ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20180005873 APPLICANT REQUESTS: * rescission of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) he received while he was deployed with the 101st Airborne Division * restoration to his former rank/grade of staff sergeant (SSG)/E-6 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, Zulu Company, 101st Headquarters and Headquarters Battalion, Camp Arifjan, Kuwait, dated 8 April 2016, subject: Rules for Courts-Martial 303 Commanders Inquiry into Alleged Fraternization, Maltreatment, and Sexual Harassment between (Applicant) and Specialist * DA Form 4856 (Developmental Counseling Form), dated 28 March 2016 * Letter, Applicant to Senator, dated 2 May 2017 * Letter, Joint Force Headquarters Wisconsin, Wisconsin National Guard, Madison, WI, dated 22 December 2017 REFERENCES: 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. 2. 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 and the rules for courts-martial. a. Paragraph 3-3 (Relationship of Nonjudicial Punishment to Nonpunitive Measures) states nonjudicial punishment is imposed to correct misconduct in violation of the 1 Uniform Code of Military Justice. Included among nonpunitive measures are denial of pass or other privileges, counseling, or administrative reduction in grade. b. Paragraph 3-19b(6) (Rules and Limitations – Reduction in Grade) states the grade from which reduced must be within the promotion authority of the imposing commander or any officer subordinate to the imposing commander. When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures governing promotions and reductions of Army enlisted personnel. a. Table 10-1 (Administrative Reduction/Board Convening Authorities) stated for rank reduction from SSG, the reduction authority is field grade commanders of any organization authorized a lieutenant colonel or higher rank commander. b. Paragraph 10-3 (Reduction for Misconduct – Rules) stated commanders will publish orders and enter the reduction in the military records of the Soldier. The Soldier will be notified, in writing, of the right to appeal the reduction. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. A key piece of evidence used in his nonjudicial punishment was a counseling statement from his first sergeant stating he fraternized with another Soldier. The counseling statement was written and given to him 1 day after his company commander ordered an investigation for fraternization between him and other females within the command. b. Two days after his company commander approved the findings from the investigation that said he did not fraternize with the two named Soldiers, his first sergeant closed his counseling and said it was still fraternization between him and one of the named Soldiers. This was retaliatory in nature and went directly against what their company commander ordered. c. A second investigation was later conducted regarding him and the same Soldier. The investigation illustrated obvious bias. His first sergeant's counseling, a statement from the Soldier who initiated the first complaint against him and was no longer in the country, and a statement from another one of his Soldiers who received two occurrences of nonjudicial punishment and was sent home early were key pieces of evidence. d. The investigator failed to submit statements he collected during his investigation that were favorable and did not support his findings for legal review. The 101st Headquarters and Headquarters Battalion Inspector General referenced the legal review and stated there was a legal review conducted and the legal review stated all unidentified errors were "harmless error"; there was nothing wrong. There was no secondary legal review conducted after the discovery of additional missing evidence. 3. A review of the applicant's Army Military Human Resource Record (AMHRR) does not show evidence of a DA Form 2627 or evidence of nonjudicial punishment. Therefore, removal of the DA Form 2627 from his AMHRR will not be further addressed in this Record of Proceedings. 4. On 22 December 2015, he was ordered to active duty in an Active Guard Reserve status for a 3-year period and attached to Headquarters, 101st Airborne Division; Fort Campbell, KY. 5. National Guard Bureau Orders NG-029-0002, dated 29 January 2016, deployed him to Kuwait in a temporary change of station status in support of Operation Inherent Resolve. 6. On 28 March 2016, he received developmental counseling from his first sergeant for the perception of fraternization between him and a. The first sergeant stated he spotted the applicant and alone off duty on multiple occasions. He advised the applicant on 26 March 2016 that "perception is reality" and clearly stated he wasn't accusing the applicant of having an inappropriate relationship with , but was concerned that the absence of others of like-grade or gender poses a concern of what the relationship looks like to other team members. The first sergeant wanted to clearly deter fraternization. b. He disagreed with the information on the Developmental Counseling Form and indicated he attached comments. His comments are not in evidence. 7. The Zulu Company, 101st Headquarters and Headquarters Battalion, Camp Arifjan, Kuwait, memorandum, dated 8 April 2016, subject: Rules for Courts-Martial 303 Commanders Inquiry into Alleged Fraternization, Maltreatment, and Sexual Harassment between (Applicant) and states: a. An investigating officer was appointed on 27 March 2016 to determine the facts and circumstances surrounding the actions of the applicant towards and other female Soldiers, and whether those actions violated the Uniform Code of Military Justice, Army regulations, or created a hostile work environment or improper appearance. b. The investigating officer found there was insufficient evidence of sexual harassment. The comments the applicant made towards were not of a sexual nature and did not meet the criteria for sexual harassment. There was insufficient evidence of any maltreatment or fraternization. c. Based on the finding that the applicant had not committed fraternization, maltreatment, or sexual harassment, the investigating officer recommended no punitive action. 8. The applicant's AMHRR contains his Noncommissioned Officer Evaluation Report covering the period 1 January 2016 through 31 October 2016. a. In Part IVc (Character), his rater marked "DID NOT MEET STANDARD" and commented: "Soldier did not meet standard of character due to the fact that he was found guilty of an inappropriate relationship." b. In Part V (Senior Rater Overall Potential), his senior rater marked "QUALIFIED." 9. Joint Force Headquarters Wisconsin, Wisconsin National Guard, Orders 307-1000, dated 2 November 2016, reduced him from the rank/grade of SSG/E-6 to sergeant/E-5 effective 4 October 2016 by reason of "Misconduct" under the authority of Army Regulation 27-10, paragraph 3-19b(6). 10. Wisconsin Army National Guard Order 027-033, dated 27 January 2017, ordered him to active duty in an Active Guard Reserve status assigned to the 641st Troop Command Battalion, Madison, WI, for the period 23 November 2016 through 14 March 2020. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. The Board did not find in the applicant’s military records a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) issued while the applicant was deployed with the 101st Airborne Division. It is noted that the Commander’s Inquiry concluded that the applicant had not committed fraternization, maltreatment, or sexual harassment. However, it is noted that the Command found that the applicant had been guilty of an inappropriate relationships (no fraternization, maltreatment, or sexual harassment) in violation of regulation and reduced the applicant accordingly. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s reduction from SSG/E-6 to SGT/E-5. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 12/3/2020 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. //NOTHING FOLLOWS//