IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150014648 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150014648 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20150008448, dated 4 August 2015. ______________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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150014648 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: The applicant defers his request, statement, and evidence to his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's previous request to remove the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 August 2014, from his official military personnel file (OMPF). 2. Counsel states, in effect, he is providing a new argument and new evidence that were not previously considered. 3. Counsel provides: * DA Form 1574 (Report of Proceedings by Investigation Officer (IO)/Board of Officers * two pages titled Verbatim Findings and Recommendation * 28 pages titled Administrative Separation Board (Summarized Transcript) 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 AR20150008448 on 4 August 2015. 2. As a new argument, counsel states: a. The Board's decision to deny the applicant's [initial] request was clearly in error and not supported by the most recent evidence previously provided to the ABCMR. b. The applicant, a staff sergeant (SSG)/E-6 and now a sergeant (SGT)/E-5 as a result of the incorrect nonjudicial punishment (NJP) proceedings, was found by a board of officers, convened under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, not to have committed the misconduct which was the same subject of the NJP which resulted in his reduction in rank and referral to an involuntary separation action. c. In the initial consideration of his request, no mention was made of the favorable findings and recommendations of the board. 3. As new evidence, counsel provides DA Form 1574, dated 24 January 2015, wherein it shows an administrative separation board convened on that date to review records and hear testimony to recommend whether the applicant should be retained on active duty or recommended for separation (emphasis added). a. The board found the applicant did not maltreat Specialist (SPC) SW between 1 April 2013 and 11 July 2013 by deliberately sending unwelcomed text messages and bringing her flowers, and creating a hostile work environment. The board also found the applicant did not maltreat SPC YL by deliberately sending her unwelcomed text messages of a sexual nature. b. The board recommended the applicant be retained in the Army. The approving authority approved the findings and recommendation of the board. 4. As new evidence, counsel also provides the administrative separation board summarized transcript, wherein it shows in part: a. SPC SW testified before the board that she checked into the unit on 6 March 2013, the applicant had been her platoon sergeant, and he was the senior medic. She had raised issues with the applicant to the command that concerned inappropriate texts, a visit he made to her house, and issues at work. (1) The text messages were like, "can I see you; can I come over; and can we do lunch?" The messages made her feel uncomfortable. He came to her house and delivered flowers, went in, and they sat and talked. When he delivered the flowers, she thought they were from the section and were because she was a single mom going through some things at the time. He wanted to go in [her house] and did not leave. After he went in, she became uncomfortable and did ask him to stop. (2) She received advice from a friend so she sent the applicant a message telling him that she appreciated everything he had done but that she felt uncomfortable. She stated that if it stopped, she would not report it or do anything. She had two children, was a single parent, and the applicant was aware of her circumstances. At the time, her children's father took a lot of money out of her account. She let the command know and talked to the first sergeant (1SG). He (the 1SG) was tracking everything that she was going through with her children's father. (3) She was not a heartless person and believed people make mistakes. She did think it was harsh to push the applicant out of the Army because he did have children to support. b. Ms. YL, formerly SPC YL, testified that: (1) She knew the applicant when he was the battalion medic and he was in her battery when she was a private (PV1) to SPC. He made a sexual advance towards her once when they were at a unit barbecue at his house and everyone was drinking; the next day he apologized. He also sent her text messages that were inappropriate. She was interviewed by First Lieutenant (1LT) M and provided him the text messages. (2) He messed up; everyone makes mistakes. She did not feel that he should be separated; he was drinking alcohol and things got out of hand. She did think that being separated was kind of harsh. c. The board found: (1) There was insufficient evidence to support a finding that the applicant did, between on or about 1 April 2013 and 11 July 2014 [i.e. 2013], maltreat SPC SW by deliberately sending unwelcomed text messages and bringing her flowers, and creating a hostile work environment. This finding did not warrant separation. (2) There was insufficient evidence to support a finding that the applicant did, between on or about 1 April 2014 and 31 July 2014, maltreat SPC YL by deliberately sending her unwelcomed text messages of a sexual nature. This finding did now warrant separation. (3) In view of the findings, the board recommended the applicant be retained in the Army. 5. The applicant is a Regular Army Soldier. On 1 November 2010, he was promoted to SSG. In 2013, he was serving in Headquarters and Headquarters Battery (HHB), 3rd Battalion (BN), 3rd Field Artillery Regiment (FAR), Fort Bragg, NC, as the Medical Section Chief. 6. In August 2014, his BN commander (CDR) directed he be relieved for cause from his duties based on a substantiated Sexual Harassment/Assault Response and Prevention (SHARP) complaint against him that found he failed to foster a climate of dignity, respect, and adherence to the SHARP Program. 7. On 11 August 2014, based on the results of a commander's inquiry, he was notified by his BN CDR that he was considering taking action against him under the provisions of Article 15, UCMJ, for misconduct for one specification each: a. Maltreating SPC SW on divers occasions between on or about 1 April 2013 to 11 July 2013, a person subject to his orders, by deliberately and repeatedly sending her unwelcomed text messages and taking her flowers; such conduct constituted a hostile work environment. b. Maltreating SPC YL between on or about 1 April 2014 and 31 July 2014, a person subject to his orders, by deliberately sending her unwelcomed text messages of a sexual nature. 8. On 18 August 2014, the applicant indicated he had been afforded the opportunity to consult with counsel and understood his rights. He elected not to demand trial by court-martial and requested a closed hearing. He further stated that he did not want a person to speak on his behalf and he would present matters in defense, extenuation, and mitigation. 9. On 18 August 2014, the imposing CDR found the applicant guilty of both specifications and directed filing the DA Form 2627 in the performance folder of his OMPF. The punishment imposed was forfeiture of $1,817.00 pay, extra duty for 45 days, and an oral reprimand. 10. On 18 August 2014, the applicant appealed the Article 15 and on 28 August 2014 his appeal was denied. The DA Form 2627 is currently filed in the performance folder of his OMPF. 11. In November 2014, he received a relief for cause Noncommissioned Officer Evaluation Report (NCOER) covering 10 months of rated time for the period 28 October 2013 through 21 August 2014, for his duties while serving as the Medical Section Chief, HHB, 3rd BN, 321st FAR. The DA Form 2166-8 (NCOER) shows, in part: a. His rater checked the "No" blocks of the Army Values of "Respect/Equal Opportunity (EO)/Equal Employment Opportunity (EEO)" and "Honor" and entered the corresponding bullet comments, "violated the Army's SHARP policy" and "demonstrated poor judgment without consideration of results." b. His rater checked the "Needs Improvement, Some" block of Part IVd (Leadership) and entered the corresponding bullet comment, "failed to establish a workplace that fostered dignity and respect for all Soldiers; resulted in a substantiated SHARP incident during the rated period." 12. The applicant is currently serving on active duty in the rank of SSG. There is no evidence in his record that shows he was ever reduced to the rank of SGT after being promoted to SSG on 1 November 2010. REFERENCES: 1. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice under the provisions of Article 15, UCMJ. a. Paragraph 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. b. Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside. It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means there is an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. c. Paragraph 3-37b(1)(a) states the decision whether to file a record of NJP in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed. d. Paragraph 3-43 states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. 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. 2. AR 600-8-104 (Army Military Human Resource Records Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. It provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Table B-1 (Authorized Documents) shows the DA Form 2627 will be filed in either the performance or the restricted folder of the OMPF as directed by the imposing commander. DISCUSSION: 1. The evidence of record shows on 18 August 2014 the applicant, a SSG, accepted NJP under the provisions of Article 15, UCMJ, in lieu of trial by court-martial for misconduct for maltreating two subordinate SPCs by sending inappropriate and/or sexual texts, and taking one of the SPC flowers; thus creating a hostile work environment. The punishment imposed was forfeiture of pay, extra duty, and an oral reprimand. The imposing commander directed the Article 15 be filed in the performance folder of his OMPF. He subsequently appealed the NJP and his appeal was denied. 2. The evidence of record confirms his NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the performance folder of his OMPF as directed by the imposing commander. 3. The Army has an interest in maintaining the integrity of its records. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. 4. The fact that in January 2015 an administration separation board convened and, despite testimony to the contrary by SPC SW and SPC YL, found there was insufficient evidence to support a finding that the applicant had maltreated either SPC and recommended he be retained on active duty, is noted. However, the purpose of the administrative separation board was to give him a fair and impartial hearing to determine if he should be retained in the Army. The board recommendations were limited to either retention or elimination and its findings had no bearing on whether he was guilty of misconduct for maltreating the SPCs. 5. By regulation, once filed in the OMPF, a DA Form 2627 will not be removed from or moved to another folder unless directed by an appropriate authority to include this Board. In order to support removal of a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. The evidence of record does not show and the applicant's counsel has not provided any evidence that shows the Article 15 is untrue, unjust, or warranted removal from his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014648 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014648 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2