IN THE CASE OF: BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017789 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: 20 April 2017 DOCKET NUMBER: AR20150017789 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 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. IN THE CASE OF: BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017789 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. All derogatory information pertaining to nonjudicial punishment (NJP) under the provisions (UP) of Article 15, Uniform Code of Military Justice (UCMJ), and separation proceedings (to include counseling, Noncommisioned Officer Evaluaiton Report (NCOER), flags, etc.) be rescinded and removed from his military records. b. Promotion to master sergeant (MSG/E-8). c. Reinstatement to active duty with constructive credit for all time lost and retroactive pay, allowances, and entitlements. 2. The applicant states: a. Commanders at all levels acted in an arbitrary and capricious manner by not following Army regulations (AR), protocol or reasonable leadership in administering non-judicial punishment and separation proceedings under AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph I4-l2c. b. AR 600-20 (Army Command Policy), specifically states in these type of investigations there is a "Requested Remedy" from the complainant. lt is on record that the Government agreed (stipulated) during the Separation Board that Sergeant (SGT) T____ S____, Specialist (SPC) J____ H____ and SPC A____ C____ stated l should be retained in the U. S. Army. c. SPC A____ C____ admitted on the record during the court-martial US v. Sergeant First Class (SFC) M____ F____, she only made an allegation in order to circumvent punishment for being insubordinate. During the same court-martial she also stated that her expectations had already been met. d. AR 600-20, Appendix D-1 (5), states that a Soldier has 60 days to file a complaint. All text message communication between SPC A____ C____ and the applicant happened during 2012 (ending in December 2012). He arrived to Fort Campbell December 2011. The text messages are in chronological order starting with 1841 and ending with 4773. Text messages 1905-1916 talk about a leave form for then SFC R____ S____. This is on/about April/May 2012. He deployed to Afghanistan in May 2013 as well as SFC R____ S____. It defies logic to talk to SPC C____ about leave for SFC S____ in the July time frame if they were both deployed (SPC C____ did not deploy). Text messages 4139-4742 talk about Staff Sergeant (SSG) D____ K____. SSG K____ went on terminal leave January 2013 and retired on 30 April 2013. The final text message between SPC C____ and the applicant was December 2012. e. The statement by SPC S____ D____ was a total fabrication as shown by her being unavailable for his attorney to question her before or during the separation board. f. SPC A____ L____ and PV2 E____ O____ both stated that while in close proximity (L____ seated to his left and O____ seated to SGT S____’s right) they did not see him touching her leg or any other disturbance besides them laughing and talking to each other. g. CPT T____ D____ made numerous false or highly inaccurate statements for "shock value" only. His statements were prejudicial, biased, and self-serving with no probative value other than to sway the thoughts of the board members. The statement that he gave out nearly a dozen "no­ contact" orders is false, as there is only evidence he gave out three (to SFC F____, SPC N____ and the applicant). This is evident because SPC C____ stated she was still in contact with SPC H____ through Facebook. Also, his statement that he signed the applicant's NCOER after knowing him for forty days is contrary to the fact he signed my NCOER in February 2013 (with his arrival to the unit in September 2013, over 120 days). He also stated the applicant was of no value to the Army even though he was continually placed in charge of missions and tasks for the unit as evidenced by the additional duty of Battalion Combined Federal Campaign representative. 3. The applicant provides copies of: * separation board proceedings * excerpts from AR 600-20 * excerpts from U.S. vs. SFC M____ F____ * text message printout * excerpts from PV2 E____ O____'s statement * excerpts from SPC A____ L____'s statement * excerpts from SPC A____ C____'s statement * DA Form 4856 (Developmental Counseling Form (no contact order)) * printout of recoupment ($30,000 reenlistment bonus) * memorandum standby advisory board * DA Form 2166-8 (NCOER) * memorandum of estimated retirement benefits * memorandum of additional duty appointment * copy of SSG D____ K____'s retirement certificate CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the United States Army Reserve (USAR), Delayed Entry Program (DEP) on 9 April 1997. He was discharged from the DEP and enlisted in the Regular Army (RA) on 30 July 1997. He completed training and was awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic). 3. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Iraq and Afghanistan. He was promoted to sergeant first class (SFC/E-7) on 1 March 2006. 4. The applicant’s request for a Standby Advisory Board (STAB) was approved on 29 April 2013. His record was identified to appear before a STAB that convened on or about 3 June 2013. The applicant’s record was considered under the criteria established for the FY09 to FY13 Master Sergeant Boards. His record was considered against his career progression military occupational specialty (CPMOS) of 91Z5O. 5. On 24 May 2013, in a letter of concern, the applicant was notified by his commander that he was concerned about the applicant’s lack of integrity and failure to perform his duties as senior non-commissioned officer (NCO). The reasons for this letter of concern were: a. On 25 April 2013, the applicant intentionally falsified a physical fitness card for SPC M____ in order to give her a passing score. Further, when approached about the physical fitness card by his Platoon Leader, he lied to him and stated that he did not know who had falsified the physical fitness card. b. This lack of integrity was of great concern for multiple reasons. First, the applicant was the Army Physical Fitness Test (APFT) Officer In Charge for this event and had been the APFT OIC before. Due to the applicant’s lack of integrity in this event, the commander must now question all previous events and scores c. Secondly, purposefully falsifying and official military document and enlisting the assistance of a junior enlisted Soldier to aid in falsifying the document displayed an extremely bad poor example for that Soldier. d. This incident was a clear violation of Article 89, UCMJ, disrespect to a superior commissioned officer and Article 107, UCMJ, false official statements. e. The applicant was notified that his performance of duty would be monitored very closely for the next 90 days and that he would be subject to possible UCMJ action and/or relief for cause. 6. In addition, on 24 May 2013, the applicant was counseled and given a no contact order. He was told from that moment forward to cease all contact with SFC F____ and Soldiers (10) listed on the DA Form 4856 (Developmental Counseling Form). The applicant initialed that he agreed and signed the form. 7. On 25 May 2013, the applicant’s battalion commander temporarily suspended him from duties as maintenance platoon sergeant. The battalion commander notified the applicant that he had initiated an AR 15-6 investigation, as well as a CID investigation, into allegations of sexual assault and sexual harassment. 8. On 7 July 2013, at Forward Operating Base (FOB) Salerno, Afghanistan, the applicant accepted NJP for: * maltreating (sexual harassment) SPC A____ C____ * maltreating (sexual harassment) SGT T____ S____ * maltreating (sexual harassment) SPC S____ D____ * sexually assaulting SPC J____ H____; on two occasions * sexually assaulting SGT T____ S____ 9. The following punishment was imposed: forfeiture of $2,021.00 pay per month for two months and extra duty for 45 days. 10. On 9 July 2013, the applicant underwent a mental status evaluation due to his repeated acts of misconduct and clearance for administrative separation. He was found fit for full duty, including deployment. In addition, the applicant was found to have cooperative behavior, no obvious cognitive impairments, normal perceptions, he was occasionally impulsive, and not dangerous. He had the mental capacity to understand and participate in administrative proceedings and could appreciate the difference between right and wrong. He met the medical retention requirements. The brigade behavioral health officer indicated the applicant did not suffer from any psychiatric diseases or defects. He was psychiatrically cleared for any administrative action deemed appropriate by command. 11. On 10 July 2013, the applicant was relieved of his duties as maintenance platoon sergeant by the battalion commander. After careful review of the CID investigation and NJP evidence of the allegations of sexual assault and sexual harassment, the battalion commander concluded that the applicant could not continue to perform in that capacity. 12. On 15 July 2013, the immediate commander notified the applicant of intended separation action against him in accordance with AR 635-200, paragraph 14-12(c), for misconduct, commission of a serious offense, for maltreatment (sexual harassment) and sexual assault of subordinate Soldiers. The commander recommended a characterization of service of under other than honorable conditions. 13. The applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to him. He waived consideration of his case by a separation board and/or a personal appearance before a separation board on the condition that he would receive a general under honorable conditions discharge. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 14. Subsequent to the applicant's acknowledgement, his commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12c, for commission of a serious offense. 15. On 27 July 2013, the applicant’s request for promotion to master sergeant (MSG/E-8) was disapproved by the STAB. 16. On 31 July 2013, Major General (MG) M____ appointed an administrative separation board (ASB) pursuant to the provisions of AR 635-200, chapter 2, paragraph 2-7, and AR 15-6, chapter 5, to determine if the applicant should be separated from the Army prior to expiration of his current term of service. Furthermore, this board was to determine the characterization of service the applicant would be issued. 17. On 3 August 2013, the applicant’s chain of command approved the recommendation for separation from the Army prior to the expiration of current term of service, under the provisions of AR 635-200, chapter 14-12c, misconduct, based on commission of a serious offense with an under other than honorable conditions discharge. 18. On 7 August 2013, the applicant’s request to waive the ASB in exchange for a general discharge was disapproved. 19. On 11 August 2013, the applicant was notified that an administrative separation board would convene on 28 August 2013. On 18 August 2013, the applicant requested a delay through his counsel. The delay was approved for 5 September 2013 and the applicant was advised that he had the following rights: a. You may appear in person, with or without counsel, before all open proceedings of the board. If you do not appear, counsel may represent you at the board proceedings. If you are confined by civilian authority, your board can still proceed with counsel representing you. If the Solider fails to appear before the board when scheduled by willfully absenting yourself without good cause, you may be discharged from or retained in the Service without personal appearance before a board. b. You are entitled to be represented by detailed military counsel, or by military counsel of your own selection who will be appointed if reasonably available, or you may retain civilian counsel at your own expense. c. If you are a member of a minority group or desire a minority member to serve on your board, please contact the Task Force 4-101 Currahee Legal office in writing three days after notification. d. You may at any time before the board convenes submit an answer, deposition, sworn or unsworn statement, affidavit, certificate, or stipulation. This includes depositions or affidavits of witnesses who are not deemed to be reasonably available or witnesses who are unwilling to appear voluntarily. e. You may call witnesses on your behalf; if you request witnesses please turn the list of names into the TF 4-101 Currahee Legal Office no later than 20 August 2013. Upon your request, the recorder will arrange for the presence of any available witnesses. You may submit a written request for TDY travel for witnesses, as prescribed in paragraph 2-10b (3), AR 635-200. The determination of the president and the convening authority regarding appearance of witnesses and expenditures of funds are final. f. You or your counsel may question any government witness. g. You may submit to examination by the board or you may choose to remain silent. The provisions of Article 31, UCMJ, regarding self-incrimination is applicable. h. You may challenge any voting member of the board for cause. i. You or your counsel may present argument before the board closes to deliberate. j. Your failure to invoke any of these rights will not have any effect on the validity of the elimination proceedings. You are advised that if you, without good cause, fail to appear before the board as scheduled, you may be discharged from or retained in service without a personal appearance before the board. 20. On 5 September 2013, a DA Form 1574 (Report of Proceedings) shows: a. That a preponderance of evidence did support the allegations that the applicant: * maltreated his subordinate SPC A____ C____, by sending her repeated text messages of an offensive and sexual nature * maltreated his subordinate SGT T____ S____, by sending her repeated text messages of an offensive and sexual nature * maltreated his subordinate SPC S____ D____, by sending her repeated text messages of an offensive and sexual nature * sexually assaulted SPC J____ H____ * sexually assaulted SGT T____ S____ b. The board recommended that the applicant be separated from the service because of his misconduct and should receive an honorable discharge. 21. On 13 September 2013, MG M____, approved the administrative separation for the applicant. He directed that the Soldier be discharged from the Army with an honorable characterization of service. The original copy of the proceedings was directed to be filed in the permanent section of the Soldier’s Military Personnel Records Jacket (MPRJ) or local file, as appropriate. 22. On 6 December 2013, the applicant was discharged with an honorable discharge. He completed 16 years, 4 months, and 7 days of net active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * item 4a (Grade, Rate or Rank), SFC (sergeant first class) * item 4b (Pay Grade), E-7 * item 12h (Record of Service – Effective Date of Pay Grade), 1 March 2006 * item 25 (Separation Authority), AR 635-200, paragraph 14-12c * item 26 (Separation Code) JKQ * item 27 (Reentry Code) 3 * item 28 (Narrative Reason for Separation), misconduct 23. A review of the applicant's official military personnel file (OMPF) shows a Relief for Cause NCOER and NJP are filed in the performance folder of his OMPF. The review also shows the case file for the approved separation with 215 allied documents filed in the service folder of the applicant’s OMPF. 24. In support of the request the applicant provided the documents listed above as copies and summarized above in the applicant’s statement. REFERENCES: 1. AR 600-8-104 (Army Military Human Resource Record (AMHRR) Management) provides policies, operating tasks, and steps governing the AMHRR and the OMPF. Depending on the purpose, documents will be filed in one of six folders: performance, service, restricted, medical, finance, or State/Territory. The Authorized Documents table provides guidance for filing documents. It shows: * the DA Form 2627 (Record of NJP) will be filed in either the performance or restricted folder of the OMPF, as directed by item 4b of the DA Form 2627 * administrative letters of reprimand, admonitions, and censures of a non-punitive nature – the letter/memorandum, referral correspondence, member's reply, and allied documents will be filed in the performance folder of the OMPF unless otherwise directed; all other allied documents not listed will be filed in the restricted folder of the OMPF 2. AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 3. AR 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial. Section V (Suspension, Vacation, Mitigation, Remission, and Setting Aside), paragraph 3-28, shows that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. a. If all findings are set aside, then the NJP itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists 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. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. b. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627–2. When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action. 4. Army Regulation 600-8-19 (Enlisted Promotions or Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. a. Paragraph 4-13 (Rules for processing STAB) states the Army G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier’s OMPF when the file was reviewed by a promotion board. For the purpose of this paragraph, HRC is a designee. An error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected. STABs are convened to consider records of those (1) Soldiers whose records were not reviewed by a regular board; (2) Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board; (3) Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list; and other reasons pertaining to appointment to command sergeant major. Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their contemporaries when their seniority sequence number is reached. Reconsideration normally will be granted when one or more condition (listed as 1 through 11) existed on the Soldier’s OMPF at the time it was reviewed by a promotion selection board. b. Paragraph 4-17 (Removals from a centralized promotion list by Headquarters, Department of the Army) states HRC will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher grade. A Soldier may be referred to a STAB when a memorandum of reprimand placed in the OMPF or when adverse documentation is filed in the OMPF. c. Paragraph 4-18 (Appeals of removal from a centralized promotion list) states a Soldier who is removed from a promotion list may appeal that action only in limited circumstances. HRC will take final action on any appeal. Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous. The subsequent determination must be based on facts that were not available or reasonably discoverable at the time of the original action or at the time that the Soldier was notified of the removal action. An appeal may also be submitted for other compelling reason(s). Appeals must be referred through command channels, to include a General Court-Martial Convening Authority to Commander, HRC. DISCUSSION: 1. The evidence of record shows the applicant accepted NJP on 7 July 2013 for violating Articles 93 and 128 of the UCMJ. LTC K___ directed that the original DA Form 2627 be filed in the performance section of the OMPF. 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. By his own admission, the applicant stated he was guilty of several allegations that were brought against him. It is also presumed that he was offered a defense attorney and it is noted that he did not appeal. 3. The available evidence in this case shows the applicant sexually harassed and sexually assaulted subordinate Soldiers. The separation board findings show a preponderance of evidence supported the allegations that the applicant maltreated and sexually assaulted Soldiers; MG M____ approved the findings and recommendation of the separation board proceedings and directed filing in the applicant’s MPRJ/OMPF. 4. The arguments the applicant has provided are noted. However, there does not appear to be any clear and convincing evidence of error or injustice in the administrative proceedings that led to his discharge. If the Board determines there was no error or injustice in the decision to discharge him for misconduct, there will be no basis for recommending relief for any related issues. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017789 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017789 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2