IN THE CASE OF: BOARD DATE: 29 October 2014 DOCKET NUMBER: AR20130021123 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)), and any associated documents from the restricted folder of his official military personnel file (OMPF). 2. The applicant states: * there is evidence which demonstrates a clear injustice, unlawful command influence, and leadership hindering the Article 15 proceedings * the investigating officer took comments out of context from the allegedly "hazed" Soldier and used them against him * Army Regulation 600-20 (Army Command Policy) defines hazing as conduct both unnecessary as well as "cruel, abusive, oppressive, or harmful" * the allegedly "hazed" Soldier was 100 pounds overweight and making him run was necessary, considerate, good, and helpful to his well being and the readiness of the unit * the intended purpose of the Article 15 has been served and it is in the best interest of the Army to remove it from his records * unprofessional comments by the U.S. Army Europe (USAREUR) Commanding General before any trial and/or Article 15 proceedings had taken place are evidence of unlawful command influence * the Soldier who initiated the complaint was called "courageous" by the USAREUR Commanding General * this same Soldier went to a court-martial trial with those he accused of hazing and he admitted to lying and all the charges were dropped * he believes that had he gone to court-martial trial, his case would have been thrown out as well * the brigade commander pressured the deputy brigade commander not to speak on his behalf at his Article 15 proceedings even though he desired to speak * he invoked his right to remain silent during the Article 15 proceedings because he did not want to incriminate himself or his fellow unit members because he knew the hazing investigations were false to begin with * he is the pastor at two local churches in his hometown, he recently finished his seminary degree, and he is finishing up the requirements to become a chaplain in the Army * it will be impossible to become a chaplain in the Army with the Article 15 in his records * his latest officer evaluation report (OER) shows he planned to initiate a branch transfer to the Chaplain Corps and he should be afforded the opportunity to do so at the earliest possible time 3. The applicant provides: * self-authored statements * letter of endorsement, dated 19 March 2012 * letter of recommendation, dated 22 March 2013 * character reference letter, dated 25 March 2013 * sworn statement, dated 1 September 2012 * two memoranda from counsel, dated 5 and 30 April 2012 * biography * DA Form 67-9 (OER) for the period 2 August 2012 through 1 August 2013 * email * Army Times extracts * Department of the Army Suitability Evaluation Board (DASEB) request package, dated 19 November 2013 CONSIDERATION OF EVIDENCE: 1. After having a prior period of enlisted service in the Army National Guard (ARNG), the applicant was appointed as a Reserve commissioned officer in the ARNG in the rank/grade of second lieutenant on 17 March 2007. 2. On 14 August 2009, he was promoted to first lieutenant and he is presently serving in the Georgia ARNG (GAARNG) in the rank of captain. 3. On 1 October 2011, he was ordered to active duty and he was deployed to Camp Bondsteel, Kosovo, on 31 October 2011, in support of Operation Joint Guardian. 4. In February 2012, a Soldier in the applicant's unit filed a complaint that led to an investigation by the U.S. Army Criminal Investigation Command (CID). The results of this investigation led to the investigation of the applicant and several other officers and noncommissioned officers (NCOs) in his unit. The investigation report pertaining to the applicant is not available for review and he does not provide a copy. 5. On 5 March 2012, comments from the USAREUR Commanding General appeared on the front page of the Army Times, which quotes the general’s reference to "frat house jackassery" and notes "17 leaders yanked for hazing." He went on to refer to "flat-out abuse," "poor leadership," and noted that "[t]his wasn't training. It was a rite of initiation." He also stated that young officers "were obviously caught up in what their NCO's were doing." He further stated that "[t]his was not just linked to some good old Georgia boys who are trying to be tougher, this is a problem I think we have to address in our Army." 6. On 14 March 2012, the applicant was notified of his commander's intent to impose nonjudicial punishment (NJP) under the provisions of Article 15 for: * violating a lawful general regulation by wrongfully exposing another Soldier to cruel and abusive activities on or about 1 October and 1 November 2011 * wrongfully and dishonorably contributing to a hazing ritual against members of his detachment between on or about 1 October and 1 November 2011 7. The applicant was advised of his rights and provided information on legal counsel. 8. On 1 April 2012, the applicant provided a personal statement to the imposing authority, the Commanding General, Headquarters, 21st Theater Sustainment Command. The applicant took responsibility for his actions and he acknowledged exercising poor judgment while living in close quarters with other Soldiers. His statement does not mention unlawful command influence or the comments from the USAREUR Commanding General in the Army Times article. 9. On 5 April 2012, counsel for the applicant provided comments to the imposing authority regarding terminating his Article 15 proceedings. Counsel stated, in part: * the applicant's actions did not constitute hazing or a hazing ritual in accordance with the governing Army regulation * the applicant also directed other Soldiers to conduct remedial physical training (PT) because they either failed the Army Physical Fitness Test (APFT) or fell out of unit runs * the Soldiers were allowed to take water breaks and run at their own pace and distance * all accounts concerning the remedial PT are in agreement that it was supervised * the allegedly "hazed" Soldier notes the applicant "did leave other members of the platoon in place to keep track of the number of laps he was running and to make sure nothing happened…" * minor transgressions based on ignorance should not be the basis of terminating an otherwise impeccable officer's career and he should not be unnecessarily scapegoated to appease outsiders * the CID hastily conducted the investigation, did not gather all the facts, and did not ask the specific details that would have placed the events in the proper context 10. On 25 April 2012, the applicant accepted NJP under the provisions of Article 15, UCMJ, for: * violating a lawful general regulation by wrongfully exposing another Soldier to cruel and abusive activities on or about 1 October and 1 November 2011 * wrongfully and dishonorably contributed to a hazing ritual against members of his detachment between on or about 1 October and 1 November 2011 11. The imposing official directed filing the Article 15 in the restricted folder of the applicant's records and imposition of a written reprimand. 12. On 30 April 2012, the senior defense counsel for the applicant submitted statements on behalf of the applicant. Counsel stated, in part: a. The applicant's actions did not violate the UCMJ because they did not rise to the level of hazing as defined by the regulation. Therefore, the applicant should be found not guilty. b. Due to comments made by the USAREUR Commanding General, no immediate superior authority was reasonably available and the staff judge advocate should conduct the appeal. The USAREUR Commanding General created the appearance of bias and tainted the applicant's Article 15 proceedings. Both the imposing commander and the listed "next superior authority" were subordinate to the USAREUR Commanding General. As a result, a neutral and unbiased person, free of taint of the USAREUR Commanding General's comments, should conduct and take action on the appeal. c. Principles of unlawful command influence were applicable in the applicant's case. The perception existed that the applicant did not get a full and impartial Article 15 hearing due to the comments made by the USAREUR Commanding General. Since he already found the applicant and other "good old Georgia boys" guilty in the media, it is was no surprise that a subordinate commander "addressed the problem in our Army" and erroneously found the applicant guilty. d. It appears the brigade deputy commander may have been discouraged from submitting a letter of support on behalf of the applicant. This added to the perception that the Article 15 process was "rigged" and should have been reviewed by someone totally independent of the situation. e. It appears the brigade commander inappropriately commented on the applicant's right to remain silent during the Article 15 hearing and no one informed the Commander, 21st Theater Sustainment Command, that the comment should not have been considered. Specifically, the brigade commander stated, "I would just like to point out that when [applicant] was given the opportunity to help get rid of the hazing problem in his old unit he decided to remain quiet and not participate in the CID investigation" or words to that affect. 13. On 14 May 2012, the applicant was reprimanded in writing by the imposing authority for: * wrongfully ordering a Soldier to make his bed and pick up trash that he had purposely tossed on the ground * wrongfully ordering him to run 100 laps around his building without proper supervision until the point of dehydration 14. The General Officer Memorandum of Reprimand (GOMOR) was imposed as NJP under Article 15, UCMJ, and stated, in part: Your wrongful and dishonorable contributions to a hazing ritual against members of your detachment were degrading to the individuals involved and affected the unit's mission readiness. 15. On 29 June 2012, the USAREUR Staff Judge Advocate determined the Article 15 proceedings were conducted in accordance with law and regulation and the NJP imposed was neither unjust nor disproportionate to the offense committed. 16. On 9 February 2014, the GAARNG concurred with the applicant's request for removal of his Article 15. The Officer Personnel Branch Chief stated, in part: a. Army Regulation 600-20, paragraph 4-20a(2), specifies that remedial PT is not considered hazing unless it is "unnecessarily cruel, abusive, oppressive, or harmful." The evidence presented in this case shows the remedial PT was none of the above and, therefore, was not hazing. b. The Soldier who was reported as being hazed was contacted by telephone and he verified he did indeed write the letter of endorsement in support of the applicant. c. Due to the media exposure the case received during the highly-publicized "hunt for hazing" in the Army, this concurrence was vetted to the GAARNG Commanding General who concurs with removal of the GOMOR. d. Comments on an open investigation by the USAREUR Commanding General prior to the close of the report caused undue command influence for any officer under his command regarding any possible cause of hazing. The applicant was convicted before being tried and he should have been afforded the full opportunities available to him instead of the punishment being rapidly forced upon him to show an aggressive policy of the Army against hazing. The email chain clearly shows there was undue command influence based on the fact that a U.S. Army colonel would not write a letter on the applicant's behalf simply because of a "conflict of interest." 17. On 24 February 2014, the National Guard Bureau (NGB) provided an advisory opinion. The Personnel Policy Division Chief recommended approval of the applicant's request and stated: a. The applicant received an Article 15 while deployed to Kosovo with the GAARNG in 2012. He was accused of hazing an enlisted Soldier. He ordered another infantry Soldier, who was 100 pounds overweight at the time, to do remedial PT. As a result of the remedial PT plan, the individual improved as a Soldier from being 100 pounds overweight and failing the APFT to losing 70 pounds and finally passing the APFT. This accomplishment contributed to the individual becoming eligible for promotion to specialist. b. There is no evidence that this remedial PT plan was approved by anyone higher than the applicant, but every leader is responsible for the welfare and readiness of his team or unit. PT is led at the lowest level and does not need battalion or higher-level approval. The actions of the applicant not only improved the unit's readiness, but also helped this individual improve his livelihood by helping him pass the APFT and getting promoted. c. The applicant is a full-time pastor and he recently completed seminary training. His desire is to become an Army chaplain. Even though this Article 15 is in his restricted folder, it can be a hindrance in accomplishing this goal. The senior rater from the applicant's latest OER and two senior chaplains with whom he served have highly recommended him for the Chaplain Corps. They have also advocated on his behalf for not receiving the Article 15. d. The GAARNG concurs with this recommendation. 18. On 24 February 2014, a copy of the advisory opinion was provided to the applicant for an opportunity to respond; however, a response was not received by the suspense date. 19. The applicant provided self-authored statements and letters of endorsement, recommendation, and character references. He also provided: * a sworn statement describing events leading up to his investigation and receipt of the Article 15 and GOMOR * counsel's responses to his Article 15 * his biography describing his accomplishments up to 1 November 2013 * his OER for the period ending 1 August 2013 that shows his desire and potential to serve as a chaplain * email regarding the deputy brigade commander's view * extracts of the 5 March 2012 Army Times articles featuring the USAREUR Commanding General and hazing * his appeal to the DASEB, dated 19 November 2013 20. The Manual for Courts-Martial – United States, part II (Rules for Courts-Martial), rule 104 (Unlawful Command Influence), paragraph (a)(1), states no convening authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings. Paragraph (a)(2) states no person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority's judicial acts. 21. Army Regulation 27-10 (Military Justice) provides the policies for administration of NJP: a. Paragraph 3-2 states that NJP may be imposed to correct, educate, and reform offenders whom 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; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627. Absent compelling evidence, a properly-completed and valid DA Form 2627 will not be removed from a Soldier's record. b. Paragraph 3-18 (Notification and Explanation of Rights) states, in part, the Soldier will be informed of the right to consult with counsel and the location of counsel. For the purpose of this chapter, counsel means the following: a judge advocate, a Department of Army civilian attorney, or an officer who is a member of the bar of a Federal court or of the highest court of a State, provided that counsel within the last two categories are acting under the supervision of either U.S. Army Trial Defense Services or a staff or command judge advocate. DISCUSSION AND CONCLUSIONS: 1. The applicant received an Article 15 on 25 April 2012. His punishment consisted of a GOMOR, dated 14 May 2012. 2. He contends his actions did not rise to the level of hazing and that unlawful command influence, unprofessional comments, and comments regarding exercising his right to remain silent contributed to his receipt of the Article 15 and GOMOR and created a clear injustice. 3. The opinions of the NGB and GAARNG are noted. 4. Unfortunately, the applicant has not provided sufficient evidence, in particular, the complete investigation upon which his Article 15 was based, to allow for a thorough examination of his allegations to determine if error exists and if so, whether any errors were harmful. 5. The evidence of record shows the imposing authority for his Article 15 and its related punishment of a GOMOR directed its filing in the restricted folder of his OMPF. The documents were filed in his OMPF in accordance with applicable regulations after the applicant was provided the opportunity to rebut the proposed action. The imposing authority made the final determination for filing the documents in the applicant's OMPF at his own discretion after weighing all the evidence. 6. The applicant has not provided sufficient evidence showing the Article 15 and associated GOMOR were improper or unjust. Accordingly, there is no basis for granting the requested relief. 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) AR20130021123 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130021123 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1