IN THE CASE OF: 
BOARD DATE: 16 September 2021 
DOCKET NUMBER:  AR20210008367 

APPLICANT REQUESTS: 
. 
removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 1 April 2020, from his Army Military Human Resource Record (AMHRR) 

. 
personal appearance hearing before the Board via video/telephone 


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) 

. 
Enlisted Record Brief 

. 
Memorandum, 11th Military Police Battalion (CID), undated, subject: appointment as Inquiry Officer 

. 
Memorandum, Fort Sam Houston CID Office, 6 January 2020, subject:  Findings and Recommendations for the Inquiry of Alleged Assault by (Applicant), with allied documents 

. 
DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), 1 April 2020 

. 
Memorandum, Applicant, 23 October 2020, subject:  Addendum to ABCMR Application 


FACTS: 
1. The applicant states he was erroneously found guilty of committing one specification of Article 128, UCMJ (Assault Consummated by a Battery). An administrative investigation showed that on two occasions, both the applicant and a specialist/E-4 were engaged in playful banter and pseudo fights as partner CID agents prior to the alleged “offensive touching.” 
a. The UCMJ describes the elements of Article 128 – Assault. In this particular case, there is insufficient evidence to find beyond a reasonable doubt that the alleged harmful or offensive touching was objectively or subjectively offensive under the circumstances, a required element of the offense. There was no malicious intent to harm the specialist/E-4 as memorialized in the applicant’s sworn statement. Interviews indicated that the applicant and his subordinate would occasionally joke with each other, which established levity within their relationship. Based on the reasonable person standard, he did not commit an unwanted act, and reasonably believed his action was consensual due to the reciprocated actions. As a result, his actions did not meet the elements required to be charged with Article 128 – Assault, as listed in the Manual for Courts-Martial. 
b. 
There is suspicion of undue command influence with regards to the informal administrative investigation. In February 2020, the applicant’s company commander advised him that the battalion commander determined to impose a local Letter of Concern and investigative probation for six months. In March 2020, the applicant’s first sergeant advised him that the group commander reviewed the investigation and directed that a nonjudicial proceeding was to result from the findings. On 1 April 2020, his battalion commander presided over an nonjudicial proceeding wherein the applicant was found guilty of one count of assault consummated by battery. 

c. 
There is suspicion of falsity. The incident leading to the investigation was not reported until the applicant submitted his application to become a warrant officer in December 2020, rather than reporting it immediately in September or October when the incidents occurred. 

d. 
The presumption of administrative regularity afforded to these proceedings should be dismissed for the following reasons: 

• 
the DA Form 2627 does not show the “not guilty” specification lined out 

• 
a statement from Sergeant was obtained by the investigator, but not included in the nonjudicial packet that was provided to the applicant 

• 
Sergeant declined to provide a signed sworn statement and falsely stated that the applicant held his hand on her neck for one to two minutes 




e. The following additional information is pertinent to this matter: 
. 
the applicant’s first sergeant advised him that he should “get past” the NJP, and not submit an appeal because his career would survive 

. 
the DA Form 2627 triggered proceedings at a Qualitative Management Program board in fiscal year 2021 to determine if he would be separated early 


. on 17 September 2020, the applicant requested the battalion commander set aside the proceedings, but he denied the request and indicated he would submit a letter of support to the Qualitative Management Program board 
2. 
On 16 December 2016, he reenlisted in the Regular Army for 6 years beginning in the rank/grade of sergeant/E-5. 

3. 
On 20 September 2017, he completed the Criminal Investigation Division (CID) Special Agent course at the Military Police School, Fort Leonard Wood. 

4. 
On 1 April 2019, he was promoted to the rank/grade of staff sergeant/E-6. 

5. 
The memorandum, Fort Sam Houston CID Office, 6 January 2020, subject:  Findings and Recommendations for the Inquiry of Alleged Assault by Applicant, states on 17 December 2019, an investigating officer was appointed to conduct a preliminary inquiry into allegations of assault pertaining to the applicant. It states: 


a. 
On 13 December 2019, the commander, 76th Military Police Detachment, Fort Bliss, was notified that Sergeant , Investigative Assistant, reported that the applicant placed his hands around her neck on 24 September 2019, and that Specialist , Special Agent, also reported that the applicant punched her in the stomach several months ago. All incidents occurred at the Fort Bliss CID office building. 

b. 
On 18 December 2019, Specialist was interviewed and provided a sworn statement, wherein she stated that since her arrival to the Fort Bliss CID office, she and the applicant were investigative partners. During this time, he made flirtatious comments towards her and consistently touched her arms, head and waist, without her consent. On one occasion, he punched her in the stomach with a closed fist with enough force that he “knocked the wind out” of her. Since then, they have been moved to separate teams. 

c. 
On 20 December 2019, the applicant was advised of his rights, wherein he waived and admitted that he placed his hands around the neck of Sergeant  and punched Specialist  in the stomach. The applicant explained that he placed his hands around the neck of Sergeant for demonstration purposes and did not intend to harm her. He further explained that he punched Specialist  as a “playful” gesture and did not intend to harm her. 

d. 
The investigating officer found that the applicant did place his hand around Sergeant ’s neck without consent. The circumstances occurred during the conduct of an unrelated investigation wherein the applicant was conducting a subject interview regarding the offense of strangulation as Sergeant  monitored the interview in the observation room. The applicant took a break from the interview and entered the observation room to speak with Sergeant . During this time, the applicant placed his hand around her neck to demonstrate the offense under investigation. Sergeant  later confided in numerous members of her unit that the applicant placed his hands around her neck without consent and held his hands around her neck long enough to make her feel uncomfortable. 

e. 
The investigating officer found that the applicant did assault Specialist when he punched her in the stomach with a closed fist and with enough force to “knock the wind out” of her, while at their work place. Additionally, there was a witness in the area who heard a commotion and subsequently observed Specialist  holding her stomach as if she was “hurting.” 

f. 
The investigating officer recommended the applicant be given a Letter of Concern and placed on investigative probation for six months as the inquiry demonstrated the applicant used poor judgment when interaction with subordinates. The applicant’s candor during his interview, the circumstances, and his intentions surrounding the incidents were considered for this recommendation. 


6. The DA Form 2627, 1 April 2020, states he is being considered for NJP for two violations of the UCMJ, to include: 
. 
unlawfully striking a specialist/E-4 on the stomach with his fist on 15 October 2019 

. 
unlawfully placing his hands on the neck of a sergeant/E-5 on 24 September 2019 


a. 
Item 3 shows he was afforded the opportunity to consult with counsel and, understanding his rights, he initialed the following blocks: 

. 
I do not demand trial by court-martial 

. 
I request the hearing be closed 

. 
a person to speak in my behalf is not requested 

. 
matters in defense, extenuation, and/or mitigation are attached and will be presented in person 



b. 
Item 4a shows he was found guilty of some specifications. However, item 1 does not show the specification lined out for which he was found not guilty. 

c. 
Item 4b shows the convening authority directed filing the DA Form 2627 in the restricted folder of his AMHRR. 

d. 
Item 4c shows he was advised of his right to appeal to the next superior authority within 5 calendar days. 

e. Item 5 shows he elected to not appeal. 

f. 
Item 6 shows his punishment consisted of forfeiture of $1,826.00 pay, suspended; extra duty for 5 days; oral reprimand. 


7. 
His DA Form 2166-9-2 (NCO Evaluation Report (Staff Sergeant – First Sergeant/ Master Sergeant)) covering the period 29 June 2019 through 28 June 2020 shows he was rated by a Department of the Army civilian employee/GS-13, who provided favorable comments and rated his performance as "Met Standard" or “Far Exceeded Standard” in all areas. His senior rater rated him as "Qualified," and commented the applicant “is a capable leader and performer who has unlimited potential to excel at the next grade.” 

8. 
The applicant’s request to the imposing authority to set aside the nonjudicial proceeding is not available for review. 


BOARD DISCUSSION: 
1. 
After reviewing the application and all supporting documents, the Board found relief is warranted. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 

2. 
The Board noted that the DA Form 2627 shows the applicant was found guilty of some specifications, but the imposing authority did not line out the specification for which he was found not guilty. The Board found this error to be prejudicial to the applicant. The Board further found that the DA Form 2627 has served its purpose, as evidenced by the favorable evaluation he received shortly after the punishment was imposed. Based on a preponderance of evidence, the Board determined the DA Form 2627 and all allied documents should be removed from the applicant's AMHRR. 


BOARD VOTE: 
Mbr 1  Mbr 2  Mbr 3  
:X  :X  :X  GRANT FULL RELIEF  
:  :  :  GRANT PARTIAL RELIEF  
:  :  :  GRANT FORMAL HEARING  
:  :  :  DENY APPLICATION  

BOARD DETERMINATION/RECOMMENDATION: 
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the DA Form 2627 dated 1 April 2020 and all allied documents from his AMHRR. 
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. The Manual for Courts-Martial, United States, includes the Preamble, Rules for Courts-Martial, Military Rules of Evidence, Punitive Articles, and Nonjudicial Punishment Procedures made by the President in Executive Orders and amendments to the Uniform Code of Justice made by the Military Justice Act. Punitive articles describe the text of statute and elements of each offense. The term “elements,” as used in Part IV, includes both the statutory elements of the offense and any aggravating factors listed under the President’s authority which increases the maximum permissible punish when specified aggravating factors are pled and proven. Article 128 – Assault, states: 
a. Text of statute: Any person subject to this chapter who, unlawfully and with force or violence – 
. 
attempts to do bodily harm to another person; . offers to do bodily harm to another person; or 

. 
does bodily harm to another person; is guilty of assault and shall be punished as a court-martial may direct 


b. Elements: Assault consummated by a battery – 
. 
that the accused did bodily harm to a certain person; 

. 
that the bodily harm was done unlawfully; and 

. 
that the bodily harm was done with force or violence 


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. Chapter 3 implements and amplifies Article 15, UCMJ, and the Manual for Courts-Martial, chapter XXVI. Paragraph 3-4 states a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated, the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment, if punishment is appropriate. 

3. 
Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File (OMPF), finance-related documents, and non-service related documents deemed necessary to store by the Army. 


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. 

b. 
Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) contains the list of all documents approved by the Department of the Army and required for filing in the AMHRR and/or interactive Personnel Electronic Records Management System. The original DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder of the OMPF 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 any superior authority. However, the superior authority cannot direct that an Article 15, UCMJ, report be filed in the performance folder that the imposing commander directed to be filed in the restricted folder. The imposing commander's filing decision will be indicated in item 4b of the DA Form 2627. A change in the filing decision should be recorded in block 8 of the DA Form 2627. 


//NOTHING FOLLOWS//