BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160013199 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: 30 May 2017 DOCKET NUMBER: AR20160013199 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: 30 May 2017 DOCKET NUMBER: AR20160013199 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 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 May 2015, be removed from his official military personnel file (OMPF). 2. He states the people in his case had poor credibility. He explains he had numerous witnesses that he felt were not taken into consideration. His senior rater wrote his Noncommissioned Office Evaluation Report (NCOER) with a "1" in overall performance and potential with no negative comments. Additionally, he states the trial defense counsel wrote a memorandum on his behalf that he believes the imposing authority failed to take into consideration. 3. He provides: * NCOER * Memorandum, subject: Article 15 Matters, [Applicant] 1st Battalion, 30th Infantry Regiment, dated 7 May 2015 * DA Form 2823 (Sworn Statement), dated 7 May 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 5 August 2005. He is currently serving in an active duty status in the rank/grade of sergeant (SGT)/E-5. 2. The applicant provided a copy of an NCOER for the period 22 October 2013 through 21 October 2014. This is a 12-month annual report that he received as a staff sergeant (SSG) with a date of rank of 1 December 2011, while he was assigned as the Senior Supply Sergeant, Headquarters and Headquarters Company, 1st Battalion, 30th Infantry Regiment, 2nd Armored Brigade Combat Team, 3rd Infantry Division, Fort Stewart, GA. This NCOER shows he was assessed as "Among the Best" by his rater and "1 - Successful/Superior" for overall performance and overall potential for promotion and/or service in positions of greater responsibility with supporting bullet comments. 3. On 18 February 2015, an investigating officer (IO) rendered his findings concerning an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) concerning allegations of sexual harassment, cyber harassment, and fostering a hostile work environment by the applicant. The IO found: a. The applicant contacted the wife of a private first class (PFC) via social media on numerous occasions and made advances towards her. His actions degraded the trust between junior Soldiers within the battalion and noncommissioned officers (NCOs). b. The applicant showed sexually explicit videos to numerous Soldiers in the battalion S-4 section. He showed a video to a specialist (SPC) in the spring of 2014 and three other supply personnel claimed they were subjected to viewing the pornographic videos on multiple occasions. In all the reported cases, the applicant claimed to the witnesses that he was a participant in the pornographic videos. c. The applicant made unwanted advances upon a SPC by asking her to dinner and to socialize outside of work on or about three or four occasions. These actions created the appearance of retaliation when the applicant's advances were denied and caused the SPC to perceive that she was being retaliated against. The applicant made these advances in the work place and via text messaging. The applicant's conduct constituted sexual harassment because the advances were unwanted and were an attempt for a quid pro quo relationship. d. The applicant engaged in conversation with the daughter of the SPC in which he used sexually explicit language. e. The applicant had no known allegations of sexual harassment documented against him while in the battalion. f. The applicant made several false statements during the IO’s interview. Namely, he denied ever showing pornographic videos to personnel in the company while on duty, using sexually explicit language directed towards the SPC's daughter, and making advances towards the SPC. g. The totality of the applicant's conduct produced a hostile work environment during his time as NCO in-charge (NCOIC) of the S-4 and also constituted cruelty and maltreatment of subordinates. He subjected two SPCs to continual verbal abuse, unsolicited comments, and continual behavior of a sexual manner. He subjected them to unsolicited sexually explicit videos, language, and detailed descriptions of sexual exploits on multiple occasions. The applicant's abuse degraded the performance and moral of the two SPCs, reported not only by the Soldiers themselves, but to others in the battalion. h. The sexually explicit videos, in which the applicant claimed to have participated, brought his fidelity into question. From the winter of 2013 to the fall of 2014, the applicant made numerous claims of sexual exploits with multiple partners. He made these claims in conjunction with his presentation of multiple videos depicting himself engaged in sexual acts with women other than his wife. According to the applicant, he finalized his divorce in January 2015. i. The IO recommended a field grade Article 15 and that the applicant be removed from positions of leadership. The IO stated he found no evidence of sexual assault, but he was concerned over the reports of the applicant's behavior with junior enlisted Soldiers, potential adultery, premeditated plans to engage in sexual activity with multiple sexual partners, coupled with the use of alcohol. He reemphasized that no known reports of sexual assault existed against the applicant, but this allegation caused him great concern about the applicant's off-duty activities. 4. On 18 February 2015, a legal review of the investigation was conducted and found the proceedings complied with the legal requirements, there were no substantial errors in the report of investigation, there was a preponderance of the evidence to support the IO's findings, and the recommendations were consistent with the findings. 5. On 6 May 2015, the applicant consulted with trial defense counsel, and the following day, the trial defense counsel submitted a memorandum to the Article 15 approving authority requesting the following: a. The applicant be found "Not Guilty" during his Article 15 adjudication. He said numerous witnesses stated in the AR 15-6 investigation that they never observed the applicant harassing anyone and the two Soldiers never reported this to other individuals, despite multiple opportunities. Instead, this was a case of two disgruntled employees, who were friends, conspiring to attack their supervisor due to him making them do their job. Notably, the Government had this investigation for almost six months, but the only proof they could produce were two corroborated statements from the two SPCs, with no corroborating physical evidence. b. A commander should not impose punishment during Article 15 unless he was convinced, beyond a reasonable doubt, the Soldier committed the offense. There was reasonable doubt based on witness credibility and a lack of evidence. Numerous witnesses, including officers who supervised the two SPCs gave sworn statements that they never witnessed harassment. Further, defense counsel stated the IO could not find any corroborating evidence to support the SPC's claims. The only evidence the IO located was two friends of one of the SPCs who claimed to have seen the inappropriate videos, as well as some text messages allegedly between the SPC and the applicant. The text messages appear consensual, not harassment, and do not support that any inappropriate relationship ever occurred. c. In addition to the lack of evidence, the SPCs had credibility issues, suggesting they fabricated the story to either deflect from their own misconduct or to retaliate against a supervisor whom they did not like. The SPCs were close friends and would have had time to align their stories prior to speaking with the IO. The sworn statement provided by the applicant was not reliable due to the IO interviewing the applicant while he was heavily under the influence of his prescribed painkillers. The IO informed the applicant that he had to give a statement that day, but he did not want to give a statement due to being on medication. He believes the heavy influence of the medication may have affected his answers. The applicant gave the IO the names of two people to interview on his behalf, but the IO did not interview these individuals. d. The trail defense counsel expounds on the applicant's dedication to the unit, mission, and Soldiers. He added this is not the praise for a Soldier who has committed misconduct and does not support Sexual Harassment/Assault Response and Prevention. In contrast, the SPCs and the complaining witnesses were mediocre Soldiers with motives to fabricate to retaliate against an NCO who pushed them to live up to Army standards. 6. The applicant provided a sworn statement, dated 7 May 2015, from one of his NCOs who stated she worked for the applicant from mid 2013 through 2014 and his leadership was unquestionable. She cited disrespectful language and attitudes of the two enlisted Soldiers who lodged complaints against the applicant. A copy of her statement is also contained with the AR 15-6 investigation. 7. On 13 May 2015, while in the rank/grade of SSG/E-6, nonjudicial punishment (NJP) was imposed against him for: a. With intent to deceive, make an official statement to the IO on or about 6 February 2015, that he did not show a pornographic video to a SPC, he did not show a pornographic video to anyone in the company, and he did not ask the SPC to spend personal time outside of work with him, which statement was totally false and was known by him to be false. b. showing a pornographic video on his cellular phone to a SPC while he was in the workplace between on or about 1 January and 30 April 2014. c. Knowingly fraternize with a SPC, an enlisted person, on terms of military equality by engaging in a conversation via text message with the SPC wherein he asked her to meet him at his residence, to go out with him and have a drink, and to make love to her on or about 20 October 2014. 8. The NJP shows in: a. Item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions are as follows): The applicant initialed "I do not demand trial by court-martial; A person to speak in my behalf is requested; and matters in defense, extenuation, and/or mitigation are attached." b. Item 4a (In a closed hearing, having considered all matters presented, I hereby make the following finding), the battalion commander initialed "Guilty of All Specifications." His punishment consisted of a reduction to sergeant (SGT)/E-5, a forfeiture of $1,475 pay, suspended, (to be automatically remitted if not vacated before 13 November 2015), 45 days of extra duty and restriction, suspended (to be automatically remitted if not vacated before 13 November 2015. The commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF. The applicant initialed item 5, stating "I appeal and submit additional matters." 9. On 21 May 2015, after considering all matters presented in the appeal, the higher approving authority denied the applicant's appeal. REFERENCES: 1. AR 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. Paragraph 1-9c states, except as provided in paragraph 1-9d, when adverse administrative action is contemplated against an individual including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual: a. Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based. b. Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material. c. Review and evaluate the person's response. 2. AR 27-10 establishes the policies and procedures for administration of military justice. Paragraph 3-2 states the use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. Nonjudicial punishment may be imposed to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction. The imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15, UCMJ. The Soldier will be advised that he has a right to demand trial. The demand for trial may be made at any time prior to imposition of punishment. The Soldier will be informed of his right to fully present his case in the presence of the imposing commander, to call witnesses, present evidence, be accompanied by a spokesperson, request an open hearing, and/or examine available evidence. Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). 3. AR 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files. The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual’s OMPF. The regulation 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. Thereafter, 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. Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records (ABCMR). DISCUSSION: 1. The applicant argues the Article 15 should be removed based on the poor credibility of the witnesses. 2. The evidence of record shows an AR 15-6 investigation was completed and the IO found, in effect, that the applicant sexually harassed Soldiers under his supervision during his time as the S-4 NCOIC. He subjected them to unsolicited sexually explicit videos, language, and detailed descriptions of sexual exploits on multiple occasions. He also made several false statements to the IO during the investigation and engaged in inappropriate text messaging. 3. Moreover, 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. The applicant was provided a defense attorney, was given the right to demand a trial by court-martial, and he was afforded the opportunity to appeal the Article 15. 4. The evidence further shows his NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed as directed by the imposing commander. The commander signed the Article 15 indicating he had considered all matters presented prior to making his final decision and found him guilty of all specifications. 5. The applicant appealed the Article 15 to the higher authority and after a complete review, his request was denied. There is no evidence of record and he did not provide any evidence to show the DA Form 2627 is untrue or unjust or that the imposing or higher authorities did not consider all information provided to include trial defense counsel's memorandum and the positive statement from his subordinate prior to rendering their decision. 6. As specified in AR 600-37, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013199 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013199 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2