BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20160006385 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: 6 September 2016 DOCKET NUMBER: AR20160006385 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: 6 September 2016 DOCKET NUMBER: AR20160006385 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 reinstatement of his rank/grade of staff sergeant (SSG)/E-6 with an effective date of rank of 1 August 2012. 2. The applicant states: a.  He was falsely convicted and found guilty of an offense that he did not commit. The punishment imposed was excessive and unjust. He believes the punishment imposed was very severe and does not match the crime. He accepted partial responsibility. b.  The evidence does not support the Uniform Code of Military Justice (UCMJ) violations of which he was found guilty. The proper considerations and review of all the evidence, including his personal testimony, were not acknowledged. 3. The applicant provides: * Report of Investigation for Commander's Inquiry XX3 – Allegations of Sexual Misconduct between SSG G____ S____ and Miss J____ B____, Applicant, dated 8 July 2015 * two unsworn statements * 16 DA Forms 2823 (Sworn Statement) * transcript of interview with Mr. J____ G____, dated 23 June 2015 * U.S. Army Recruiting Command (USAREC) Regulation 600-25 (Prohibited and Regulated Activities) extract * Army Regulation 27-10 (Military Justice) extract * DA Form 2627 (Record of Proceedings under Article 15, UCMJ) * Article 15 Appeals * UCMJ extracts * self-authored statements * Official Military Personnel File extracts * DA Form 4856 (Developmental Counseling Form), dated 5 June 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 2 October 2003 in the rank/grade of private first class/E-3. 2. On 1 August 2012, he was promoted to the rank/grade of SSG/E-6. 3. On 5 June 2015, he counseled SSG G____ S____, recruiter for J____ B____, an applicant recruit, using a DA Form 4856. This form shows, in part: a.  He received a telephone call from a man who stated he was the uncle of the applicant recruit. The man made allegations of inappropriate behavior and stated the applicant recruit was not aware of his contact. He wanted to make his concerns known and stated he would be content as long as SSG S did not contact his niece any longer. b.  He directed SSG S____ not to contact the applicant recruit in any way, shape, or form under any circumstances. He further informed SSG S____ that: (1)  the applicant recruit would be transferred to another recruiter and (2)  he and the applicant recruit's uncle came to an agreement that no further action was required as long as SSG S____ did not contact her, and if he contacted her in any way, he would report the matter higher up the chain of command. c.  SSG S____ acknowledged and agreed with the counseling. 4. On 9 June 2015, Mr. G____ provided a statement wherein he indicated he went to the West Broad Street recruiting office on 4 June 2015 to speak with the office commander about the inappropriate actions of one of the recruiters and how the recruiter's actions made his niece very uncomfortable. a.  He spoke with SSG M____ and told her what his niece had told him in detail. SSG M____ asked if he wanted to make a formal complaint, to which he replied yes. She gave him the phone number for the first sergeant (1SG) (1SG B____) and then called the applicant, the acting commander, and told him that he was there to file a complaint. b.  He called the applicant while sitting in front of SSG M____ and explained what he was told by his niece concerning SSG S____'s actions. The applicant told him it would be dealt with and he was going to have SSG M____ take over his niece's recruitment. c.  He left the recruiting station and headed home. When he arrived home, he noticed he had a missed call from the applicant. He called the applicant right away and the applicant asked if he had received the 1SG's phone number, to which he replied he had. The applicant asked him not to call the 1SG and said he wanted to handle it at the lowest level. The applicant explained he was going to give SSG S____ a counseling statement with a no-contact order to start with, but he was unsure of the steps he would take for corrective actions after that and he would have to think about it. d.  He thought about the situation over the weekend and he had a bad feeling that it would be swept under the rug and nothing would be done, and SSG S____ would be free to do this again to another young female recruit. e.  He decided to call the 1SG on Monday morning to take care of the situation. 5. On 22 June 2015, the applicant signed a DA Form 2823 wherein he stated he received a call from a man who identified himself as the applicant recruit's uncle, wanting to address certain concerns and issues. The form shows: a.  The caller made accusations of an inappropriate relationship between the applicant recruit and SSG S____. The caller stated he understood taking care of everything at the lowest level and that was the reason he was reaching out to him. b.  He told the caller he would take action at his level and the caller stated he was good with that and he just wanted communication between SSG S____ and his niece to cease. c.  He formally counseled SSG S____ on 5 June 2015 and ordered that he would no longer have any sort of communication with the applicant recruit. He further directed all of the applicant recruit's processing to occur at the South center (South High Street Recruiting Center). 6. On 23 June 2015, Mr. G____ provided a sworn statement wherein he stated his niece told him some things happened while she had been drinking. SSG S____ stated he was too drunk to leave his niece's house so he slept in the spare bedroom. His niece wanted to go to bed in her room, but there were people in her room so she laid down on the spare bedroom floor. SSG S____ rolled her over and began to make advances at her in sexual manner. They had sex while she was under the influence (presumed to mean alcohol). His niece explained everything to him a few days later. That is when he took action and started the investigation. 7. On 23 June 2015, the investigating officer interviewed Mr. G____, who stated he called the 1SG and explained everything. The next day, Mr. G____ and the applicant recruit met with the 1SG. They gave him their statements and showed him the text messages. The battalion commander contacted him the next day and told him he would make sure the situation was handled properly. 8. On 24 June 2015, SSG P____ M. M____, Columbus West Recruiting Center, provided a sworn statement wherein she stated the applicant recruit's uncle came into the office to make a complaint against SSG S____ on 4 June 2015 and she reported the incident to the applicant. Her sworn statement shows she was asked if other recruiters in the center knew about the situation with SSG S____ and the applicant recruit before the incident was reported. She stated the only people who knew of the incident were the applicant and SSG S____ because she reported it to the applicant and SSG S____. 9. The Report of Investigation for Commander's Inquiry XX3 – Allegations of Sexual Misconduct between SSG G____ S____ and Miss J____ B____, Applicant, dated 8 July 2015, stated: a.  Mr. G____ made a complaint against SSG S____. b.  The applicant spoke with Mr. G____ and told him he would counsel SSG S____ and further action was pending. c.  The applicant asked Mr. G____ not to contact the 1SG so the situation could be handled at the lowest level and Mr. G____ agreed. d.  The applicant recruit told Mr. G____ that the applicant probably would not handle the situation because he was just as unprofessional and "creepy" as SSG S____. e.  On 9 June 2015, 1SG B____ conducted a face-to-face interview with the applicant recruit and Mr. G____. Immediately following the interview, 1SG B____ contacted Command Sergeant Major C____ and Major L____, who directed him to counsel both the applicant and SSG S____, issue a no-contact order to SSG____, and transfer the applicant recruit to a different recruiting center. 1SG B____ complied with the orders. f.  Statements were provided by all the parties involved. (1)  Mr. G____ provided an unsworn statement, dated 9 June 2015, wherein he stated the applicant told him he was going to give SSG S____ "a counseling statement with a no-contact order to start with but was unsure of what steps he would take for corrective actions after that and would have to think about it." (2)  The applicant recruit provided an unsworn and undated statement in which she stated, in effect, SSG S____ had an inappropriate relationship with her and she advised her uncle, Mr. G____, of this. She further stated she told SSG S____ in a text that she wanted to keep the relationship professional so their careers would not be ruined. (3)  A review of the statements provided by members of the Columbus Recruiting Station shows they all denied any knowledge of any inappropriate behavior of SSG S____ and indicated they had nothing to add to their statements. 10. On 24 November 2015, the applicant was notified of pending nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for: a.  violating a lawful general regulation on or about 4 June 2015 by wrongfully failing to report to his chain of command that another recruiter was having an inappropriate relationship with an applicant recruit and b.  wrongfully impeding an investigation on or about 23 June 2015 of another recruiter by wrongfully attempting to influence the actions of the Soldiers in the Columbus West Recruiting Center by sending them a group text message stating, "At 1000 hours the Lancaster Company Commander will be here to gather statements. You can either give one or not. It's best not to." 11. On 15 December 2015, the applicant submitted a written statement regarding his pending NJP. He stated, in part: a.  His actions were based on statements made by Mr. G____, who seemed very unsure about what was going on between SSG S____ and the applicant recruit other than concerning text messages. b.  He was not aware of any sexual encounters between SSG S____ and the applicant recruit during Mr. G____'s initial visit. He would have immediately notified the 1SG and commander of the allegations had he known. c.  His follow-on conversation with Mr. G____ after the initial telephonic conversation was not accurately reported in the report of investigation. He did not instruct Mr. G____ not to contact the 1SG or commander in any way, shape, or form. d.  The investigating officer advised him to let everyone know that if they did not want to provide a statement, to just write the following: "I have nothing to add to this investigation" on their DA Form 2823. He passed this information on to all the recruiters. This is what led to everyone's statement saying the same sentence or very similar to those instructions. He never had any intent to interfere with the investigation at any point and felt he fully cooperated and even went above and beyond to ensure the investigating officer completed the paperwork properly. He did what he thought was right in that moment. 12. On 8 January 2016, the applicant accepted NJP under the provisions of Article 15, UCMJ, for the above offenses. 13. The applicant submitted an appeal. After considering all matters presented, the imposing official found him guilty of the offenses and directed filing the DA Form 2627 in the restricted folder of his Official Military Personnel File on 8 January 2016. His NJP consisted of reduction to the rank of SGT/E-5 and forfeiture of $1,583.00 for 2 months. 14. On 3 February 2016, the staff judge advocate found the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offenses committed. 15. On 5 February 2016, the applicant's appeal was denied. 16. He submitted requests for reconsideration of NJP under Article 15, UCMJ, on 9 February and 22 February 2016. 17. On 21 March 2016, he was notified of his disqualification for award of the Army Good Conduct Medal for the period 16 August 2012 to 15 August 2015. 18. On 13 June 2016, the Commander, Headquarters, U.S. Army 3d Recruiting Brigade, provided an advisory opinion wherein he recommended denial of the applicant's appeal. He stated: a.  The applicant was found guilty of violations of Articles 92 and 134. He admitted guilt to the Article 92 violation in materials supporting his hearing and appeal. b.  The applicant was notified and informed of his rights and he elected to have speakers on his behalf, he submitted evidence in his defense, and he had a closed hearing. NJP was imposed in accordance with Army Regulation 27-10 (Military Justice). A review by the staff judge advocate found the proceedings lawful and the punishment just. c.  The applicant has exhausted his appellate remedies. He submitted a witness list, memoranda, and sworn statements in support of his one appeal authorized by the governing regulation. The appeal was denied on 5 February 2016 and a subsequent clemency request was also denied. d.  To regain his rank of SSG, he must meet the requirements of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) and be recommended by his chain of command. He is eligible for secondary zone consideration after 8 July 2016 based on time in grade. 19. On 14 June 2016, a copy of the advisory opinion was sent to the applicant for review and for an opportunity to provide a response. 20. On 23 June 2016, the applicant provided a response wherein he stated: a.  He believes a full review of all records, including his statements, will show that his actions did not reflect wrongdoing on his part. He never acted in any way to knowingly, willingly, or intentionally deceive anyone. b.  With regard to his commander's response about promotion eligibility, USAREC has been offering reclassifications to other military occupational specialties within the Army because E-5 promotions to E-6 are nonexistent. He was originally promoted to the grade of E-5 on 1 May 2006. His punishment has set him back 10 years; the financial hardship has been unbearable and has caused him to take more loans just to keep food on the table for himself and his daughter. c.  His past evaluation reports show he has always been a stellar Soldier, noncommissioned officer, and leader who contributed greatly to any unit he was assigned. He still comes to work and gives 100 percent to his unit on a daily basis, even throughout the investigation and punishment. 21.  The applicant provided extracts of his Official Military Personnel File showing he received "Successful" and "Superior" ratings and he held numerous leadership positions. He also provided a photocopy of a telephone text message that shows, in part, the comments: At 1000 hrs [hours] the Lancaster company commander will be here to gather statements. You can either give one or not. It's best to not. But you need to be here to add in a statement the following line 'I have nothing to add to this investigation.' REFERENCES: 1. USAREC Regulation 600-25 identifies prohibited activities for USAREC personnel. a.  Violations of law or other USAREC or Army regulations may result in adverse administrative or disciplinary actions. Chapter 2 (Prohibited Practices) is punitive. Failure by any USAREC personnel to comply with its provisions may subject Soldiers to disciplinary action under the UCMJ. b.  USAREC personnel must report known or suspected violations of this regulation to the first commissioned officer in the chain of command or supervision. c.  USAREC military and civilian personnel will not engage in any conduct, activity, or relationship that creates an actual or clearly predictable adverse impact on discipline, authority, or morale. d.  Battalion commanders will investigate each known or suspected violation by conducting either a commander’s inquiry or an informal investigation. e.  Upon completion of a commander’s inquiry and/or informal investigation, commanders shall consult with the brigade judge advocate prior to initiating adverse administrative or UCMJ action against a Soldier or civilian employee or to recommending action against a contract employee. f.  Alleged or suspected recruiting improprieties will be processed in accordance with USAREC Regulation 601-45 (Recruiting Improprieties, Policies, and Procedures). 2. USAREC Regulation 601-45 prescribes USAREC policies and responsibilities for reporting, processing, investigating, and disposing of allegations of recruiting improprieties within USAREC. a.  Recruiters are prohibited from assisting any recruiting personnel in the commission of any recruiting impropriety and from tampering with witnesses or interfering with the investigation of a recruiting impropriety. b.  The staff judge advocate is responsible for, in part, reviewing reports of investigation for investigative sufficiency and providing legal advice to Headquarters, USAREC, and subordinate commanders on matters related to the investigation and disposition of recruiting impropriety allegations. c.  Recruiting impropriety allegations may come from any source and be either verbal or written that a USAREC member violated this regulation. d.  All recruiting impropriety allegations and suspected improprieties will be reported to the battalion executive officer within 3 working days of discovery. 3.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 2008, and the rules for courts-martial contained in the Manual for Courts-Martial. a.  Chapter 3 (Nonjudicial Punishment) states a commander a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to NJP. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. b.  NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. c.  Soldiers may submit an appeal of NJP based on the evidence the Soldier does not believe he or she is guilty, or the punishment imposed is excessive, or that a certain punishment should be mitigated or suspended. DISCUSSION: 1. USAREC Regulation 600-25 states USAREC personnel must report known or suspected violations of this regulation to the first commissioned officer in the chain of command or supervision. 2. The evidence shows the applicant was notified of a recruiter impropriety on 4 June 2015 and he counseled the offending individual on 5 June 2016. 3. The record is void of and he failed to provide any evidence showing he notified his battalion executive officer of this impropriety within 3 working days in accordance with USAREC policy. The alleged recruiter impropriety was not reported until 9 June 2015 and only after his 1SG conducted a face-to-face interview with the applicant recruit and her uncle. 4. A report of investigation was conducted and prior to the collection of sworn statements, the applicant sent a text message to recruiting personnel advising them of the investigation and advising them it was best not to give a statement. 5. His text message to members of his unit indicating it was best not to make a statement constituted tampering with witnesses or interfering with the investigation of a recruiting impropriety and violated USAREC policy. 6. Although he contends he was falsely convicted and found guilty, he violated USAREC Regulation 600-25, chapter 2, which clearly states a violation of this chapter is punitive. NJP was imposed against him under the provisions of Article 15, UCMJ, after the imposing official considered all matters presented and coordinated with the staff judge advocate. 7. All requirements of law and regulation were met and his rights were fully protected. 8. There is no evidence of a clear injustice in this case. There is no documentary evidence indicating the NJP he received was improperly imposed or retaliatory in nature. His associated reduction in rank was well within the commander's discretion. In the absence of substantive evidence showing error or injustice in the imposition of the NJP, there is an insufficient basis upon which to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006385 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006385 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2