IN THE CASE OF: BOARD DATE: 17 October 2013 DOCKET NUMBER: AR20130015629 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 removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 6 May 2012, from the restricted section of his Army Military Human Resource Record (AMHRR). 2. The applicant states the imposition of the Article 15 and the ensuing punishment resulted in a clear injustice. The Article 15 found him guilty of assault consummated by battery. A review of the facts and circumstances surrounding this incident will show that he is not guilty of the charge. He used no unlawful force. His actions as a (squadron) commander were authorized and expected under the circumstances. His intentions were not to harm but to lower a camera that was capturing images of two officers in uniform engaged in inappropriate and sensational behavior. Additionally, a 3-member Show Cause Board found no evidence of misconduct. This board found the allegations of derogatory activity resulting in a referred Officer Evaluation Report (OER) and the allegation of conduct unbecoming an officer were not supported by the preponderance of the evidence. If bodily harm is inflicted unintentionally and without culpable negligence, there is no battery. 3. The applicant provides: * Contested Article 15 * DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers), with findings and recommendations * Summarized Record of Board of Inquiry * General Officer Memorandum of Reprimand (GOMOR) * General Officer Punitive Letter of Reprimand * Relief for Cause Memorandum * A 31-page self-authored statement * A binder consisting of 41 enclosures, including: * GO letter of recommendation to National War College * GO letter of congratulations * X-ray report * Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) findings and recommendations * Hospital after care instructions * Law memorandum of a captain * Multiple sworn statements of various military personnel * Multiple verbatim testimonies or affidavits of various military personnel * Multiple character reference letters * Multiple legal arguments from attorneys * Multiple email, blogs, and Facebook comments * Multiple press releases/newspaper articles * Other enclosures, articles, and documents COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel did not make a statement, an argument, or provide additional evidence. However, on 10 October 2013, counsel submitted a brief, as follows, and requested the applicant personally appear before the Board. Counsel states: a. The applicant received an Article 15 on 4 June 2012. The Commander, 10th Mountain Division, Fort Drum, NY was the commander who made the determination of guilt in the matter. However, he did not conduct the hearing in a fair and impartial manner. His determination was made on an incomplete investigation and involved outside influence by matters not within the scope of the investigation. Furthermore, his focus was on the "breaking" of the "victim’s" nose. It was determined by the medical treatment facility and the Soldier’s unit physician’s assistant that the “victim” did not have a broken nose. The Soldier was cleared for all duty less than 36 hours after the incident. b. A Show Cause Board was held at the Office of the Staff Advocate, Military District of Washington on 9 July 2013. The board, consisting of two colonels and one lieutenant colonel (LTC) found the allegation of derogatory activity resulting in a referred OER and the allegation of conduct unbecoming an officer in the notification of proposed separation were not supported by a preponderance of the evidence. This was after the board heard testimony from multiple witnesses to the events which formed the basis of the Article 15. Essentially, the board overturned the findings of the Commander, 10th Mountain Division, unfounded the misconduct, and recommended the applicant be retained on active duty. c. The applicant did not commit assault consummated by battery as was determined by the Commander of the 10th Mountain Division. As the board reviews Article 128 and the facts as presented at the Show Cause Board, the Board will clearly see that the applicant's actions did not meet the elements of this charge. Furthermore, within the definition of what does not constitute battery, it states "if bodily harm is inflicted unintentionally and without culpable negligence, there is no battery." The Soldier himself is on record stating that he did not believe the applicant's actions were done with the intent to assault him and that the applicant's actions were done in an effort to prevent him from taking photographs. 2. On 15 October 2013, counsel provided a memorandum reiterating the above contentions. CONSIDERATION OF EVIDENCE: 1. The applicant is currently a Regular Army (RA) aviation LTC. He was appointed as an RA commissioned officer and entered active duty on 19 June 1992. 2. He has served in various staff and leadership positions in a variety of stateside or overseas assignments and he was promoted to LTC on 1 April 2009. He was assigned as the Squadron Commander, 6th Squadron, 6th Cavalry (Task Force (TF), 10th Combat Aviation Brigade (CAB), 10th Mountain Division, Fort Drum, NY. 3. On 18 April 2012, an IO was appointed by the Commanding General (CG), 10th Mountain Division to investigate the circumstances surrounding an incident that occurred during a unit function. In his AR 15-6 investigation, dated 4 May 2012, the IO provided facts, findings, and recommendations, as follows: a. On 14 April 2012, 6th Squadron, 6th Cavalry held a ball at Fort Dum, NY, that began at 1700 hours and ended after 0000 hours on 15 April 2012. Around 2300 hours, an officer alerted the applicant of what he believed to be inappropriate behavior on the dance floor. He witnessed two female officers, Captain (CPT) KR and Second Lieutenant (2LT) HP, dancing together, "making out," and being the subject of various photographers. The applicant approached two Soldiers holding cameras, First Lieutenant (1LT) JH and specialist (SPC) JR. The applicant attempted to take away SPC JR's camera and in his attempt, he knocked the camera into SPC JR's face. The Soldier needed medical attention as he stained a fractured nose and a concussion. He then attempted to take 1LT JH's camera away while questioning him why he was taking pictures. The 1LT replied that he did not understand the concern as he was taking pictures of his commander and her husband. The applicant later apologized to the SPC and admitted his actions were wrong and that he was concerned that someone may publish the pictures without the Soldiers' permission. b. The IO found, in pertinent part, sufficient evidence that: * the applicant pushed a camera held by SPC JR into his face with enough force to fracture his nose, an assault consummated by battery * the applicant probably engaged in obstructions of justice by encouraging CPT KR not to report the incident outside the Squadron * alcohol was potentially a contributing factor in the incident between the applicant, SPC JR, and CPT KR * the applicant updated his chain of command of the incident * the applicant (and his command sergeant major (CSM)) singled out CPT KR and 2LT HP, thus violating the "Don't ask, Don't tell' policy c. The IO recommended, in pertinent part, the applicant receive an Article 15 for the offense of assault consummated by a battery. 4. On 6 May 2012, the CG, 10th Mountain Division, notified the applicant that he was considering whether he should be punished under Article 15 of the UCMJ for the following misconduct: * unlawfully striking SPC JR on his face with either his hands or a camera which he pushed into his face * being disorderly while in uniform, to the disgrace of the armed forces * wrongfully endeavor to influence the actions of CPT KR, a victim of assault by the Squadron CSM, by calling her and discouraging her from filing a complaint with the Military Police regarding said misconduct 5. On 30 May 2012, at a closed hearing, the applicant declined trial by a court-martial. He was found guilty of one charge and accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for unlawfully striking SPC JR on his face with a camera which he pushed into his face. The imposing officer dismissed the second charge of being disorderly and found the applicant not guilty of the third charge of endeavoring to influence the actions of CPT KR. 6. On 4 June 2012, the CG imposed no punishment other than imposition of the Article 15 filed in the restricted section of the applicant's AMHRR. 7. Also on 4 June 2012, a series of actions took place. The applicant was relieved from command, received an administrative GOMOR, and a punitive letter of reprimand. 8. On 8 July 2012, the applicant appealed to the CG, Forces Command (FORSCOM). After reviewing the applicant's case and finding the proceedings were conducted in accordance with law and regulation, the CG, FORSCOM denied his appeal on 29 June 2012. The applicant acknowledged notification of this denial on 10 August 2012. 9. On 19 July 2013, an administrative elimination board convened at the Military District of Washington to determine if the applicant should be separated for misconduct, moral or professional dereliction. After considering the evidence before it, the board found the allegations of derogatory activity resulting in a referred OER and the allegation of conduct unbecoming an officer were not supported by the preponderance of the evidence. The board recommended the applicant be retained on active duty. 10. A review of his AMHRR reveals that the contested DA Form 2627 together with the allied documents is, in fact, filed in the restricted section of his AMHRR. 11. The applicant provides: a. A letter, dated 19 September 2011, from the imposing officer, prior to the Article 15, recommending the applicant for selection to the National War College. b. A letter, dated 1 April 2012, also from the imposing officer, prior to the Article 15, for his unit being recognized as the Active Aviation Unit of the Year for 2011 by the Army Aviation Association of America. c. Emergency Department Encounter Note, dated 15 April 2012, showing SPC JR was treated for an altercation with face and neck pain, and a Hospital After Care Instruction sheet, dated 15 April 2012 for SPC JR. d. A 31-page self-authored statement wherein he essentially argues that he is not guilty of the assault charge. e. Multiple sworn statements of various military personnel; multiple verbatim testimonies or affidavits of various military personnel; multiple character reference letters, multiple legal arguments from attorneys; multiple emails, blogs, Facebook comments; multiple press release/newspaper articles; and other enclosures, articles, and documents, pertaining to the incident. 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. It provides 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. a. Paragraph 3-6 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 AMHRR 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. b. Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR. The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR 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. c. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR. It states that applications for removal of an Article 15 from the AMHRR 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. 13. AR 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR. The naming convention AMHRR replaces the official military personnel file (OMPF). Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR. a. Paragraph 2-3 (Composition of the AMHRR) of AR 600-8-104 provides that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this section is controlled. It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent. This paragraph also provides that documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. b. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the AMHRR and/or the interactive Personnel Electronic Records Management System. Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627. 14. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant violated the UCMJ while serving as an LTC, in a leadership position and subsequently accepted NJP on 4 June 2012 for unlawfully striking a Soldier on his face with a camera which he pushed into his face. The imposing commander directed filing the Article 15 in the restricted section of his AMHRR. This is where the subject Article 15 is currently filed. 2. 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 ABCMR 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. The applicant further appealed this Article 15 to the next higher commander and his appeal was denied. 3. The administrative separation board was not tasked to determine his guilt or innocence. It was held to determine if he should be separated. The fact that members of the administrative separation board found the allegations of derogatory activity resulting in a referred OER and the allegation of conduct unbecoming an officer were not supported by the preponderance of the evidence does not mean the imposing officer and - the person with the UCMJ authority -erred or committed an error. These are two separate actions and one does not negate the other. 4. His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of his AMHRR as directed by the imposing commander. There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust. In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 6. In the absence of an error or an injustice, there is no reason to remove it from his records. 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) AR20130015629 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130015629 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1