was not promoted to CW5.  False statements were made during the investigation that caused it go forward.  He has evidence that the three complainants that filed charges against him made false and untrue statements.   

	b.  Per Army Regulation (AR) 27-10 (Military Justice), paragraph 3-43, Table 3-2 rule 1, Major General (MG) (Retired) RCL, the imposing officer and commander that gave him the Article 15, has provided a letter to get it expunged.  MG RCL indicated that he was guilty of all charges on the DA Form 2627, but he should have indicated that he was guilty of some of the charges (Section 4a on DA Form 2627).  The Article 15 was filled out incorrectly.  

   c.  The applicant states he has letters from all persons that filed (charges) against him indicating they gave false statements.  This is the injustice that caused him to get the Article 15 which subsequently caused him not to get promoted to CW5.  

	d.  AR 600-37 (Unfavorable Information) paragraph 7-2a states the individual must show the burden of proof of an injustice.  The females that brought charges against him have all admitted they gave false statements, which he believes is grounds to remove the Article 15 from his OMPF and promote him to CW5.  Paragraph 7-2c(1) states the intended purpose of the punishment has been met. MG RCL gave him the Article 15 and MG RCL has written a letter of support that was submitted with his application.  

	e.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9, states the applicant must show the burden of proof of the injustice.  He believes the letters that were submitted are proof that the Article 
15 would not have occurred, but the females made false statements throughout the investigation and this was the only reason he received the Article 15.  

   f.  Additionally the Article 15 contains an error: MG RCL indicated that he was guilty of all specifications instead of some of the specifications (Section 4a on DA Form 2627).  He has letters from MG RCL and all three complainants that are proof of his innocence.  With this new evidence and the ARs that support his request, the Article 15 should be permanently removed from his records and he should be promoted to CW5 immediately.

3.  The applicant provides:

* Letter, dated 26 May 2015, from the imposing officer
* Contested Article 15
* Three statements from three different females (Mrs. SD, Mrs. JDG, and Mrs. BA)

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 AR20140016151, on 3 December 2014.

2.  The applicant provides an updated statement from the imposing officer, an updated statement from Mrs. SD, and two statements from Mrs. JDG and 
Mrs. BA.  This is considered new evidence which warrants consideration by the Board. 

3.  Having had prior service, the applicant was appointed as a Reserve warrant officer of the Army and executed an oath of office on 9 June 2002.  He holds a signal military occupational specialty.  
4.  He served in a variety of stateside or overseas assignments and he was promoted to chief warrant officer four (CW4) in July 2010.  At the time of this Article 15, he was assigned to the Operations Company, Headquarters and Headquarters Battalion, U.S. Army Europe. 

5.  The applicant's records contain three AR 15-6 (Procedures for Investigating Officers and Board of Officer) investigations, dated 6, 16, and 20 December 2013.  

6.  On 3 December 2013, Mrs. JG, the wife of a sergeant of the 2nd Military Intelligence Battalion, filed a formal Equal Opportunity (EO) complaint alleging the applicant sexually harassed her verbally and through social media.  Accordingly, on 10 December 2013, an investigating officer (IO) was appointed to conduct an informal investigation, in accordance with AR 15-6 and AR 600-20 (Command Policy), into the formal EO complaint filed by Mrs. JG in order to determine the facts and circumstances surrounding the allegations of sexual harassment by the applicant.  The IO was directed to investigate the alleged sexual harassment through verbal and written communication and through social media and email.  

7.  According to the investigation report related to Mrs. JG, based on the preponderance of evidence discovered during the investigation, and in accordance with AR 600-20, the IO found the applicant sexually harassed 
Mrs. JG by committing deliberate and repeated unwelcome comments of a sexual nature.  The IO recommended that appropriate administrative or UCMJ action be taken by the command based on the evidence and findings of this investigation.  

8.  According to the investigation report related to Mrs. SD, based on the context of the emails and conversations, the IO found the applicant sexually harassed Mrs. SD by making deliberate and repeated unwelcome comments of a sexual nature.  The IO recommended that appropriate UCMJ action be taken by the command based on the evidence and the findings of the investigation.  

9.  According to the investigation report related to Mrs. BA, based on the preponderance of evidence, the IO found a pattern of deliberate, repeated, and unwelcome comments of a sexual nature made by the applicant.  The IO recommended appropriate action be taken by the command.  

10.  His record contains a memorandum issued by the installation sexual assault response coordinator (SARC), on 6 December 2013, wherein the SARC stated he had reviewed the IO's report for the formal sexual harassment complaint filed by Mrs. BA against the applicant, concurred with the IO's findings, and recommended the allegations of sexual harassment be found "substantiated" and appropriate actions be taken to ensure sexual harassment is prevented in the future. 

11.  The applicant’s OMPF contains a DA Form 2627 which shows on 
14 January 2014, MG RCL informed the applicant he was considering whether he should be punished under Article 15, UCMJ for misconduct, in that the applicant, a married man, did between on or about 1 May 2013 and on or about
15 November 2013, publicly make sexually explicit comments to Mrs. BA, a woman married to an enlisted Soldier, to include publicly commenting about the size of her breasts, her appearance and how it does not appear she just gave birth, and a fantasy scenario where he would have multiple sexual sessions with her if they were both single, and how he just have to say sexual things to her to make her smile thereby sexually harassing her and compromising his character and dishonoring himself as an officer and a gentleman through moral turpitude.  This is in violation of Article 133, UCMJ,

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

13.  At a closed hearing, having considered all matters presented, which included a U.S. Army Criminal Investigation Command (CID) report, MG RCL determined the applicant was guilty.  The imposing officer placed his initials in the block marked "guilty of all specifications."  He drew a line through the underlined words (in the Article 15 above) and placed his initials next to the drawn line, indicting the applicant was not guilty of the underlined portion of the Article 15. 

14.  It is noted that the Article 15 filed in the applicant's OMPF contains only one specification as described in paragraph 11 above.  However, he provides a copy of the Article 15 that contains two additional specifications listed on a continuation sheet.  This continuation sheet is not filed in his OMPF.  The two additional specifications read as follows:  

	a.  The applicant, a married man, did on or about 1 May 2013 and on or about 20 November 2013, contact and make sexually explicit comments to Mrs. JG, a woman married to an enlisted Soldier, thereby compromising his character and dishonoring himself as an officer and a gentleman through moral turpitude.  This is in violation of Article 133, UCMJ.  

	b.  The applicant, a married man, did on or about 17 September 2013 and on or about 18 September 2013, contact Mrs. SD, a woman the applicant knew was married, by email from both his workplace and a secret account, in which he stated, "remember grown folks do things," after an earlier inappropriate inquiry and statements to her about swingers clubs as well as what he would not share with his wife or his friend’s wife, and then requested that she not disclose his secret email to her husband or his wife, thereby compromising his character and dishonoring himself as an officer and a gentleman through moral turpitude.  This is in violation of Article 133, UCMJ.

15.  The imposing officer imposed a punishment of forfeiture of $1,500 for
2 months and ordered the Article 15 be filed in the restricted section of the applicant's OMPF.  The applicant was advised of his right to appeal to the Commander, U.S. Army Europe, the next higher authority, within 5 calendar days, and advised that an appeal made after that date may be rejected as untimely.  On
28 October 2013, the applicant elected not to appeal. 

16.  On 25 February 2015, the Secretary of the Army directed the removal of the applicant's name from the Fiscal Year 2014 CW5, Army Promotion List, in accordance with Title 10, U.S. Code, section 579(b) and AR 600-8-29 (Officer Promotions), paragraph 8-1(b). 

17.  On 27 February 2015, the U.S. Army Human Resources Command notified the applicant that his records were referred to a Department of the Army Promotion Review Board for reconsideration of his promotion status and that the Secretary of the Army decided to remove him from the promotion list.

18.  He provides: 

	a.  An updated statement, dated 26 May 2015, in which the imposing officer, MG RCL, now retired, states, as the imposing Commander for the applicant's Article 15, he adamantly requests that the Article 15 be expunged from his file.  He is convinced that the intent of the punishment has been served and that this was a one-time incident.  Further, MG RCL believes the errors in his Article 15 are grounds to have this expunged from his file.  He adds that it has come to his attention that the applicant was selected for CW5 but was removed from the promotion list due to the Article 15 in his restricted file.  This was not his intent to deprive the Army of an outstanding officer.  He was also notified that the Board had concluded that the Article 15 stay in his record because there was no evidence that comments, emails, or Facebook posts were untrue.  The reason he lined out most of the allegations is because he did not agree with the IO's findings.  As he questioned the complainants, it became very clear that some allegations were untrue.  It became very clear that all 3 complainants had ulterior motives, and each demanded their cases be reviewed separately.  They also stated that their complaints had "gone too far and never wanted this Article 15 to occur or make it to my desk."  Additionally, one also admitted that the applicant had never sexually talked to her or led her to believe he was going to.  On the DA Form 2627 there is an error in Section 4A.  He (the imposing officer) initialed that he was guilty of all specifications; he should have initialed that he was guilty of some of the specifications.  If given the option, he would have filed this Article in the local file and it would not have followed him when he transferred out of Germany.  The applicant has made the Army his life for the last 22 years and will continue to provide great leadership for the remainder of his career.  He has learned from this incident and has been punished beyond his (the imposing officer's) intent.  Again, he adamantly requests that the Article 15 be expunged from his file.

	b.  A signed statement from Ms. SD, dated 15 June 2015, in which she requests that the Article 15 be permanently removed from his file.  She states that fabricated statements were made in the initial complaint that she believes made the case go forward.  The applicant never talked, emailed, or Facebook messaged anything sexual to her or any of the other complainants, and he never led any of them to believe that he would.  He never sexually harassed any of the complainants in any way and his moral turpitude [sic] should have never been questioned.  All of their husbands had issues with the applicant over different personal reasons.  She and the other complainants were pressured by their husbands to file informal complaints; their husbands knew that conversations between them and the applicant could be taken out of context so they filed.  The applicant never sexually harassed her or any of the other complainants, and they all gave various untrue statements throughout the investigation.  The applicant's actions were never in a sexual manner towards any complainant.  She can only speak for herself, but she and all of the complainants gave inaccurate statements that were elevated to a level that they did not intend.  

	c.  A signed statement, dated 18 June 2015, from Mrs. JDG, in which she states she made a false statement against the applicant.  The applicant never sexually harassed her.  She knew the applicant because he played on the same softball team as her husband.  She told the IO that the applicant wrote her sexually explicit things on Facebook, and he never did.  She was told by her friend, Mrs. BA, who also filed a complaint against the applicant that he had harassed her.  To support her, she helped with her complaint by making a statement, and she filed her own.  The applicant's Article 15 should be removed from his records.  She had no grounds to file a complaint and she got wrapped up in a friend's dislike of the applicant that persuaded her to file a complaint full of untrue statements. 

	d.  A signed statement, dated 17 June 2015, from Mrs. BA, in which she states she hopes the Article 15 will get deleted, and he will be able to continue his military career.  She adds that she filed an untrue informal complaint against the applicant.  He never sexually harassed her.  She knew him because he and her husband were on the same softball team.  He did not like a lot of the guys on the softball team, and he was one of them.  He and her husband did not like each other, and since her husband was getting chaptered out of the Army, she took that out on the applicant and filed an informal complaint with some false statements.  One of the statements she made was that the applicant said she had big boobs; he never said this.  She also stated that he said at one of his daughter's cheerleading practices that he wanted to have sex with her; he never said that.  The applicant is not a bad person.  She was just mad at everyone because of her husband's situation.  She states she had no right to ever file a complaint, because the applicant never sexually harassed her.  She is sorry for ever filing a false complaint against the applicant and encouraging others to also do so.

19.  AR 27-10 prescribes the policies and procedures pertaining to the administration of military justice.

	a.  Chapter 3 provides that 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.  It further states that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate, and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.

	b.  Paragraph 3–18 states the imposing commander will ensure that the Soldier is notified of the commander’s intention to dispose of the matter under the provisions of UCMJ, Article 15.  The Soldier will also be notified of the maximum punishment that the commander could impose under UCMJ, Article 15.  The Soldier will be provided a copy of DA Form 2627 with items 1 (charges) and
2 (statements of rights) completed, including the date and signature of the imposing commander and any supporting documents and statements for use during the proceedings.  The Soldier will be informed of his or her right to remain silent, right to counsel, right to demand a trial by court-martial, the right to present their case before the imposing commander, the right to call witnesses, the right to an open hearing, the right to present and examine evidence, and the right to a decision period.  Normally, 48 hours is a reasonable decision period.  If the 
Soldier does not demand trial by court-martial prior to expiration of the decision period, including any extension of time, the imposing commander may continue the proceedings.  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 Soldier has the right to appeal and the appellate rights and procedures that are available to the Soldier will be explained.

	c.  Paragraph 3–29 states that only one appeal is permissible under UCMJ, Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.  A reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 5 calendar days after the punishment is imposed will be presumed to be untimely, unless the superior commander, in the superior commander’s sound discretion for good cause shown, determines it to be timely. If, at the time of imposition of punishment, the Soldier indicates a desire not to appeal, the superior authority may reject a subsequent election to appeal, even though it is made within the 5-day period.  

	d.  Paragraph 3-37b(1)(a) provides that the decision to file the report of NJP in the performance or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.

20.  AR 600-8-104 (Army Military Human Resource Records Management) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  

21.  AR 600-37 paragraph 7-2a, provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  The burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was investigated for sexual harassment after several females filed complaints and submitted sworn statements alleging he sexually harassed them.  In each instance, a formal investigation was conducted and the IO reached a conclusion that, based on the preponderance of evidence, the IO found a pattern of deliberate, repeated, and unwelcome comments of a sexual nature made by the applicant.  His record contains a memorandum issued by the installation SARC who reviewed the IO's report for the formal sexual harassment complaint and concurred with the IO's findings and recommended the allegations of sexual harassment be found "substantiated." 

2.  Convinced that the applicant committed the offense(s) in question and consistent with the IOs' recommendation, the imposing officer administrated an Article 15 against the applicant.  The applicant was advised of his rights and he declined trial by court-martial.  He accepted the NJP that resulted in a punishment of a forfeiture of pay and the filing of the Article 15 in the restricted folder of his OMPF.  Additionally, he elected not to appeal this Article 15.  

3.  The copy of the Article 15 that is filed in his OMPF contains only one specification.  The copy that he provides contains an additional page that listed two additional specifications.  The imposing officer marked the block that stated "guilty of all specifications."  However, because he lined through a portion of the first specification, he should have marked "guilty of some specifications."  This is true, but it does not invalidate the Article 15.  In fact, the continuation sheet he provides clearly shows he was guilty of the additional specifications but, to his advantage, the continuation sheet is not filed in his OMPF. 

4.  The applicant provides a statement from the imposing officer who has since retired.  In this statement, the imposing officer supports the removal of this Article 15 because he believes it has served its purpose.  There are two issues here: 

	a.  First, commanders primarily use a General Officer Memorandum of Reprimand (GOMOR) as a tool for teaching proper standards of conduct and performance.  When the Soldier has learned the intended lesson, a GOMOR is transferred from the performance to the restricted folder because it has served its intended purpose.  When commanders use NJP, the intent is clear.  An Article 15 is the next tool available to commanders to correct, educate, and reform offenders whom the commander determines cannot benefit from less stringent measures.  In that regard, it is clear that the imposing officer's intent was to punish the applicant and not simply to reprimand him.  Any negative impact on his career is a result of his misconduct.  

	b.  Second, statements from a commander who imposed NJP often reflect retrospective thinking, or second thoughts, prompted by an applicant’s informing them of their non-selection or other unfavorable personnel action claimed to be the sole result of the NJP.  As a result, claims by the imposing commander stating that they did not intend to file the NJP as they did, that they have changed their mind, that they feel the punishment was too severe, or that the NJP should be removed from an applicant's record, should not, alone, serve as the basis of altering, moving, or removing NJP from an applicant's OMPF.

	c.  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 Board 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 was afforded the opportunity to appeal the Article 15 through the proper channels.  He elected not to appeal to the next higher commander.

5.  The applicant provides statements from the three females indicating they fabricated their stories.  The Board is asked to weigh the value of sworn statements made by the three individuals during the conduct of a formal investigation against signed statements by the same individuals claiming they fabricated their story.  The Board is not an investigative body and is not in a position to determine the credibility of one statement over another in cases such as this.  The applicant is advised to contact his commander and/or servicing EO officials in an effort to conduct a new investigation or an inquiry that confirms or rebuts the original investigation that led to the Article 15.  

6.  Based on the overall evidence, it appears the applicant's NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted folder of his OMPF as directed by the imposing commander.  There is insufficient evidence to show the DA Form 2627 is untrue or unjust.  Likewise, there is insufficient evidence to grant the requested relief.  

7.  The applicant was removed from the promotion list by the Secretary of the Army based on the derogatory information in his file.  Had there been a material error in his record, the appropriate mechanism to correct such error would be via a special selection board, not by promoting him as he believes.   

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 AR20140016151, dated 3 December 2014.



      _______ _   _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)                                         AR20150011120



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ABCMR Record of Proceedings (cont)                                         AR20150011120



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