IN THE CASE OF:	

		BOARD DATE:	    27 October 2015

		DOCKET NUMBER:  AR20150015961 


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 a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 9 August 2013, be removed from his official military personnel file (OMPF).

2.  He states he believes the issuance of the UCMJ action is an injustice to him.  He offers that undue command influence was attributed to the issuance of the UCMJ.  There were multiple occasions when his first sergeant (1SG) informed him of the senior leaders' intent to make an example of him.  He also believes a singular instance in a 17-year career should not be the basis of his removal from the service.  He notes his deployments and achievements while serving in the military.  

3.  The applicant provides:

* DA Form 2627
* U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated 6 August 2013
* DA Form 4856 (Developmental Counselling Form)
* Two letters of support
* Orders HO-051-0153, dated 20 February 2013
* Memorandum, Subject:  Letter or Release from Theatre, dated 12 August 2013
* Memorandum, Subject:  Assault Charges Against Applicant, dated 6 August 2013
* Qualitative Management Program (QMP) documents
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 June 1998.  He served on five deployments:  two in Afghanistan, two in Iraq, and one in Macedonia.  

2.  On 4 August 2013, he was counseled by his 1SG for inappropriate behavior with a subordinate Soldier.  The 1SG stated he was approached by the Sexual Harassment/Assault Response Program (SHARP) representative about a possible sexual assault violation against the applicant.  The SHARP representative stated that the applicant tapped a [junior] noncommissioned officer's (NCO) groin area with his hand and other Soldiers saw this happen.  When the 1SG confronted the applicant about the situation, the applicant explained that he was joking around and did not intend it to cause friction or embarrassment to the NCO.   

	a.  The 1SG further stated on 3 August 2013, CID completed their investigation on the allegation that the applicant committed sexual assault on an NCO.  He said CID found that the act was not considered a SHARP violation and the chain of command would impose nonjudicial punishment (NJP) if necessary to rectify the issue.   

	b.  The 1SG stated that as an NCO it was his responsibility to take care of the welfare of the Soldiers both mentally and physically.  Playing around and "dick-checking" Soldiers was not how a senior NCO conducts business especially when it comes to subordinate Soldiers that he was in charge of.  He said it interferes with the good order and discipline that NCOs have to uphold to maintain discipline within the ranks.  The applicant signed the counseling statement on 4 August 2013 agreeing with the information provided.

3.  In a memorandum, dated 6 August 2013, the applicant's 1SG stated that he made contact with the victim of the assault and the victim said he did not wish to press charges against the applicant.  He also said he just wanted the applicant gone.  

4.  On 6 August 2013, CID rendered their initial/final ROI concerning the abusive sexual contact of an NCO by the applicant.  After obtaining sworn statements from the alleged victim and the applicant, CID determined the allegation of abusive sexual contact was unfounded.  The CID representative stated the investigation did not establish probable cause to believe the offense of abusive sexual contact occurred as originally reported.  The alleged victim stated it was done in a joking manner, as it was part of "horse play" and it was not done to humiliate or degrade the NCO. 

5.  A memorandum, subject:  Waiving Rights to Seek Legal Counsel, dated 
9 August 2013, shows the applicant waived his rights and stated that he would like to proceed with the NJP.  Additionally he stated that he read and was aware of the Article 15 rights, maximum punishments, and filing determination.

6.  On 9 August 2013, while in the rank/grade of sergeant first class (SFC)/E-7, NJP was imposed against the applicant.  The Article 15 reads "In that you did at or near Kabul International Airfield, on or about 30 June 2013, unlawfully strike [a junior NCO] in the groin with the back of your hand" and "In that you did at or near Kabul International Airfield, on or about 30 June 2013, unlawfully strike [a junior NCO] in the groin by throwing a water bottle."  

7.  In item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions are as follows) the applicant indicated he did not demand trial by court-martial; did not request a person to speak on his behalf; and would not present matters in defense, extenuation, and/or mitigation. 

8.  In item 4a (In a Closed hearing, having considered all matters presented, I hereby make the following finding), the commander initialed "Guilty of All Specifications."  His punishment consisted of a forfeiture of $943.00, 14 days extra duty, and 14 days restriction all of which was suspended for 6 months.  The commander directed the DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant initialed the block indicating that "I do not appeal." 

9.  On 13 April 2015, the applicant was notified by the Chief, Transition Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY that the QMP Selection Board recommended that he be denied continued active duty service.  As a result, the Director of Military Personnel Management approved the board's recommendation and the applicant will be involuntarily discharged from the Army no later than 1 November 2015.  He was told that he could either request an early separation date or appeal the decision and request retention on active duty. 

10.  On 27 April 2015, he elected to appeal the QMP decision.

11.  The applicant's OMPF shows he received a 4-month Change of Rater NCO Evaluation Report (NCOER) for the period 5 April 2013 through 9 August 2013 while serving as the Security Detachment NCO in Charge (NCOIC), Afghanistan. He was rated as "Needs Improvement (Some)" in part IVd (Leadership) by his rater with a negative supporting comment of "failed to maintain a professional relationship with subordinates."  In part Va (Overall potential for promotion and/or service in positions of greater responsibility) the rater assessed him as "Marginal."  The senior rater assessed his overall performance and overall potential for promotion and/or service in positions of greater responsibility in parts Vc and d as "4 – Fair" with negative comments of "adequate performance as Platoon Sergeant; limited potential for promotion at this time due to unprofessional behavior with subordinate Soldiers" and "must improve interpersonal skills and maturity to advance as an NCO leader." 

12.  The available records do not show the reason(s) he was selected by the QMP Selection Board.

13.  He provided:

   a.  A supporting statement from his former Company Commander (the NJP imposing authority) who said he has known the applicant since October 2012 while he served as the platoon sergeant for nine months.  He offered that under normal circumstances, his 1SG would have given the applicant a negative counseling statement for his actions.  However, there was considerable influence from the III Corps chain of command for the applicant to be punished harshly to set an example.  He added that his 1SG told him that the Command Sergeant Major wanted the applicant to receive an Article 15.  The Company Commander maintains that once he heard that the chain of command was thinking about initiating a field grade Article 15 to resolve the issue, he decided to resolve the issue at his level and issue the applicant a company grade Article 15.  He concludes that he did not at any time and still does not believe this minor incident accurately reflects the applicant's potential for continued service in the Army. 
   
   b.  A supporting statement from a senior officer who stated he served with the applicant in 2013 in Afghanistan in support Operation Enduring Freedom.  He added the applicant served as platoon sergeant, Personal Security Detail (PSD), and he successfully trained and led the PSD despite numerous operational and administrative challenges.  He expounds on the applicant's attributes and states it would be a mistake to let this NCO leave the Army before he is ready to complete his service. 

14.  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 (MCM).  Paragraph 3-2 states that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who 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; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

15.  Part V (Nonjudicial Punishment Procedure) of the MCM states, in effect, whether an offense is minor is a matter of command discretion.  Ordinarily, a minor offense is an offense which the maximum sentence imposable would not include a dishonorable discharge or confinement for longer than 1 year if tried by general court-martial.

16.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  The regulation states 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.  Thereafter, 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.  Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was given an Article 15 for unlawfully striking a junior NCO in the groin with the back of his hand and a water bottle.  He was afforded the opportunity to consult with counsel and he accepted the Article 15.  He did not demand trial by court-martial.  The imposing commander considered all matters presented and determined that the applicant was guilty of all specifications.  The applicant initialed the document indicating that he did not wish to appeal the action.

2.  The imposing authority states that under normal circumstances the applicant would have received a negative counseling statement for his actions.  However, he states that there was considerable influence from the III Corps chain of command for the applicant to be punished harshly to set an example.  The evidence shows the applicant was a senior NCO who received a company grade Article 15 for striking a junior NCO which was placed in his restricted file.  He could have received a forfeiture of $943.00, 14 days restriction, and 14 days of extra duty.  However, his entire punishment was suspended for 6 months.  

3.  The evidence of record shows his NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the restricted section of his OMPF as directed by the imposing commander.  There does not appear to be any evidence of record and he has not provided any evidence to show the DA Form 2627 is untrue.  The only evidence supporting the possibility that the DA Form 2627 is unjust is the imposing authority's statement regarding command influence from III Corps.  

4.  The applicant also argues that a singular incident in a 17-year career should not be the basis of his removal from service.  The exact reason for the applicant's denial of continued active duty service under the QMP is unknown.  However, his record contains an Article 15 and an adverse NCOER.  The applicant received an NCOER with a "Needs Improvement (Some)" rating and the negative bullet comment of "failed to maintain a professional relationship with subordinates."  The evidence supports the statement and rating on the NCOER.  

5.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The available evidence does not meet that standard.  

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)                                         AR20150015961





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ABCMR Record of Proceedings (cont)                                         AR20150015961



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