RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 March 2006
      DOCKET NUMBER:  AR20050002359


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Jeffrey P. Parsons            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of a Record of Proceedings
Under Article 15, UCMJ (DA Form 2627) and a General Officer Memorandum of
Reprimand (GOMOR) from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the GOMOR and Article 15 he
received were unjust.  He claims that a Board of Inquiry (BOI) held
subsequent to the issuance of these documents found he did not commit the
sexual harassment offenses that formed the basis for the Article 15 and
GOMOR.  He claims that had the imposing commander had all the relevant
evidence and information at the time, he never would have received the
Article 15.

3.  The applicant further states that the Fort Bliss, Texas Inspector
General (IG) found he was not afforded due process during the Army
Regulation 15-6 investigation completed on him in Iraq.  He further states
that he was not afforded reasonable access to legal counsel during the
investigation, which was a violation of his due process rights.  In
addition, he claims the IG found major credibility problems with the
accusers, which led to the IG’s conclusion that the investigation was not
conducted thoroughly and objectively.  He also claims the IG report shows
the investigation was not a reliable basis for imposing either
administrative or Uniform Code of Military Justice (UCMJ) action.

4.  The applicant also states that the Article 15 imposing commander was
not supplied with all the documents that were later made available to the
BOI, which found he did not commit the sexual harassment offenses upon
which the nonjudicial punishment (NJP) action was based.  He further claims
that the probationary elimination action submitted on him was returned by
the Deputy Assistant Secretary of the Army (DASA), Army Review Boards
(ARB), because the investigation submitted did not show, by a preponderance
of the evidence, that he committed the acts of misconduct upon which the
separation action was based.

5.  The applicant also states that a BOI convened at Fort Bliss to consider
his case found the accusers’ actions were likely retaliatory in nature, not
truthful, and it recommended his retention.  He claims the BOI found that
an unhealthy command climate fostered a wholly inappropriate atmosphere for
Soldiers to operate in, and as a result, there were a considerable number
of instances of inappropriate behavior between superiors and subordinates.
Based on the BOI findings, the commanding general (CG), Fort Bliss ordered
the probationary officer elimination proceedings against him closed.

6.  The applicant provides the following documents in support of his
application:  Article 15; GOMOR; Officer Evaluation Reports (OERs); Letters
of Recommendation; Petition for to the Department of the Army Suitability
Evaluation Board (DASEB) for Removal of the Article 15 and GOMOR; IG
Findings; and BOI Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was still serving on active duty at
Fort Bliss, Texas, as a chief warrant officer two (CW2), at the time he
submitted this application.

2.  On 1 June 2003, while serving in Iraq, the applicant accepted NJP under
the provisions of Article 15 of the UCMJ for three specifications of
violating Article 92 of the UCMJ by wrongfully sexually harassing three
different female Soldiers.  The resultant sentence included a forfeiture of
$1,503.00 per month for two months and a letter of reprimand.

3.  On 1 June 2003, the CG, 32nd Air and Missile Defense Command, Camp
Doha, Kuwait, issued the applicant a GOMOR.  The applicant was reprimanded
for engaging in a pattern of sexual harassment that extended back to March
and April 2002, while he was in the warrant officer basic course; and
continued into operations in support of Operation Iraqi Freedom in Kuwait
and Iraq during February and March 2003.

4.  On 2 July 2003, the applicant received a Relief For Cause OER covering
the period between 20 January and 24 May 2003.  The applicant was evaluated
as a Patriot Missile Technician for a firing battery supporting the XVIIIth
Airborne Corps.  The report indicated the applicant’s technical skills were
excellent and he was a great asset to the unit during its wartime mission;
however, he displayed conduct unbecoming an officer and was relieved of his
position due to substantiated complaints of sexual harassment by three
female Soldiers.  The applicant appealed this OER and this appeal is
currently pending consideration by the Officer Special Review Board (OSRB).


5.  On 12 December 2003, the Fort Bliss IG notified the applicant that he
completed a thorough review of the Army Regulation 15-6 investigation
completed on him.  The IG determined the applicant did not receive due
process during the investigation, but that he did during the Article 15
proceedings.

6.  The IG further noted that the investigation on the applicant was not
done thoroughly and objectively.  Further, the chain of command
investigated the inappropriate conduct of two of the complainants and was
currently investigating misconduct by the third.

7.  A probationary officer elimination action on the applicant was
submitted to the Army Review Boards Agency (ARBA).  A review of the case
completed by an ARBA legal advisor resulted in a conclusion that the
quality of the Army Regulation 15-6 investigation conducted on the
applicant was poor and left too many holes for him to feel comfortable that
the applicant was a “bad actor, as opposed to a new warrant badly in need
of a mentor”.  The legal advisor found that too many of the accusations
were uncorroborated, and when corroboration was available, it favored the
applicant’s version of events, not the accusers’.  The legal advisor
finally recommended the applicant be retained.

8.  On 24 May 2004, the DASA, ARBA, returned the probationary officer
elimination action submitted on the applicant for referral to a BOI.  The
DASA stated that the investigation forwarded for his review and action did
not establish, by a preponderance of the evidence, that the applicant
committed the acts of misconduct that formed the basis for the proposed
separation.  He further stated that it was his opinion that the underlying
investigation would best be addressed by placing the matter before a formal
board of officers.

9.  On 26 August 2004, a BOI convened at Fort Bliss to consider the
applicant’s case.  On 2 September 2004, after completing its review of the
evidence and testimony presented in the case, the BOI found that the
command climate of the applicant’s unit was not conducive to good order and
discipline, which induced poor self-discipline.  The BOI also found the
preponderance of evidence principally reflected poor leadership and
judgment on the part of the applicant, vice issues of sexual harassment.

10.  Regarding the conduct of the Army Regulation 15-6 investigation
conducted on the applicant, the BOI found the investigating officer
completed it to the best of her ability.  However, it was done in just 29
hours and the applicant did not receive due process, particularly with
regard to being afforded legal advice, the timing of that advice, the
location of that advice, and the subsequent impact prior to Article 15
proceedings.  The BOI finally recommended the applicant’s retention.

11.  On 14 October 2004, the CG, United States Army Air Defense Artillery
Center and Fort Bliss, based on the recommendation of the BOI, closed the
elimination proceedings on the applicant.
12.  On 30 November 2004, the applicant petitioned the DASEB requesting the
Article 15 and GOMOR in question be removed from his OMPF.  The applicant
based his request on the conclusions of the BOI and IG that he was not
guilty of sexual harassment, which was the underlying misconduct that
formed the basis for the Article 15 and GOMOR.

13.  On 11 January 2005, the President of DASEB notified the applicant that
his appeal was being returned without action.  He indicated that under the
governing regulation, the DASEB could not accept appeals requesting removal
of those documents that have their own regulatory appeals authority such as
Article 15.  He informed the applicant the appeal process for Article 15
orders is adjudicated by the Army Board for Correction of Military Records
(ABCMR).  He further indicated his appeal for removal of the GOMOR would
also not be considered by the DASEB because it was the result of punishment
imposed by the Article 15.

14.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files; to ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files; and to ensure that the
best interests of both the Army and the Soldiers are served by authorizing
unfavorable information to be placed in and, when appropriate, removed from
official personnel files.

15.  Paragraph 7-2 of the unfavorable information regulation contains
guidance on appeals for removal of OMPF entries.  It states, in pertinent
part, the burden of proof to support removal of a document filed in the
OMPF 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.

16.  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.  Paragraph 3-43 of the military
justice regulation contains guidance on the transfer or removal of records
of nonjudicial punishment (DA Form 2627) 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 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 contention that the Article 15 and GOMOR he received
for sexual harassment offenses should be removed from his OMPF because
subsequent evidence has confirmed he did not commit these offenses was
carefully considered and found to have merit.

2.  The evidence of record includes the findings of a properly constituted
BOI that found that the preponderance of evidence principally reflected
poor leadership and judgment on the part of the applicant; however, the BOI
concluded the applicant did not commit the sexual harassment offenses that
were the basis for the Article 15 and GOMOR in question.

3.  By regulation, there must be clear and convincing evidence of an error
or injustice to support removal of a properly completed, facially valid DA
Form 2627 from a Soldier’s record by the ABCMR.  The review completed by an
ARBA assistant legal advisor and the BOI findings satisfy the clear and
compelling evidence regulatory standard.  Therefore, in the interest of
justice and equity, it would be appropriate to remove the Article 15 and
GOMOR in question from the applicant’s OMPF at this time.

4.  Further, while the applicant did not ask that the Article 15 be
declared improper and voided, the evidence in this case clearly challenges
the validity of the underlying action upon which the Article 15 was based.
Therefore, it would serve in the interest of equity and justice to place
the applicant in the position he would be in had the Article 15 never
happened by setting aside the Article 15 and returning to him the $3006.00
pay he was required to forfeit.

BOARD VOTE:

___IJ ___  __JPP  __  __EEM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by setting aside the 1 June 2003 Article 15; and removing the DA
Form 2627 and General Officer Memorandum of Reprimand from his OMPF.


2.  That the Defense Finance and Accounting Service return to him the
$3006.00 pay forfeiture that resulted from the now set-aside 1 July 2003
Article 15.




            ____John Infante________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002359                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/23                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |126.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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