BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20170009078 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: 12 September 2017 DOCKET NUMBER: AR20170009078 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: 12 September 2017 DOCKET NUMBER: AR20170009078 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 removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 27 January 2015, from his official military personnel file (OMPF). He further requests a personal hearing before the Board. 2. The applicant defers all statements to counsel. 3. The applicant provides evidence rendered by civilian counsel (as mentioned below). COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, that: a. the DA Form 2627, dated 27 January 2015 with all associated adverse information, be completely removed from the applicant's OMPF; b. all lost pay and allowances stemming from the Article 15 be reinstated to the applicant; c. the applicant receive his Army Good Conduct Medal (6th Award); d. the applicant be promoted to sergeant first class (SFC) effective 1 March 2015; and e. the applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the period ending 2 March 2015, be voided. 2. Counsel, in an eight-page letter, states: a. The applicant requests the Board correct significant errors and injustices that affected the applicant when he was assigned to Fort Lee, VA, from January 2013 through August 2016. He has factual evidence that the investigating officer, members of his chain of command, and the Staff Judge Advocate's office at Fort Lee violated Army regulations, the UCMJ, his equal protection rights, and the 5th and 14th Amendments of the United States Constitution during an investigation, hearing, and appeal process. b. On 27 January 2015, the applicant was given non-judicial punishment (NJP) under the UCMJ by his brigade commander, Colonel (COL) M.B.T. The NJP included two counts of sexual harassment. The applicant adamantly denied the allegations and appealed the decision. The appeal was then denied by Brigadier General (BG) R.K. on 2 March 2015. c. The investigation and NJP procedures were in error and unjust for the following reasons: the victims provided no factual evidence; the witness statements were inconsistent and biased; the investigating officer and command failed to recognize the inconsistencies and bias associated with the allegations; the command failed to provide the applicant with exculpatory information so he could properly defend himself during the investigation and subsequent Article 15 hearing; the command wrongfully charged him with acts with no direct supporting factual evidence, such as the actual text messages referred to in the false accusations; after the Article 15 hearing the command unlawfully altered the Article 15 paperwork and charge; and finally, the command, along with the Staff Judge Advocate's office, approved all of the wrongfully altered paperwork. d. The applicant has exhausted all remedies to include presenting his case to a Standby Advisory Board (STAB) in 2016. Prior to these false and unfair incidents, he had a very strong military record and his command, past and present, continues to recommend him for promotion. e. The applicant is a married man with four children, has served on active duty since August 1997, and has deployed three times. He has received "excellence" ratings in 11 of 12 possible areas over the past two years. He has a proven history of recognizing the value of rules, which in his most recent NCOER indicates he "supported the Army's [Sexual Harassment/Assault Response and Prevention Program (SHARP)] program; fostered an environment free of harassment through training and leading by example resulting in zero incidents." He was also recognized for successfully accomplishing the additional duty of being the "Battalion Equal Opportunity Leader." His evaluations exhibit that he exercised "impeccable and unquestionable integrity" and "fully supports the Army's Equal Opportunity policies." In the same NCOER, his rater noted that he, "trained six [Equal Opportunity (EO) Liaisons] monthly; was recognized as managing the best EO program in Division" and that he "received commendable ratings from Division Equal Opportunity Advisor during the FY12 CIP inspection; managed the top EO program on Fort Campbell with zero faults." The evaluations show that the applicant has been a cautious and thorough NCO, and supported anti-discriminatory military programs. f. The evidence substantiates the investigation and NJP process violated regulatory guidance and the law, which prejudiced the applicant's career with the following: (1) The investigating officer did not properly notify him of the Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation in violation of Army regulations and his due process rights under the United States Constitution that require notification of the full nature of the investigation, including the allegations made by any alleged victims. (2) The AR 15-6 findings, and subsequent Article 15 proceedings, relied heavily on unsubstantiated allegations made by an alleged victim who did not provide corroborating documentation necessary to support her false assertions. Due to the lack of evidence a Fort Lee military police (MP) criminal investigation determined that the allegations were unfounded; therefore, the command decision to punish him was clearly unjust and in violation of his due process rights. (3) Witnesses used to substantiate the AR 15-6 findings were biased because the applicant had previously made a complaint against them; therefore, the use of their statements violated provisions of Army Regulation 600-20 (Army Command Policy), chapter 5-12 (Military Whistleblower Protection Act), because his chain of command authorized the individuals to make statements against him in reprisal. Since their statements were included within the findings of the AR 15-6 investigation, his Constitutional rights of due process and equal protection under the law were violated. He was then never informed of the investigating officer's findings, or given the opportunity to submit a rebuttal statement to the findings. (4) The AR 15-6 report was supported by factual errors and unlawfully weaved together diverse statements to substantiate false findings without crediting clear and known exculpatory evidence. The report did not credit the exculpatory nature of emails that he provided to his Command exhibiting his innocence and appropriate behaviors. The report also did not consider the findings of a criminal investigation showing that the harassment allegations were unfounded. (5) The applicant's command failed to disclose important evidence to the AR 15-6 investigating officer. It is likely that his entire chain of command was aware of the findings of the MP investigation within 72 hours of the initial false report. They did not provide the applicant with the MP report while the AR 15-6 investigation was pending or during the Article 15 proceedings. The MP report was clearly exculpatory and the record also shows that the investigating officer was unaware of the police investigation findings. (6) The commander that handled the Article 15 proceedings did not credit the fact that there was no evidence to support the charges. There was no proof to corroborate the allegations that he made unwelcome sexual advances via text message or social media. The chain of command wrongfully added these allegations to the charges used to support the Article 15. It is unclear how the commander determined the legal sufficiency of the charges or how they met the legally required burden of proof. At the time of the Article 15 proceedings, he did not realize that the MP investigation had already determined that the charges were unfounded. He did not have the opportunity to make a knowing and intelligent decision regarding whether to accept the non-judicial punishment or require the Army to prove the charges beyond a reasonable doubt in a trial by court-martial. The Army produced no witnesses or evidence to support the allegations at the Article 15 hearing, or any documentary evidence such as texts or other communications. Only after making a formal request through counsel did he obtain the relevant exculpatory MP report. The appeal authority of the Article 15 still did not credit the numerous inconsistencies in the process, the violations of his rights (including the withholding of exculpatory evidence), and valid arguments that the evidence did not meet the burden of proof necessary for a finding of guilt. Finally, during the appeal process, the Staff Judge Advocate's office wrongfully changed the appeal authority, and then also changed the language of the charging paperwork, striking through the relevant portions after the fact. All of these factors clearly created legal and procedural errors that violated his due process rights. g. Prior to the false accusations, the faulty investigation, and the clear violations of his rights, he was selected for promotion to SFC by the Fiscal Year 2014 (FY14) SFC promotion board. His record indicated he was best qualified in the next higher pay grade. He has since received exceptional ratings on his most recent NCOERs and was recently reassigned to Fort Bragg, NC. Despite his stellar career, he was placed on the Qualitative Management Program (QMP) list in late 2016 because of the injustices that occurred at Fort Lee. 3. Counsel provides numerous documents, tabbed and organized as follows: * Enclosure 1 – DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 23 September 2016 * Enclosure 2 – applicant's power of attorney for counsel * Enclosure 3 – a twelve page Sworn Declaration by the applicant and two supporting photographs * Enclosure 4 – seven NCOERs covering the period from 24 October 2011 through 29 July 2016 and an Enlisted Record Brief (ERB), dated 2 March 2015 * Enclosure 5 – DA Form 3975 (MP Report) with supporting documents * Enclosure 6 – Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) findings and supporting documents * Enclosure 7 – DA Form 2627, dated 27 January 2015 * Enclosure 8 – counsel's email request for MP Report, dated 4 February 2015 * Enclosure 9 – the applicant's Article 15 Appeal, dated 9 February 2015 (by counsel) * Enclosure 10 – the applicant's Appeal Supplement of Article 15, dated 24 February 2015 (by counsel) * Enclosure 11 – Article 15 Proceedings with Appeal Decision * Enclosure 12 – STAB Decision, dated 12 May 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 21 August 1997. He was promoted to his current rank of staff sergeant on 1 March 2006 and is currently serving at Fort Bragg, NC. 2. While serving as a drill sergeant at Fort Leonard Wood, MO, the applicant received NJP on 9 February 2007 under the provisions of Article 15 of the UCMJ for two specifications of violating Article 92 of the UCMJ. Specifically, he was punished for: * on or about between 25 September 2006 and 11 October 2006, violating a lawful general regulation by using profane language toward initial entry training (IET) Soldiers * on or about 8 October 2006, violating a lawful general regulation by hazing IET Soldiers, to wit: CAPEing (corrective action through excessive physical training) 3. The applicant was sentenced to reduction to the rank/grade of sergeant (SGT)/E-5, to be suspended for 180 days, and forfeiture of $1,011 pay per month for two months. Upon his appeal, his forfeiture of pay was reduced to one month. 4. A Memorandum for Record from the 23rd Quartermaster Brigade, SHARP Representative, subject: Informal Sexual Harassment, dated 10 December 2013, indicates Private (PVT) K.F. stated the applicant made inappropriate comments toward her in a sexual manner while on Charge of Quarters (CQ) duty, causing her to feel unsafe. On the same day, the chain of command talked to the applicant about the allegations and he did not deny the remarks and did not know they were inappropriate. The first sergeant gave the applicant a counseling statement reemphasizing inappropriate relationships. 5. A DA Form 3975, dated 18 October 2014, shows Ms. R.L.A. filed an MP report against the applicant on 17 October 2014 for the offense of harassment. She provided a sworn statement in which she testified that between 1 August 2014 and 17 October 2014, the applicant repeatedly communicated with her in an inappropriate fashion while at work. a. The applicant repeatedly attempted to solicit a social relationship with her and had frequented her work area on a daily basis. Ms. R.L.A. also received phone calls from a local number she identified as the applicant's. b. Due to the non-threatening nature and that he had not been advised to cease these communications, the offense was unfounded. A follow-up would continue. c. On 18 October 2014, his commander informed him to stop all contact and communication with Ms. R.L.A. and that he would be reassigned pending the outcome of an AR 15-6 Investigation into the complaints against him. He agreed with his signature to the counselling on the same date. He was also provided a military protective order on the same day, regarding the limits of his actions toward Ms. R.L.A., and agreed to the stipulations stated. A suspension of favorable personnel actions was also initiated against him by the commander. d. On 20 October 2014, the MP Investigator followed up with his commander who provided a military protective order and a counseling statement, informing the applicant he would no longer have any contact with Ms. R.L.A. The applicant would also be reassigned. 6. A DA Form 7279 (Equal Opportunity Complaint Form), dated 21 October 2014, shows a sexual harassment complaint was filed against the applicant by a SGT C.M.R. On the same day, a military protective order was filed against the applicant to stay at least 500 feet away and refrain from any contact or communication with her. He agreed by his signature on the same date. 7. A MEDDAC Form 725A (Commander's Request for Behavior Health Evaluation), dated 21 October 2014, show the applicant's commander referred him to mental health for consultation. He cited the following as his rationale for referral: The command and the Fort Lee MPs have received complaints, by females, of harassing behavior by [applicant]. Prior to these complaints, [applicant] had a still open investigation for creating a hostile work environment and making inappropriate gestures and comments to his coworkers. He recently complained to the commander of "needing help with coping skills" and displays confused behavior such as asking to go on leave when he knows he cannot due to a flag and open investigation. Interpersonal conflict with workers is an ongoing issue. Displays what could be described as harassing behavior with females in the workplace. 8. A behavioral health evaluation by a medical professional is unavailable for review. 9. On 21 October 2014, the battalion commander appointed an AR 15-6 investigating officer (IO), CPT K.R., to conduct an informal investigation to determine whether the sexual harassment allegations against the applicant were founded. 10. On 29 October 2014, the applicant signed a Privacy Act statement and signed a DA Form 3881 (Rights Warning Procedure/Wavier Certificate). He did not give up his rights and requested a lawyer. 11. A memorandum from the IO, dated 4 November 2014, subject: Findings and Recommendations for Army Regulation 15-6 Investigation into Violation of Army Regulation 600-20, informed that applicant's commander that after interviews and a review of the evidence, the IO determined by a preponderance of the evidence that the applicant violated Army Regulation 600-20, paragraph 4-4 (Soldier Conduct) and chapter 7 (Prevention of Sexual Harassment), and Articles 92, 93, 108, 117 and 128 of the UCMJ. After consultation with trial counsel, the IO recommended that the applicant received adverse administrative and UCMJ action. 12. On 21 January 2015, the applicant waived his right to legal counsel for his Article 15 proceedings and stated his desire to proceed with adjudication. On 27 January 2015, he received NJP for two specifications of violating Article 92 of the UCMJ: a. in that having knowledge of a lawful order from a superior commissioned officer to remain in compliance with the Army's equal opportunity and sexual harassment policies, between on or about 1 July 2014 and on or about 17 October 2014, he failed to obey the same by making sexual comments and unwelcomed sexual advances via text messages and social media to Ms. R.L.A., and b. in that having knowledge of a lawful order from a superior commissioned officer, to remain in compliance with the Army's equal opportunity and sexual harassment policies, between on or about 15 September 2014 and on or about 17 October 2014, he failed to obey the same by making unwelcomed sexual advances in person and via text messages to SGT C.R. 13. The applicant was sentenced to reduction to the rank/grade of SGT/E-5, to be suspended and remitted if not vacated before 26 July 2015; forfeiture of $1,562 pay; and extra duty for 30 days, suspended and remitted if not vacated before 27 May 2015. He elected to appeal his sentence. 14. On 9 February and 24 February 2015, with supplemental documentation, the applicant appealed his Article 15 punishment. The imposing commander considered his appeal and granted relief in striking through the language "and unwelcomed sexual advances via text message and social media" from specification 1 on 3 March 2015. The applicant acknowledged the appeal results on 12 March 2015. 15. The applicant received an NCOER during the month of April 2015, a "Change of Rater" report covering 4 months of rated time from 21 July 2014 through 2 March 2015. His rater was his Company Executive Officer, 1LT J.A,; his senior rater was his Company Commander, CPT D.J.; and his reviewer was his Battalion Commander, LTC S.K. His principle duty title during the rated period was "Supply Sergeant." The NCOER shows in: a. Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" block for "Respect/EO/[Equal Employment Opportunity (EEO)]" and entered the following comments: * does not support SHARP, EO and EEO * competent in all his duties * determined to see mission success b. Part IVd (Leadership), the rater placed an "X" in "Needs Improvement (Much)" with the following comment: "substantiated findings of an Army Investigation; committed two acts of sexual harassment." c. Part Va (Rater – Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an "X" in the "Fully Capable" block. d. Part Vc (Senior Rater – Overall performance), the senior rater placed an "X" in the "Successful/3" block. e. 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. f. Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * do not recommend promotion at this time; with further mentorship and training this Soldier may be ready for greater responsibility * send to Support Operations Course * does not support SHARP, EO, and EEO * Soldier was given a no contact order which prevented the rater from completing quarterly counselings 16. The NCOER shows the rater and the senior rater signed the form in the appropriate places and the reviewer concurred with the rater and senior rater and affixed his digital signature. The applicant signed the form on 27 April 2015. 17. The applicant's available records do not contain evidence that shows he requested a Commander's Inquiry (CI) regarding the contested NCOER or appealed the NCOER to the Army Enlisted Special Review Board (ESRB). 18. A memorandum from the Chief, Enlisted Promotions Branch, U.S. Army Human Resources Command (HRC), dated 12 May 2016, subject: [Headquarters Department of the Army (HQDA)] STAB [Applicant], shows the applicant was informed that a STAB was convened on 1 March 2016 to determine whether he should be retained or removed from the FY14 SFC Promotion List. It was recommended that he be removed from the list, and the recommendation was approved by the Director of Military Personnel Management (DMPM). He was informed that he would be eligible for subsequent boards, if otherwise qualified. 19. The applicant provided the following additional evidence not discussed above. a. A twelve-page typed Sworn Declaration, dated 9 February 2017, wherein he stated: (1) He believes the IO violated his rights and due process by not notifying him of the proposed adverse action and the findings and recommendations of the investigation. He also states the MP investigation was unfounded. (2) He states the allegation against him by Ms. R.L.A. is unsupported, and therefore, any action taken against him is unjust. He denies her assertion of wrongfully using her phone to get her number. The MP report stated the following: I am quite upset over the fact that you went into my phone and found out my phone number. That is an invasion of privacy. Please delete my personal phone number out of your phone and do not call me again. I told you yesterday that you could not text me when you asked but did not realize you had found out my number while I was helping you with the radios. That is inappropriate and makes me feel very uncomfortable. He states he responded in minutes: Ma'am, your request has been taken care of, and again, I do apologize completely. I feel horrible for putting you in an uncomfortable positon and I guarantee it will NOT happen again. Please accept this apology. He further notes that he had redialed an unknown number and did not realize it was Ms. R.L.A.'s phone number. (3) He states he made an informal EO complaint with the 23rd Quartermaster Brigade EO Advisor alleging sexual discrimination against him by three female NCOs. During the investigation process, the IO then obtained statements from these three NCOs to be used against him in support of SGT C.M.R.'s claim. This he believes violated his rights under the Military Whistleblower Protection Act, in accordance with Army Regulation 600-20, chapter 5-12, as his chain of command used these statements against him in reprisal. [There is no evidence in his record nor does he provide any of his EO complaint. Also, there is no Inspector General report documenting such a reprisal complaint.] (4) He stated the AR 15-6 findings were based upon factual errors in that Ms. R.L.A.'s statements were twisted, and every time he encountered her, he was just doing his job. In addition, the times he did call her, it was for command business. (5) He believes his Article 15 proceedings and appeal were in error due a lack of supporting evidence, as it was based on a faulty AR 15-6 investigation. He accepted the NJP and understood he would have to waive his rights. He also agreed to a closed hearing but stated the command did not produce any witnesses or evidence in support of the allegations. He stated the appeal was in error and violated his rights, stating the imposing commander struck out an element in the charge creating a procedural error. (6) He believes he was treated unfairly, his rights were violated, and the investigation was inherently biased and the IO violated AR 600-20 treating everyone fair and equal. Prior to this injustice, he was selected on the FY14 SFC Promotion Board and has ever since received exceptional ratings on his most recent NCOERs. He was placed on the QMP list in late 2016 due to this incident. He took the option to volunteer to retire as to not lose any options for retirement. If the process is approved, he would have 2 years' time in grade as a SFC, since he would have been projected to be promoted on 1 March 2015, which is required to hold the grade for retirement. b. Seven NCOERs, including the contested NCOER, covering the period 4 October 2011 through 29 July 2016 and an ERB, dated 2 March 2015. The NCOERs, minus the contested NCOER, show his duty performance as successful and his promotion potential as superior. His ERB shows he was awarded five Army Good Conduct Medals and he was eligible for his next award for the time frame of 21 August 2012 through 20 August 2015. c. Email correspondence between the applicant's counsel and The Judge Advocate General Legal Counsel Service requesting a copy of the MP report, dated 4 February 2015. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment. In case of a conflict between the provisions of this regulation, when made applicable, and the provisions of the specific directive authorizing the investigation or board, the latter will govern. Even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case its provisions are not mandatory. The primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority. It is the duty of the IO or board to ascertain and consider the evidence on all sides of each issue thoroughly and impartially and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority. 3. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial: a. Paragraph 3-28 describes setting aside and restorations. This 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 Article 15. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means 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. b. Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR. The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. c. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR. It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR. 4. Army Regulation 600-20 prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign (R2C) Plan, military discipline and conduct, the Army Equal Opportunity (EO) Program, and the Army Sexual Harassment/Assault Response and Prevention (SHARP) Program (formerly the Army Sexual Assault Victim Program). a. Paragraph 4-4 states ensuring the proper conduct of Soldiers is a function of command. Commanders and leaders in the Army, whether on or off duty or in a leave status, will ensure all Soldiers present a neat, military appearance, and will take action consistent with Army regulations in any case where a Soldier's conduct violated good order and military discipline. b. Paragraph 5-12 (Military Whistleblower Protection Act) states Department of the Army personnel are prohibited from taking acts of reprisal against any Soldier for filing a complaint of unlawful discrimination or sexual harassment. (1) No person will restrict a member of the Armed Services from making a protected communication with a Member of Congress; an IG; a member of a DOD audit, inspection, investigation, or law enforcement organization; or any other person or organization (including any person in the chain of command) designated under this regulation or other administrative procedures to receive such communication. (2) A protected communication is any lawful communication with a Member of Congress or an IG; a communication in which a member of the Armed Forces communicates information that the member reasonably believes evidences a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety, when such communication is made. (3) Soldiers will be free from reprisal for making or preparing a protected communication. (4) No employee or Soldier may take or threaten to take an unfavorable personnel action, or to withhold or threaten to withhold a favorable personnel action, in reprisal against any Soldier for making or preparing a protected communication. (5) The chain of command will ensure complainants are protected from reprisal or retaliation for filing EO complaints. Should Soldiers be threatened with such an act, or should an act of reprisal occur, they must report these circumstances to the DOD IG. c. Chapter 7 (Prevention of Sexual Harassment (POSH)) states POSH is a commander's responsibility. The EO advisor plays a pivotal role by assisting the commander with policy awareness, training, command climate assessments, complaints processing, and overall advisory assistance concerning the POSH. Consistent with Army policy and regulations, command policy statements will be published and posted. (1) The policy of the Army is that sexual harassment is unacceptable conduct and will not be tolerated. Army leadership at all levels will be committed to creating and maintaining an environment conducive to maximum productivity and respect for human dignity. Sexual harassment destroys teamwork and negatively affects combat readiness. The Army bases its success on mission accomplishment. Successful mission accomplishment can be achieved only in an environment free of sexual harassment for all personnel. (2) POSH is the responsibility of every Soldier and DA civilian. Leaders set the standard for Soldiers and DA civilians to follow. (3) Sexual harassment is a form of gender discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between the same or opposite genders when— (a) Submission to, or rejection of, such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay, or career. (b) Submission to, or rejection of, such conduct by a person is used as a basis for career or employment decisions affecting that person. (c) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. (4) Any person in a supervisory or command position who uses or condones implicit or explicit sexual behavior to control, influence, or affect the career, pay, or job of a Soldier or civilian employee is engaging in sexual harassment. Similarly, any Soldier or civilian employee who makes deliberate or repeated unwelcome verbal comments, gestures, or physical contact of a sexual nature is engaging in sexual harassment. (5) Verbal, nonverbal, and physical contact are the categories of sexual harassment. 5. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-9 states 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 NCO 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 Pamphlet 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 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 2-17 states every NCOER will be reviewed by the first sergeant, command sergeant major or sergeant major and signed by an official who meets the reviewer requirements of paragraph 2–8b. The reviewer is responsible for rating safeguard overwatch and will ensure that the proper rater and senior rater complete the report and examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts. Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in Part IVb-f. The reviewer will comment only when in disagreement with the rater and/or senior rater. The reviewer indicates concurrence or non-concurrence with rater and/or senior rater by annotating the appropriate box with a typewritten or handwritten “X “ in Part II and adding an enclosure (not to exceed one page) if non-concurrence is selected. d. Paragraph 3-39 states 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. e. Paragraph 6-11a states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3–39 and 6–7 will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice. The evidence presented must be of a clear and convincing, and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 6. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of 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. NCOERs are filed in the performance section of the OMPF. DA Form 2627 is filed in either the performance or restricted folder of the AMHRR, as directed in the DA Form 2627. 7. Army Regulation 600-37 (Unfavorable Information) provides 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. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 8. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. The Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service. A commander's decision to award the AGCM will be based on his or her personal knowledge of the individual Soldier, and the individual's official records for the periods of service under previous commanders during the period for which the award is to be made. However, there is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders. Although there is no automatic entitlement to the AGCM, disqualification must be justified. 9. Several Military Personnel (MILPER) messages provide guidance and procedures in support of the QMP. The purpose of the QMP is to identify selected NCOs for possible involuntary separation, specifically those with a general officer memorandum of reprimand, conviction by a court-martial or Article 15, relief for cause NCOER, a "No" in the Army values on an NCOER, a senior rating of "4" on an NCOER, and NCO Education System failures. * Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.) * Soldiers may appeal on the basis of a material error in their records when reviewed by the board; the chain of command, all the way to a general officer, must recommend approval or disapproval * Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the DMPM is the final authority for disposition of appeals DISCUSSION: 1. The evidence of record shows an AR 15-6 informal investigation was conducted, based on numerous sexual harassment complaints, which concluded the applicant, by a preponderance of evidence, violated Army regulatory guidance and lawful orders to comply with sexual harassment policies. 2. Although the applicant and counsel contend the investigation proceedings contain several errors and non-factual statements, violated his rights, and that one complaint was unfounded by an MP report, by regulation a legal review would have been conducted for legal sufficiency. This review would have determined if the applicant's rights were violated or procedural errors occurred prior to the imposing authority's actions. Although not available for review, this legal review is presumed to have been properly conducted. 3. Based on the findings of the AR 15-6 investigation, the applicant's senior commander imposed NJP on 21 January 2015. The evidence considered by the IO and the imposing authority sufficiently established, beyond a reasonable doubt, the applicant committed the alleged acts of misconduct. 4. The applicant requested a closed hearing, did not demand a trial by court-martial, and waived his rights to legal counsel on 27 January 2015. On the same day, he was found guilty of the two specifications of disobeying a lawful order from a superior commissioned officer to remain in compliance with the Army's EO and sexual harassment policies. On appeal, he was granted relief in that the language "and unwelcomed sexual advances via text message and social media" was stricken from specification one. 5. Army Regulation 27-10 provides that the commander's preliminary investigation to determine whether an offense has been committed for which NJP would be appropriate is usually informal and consists of interviews with witnesses and/or review of police or other informative reports. The evidence in this case indicates that the commander's actions were in accordance with this guideline. 6. The applicant and counsel contend his rights were additionally violated under the Whistleblower Protection Act, which states Army personnel are prohibited from taking acts of reprisal against any Soldier for filing a complaint of unlawful discrimination or sexual harassment. He states he made an informal EO complaint alleging sexual discrimination against him by three female NCOs before the investigation. The applicant stated he provided evidence in support of this contention. Notwithstanding the applicant's sincerity, there was no evidence of this complaint provided with his application nor does his record contain a record of his EO complaint. Additionally, there is no Inspector General report documenting such a reprisal complaint. 7. His NJP proceedings were conducted in accordance with law and regulation and his Article 15 was properly filed in the performance folder of his AMHRR as directed by the imposing commander. The allied documents are filed in the restricted folder of his AMHRR. There is insufficient evidence of record and he provides insufficient evidence to show the Article 15 is untrue or unjust. 8. The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part unless directed by an appropriate authority. 9. Subsequent to his NJP, he received a "Change of Rater" NCOER for the period ending 2 March 2015 that indicates he does not support SHARP, EO and EEO and a recommendation of do not promote at this time. The NCOER is filed in the performance folder of his AMHRR. 10. The report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question. There is no evidence the report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy. 11. The applicant's record does not contain evidence that shows he requested a CI or appealed the NCOER to the Army ERSB. 12. The applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did. In addition, he did not provide evidence which clearly and convincingly establishes that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, injustice, or removal from his record. 13. He contends prior to this incident, he was selected by the FY14 SFC Promotion Board. As a result, a STAB was convened on 1 March 2016 to determine whether he should be retained or removed from the FY14 Promotion List. The STAB recommended that he be removed for the list which was approved by the DMPM, G-1. Subsequently, he was placed on the QMP list in late 2016 as a result of his NCOER/Article 15. Had this injustice not occurred he was projected to be promoted on 1 March 2015. Although his QMP paperwork is not available for review, he admits that he opted to retire rather than be involuntarily separated. 14. As a result of the aforementioned, there appears to be no error or injustice or rationale for retroactively promoting him to SFC. 15. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial and credible evidence to support a claim. There appears to be no arbitrary or capricious actions from the chain of command. There appears to be insufficient evidence that shows the applicant's contentions contain any administrative or substantive deficiencies or inaccuracies or that his Article 15, NCOER, or other contentions were not prepared and/or conducted in compliance with applicable regulations and policies. 16. Regarding his contention that he should be retroactively awarded the Army Good Conduct Medal (6th Award), although there is no automatic entitlement to the award, disqualification must be justified. Based on the aforementioned circumstances of his case, it can be assumed that his commander would not have supported his receipt of the award. Therefore, there appears to be no error or injustice associated with this contention. 17. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170009078 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009078 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2