BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013981 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 BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013981 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. BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013981 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, in effect, removal from his record of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), a relief for cause (RFC) Noncommissioned Officer Evaluation Report (NCOER), and all references to these documents. 2. The applicant states prior to receipt of the nonjudicial punishment (NJP) he had a flawless career as a military police officer. Following the NJP and removal from his position as an instructor, his career again is shown to have been flawless. The continued presence of the NJP and RFC NCOER are hindering his ability to obtain civilian employment as a police officer. 3. The applicant defers submissions to his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests that all documentation related to the applicant's NJP and RFC NCOER for the period 1 June through 15 September 2010 be purged from his records. 2. Counsel contends, in a 14 page brief, that: a. The NJP and RFC NCOER were erroneous, unjust, and the result of arbitrary and capricious actions by the applicant's chain of command. These actions also contravened the governing regulations. b. The applicant had an excellent military career both before and after the NJP action. c. The applicant's training as a civilian police officer was stopped when a background check revealed the NJP and negative NCOER. d. The applicant disputes violating Army Regulation (AR) 600-20 (Army Command Policy), paragraph 4-14(b), and Policy Letter Number 09-06, paragraph 3(b). e. Counsel states there are significant procedural errors in the NJP proceedings: (1) the investigating officer (IO) did not conduct an impartial investigation; (2) only statements that were detrimental to the applicant were included in the proceedings and statements that would have been favorable toward the applicant were ignored; (3) potential witnesses, including the principle witness against the applicant were physically present in the building, but were not called to offer personal testimony or, upon the applicant's request, permitted to be called to testify or cross examined; (4) the applicant was unjustly denied his rights to fully present his case, call witnesses, and examine all available evidence; (5) the commander's punishment was unduly harsh in leveling the maximum punishment permitted and directing that the NJP be filed in the unrestricted portion of his Official Military Personnel File (OMPF); (6) none of the documents the applicant utilized in his defense and as character statements are included with the original record of proceedings; and (7) it is unjust to continue to maintain the NJP, RFC NCOER, and allied documents in his OMPF. 3. Counsel also contends the Army Board for Correction of Military Records (ABCMR) has an obligation to determine the true nature of an alleged injustice and take steps to grant thorough and fitting relief. This requirement is backed by Federal court cases and law. 4. Counsel provides documents identified in a list of enclosures. 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 basis to waive the statute of limitations for timely filing. 2. The applicant served on active duty in the Regular Army from 29 August 2000 through 8 April 2012. 3. On 27 July 2010, at the Maneuver Support Center of Excellence Noncommissioned Officer Academy (MSCOE NCOA), Fort Leonard Wood, MO, the applicant received negative developmental counseling for unprofessionalism and failure to follow instructions. The counseling statement shows the applicant was counseled by SFC L____ during the Warrior Leader Course (WLC) Class 08-10 cycle for conducting himself in an unprofessional manner. The applicant was caught by SFC L____ "dipping" during class and allowing the students to "dip" in class, texting during class, and taking phone calls during students' class presentations. The applicant had been told specifically about the [prohibition against] texting and the applicant continued to do it anyway. Additionally, he was counseled for: (1) Inappropriate statements made toward his students, making the students feel uncomfortable, and making them feel that the class was a hostile environment. (2) A student (SPC H____) coming forward about statements the applicant made to her that were out of line and unprofessional. SPC H____ told SFC L____ that she felt uncomfortable around the applicant on several occasions. (3) This was not the first time SFC L____ had had a conversation with the applicant about students and cadre relationships. The applicant was counseled about being a professional at all times. He was to be a mentor, coach, and teacher. Instead he did the opposite, almost to the degree of harassment and unfairness to students. (4) The applicant was counseled because he made statements to the fact that he didn't like certain students in front of other students, which was totally uncalled for. The applicant was told this type of behavior would never be tolerated. (5) When the applicant was confronted about the above issues, the applicant stated that he had done nothing wrong this cycle, but he agreed this type of behavior was unprofessional. SFC L____ advised the applicant that he was making a recommendation that the first sergeant (1SG) and chain of command take some type of administrative action in response to this behavior. 4. On 27 July 2010, a Report to Suspend Favorable Personnel Actions (Flag) was initiated based on the above action. 5. While assigned to the NCOA as a small group leader and instructor, an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Commanders Inquiry was conducted concerning sexual harassment and inappropriate conduct by the applicant. The investigation commenced on 28 July 2010 with the final report being completed on 3 August 2010. a. The IO reported conducting interviews with the following personnel: (1) In his interview Sergeant Major (SGM) S____ provided background information relating to the allegations. The SGM stated during the last WLC, a female student, SPC H____, reported to the NCOA chain of command that the applicant had acted inappropriately on several occasions during the class cycle. The SPC indicated the applicant made several inappropriate comments to her during the class cycle to include: "I can't wait for you to graduate so we can be friends on Face Book," "You are my most favorite student," and "You only live a few minutes from me." The SGM further indicated students observed the applicant utilizing smokeless tobacco products (commonly referred to as dipping) and texting on his cell phone during instructional periods. (2) In her interview SSG C____ stated she recalled an incident where the applicant texted one of his WLC students. SSG C____ indicated approximately two or three cycles earlier, SPC G____ reported the applicant had texted her inappropriate messages. SSG C stated the incident was reported to SFC T____, but she did not know how far up the chain of command the report went. Regarding the recent incident with SPC H____, the SSG stated that on 27 July 2010, while preparing equipment for turn-in, SPC H____ approached her and asked to speak to her "offline." SSG C____ agreed and they rode together to return the equipment. During the ride, SPC H_____ related everything as previously conveyed. SSG C____ forwarded the report to SFC L____. (3) In her interview, SPC H____ stated from the beginning of the course the applicant made her feel very uncomfortable. The applicant was continuously staring at her and stated several times to the entire class he "lived just up the street from her." Throughout the course the applicant also made reference to "Jersey girls" saying things like "There is something about Jersey girls." (SPC H____ was from New Jersey.) During the squad's Train the Force presentations, the applicant texted SPC H____, which she felt was inappropriate. During a counseling session, the applicant made several inappropriate comments including: SPC H____ was the most favorite student he had; it sucked that SPC H____ was "PCSing"; they could have hung out together; and instructors were not allowed to contact students on Facebook until after they graduated. While in the field the applicant insisted SPC H____ stay out overnight with him and another (male) student as guards, a situation she did not want to place herself in. She voiced her concerns to the applicant who verbally berated her. On 27 July 2010, SPC H____ voiced her concerns to SSG C____. (4) In a telephonic interview, SPC G____ gave the following information regarding WLC Class 005-10. During the first few days, everything was as expected. It was after the class had become a little more comfortable that the applicant started making inappropriate comments. The major incident came during the field exercise, which was followed by texts. The cycle was in February and March of 2010, so it was extremely cold. During the field cycle students were required to wear interceptor body armor to keep their hands warm. Students would slide their hands between the outer tactical vest and their Army combat uniform at the chest level. The applicant observed SPC G____ doing so and said, "Are you like touching yourself in there or what?" SPC G____ stated she was extremely upset at his comment. A short time later she received a text message from the applicant, which asked, "Is that [touching herself] something you like to do?" SPC G____ did not respond. She then received another text from the applicant which asked, "Do your ideals make you too good to respond?" SPC G____'s reply to the applicant's second text indicated she was not pleased with his behavior and it had nothing to do with her ideals. After the field exercise, the squad was in the community activity center at the NCO barracks, one of the other small group leaders (SGL) asked a question or said something either to her or about her and the applicant said "Oh, she is too good to respond to SGLs!" SPC G____ asked the applicant if she could speak to him in private, to which he agreed. SPC G____ told the applicant he was a dirt-bag NCO who took a major opportunity to shape and mold future NCOs and he abused it. She was extremely disappointed in his conduct and he was pathetic if this is what the best of the best is. The applicant apologized to her and inquired if she was going to report his behavior and also asked about the texts. After that, the applicant did not text or make any other comments. SPC G____ stated she did not report the incident to the chain of command as she thought the applicant had smartened up. She further indicated she no longer had the text messages saved for referencing. (5) In a verbal interview SPC R____ stated he could not recall any instances where the applicant acted in a manner he considered inappropriate. He did state the applicant used smokeless tobacco during periods of instruction in the classroom. (6) In a verbal interview SPC R____ stated at the beginning of the cycle the applicant asked everyone where they lived and mentioned SPC H____ lived close by, but he did not consider it inappropriate, since everyone in the squad was giving out their addresses. SPC R____ could only recall that one instance where the applicant indicated he lived near anyone. No other pertinent information was gleaned from SPC R____'s interview. (7) SFC T____ provided a written sworn statement wherein he stated he first learned of the applicant's texting SPC G____ in May 2010. The report was based on third-party information. SFC T____ brought the information to 1SG L____, who stated because the information was not from the source, not to take any action against the applicant. SFC T____ then attempted to obtain a report or statement from SPC G____ who denied all requests. SFC T____ again went to 1SG L____ who conducted a noncommissioned officers development program session with all WLC SGLs as to the authorized instructor/student interaction. SFC T____ indicated the applicant was not specifically counseled for his behavior toward SPC G____ and that 1SG L____ gave all the WLC SGLs a direct order not to discuss the matter with the applicant. After SFC T____ returned to the WLC after attending schooling, he discovered a student had text messaged the applicant while the student was on the Land Navigation Course. SFC T___ verbally counseled the applicant to stop the practice of text messaging students. On 26 July 2010, SFC T____ received a report regarding the applicant's text messaging another female student in the current WLC class. SFC T____ brought the information to 1SG L____ who instructed him to wait and get more information. SFC T____ contacted SFC L____ who demanded he obtain a sworn statement from the female student. (8) In his interview 1SG L____ stated it had been brought to his attention that the applicant had conducted himself in an unprofessional and inappropriate manner during Class 008-10. On the afternoon of July 26, SPC H____, a female student, requested to speak with SSG C____. During this meeting, SPC H____ informed the SSG of a number of incidents which made her feel uncomfortable during training. She stated the applicant had sent her text messages such as "Do Pushups" and "Pay Attention" during class. She also stated that during one of the student's Train the Force presentation's, the applicant had texted her "This is Boring." The applicant had been counseled prior to Class 008-10 that texting student's was not allowed. Also, during an in-ranks inspection, the applicant was inspecting SPC H____'s uniform and asked her "Can I touch your uniform, I don't want you to think I am feeling you up." SPC H____ also stated that during a Situational Training Exercise, the applicant asked her to stay overnight with him and another male student. SPC H____ stated to him that she didn't feel comfortable staying out without another female student present. The applicant then made a statement of "what, you aren't my battle buddy?" At some point during the course, SPC H____ stated that the applicant told her, "I can't wait till after graduation, then we can be Facebook friends." Additionally, he had said "You are my favorite student of all the classes so far." SG L____ then interviewed the applicant's other students. SGT R____, one of the applicant's other students, stated the applicant told another student "I don't like SGT R____, and he don't like me." Prior to his behavior during class 008-10, 1SG L____ and SFC L____ had informed the applicant that dipping in class was against regulations. Both the applicant and his students had been caught dipping in class. The applicant had also been told more than once that being on his cell phone in class was not allowed. b. The IO rendered the opinion that the evidence supported a finding that the applicant had engaged in inappropriate conduct when he made sexually explicit comments to SPC G____ and repeatedly made unwelcomed inappropriate comments to and about SPC H____. The applicant further violated AR 600-20 paragraph 4-15(c) and MSCOE Policy Letter #09-08 Student/MANSCEN NCOA Personnel Relationship paragraph 4(a)(e)(l) when he sent personal text messages to SPC G____ and SPC H____. c. The IO recommended the applicant receive an RFC NCOER, that his position as a MSCOE NCOA WLC SGL be terminated; and d. Further, the IO recommended that to ensure MSCOE NCOA cadre adhere to applicable Army Regulations and MSCoE NCOA Policy Letters with the following action to be taken: (1) Mandatory Prevention of Sexual Harassment training be conducted by the MSCOE NCOA Equal Opportunity Representative. (2) Update MSCOE NCOA Policy Letter Number 09-08 paragraph 4(e)(l) to include text, picture, email, and video messaging via personal cell phones, computers, and media devices. (3) Mandatory review by all cadre of all updated MSCOE Policy Letters. (4) Mandatory review of reporting procedures for all MSCOE Cadre. 6. On 27 August 2010, the applicant’s commander advised him that he was considering whether he should be punished under Article 15 for misconduct. The applicant acknowledged that he had been afforded the opportunity to consult with counsel concerning the Article 15, he understood his rights, and he was making the following decisions: a. He declined a trial by court-martial, requested that person speak in his behalf, and requested a closed hearing. He also indicated that matters in defense, extenuation, and or mitigation would be presented in person. b. During a closed hearing, all matters presented were considered and the applicant was found guilty of some specifications as follows: In that you, having knowledge of a lawful order issued by Command Sergeant Major (CSM) J____ L. L____, to wit: paragraph 3(b), Policy Letter #09-06, dated 10 September 2009, an order which it was your duty to obey, did, at or near Fort Leonard, Wood, MO, between on or about 10 July 2010 and 29 July 2010, fail to obey the same by wrongfully ,saying to SPC C____ L. H____, "your boobs are not that big," or words to that effect. This is in violation of Article 92, UCMJ. (Finding of not guilty.) In that you, did, at or near Fort Leonard Wood, MO, between on or about 10 July 2010 and 29 July 2010, violate a lawful general regulation wit: paragraph 4-14(b), Army Regulation 600-20, dated 30 November 2009, by wrongfully sending SPC C____ L. H____, a student under your supervision, inappropriate text messages of a personal nature. This is in violation of Article 92, UCMJ. (Finding of guilty.) In that you, having knowledge of a lawful order issued by Command Sergeant Major (CSM) John L. L____, to wit: paragraph 3(b ), Policy Letter #09-06, dated 10 September 2009, an order which it was your duty to obey, did, at or near Fort Leonard Wood, MO, between on or about 5 February 2010 and 23 February 2010, fail to obey the same by wrongfully saying to SPC C____ R. B____, "Are you like touching yourself in there or what" or words to that effect. This is in violation of Article 92, UCMJ. (Finding of guilty.) In that you, did, at or near Fort Leonard Wood, MO, between on or about 5 February 2010 and 23 February 2010, violate a lawful general regulation, to wit: paragraph 4-14(b ), Army Regulation 600-20, dated 30 November 2009, by wrongfully sending SPC C____ R. B____, a student under your supervision, inappropriate text messages of a personal nature. This is in violation of Article 92, UCMJ. (Finding of guilty.) c. His punishment was reduction to sergeant (SGT)/E-5; a forfeiture of $1,380; and to perform extra duty for 45 days, suspended, to be automatically remitted if not vacated before 30 November 2010. d. The NJP proceedings were directed to be filed in the performance section of his OMPF. e. The applicant appealed his punishment. On 7 September 2010, after consideration of all matters presented the appeal was denied. It was determined that his Article 15 proceedings were conducted in accordance with law and regulations. The punishment imposed was not unjust nor disproportionate to the offenses committed. f. On 10 September 2010, the Article 15 proceedings were approved by the Garrison Commander. g. On 14 September 2010, the applicant acknowledged he had seen the action taken on his appeal. 7. On 20 September 2010, the applicant received an RFC NCOER for the period 1 June through 15 September 2010. a. In Part IVa (Army Values), the rater placed an "X" in the "No" blocks for "Respect/EO/EEO," "Honor," "Integrity," and entered the following comments: * informal Equal Opportunity complaint was determined to be founded * failed to live up to all of the Army Values * did not act morally correct on duty b. In Part IVb (Competence), the rater placed an "X" in the "Success" block and entered the following comment: demonstrated the ability to manage a number of tasks simultaneously; knowledgeable NCO. " c. In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered appropriate comments. d. In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following comment: contributed to the degradation of the good order and discipline within the unit by attempting to establish an unprofessional relationship with a Soldier of lesser rank. e. In Part IVe (Training), the rater placed an "X" in the "Success" block and entered an appropriate comment. f. In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" block and entered the following comments: the rated NCO has been notified of the reason for the relief. g. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block and entered the comments: * do not promote * do not send to additional schooling * performance was detrimental to the success of the unit * do not assign to positions of increased responsibility h. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Poor/5" block. i. In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Fair/4" block. j. The RFC NCOER shows the rater, senior rater, and applicant authenticated this form by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and he authenticated this form by placing his digital signature in the appropriate place. 8. The applicant's next two NCOER's are marked in all blocks as "Excellence" or "Success" and "Among the Best". 9. The applicant was honorably released from active duty on 8 April 2012. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: a. The following administrative information: * separation in the rank of SGT/E-5 * service in the military occupational specialty 31B (Military Police) * he had 11 years, 5 months, and 11 days of creditable service * no lost time b. He was awarded: * Iraq Campaign Medal with two campaign stars * Army Commendation Medal (2nd Award) * Army Achievement Medal (3rd Award) * Meritorious Unit Commendation * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Global War On Terrorism Service Medal * Korean Defense Service Medal * Noncommissioned Officer Professional Development Ribbon (2nd Award) * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Combat Action Badge * Driver And Mechanic Badge with Driver-Wheeled Vehicle "W" Clasp c. Service in Iraq from 27 June 2006 through 7 September 2007. 10. The available records do not include MSCOE NCOA Policy Letter 09-08 nor is a copy of the policy letter available as it has been superseded. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. It provides in: a. Paragraph 3-2 that a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment. Use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that nonjudicial punishment will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for nonjudicial punishment to have the proper corrective effect. Nonjudicial punishment may be imposed to: (1) Correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures. (2) Preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction. (3) Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. b. Paragraph 3-9 states generally the term "minor" includes misconduct not involving any greater degree of an offense than is involved in the average offense tried by summary court-martial. It does not include misconduct of a type that, if tried by general court-martial, could be punished by dishonorable discharge or confinement for more than 1 year. This is not a hard and fast rule; the circumstances of the offense might indicate that action under Article 15 would be appropriate even in a case falling outside these categories. Violations of, or failures to obey general orders or regulations may be minor offenses if the prohibited conduct itself is of a minor nature even though also prohibited by a general order or regulation. c. Paragraph 3-14 states the commander of the alleged offender must ensure that the matter is investigated promptly and adequately. The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident. The investigation should cover: (1) Whether an offense was committed. (2) Whether the Soldier was involved. (3) The character and military record of the Soldier. d. Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports. If, after the preliminary inquiry, the commander determines, based on the evidence currently available, that the Soldier probably has committed an offense and that a nonjudicial punishment procedure is appropriate. e. The service member has the right to confront witnesses, examine the evidence, and submit matters in defense, extenuation, mitigation, and/or the right to appeal. f. Paragraph 3-19 state whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander. However, commanders are encouraged to consult with their NCOs on the appropriate type, duration, and limits of punishment to be imposed. Additionally, as NCOs are often in the best position to observe a Soldier undergoing punishment and evaluate daily performance and attitude, their views on clemency should be given careful consideration. 2. Army Regulation 600-20 (Personnel-General Army Command Policy) states any relationship between permanent party personnel and trainees not required by the training mission is prohibited. This prohibition applies to permanent party personnel without regard to the installation of assignment of the permanent party member or the trainee. 3. Army Regulation 600-37 (Unfavorable Information), chapter 7 -1 sets forth the policies and procedures whereby a person may seek removal of unfavorable information from official personnel files. It states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. The burden of proof 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. 4. Army Regulation 623-3 (Evaluation Reporting System) shows in: a. Paragraph 1-9, Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pam 623–3 (Evaluation Reporting System). b. Paragraph 1-11 states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commander’s inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA) and the conduct of the rated Soldier and members of the rating chain. The results of the commander’s inquiry may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. c. Paragraph 3-39, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual’s OMPF: (1) statements from rating officials that they underestimated the rated Soldier; (2) statements from rating officials that they did not intend to rate the Soldier as they (rating officials) did; (3) requests that ratings be revised; (4) statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or (5) a subsequent statement from a rating official that they rendered an inaccurate evaluation of a rated Soldier’s performance or potential in order to preserve higher ratings for another. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR (which includes the OMPF) and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. NCOER's for Soldiers in paygrade E-5 and above are filed in the performance section of the OMPF. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). a. Paragraph 1–8 states ABCMR board members will: (1) Review all applications that are properly before them to determine the existence of an error or injustice; (2) 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; and (3) Deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. b. Paragraph 2–9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. DISCUSSION: 1. The NJP was imposed in compliance with applicable laws and regulations and there is no evidence of any substantive violation of the applicant's rights. 2. There is no evidence that shows the applicant was prohibited from calling or providing statements from witnesses or that the 15-6 IO behaved improperly and did not act impartially in conducting the investigation. 3. Before the applicant elected to accept the NJP he was made aware of the differences between an Article 15 hearing and of his right to demand a trial by court-martial. He chose to have the matter settled at an Article 15 hearing. 4. The applicant was an NCO, a military policeman, an instructor of other military personnel, and he was serving in a position of leadership when he violated the trust and confidence placed in him. The available evidence failed to show the applicant's chain of command behaved arbitrarily or capriciously. 7. The evidence does not show the RFC NCOER contains any administrative or substantive deficiencies and it is filed in his OMPF in compliance with applicable laws and regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013981 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013981 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2