ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20180005924 APPLICANT REQUESTS: * set aside of nonjudicial punishment (NJP) imposed on 27 February 2017 under the provisions of Article 15 (Commanding Officer's NJP), Uniform Code of Military Justice (UCMJ) * removal of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 27 February 2017, from the restricted folder of his Official Military Personnel File (OMPF) * removal of all documents associated with the Article 15 proceedings from his OMPF * reinstatement to the rank/grade of staff sergeant/E-6 * payment of back pay and allowances resulting from his unauthorized reduction 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 for Record, Equal Opportunity (EO) Advisor, Headquarters and Fort Hood, dated 28 October 2016 * Memorandum, Commander, Headquarters, 1st Battalion, 395th Infantry Regiment, 120th Infantry Brigade, dated 1 November 2016 * DA Form 1574-1 (Report of Proceedings by Investigating Officer (IO)), dated 4 November 2016 * DA Form 2823 (Sworn Statement) from X___ , dated 16 November 2016 * DA Form 2823 from X___, dated 16 November 2016 * DA Form 2823 from Sergeant First Class X___, dated 18 November 2016 * DA Form 2823 from X___, dated 18 November 2016 * DA Form 2823 from applicant, dated 18 November 2016 * Memorandum, IO, 1st Battalion, 393rd Infantry Regiment, 120th Infantry Brigade, Division West (Training Support), dated 18 November 2016 * Memorandum, IO, 1st Battalion, 393rd Infantry Regiment, 120th Infantry Brigade Division West (Training Support), dated 18 November 2016 * * Memorandum, IO, 1st Battalion, 393rd Infantry Regiment, 120th Infantry Brigade Division West (Training Support), 18 November 2016 * DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 18 November 2016 * six Privacy Act Statements, dated 18 November 2016 * Self-authored Statement, undated * two Internet Articles, Military Compensation, undated * Memorandum, IO, 1st Battalion, 393rd Infantry Regiment, 120th Infantry Brigade, Division West (Training Support), dated 20 November 2016 * Memorandum, Brigade Judge Advocate, Headquarters, 120th Infantry Brigade, dated 23 November 2016 * Memorandum for Record, U.S. Army Trial Defense Service, dated 20 January 2017 * Memorandum for Record, U.S. Army Trial Defense Service, dated 8 February 2017 * DA Form 2627, dated 27 February 2017 * Enlisted Record Brief, dated 19 April 2017 FACTS: 1. The applicant states: a. On 27 February 2017, he received NJP under Article 15 for alleged violations of Article 93 (Cruelty and Maltreatment). b. This NJP is unjust because the evidence used by Lieutenant Colonel (LTC) X___ in finding him guilty was legally insufficient proof beyond a reasonable doubt. The IO found that "The evidence produced did not find that the applicant directly made comments or remarks to Sergeant (SGT) X___ and SGT X___." c. He never made any comments remotely resembling the comments set forth in the allegations. However, even assuming he made the comments, the IO found he did not make the comments to the alleged victims in this case and LTC X___ specifically approved the findings of the IO. d. Since he did not make the comments to the alleged victims, there can be no maltreatment because the comments were made to other Soldiers and noncommissioned officers (NCO) about different Soldiers or NCOs. The comments cannot result in physical or mental harm or suffering to people not present to hear the comments nor can they reasonably cause physical or mental harm or suffering to people not present to hear the comments. a. e. He cannot find any case that supports the proposition that a hostile EO work environment can constitute maltreatment. The actions taken by the chain of command against him are clearly an attempt to put political correctness ahead of due process and the standard of proof. f. There were numerous other administrative actions the chain of command might have taken against him (letter of reprimand, counseling, corrective training, etc.), none of which require proof beyond a reasonable doubt. However, his chain of command wanted to reduce him in rank because he had recently declined promotion to sergeant first class and indicated he wished to retire. No member of his chain of command agreed with his decision to decline promotion and retire. g. While he maintains his innocence of these charges, even if the derogatory comments were made, the evidence offered at his Article 15 hearing is insufficient as a matter of law to find him guilty beyond a reasonable doubt because the IO specifically found the comments were never made directly to the alleged victims and LTC X___ approved the findings. h. He recently submitted a request to retire effective 30 April 2018. The financial damage done to him because of this NJP is unjust in itself. By his calculations, he will lose more than $200,000.00 in retired pay over a 40-year retirement span. Such punishment is completely unfair and unjust for these relatively minor offenses. i. He also noted that none of the documents that formed the basis of this action, to include the DA Form 2627, has been placed in his OMPF as of the date of his application. He included the documents so the board can make a proper decision. 2. The applicant's records show he was promoted to the grade/rank of staff sergeant/ E-6 effective 1 July 2011. 3. A memorandum for record from the Fort Hood EO Advisor, Master Sergeant (MSG) X___, dated 28 October 2016, subject: Informal EO Compliant from SGT X___ and SGT X___, states: a. Both NCOs came to discuss issues they were having with a higher-ranking NCO in the unit (applicant). They stated they were subject to racial comments and they were being accused of supporting Islamic State of Iraq and the Levant (Syria) (ISIS) because of their Muslim decent. Both of them feel they are demeaned by the applicant and treated wrongly. b. Both SGT X___ and SGT X___ stated they have used the informal complaint process to try to resolve this situation in the past, but the harassment started back up when their former captain who handled it moved out of position. They said LTC X___ a. asked them on three prior occasions if they have any problems but they did not raise it to his level because they tried to handle it at the lowest level. c. The allegations raised while speaking with these two NCOs are very serious issues. His recommendation to the battalion commander was to immediately start a 15-6 investigation into the claims listed herein. 4. On 1 November 2016, Chief Warrant Officer Three X___ was appointed as an IO pursuant to Army Regulation 15-6 to investigate the facts and circumstances related to the alleged use of inappropriate language in violation of the Army EO Program by the applicant toward SGT M and SGT X___ and an alleged assault involving SGT M and the applicant. 5. The Report of Proceedings by IO shows LTC X___ commenced an investigation on 4 November 2016 into the facts and circumstances related to the alleged use of inappropriate language in violation of the Army EO Program by the applicant toward SGT X___ and SGT X___ and an alleged assault involving SGT X___ and the applicant. The approving authority approved the findings and recommended issuance of NJP under the provisions of Article 15, UCMJ. 6. A memorandum from SGM X___, Chief, Enlisted Promotions Branch, dated 16 November 2016, subject: Administrative Removal, (Applicant), states the Enlisted Promotions Branch administratively removed the applicant from the Fiscal Year 2016 Active Component Sergeant First Class Promotion Selection List based on the applicant's written request declining the promotion selection. 7. The applicant provided three sworn statements associated with his Article 15 hearing. a. The sworn statement from SGT X___, dated 16 November 2016, states he would like to report multiple incidents with the applicant, one of his colleague in "B" team, 1st Battalion, 395th Infantry Regiment. The first incident happened a couple of months after the applicant arrived in the unit on or about December 2014 through January 2015. They were both assigned to the ammunition detail. The applicant commented, "How much money ISIS will have to offer you so you will you work with them or cooperate with them?" This was taking place at the ammunition point located at the M-4 and M-16 weapons qualification range in south Fort Hood. He continued harassing and making unprofessional comments like "f ing reservist" and "f E-5" and making jokes about reserve Soldiers and how he felt about reserve Soldiers. The applicant told him "your job as E-5 is to come to work everyday and ask me where's lawn mower and go cut your grass" or "your job is to go and wash and clean the van that we use them in the daily basis." On multiple occasions the applicant would walk around and throw trash around and ask him to go pick up after him and clean after him. b. The sworn statement from SGT X___, dated 18 November 2016, states that in January 2015 he was new to the unit. His car broke down and he asked if anyone knew where he could get a cheap car. The applicant asked him if he wanted "to make a VBED [VBIED – vehicle borne improvised explosive device]." He didn't know what that meant. The applicant kept saying VBIED four more times. Three months later the applicant asked him what he thought as a Middle Easterner about the refugees coming and how they could find out who was a terrorist and who wasn't. The applicant repeatedly commented "f ing E5 and Reserves and my job here is to wash van and cut grass." In February 2016, he had a box of cables with him and the applicant asked him if he was carrying C-4 (plastic explosive) and "do you want to blow a building with that?" He answered that the cables were for the language laboratory and they were trying to rewire the computers. In July 2016, the applicant told him to come and pick up his garbage after they were at the range "if you don't make EO complaint motherf er." c. The sworn statement from the applicant, dated 18 November 2016, states he never assaulted or used inappropriate language against SGT X___ or SGT X___. He doesn't see or work with the linguists 99 percent of the time. He has never made any comments about refugees, VBIEDs, or reservists. He never joked about them as E-5's or reservists. He only engaged with them six times in the last 2 years. He was aware of how sensitive the linguists are about everything. He never hit SGT M in the head with a mattress and he never saw him get hit in the head with a mattress. He knew for a fact that he had never been anywhere alone with them (i.e., van or office). He recalled a time when the whole team was traveling in the van and the topic of refugees came up, but he never engaged in the conversation because he was aware of how sensitive linguists were about everything. 8. The memorandum from the IO, dated 20 November 2016, subject: Findings and Recommendation for Army Regulation 15-6 Commanders Inquiry of Alleged Misconduct of (Applicant) IO Legal Review of Army Regulation 15-6 Investigation EO Violation, states: a. On 1 November 2016, he was appointed as an Army Regulation 15-6 IO to investigate allegations of misconduct against the applicant. He conducted a thorough investigation surrounding the allegations. b. He found the applicant showed discriminating treatment toward both NCOs, notably SGT X___ and SGT X___. After investigating and considering all the facts and evidence gathered regarding the allegations of violating the Army's EO policy involving SGT X___ and SGT X___, he believed the charges brought forward were substantiated. a. 9. The memorandum from the Brigade Judge Advocate, dated 23 November 2016, states: a. He reviewed the subject investigation into the alleged use of inappropriate language and treatment of subordinates in violation of the Army EO Program by the applicant. The procedure followed complied with legal requirements. No legal errors substantially affected the findings or recommendations. b. Sufficient evidence supported the IO's findings and the IO's recommendations are consistent with the findings. While the IO's recommendation of unit-wide EO training is certainly appropriate, the applicant appears to be in need of more direct training regarding the proper treatment of others and the rejection of ethnic or nationality-based stereotyping. 10. The memorandum for record from the U.S. Army Trial Defense Service, Fort Hood Field Office, dated 8 February 2017, subject: Packet Review of (Applicant), states the Article 15 proceedings were reviewed and returned to parent unit due to insufficient evidence for the offense(s) charged. The VBIED comments made in January 2015 per SGT X___ 's statement are outside the statute of limitations. Also, many statements not associated with a specific date likely fall outside the statute of limitations. 11. The DA Form 2627, dated 27 February 2017, shows he accepted NJP under the provisions of Article 15, UCMJ, for cruel treatment toward a subordinate Soldier on five occasions between 1 April 2015 and 28 October 2016 on or near Fort Hood, TX, by making comments, to wit: "f ing reservist, f ing E-5," "your job as an E5 is to come to work everyday and ask me where's the lawn mower and go cut your grass, or your job is to wash and clean the van that we use on a daily basis"; "I don't care about you, you're not that important, go get your water"; "get the f out of my face"; "you f ed up"; and "you can't shoot shit, f " or words to that effect." His punishment included reduction to the rank/grade of SGT/E-5 and extra duty for 30 days. The imposing commander, LTC X___, 1st Battalion, 395th Infantry Regiment, 120th Infantry Brigade, directed filing the DA Form 2627 in the performance folder of the applicant's OMPF. He elected to appeal and submit additional matters. 12. His records do not contain orders reducing him to the rank/grade of SGT/E-5. 13. On 28 February 2017, he appealed the NJP he received on 28 February 2017 for maltreatment. He stated: a. He has over 19 years of service and plans on retiring. He has never been in any trouble in his career and has never maltreated any of his Soldiers. He came to 1st Army because he loved training Soldiers. He loves his job and has been successful at it. Although he loves his job, he recently turned down a promotion so he could retire. b. He was recently charged with maltreatment of two reserve linguists who support his team. He has always appreciated the work these individuals do for his team and he doesn't know what motivated them to make the accusations against him. c. He is adamant that he never made any of the comments they accused him of making. His Article 15 proceedings were returned from the Trial Defense Service several times because of the statute of limitations and sufficiency of the evidence issues. Despite these issues, the command persisted and found him guilty. d. He is not an NCO who will purposely discriminate or harass any Soldier. He worked very hard in numerous positions to earn his rank. He would never maltreat or be cruel to any Soldier. e. He is appealing the NJP so he can retain his rank and retire in the rank/grade of staff sergeant/E-6. 14. His NCO Evaluation Report covering the period 6 October 2016 through 5 October 2017 shows his rank/grade as SGT/E-5 with a date of rank of 23 February 2017. Part IVc (Performance Evaluation, Professionalism, Attributes, and Competencies – Character) shows his rater/senior rater marked the block "Did Not Meet Standard" and entered the comment: "failed to enforce Army policies; negative conduct resulted in a substantiated EO complaint." 15. His records do not contain orders promoting him to the rank/grade of staff sergeant/ E-6 subsequent to his reduction. 17. His OMPF in the interactive Personnel Electronic Records Management System contains a copy of the DA Form 2627 in the restricted folder. 15. He retired effective 30 April 2018. He completed 20 years and 10 days of total active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his rank/grade as SGT/E-5 with an effective date of pay grade as 23 February 2017. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant removing the derogatory information from the applicant’s record. Based upon the IO’s finding stating he believed the charges brought forward were substantiated and the Judge Advocate’s review showing he found no legal errors substantially affected the findings or recommendations, the Board concluded that relief was not appropriate in this case. 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. 5/21/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-19b(6)(a) (Promotion Authority) states the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. c. Paragraph 3-19b(6)(d) (Void Reduction) states any portion of a reduction under Article 15 beyond the imposing commander's authority to reduce is void and must be set aside. Where a commander reduces a Soldier below a grade to which the commander is authorized to reduce, and if the circumstances of the case indicate the commander was authorized and intended to reduce the Soldier at least one grade, a one-grade reduction may be approved. Also, if a reduction is to a specialist grade when reduction should have been to a lower NCO grade (or vice versa), administrative action will be taken to place the offender in the proper rank for the military occupational specialty held in the reduced pay grade. All rights, privileges, and property, including pay and allowances, of which a Soldier was deprived by a reduction that has been set aside must be restored. d. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states that applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. a. b. Appendix B (Documents Required for Filing in the AMHRR and/or interactive Personnel Electronic Records Management System shows a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 4b of the DA Form 2627).