BOARD DATE: 6 April 2020 DOCKET NUMBER: AR20200000629 APPLICANT REQUESTS: * In effect, the setting aside and removal from the applicant's official military personnel file (OMPF) of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)) (hereinafter referred to as nonjudicial punishment (NJP)), accepted by the applicant on 13 December 2018 * Any and all back pay that would result from the applicant's restoration of rank to staff sergeant (SSG)), based on the setting aside of the NJP * Adjustment of his retention control point (RCP) to 23 July 2022, based on the restoration of the applicant's rank * Any other relief deemed as equitable and just * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Tab A – DA Form 2627 * Tab B – Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) Investigation, with a memorandum and investigation Tabs A – E * Tab C – Applicant's appeal and evidence: news article, Gmail account support interactions, four letters of support, Army Review Boards Agency (ARBA) letter, and counsel's email FACTS: 1. Counsel stated, on or about 7 November 2018, Major General (MG) R__ F_ (imposing officer) initiated NJP action against the applicant. Despite the applicant's evidence, the imposing officer found the applicant guilty; the applicant appealed, but his appeal was denied. In order to find a Soldier guilty of a UCMJ violation, an imposing officer must be convinced beyond a reasonable doubt that the accused Soldier committed each element of the alleged offense. a. Counsel outlined the standards of proof for each UCMJ violation, described the evidence against the applicant, and concluded the AR 15-6 investigation failed to prove the applicant committed the offenses alleged. (1) Counsel enumerated each instance in which one could conclude there was reasonable doubt as to the evidence considered by the imposing officer, essentially arguing neither trainee could positively identify the applicant as the person associated with the username ending with ".xx37," and neither trainee could produce the messages allegedly sent by the applicant under username ending with ".xx37." (2) Additionally, during the hearing, the applicant submitted other exculpatory evidence that further substantiated the accused's claim of innocence and raised the possibility that someone else had created the username ending with while posing as the applicant. b. Apart from the lack of evidence, there was a troubling indication the imposing officer considered extraneous information that improperly influenced his decision; during the applicant's hearing, the imposing officer mentioned a minor and unrelated pay incident that had occurred 5 years earlier. The interjection of this irrelevant issue raises serious doubts as to whether the imposing officer's judgment was objective, fair, and impartial. 2. Counsel provides the following documentary evidence: a. DA Form 2627 (under Tab A), accepted by the applicant on 13 December 2018, shows the applicant was charged with and found guilty of four violations of Article 92 (Failure to Obey an Order or Regulation) by wrongfully using social media to communicate with and "friend" two female trainees. b. Documents submitted by the applicant as part of his NJP appeal: (1) Memorandum, dated 17 December 2018, Subject: Appeal of NJP – [applicant], written by the applicant's military defense counsel. The military defense counsel argued the evidence presented by the government failed to prove the applicant violated the TRADOC regulation. (a) The only relevant proof was a screenshot taken from a trainee's phone; however, nothing in that screenshot directly linked the applicant to the social media username displayed in the screenshot. (b) In addition, during the hearing, the applicant had provided the imposing officer with letters affirming that, while similar, the applicant's social media username was different from the one displayed in the screenshot (instead of ending with (as in the screenshot), the applicant's username ended with "). (2) Article, by www.army.mil/socialmedia/scams, which stated the U.S. Army Criminal Investigation Command (CID) had received numerous complaints from individuals who had fallen victim to "romance" scams. These scams were allegedly perpetrated by persons, mostly from West African countries, who claimed to be U.S. Soldiers; the scammers usually found their victims using legitimate social media platforms and, by engaging the victim in an online and potentially compromising relationship, the perpetrator would then demand money and/or favors. (3) The applicant's personal statement, in which he wrote the following: (a) He felt his evidence was not given appropriate consideration by the imposing officer; specifically, the imposing officer alluded to an unrelated, minor pay issue from the applicant's past. The imposing officer asserted the applicant should have mentioned this incident, and, by not doing so, the applicant was "withholding" information. The applicant contended he was punished twice for this past episode. (b) During his hearing the applicant presented evidence he felt was exculpatory; he included a copy of this evidence with his appeal and summarized the content as follows: * emails between the social media website and the applicant; the applicant claimed his account had been compromised and required to be reset * after his phone had been seized and searched, no relevant evidence was found * two letters verifying the applicant had only one social media account (not the same as the one allegedly used to contact trainees) * two letters of support from former battalion commanders * two photos showing the applicant's actual social media account and the account used to communicate with the trainees c. Documents pertaining to the AR 15-6 investigation into allegations against the applicant, conducted between 22 March and 13 April 2018: (1) Memorandum, dated 20 April 2018, Subject: Findings and Recommendations for AR 15-6 into Allegations of Prohibited Relationship against [applicant], which was a legal review of the investigation conducted by investigating officer (IO) Captain (CPT) J__ N__. The memorandum stated the evidence collected in the investigation supported the IO's findings: that, while the applicant did not fraternize with trainees, he engaged in prohibited communications with them. (2) DA Form 1574-1 (Report of Proceedings by Investigating Officer), with memorandum, dated 13 April 2018, Subject: Findings and Recommendations for AR 15-6 Investigation. These documents essentially outline the investigative process followed by the IO, and offer details as to the evidence the IO contended were sufficient to conclude the applicant had engaged in prohibited communications with trainees, but had not fraternized with them. The IO recommended that adverse administrative and/or UCMJ action be taken against the applicant, and that the applicant be removed from his position as an IET instructor. 3. The applicant's service records show: a. On 23 July 2002, the applicant enlisted in the Regular Army; following initial training, orders assigned the applicant to Fort Hood, TX, and he arrived on 24 February 2003. During his assignment to Fort Hood, the applicant deployed twice to Iraq with his unit: 16 March 2004 to 18 March 2005 and 5 October 2006 to 6 January 2008. b. In early 2008, the applicant completed Army Recruiter training, after which orders reassigned him to New Orleans as an Army Recruiter; he arrived in New Orleans on 19 March 2008. He completed his assignment as a recruiter in 2013, and orders reassigned him to Korea in his primary military occupational specialty; he arrived in Korea on 10 September 2013. c. On 20 July 2014, while still stationed in Korea, the applicant's first sergeant (1SG) counseled him, stating the applicant had failed to report to his place of duty twice on 20 July 2014; that same day, the 1SG counseled the applicant a second time for violating the curfew and pass policies by not having an approved DA Form 31 (Request and Authority for Leave), which would have authorized him to stay away from his quarters overnight. d. On 21 August 2014, the applicant accepted NJP for violating the CG's curfew, pass, and leave policy by not being at his assigned military quarters between 0200 and 0500 hours. e. On 22 September 2014, the applicant completed his tour in Korea and orders reassigned him to Fort Irwin, CA; he arrived on 23 September 2014. Effective 1 April 2015, the applicant's chain of command promoted him to SSG. On 14 April 2015, the applicant immediately reenlisted for an indefinite period. f. In or around May/June 2017, orders reassigned the applicant to Fort Lee, VA to serve as an instructor/writer in the Quartermaster School; his duties included instructing Soldiers who were undergoing initial entry training, as well as assisting advanced individual training (AIT) drill sergeants in maintaining the health and welfare of about 200 trainees. g. Documents pertaining to the AR 15-6 investigation and NJP are not available in the applicant's service records; however, based on documents submitted by counsel, the following occurred on the dates indicated: (1) On 28 September 2017, and again on 2 November 2017 and 19 January 2018, the applicant acknowledged in writing that personal communications between Cadre and IET Soldiers via social media platforms were strictly prohibited. (2) On 10 March 2018, two IET Soldiers (Private First Class (PFC) K__ W__ and Private (PV2) A__ R__) attended an off-post party; after the party, both started receiving social media messages from account " ." While both Soldiers said they were told Quartermaster instructors had attended the party, neither Soldier recognized anyone there as an instructor, nor did they interact with anyone they knew to be instructors. (3) On 12 March 2018, PV2 A__ R__ received a message from S__. that read, "Saw you and your girl talking today stay motivated and positive." After getting this message, PV2 R__ noticed the applicant exiting a truck near where she was sitting; she recognized the applicant as the person in the photo displayed on the S__. social media account. Private First Class (PFC) K__ W__ also affirmed the S__. social media account had been following her and had sent her messages about modeling (during the subsequent AR 15-6 investigation, PFC K__ W__ was unable to produce screenshots of the messages because she had already deleted them from her phone). (4) On 14 March 2018, SSG V__ reported an instructor had been messaging an IET Soldier using the screenname S__.. Although SSG V__ did not know the instructor's name, SSG V__ recognized the face displayed on S__.s social media account and identified the applicant as that person. (5) On 19 March 2018, Colonel G__ S. T__ appointed CPT J__ N__ as IO to investigate allegations of trainee abuse and fraternization against the applicant; the IO concluded his investigation on 13 April 2018. (6) On 13 December 2018, the applicant accepted NJP and requested a closed hearing to personally present matters in defense. Following the hearing, the imposing official found the applicant guilty of violating four specifications of Article 92 (Failure to Obey an Order or Regulation), UCMJ, by wrongfully exchanging personal communications on social media with PFC K__ W__ and PV2 A__ R__, and wrongfully "friending" PFC K__ W__ and PV2 A__ R__. The punishment consisted of reduction from SSG to sergeant (SGT) and forfeiture of $1,655 (suspended until 11 February 2019). The applicant filed an appeal with the DCG, TRADOC, but, on 11 January 2019, the DCG, TRADOC denied the appeal. h. On 3 April 2019, the applicant enlisted into the U.S. Army Reserve (USAR) for a 3-year term; the effective date of his USAR service was one day after his expiration term of service (ETS). i. On 11 April 2019, through counsel, the applicant requested the relief now being considered by the Board. On 18 July 2019, the Army Review Boards Agency (ARBA) administratively closed the applicant's case (ABCMR Docket Number AR20190003921), stating, because the NJP action accepted on 13 December 2018 had not been posted in the applicant's OMPF, neither the Department of the Army Suitability Evaluation Board nor the Army Board for Correction of Military Records could act on the applicant's request. j. On 31 July 2019, the applicant was honorably discharged based on the completion of required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 17 years and 8 months of net active duty service. His DD Form 214 also lists: rank/grade as SGT/E-5, pay grade effective date as 13 December 2018, separation code (SPD) as "KBK" (Completion of Required Active Service), and reentry (RE) code as "3" (waiver required for reenlistment). The applicant was awarded or authorized: * Army Commendation Medal (3rd Award) * Army Achievement Medal (2nd Award) * Meritorious Unit Commendation (2nd Award) * Army Good Conduct Medal (5th Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Iraq Campaign Medal with four bronze service stars * Noncommissioned Officer Professional Development Ribbon with Numeral 3 * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Military Outstanding Volunteer Service Medal * Gold Recruiter Badge * Combat Action Badge * Driver and Mechanic Badge with Mechanic and Driver-W (wheeled vehicles) Component Bars * Expert Marksmanship Qualification Badge with Rifle Bar * Certificate of Achievement (6th Award) k. The applicant's service record includes an Enlisted Record Brief (ERB), dated 1 August 2019, which reflects a Reenlistment Eligibility/Prohibition Code of 8G (immediate reenlistment prohibited due to Soldier exceeding retention control point based on grade reduction). Regarding the applicant's contention, as it pertained to his 13 December 2018 hearing, that the imposing officer improperly considered a pay- related issue from the applicant's past, the applicant's service record is void of any documentation that might shed light on what this problem entailed. l. The applicant is currently serving as a member of the USAR. m. Following correspondence with the applicant's counsel, ARBA reopened applicant's request for the Board's consideration. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 5. The applicant requests, in effect, that his NJP be set aside; while the NJP has not been filed in the applicant's official military personnel file, the effective date of his rank of SGT matches the date of the DA Form 2627 provided by the applicant. When an NJP action is set aside, the Record of Proceedings (DA Form 2627), along with associated documents, is removed from the Soldier's records and all rights, privileges, and/or property affected by the NJP's punishment are restored; this means the applicant would regain his rank of SSG and would be paid retroactively for the difference in pay between SGT and SSG. a. Per AR 27-10 (Military Justice), setting aside an NJP must be based on a determination that, given all of the case's circumstances, a clear injustice has occurred as a result of the imposition of the NJP or the NJP's punishment. The regulation defines "clear injustice" as meaning the substantial rights of the Soldier were clearly and affirmatively injured due to an unwaived legal or factual error. An example of such an error would be when new evidence is discovered that unquestionably shows the Soldier did not commit the misconduct alleged in the NJP. However, a Soldier's uncorroborated sworn statement is not a sufficient basis to set aside a punishment. b. As to the consideration of the applicant's pay issue by the imposing officer, imposing officers are not bound by the formal rules of evidence before courts-martial, and thus are empowered to consider any matters reasonably considered by the imposing officer to be relevant. 6. The applicant was separated in 2019 because, after being reduced from SSG to SGT, his retention control point (RCP) changed from 20 to only 14 total years of active service; as of his separation date, the applicant had completed over 17 years of net active duty service. Because his adjusted RCP made him ineligible for immediate reenlistment, he was assigned an RE code of "3." a. A Military Personnel (MILPER) Message, dated 27 November 2018, defined the retention control points for Soldiers in grades PFC through Command Sergeant Major/Sergeant Major. It stated SGTs could not be retained beyond 14 total years of active service; the message also said Soldiers who exceed their RCP as a result of a rank reduction were to have their ETS adjusted to 180 days from the effective date of reduction. These Soldiers would also receive the reenlistment prohibition code "8G." The evidence of record shows the applicant was assigned the reenlistment prohibition code of "8G." b. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in which their ETS falls, or, when the Soldier is in an indefinite status, beyond the last day of the month in which their retention control point (RCP) falls. Indefinite Soldiers who are reduced in grade will not serve beyond the RCP for the lower grade. c. The SPD/RE Code Cross Reference Table lists the SPD code and with its corresponding RE code; it states, although the "KBK" SPD can be assigned either a "1" or a "3," the "3" RE code must be entered onto the DD Form 214 for those Soldiers who are ineligible or otherwise denied immediate reenlistment. Should the Board grant the applicant's requested relief and set aside his 13 December 2018 NJP, his RE code would be amended from "3" to "1" because, with the restoration of his rank, he would become immediately eligible for reenlistment. In addition, his DD Form 214 would be amended to reflect his rank/grade as SSG/E-6, with an effective pay grade date of 1 April 2015. BOARD DISCUSSION: 1. The Board determined the available records are sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's requests, counsel's statement, supporting documents, and evidence in the records. The Board found insufficient evidence to support a conclusion that a clear injustice occurred as a result of the imposition of NJP against the applicant. a. The Board noted the imposing authority had available to him the findings of an investigation which concluded the applicant did violate a TRADOC regulation by wrongfully exchanging personal communications on social media with two trainees and by wrongfully "friending" the same trainees. The applicant was afforded the opportunity to present matters in defense, extenuation, and/or mitigation, and after considering these matters, the imposing authority determined he was guilty of all specifications. The appellate authority denied his appeal. b. The Board did not find compelling evidence showing the substantial rights of the Soldier were clearly and affirmatively injured due to an unwaived legal or factual error. The applicant was afforded due process and the Board found insufficient evidence of substantiated factual errors. By a preponderance of the evidence, the Board determined the NJP should not be set aside. 3. The Board noted the NJP was not filed in the applicant's OMPF and there is no action to be taken on that issue. 4. Based on the determination that the NJP should not be set aside, the Board further determined any related relief (e.g., restoration to SSG, backpay, etc.) should also be denied. 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. 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. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in which their ETS falls, or, when the Soldier is in an indefinite status, beyond the last day of the month in which their retention control point (RCP) falls. Indefinite Soldiers who are reduced in grade will not serve beyond the RCP for the lower grade. 2. Military Personnel (MILPER) Message 18-376, dated 27 November 2018, defined the retention control points for Soldiers in grades PFC through Command Sergeant Major/Sergeant Major. It stated sergeants could not be retained beyond 14 total years of active service. It also said Soldiers who exceed their RCP based on a rank reduction were to have their ETS adjusted to 180 days from the effective date of reduction. These Soldiers would also receive the reenlistment prohibition code "8G." 3. The SPD/RE Code Cross Reference Table lists the SPD code and with its corresponding RE code; it states, although the "KBK" SPD (found in AR 635-5-1 (SPD)) can be assigned either a "1" or a "3," the RE code of "3" must be entered onto the DD Form 214 for those Soldiers who are ineligible or otherwise denied immediate reenlistment. 4. AR 15-6 (Procedures for Administrative Investigations and Boards of Officers), in effect at the time, stated, unless another regulation or directive established different criteria, the standard of proof was preponderance of the evidence for investigations governed by this regulation. 5. AR 27-10, currently in effect, prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. a. Paragraph 3-18 (Notification and Explanation of Rights) states: * in the presence of the commander, the Soldier will be allowed to personally present matters in defense, extenuation, or mitigation * the imposing commander is not bound by the formal rules of evidence before courts-martial, and may consider any matter reasonably considered to be relevant * punishment will not be imposed unless the commander is convinced beyond a reasonable doubt the Soldier committed the offense b. Paragraph 3-28 (Setting Aside and Restoration) states NJP punishment is "wholly set-aside" when the commander who imposed the punishment, a successor-in- command, or a superior authority (such as the ABCMR) sets aside all punishments imposed on the individual, and/or the findings. (1) When an NJP is set aside, it is removed from the Soldier's records and all rights, privileges, and/or property affected by the associated punishment are restored. (2) The setting aside of NJP is based on a determination that, under all circumstances of the case, a clear injustice occurred as a result of the imposition of the NJP or the NJP's punishment. * "clear injustice" means the substantial rights of the Soldier were clearly and affirmatively injured due to an unwaived legal or factual error * an example of such an error would be when new evidence is discovered that unquestionably shows the Soldier did not commit the misconduct alleged in the NJP * the fact the Soldier's performance of service has been exemplary subsequent to the punishment, or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier does not constitute a clear injustice * a Soldier's uncorroborated sworn statement is an insufficient basis to set aside a punishment 6. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000629 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000629 11 ABCMR Record of Proceedings (cont) AR20200000629 10