IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220008419 APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 15 June 2021, from his Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENT(S) 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 (Request for Removal or Transfer of Article 15 Nonjudicial Punishment (NJP) of (Applicant)), 15 June 2021, with enclosures – * Headquarters, I Corps, Memorandum (Request for Exception to Qualitative Management Program (QMP) Policy to Extend (Applicant) on Active Duty), 29 March 2022 * Headquarters, I Corps, Memorandum (Grant of Testimonial Immunity and Order to Testify), 1 October 2021 * DD Form 458 (Charge Sheet), 14 September 2021 * Third Army/U.S. Army Central Memorandum (Memorandum of Support – (Applicant), 4 May 2022 * six DA Forms 2166-9-2 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the periods 1 May 2015 through 1 October 2021 * Darnall Army Medical Center Ambulatory Summary, 17 June 2022, with two Primary Encounter Records, 28 March 2022 and 20 May 2022 FACTS: 1. The applicant states: a. He was granted testimonial immunity by the I Corps Commander, stating: "No statement, testimony, or other information given by you pursuant to this grant of immunity, or any information directly or indirectly derived from such statement, testimony, or other information, shall be used against you in any criminal proceeding except a prosecution for perjury, giving false statements, obstructing justice, or otherwise failing to comply with this order." His statement was given to the U.S. Army Criminal Investigation Command (CID) in an interview and was used against him for all charges he received in the Article 15 proceedings. The procedures leading to the filing determination of his DA Form 2627 were fundamentally unfair and unjust, and the allegation leading to imposition of the NJP is demonstrably untrue. b. Item 13 (Are Any of the Following Issues/Conditions Related to Your Request) of his DD Form 149, 22 June 2022, shows he checked "Post-Traumatic Stress Disorder (PTSD)" and "Sexual Assault/Harassment." 3. His memorandum (Request for Removal or Transfer of Article 15 NJP of (Applicant)), 15 June 2021, states: a. Army Regulation 15-185 (Army Board for Correction of Military Records) paragraph 2-2(a), allows Soldiers who believe adverse information filed in their AMHRR is untrue or unjust to "submit an appeal to request the removal of that information on the basis that it is untrue or unjust." b. The facts and subsequent developments of the case show the cause of the action creating the foundation of the NJP are not true. Rather than pursue a relationship with Captain (CPT) , he was coerced, pressured, and victimized by her actions against him. c. On or about 14 September 2021, CPT was charged with three violations of the UCMJ: an allegation of abusive sexual contact against him, an allegation of indecent recording and broadcasting against him, and violations of Article 92 (Disobeying a Lawful Order). d. He was granted testimonial immunity in order to assist in the prosecution of CPT . Each event underpinning the charges of his NJP are events wherein the prosecutors at I Corps characterized him as a victim. He did not initiate the sexual contact, nor did he seek it out. Rather, it was hoisted upon him through coercion by CPT . e. He believes it is fundamentally unjust to have an honorable Army career ended due to events in which he was victimized by those he trusted and by those who held authority over him. f. He was selected 105 out of 1,297 (top 6 percent) sergeants first class on the Order of Merit List for promotion to master sergeant (MSG). He had a promotion date to MSG of 1 October 2021 but was not eligible for promotion because of the investigation flag. To have a career he has worked so hard towards derailed by the actions of one predatory officer is an injustice in and of itself. He requests mercy, compassion, and empathy. 4. The Headquarters, 3rd Security Force Assistance Brigade, memorandum from the commanding general (Notice of Quarantine), 25 March 2020, ordered him to quarantine pursuant to III Corps and the Fort Hood Operations Order 20-02-0079 in response to the World Health Organization and the Secretary of Health and Human Services' declared health emergency and the Centers for Disease Control and Prevention designation of high risk countries. 5. The DA Form 2627, 1 June 2021, shows: a. The brigade commander considered whether the applicant should be punished under Article 15, UCMJ, for the following misconduct: (1) In that having received a lawful command from Brigadier General , his superior commissioned officer, then known by him to be his superior commissioned officer, to conduct a mandatory 14-day quarantine within the limits of his assigned barracks, or words to that effect, did, at or near Fort Hood, TX, between on or about 15 August 2020 and on or about 28 August 2020, willfully disobeyed the same. (2) In that having received a lawful command from CPT , his superior commissioned officer, then known by him to be his superior commissioned officer, to not contact or come within 250 feet of CPT , between on or about 17 April 2021 and on or about 19 April 2020, willfully disobeyed the same. (3) In that he did, at or near Fort Hood, TX, between on or about 17 April 2021 and on or about 19 April 2021, violate a lawful general regulation, which was his duty to obey, to wit: Army Regulation 600-20 (Army Command Policy), paragraph 4-14c(2), 24 July 2020, violated this by having an intimate or sexual relationship with an officer, CPT . b. The applicant did not demand trial by court-martial and in a closed hearing, having considered all matters presented, the brigade commander found the applicant guilty of all specifications and directed filing the DA Form 2627 in the performance folder of the applicant's AMHRR. c. The applicant elected not to appeal. His punishment consisted of a written reprimand. 6. On 7 June 2021, he was reprimanded in writing by the brigade commander as part of his Article 15 NJP stemming from his prohibited intimate sexual relationship with a commissioned officer. The brigade commander stated: a. On 1 June 2021, the applicant was found guilty of violating a mandatory 14-day quarantine in order to stay overnight with the officer, violating a military protective order to have no contact with the officer and violating a general regulation prohibiting sexual relationships between enlisted and officer ranks. b. The relationship began when the applicant was stationed at Fort Polk. The applicant knew the relationship was wrong but continued in it anyway. He had multiple opportunities to end the relationship, including after law enforcement contacts and command interventions. At every opportunity, he continued to make the wrong choice. He betrayed the trust of his leadership by lying to them and violating their orders and expectations. c. This letter of reprimand is imposed as punishment under the UCMJ and will be listed as an attachment to the DA Form 2627. 7. The DD Form 458 (Charge Sheet), 14 September 2021, shows the following charges were preferred against CPT : * Charge I – Violation of the UCMJ, Article 120 (Abusive Sexual Contact) * Charge II – Violation of the UCMJ, Article 120C (Indecent Recording and Broadcasting) * Charge III – Violation of the UCMJ, Article 92 (Failure to Obey an Order) * Charge IV – Violation of the UCMJ, Article 90 (Disobeying a Superior Officer) * Charge V – Violation of the UCMJ, Article 133 (Conduct Unbecoming of an Officer) * Charge VI – Violation of the UCMJ, Article 109 (Non-U.S. Property Offenses) * Charge VII – Violation of the UCMJ, Article 128 (Simple Assault) * Charge VIII – Violation of the UCMJ, Article 134 (General Article) 8. The results of the charges preferred against CPT are not available for review. 9. The Headquarters, I Corps, memorandum from the commanding general (Grant of Testimonial Immunity and Order to Testify), 1 October 2021, granted the applicant testimonial immunity and ordered him to appear, cooperate fully, and testify truthfully in any investigation, pre-trial interview, court-martial, and/or Board of Inquiry for CPT . No statement, testimony, or other information given by him pursuant to this grant of immunity, or any information directly or indirectly derived from such statement, testimony, or other information, shall be used against him in any criminal proceeding except a prosecution for perjury, giving false statements, obstructing justice, or otherwise failing to comply with this order. (Note: NJP was imposed against the applicant on 1 June 2021, prior to the grant of testimonial immunity.) 10. His six NCOERs covering the periods 1 May 2015 through 1 October 2021 show his raters rated his performance as "Far Exceeded Standard" or "Exceeded Standard" in all five elements of Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies) and provided positive comments. In Part V (Senior Rater Overall Potential), his senior raters rated his overall potential as "Highly Qualified" and provided exceptional comments regarding his performance and potential. 11. The Headquarters, I Corps, memorandum from the commanding general (Request for Exception to QMP Policy to Extend (Applicant)), 29 March 2022, requests a 1-year delay in any separation of the applicant through the QMP. The commanding general states: a. The applicant is currently the named victim of allegations of non-consensual sexual misconduct in a pending court-martial within his jurisdiction. Specifically, the applicant is the named victim of one specification of abusive sexual contact in violation of Article 120, UCMJ, and one specification of indecent recording and broadcasting in violation of Article 120c, UCMJ. b. On 1 October 2021, the applicant was issued a Grant of Testimonial Immunity and Order to Testify in the pending case in which he is a victim. In issuing this order, he found that the applicant's testimony and cooperation in the case were necessary to the public interest, including good order and discipline. 12. The Third Army/U.S. Army Central Memorandum from the applicant's former commander (Memorandum of Support – (Applicant)), 4 May 2022, attests to the applicant's job performance and states, in part: "[Applicant] understands he made a serious error in judgement and, I believe, he truly regrets his mistake. He understands the impact this had in his former Troop, the Squadron, and the Brigade. While forgiveness does not negate consequences, I believe the Army recognizes potential for rehabilitation and redemption and, in general, recognizes mistakes should not necessarily negate an otherwise distinguished career." 13. The Darnall Army Medical Center Ambulatory Summary, 17 June 2022, with two primary encounter records, 28 March 2022 and 20 May 2022, documents the applicant's diagnosis of PTSD. 14. On 13 September 2022, the Department of the Army Suitability Evaluation Board denied the applicant's request to remove the DA Form 2627 from his AMHRR or transfer it to the restricted folder of his AMHRR. Careful consideration was given to the time period that had elapsed, the applicant's rank at the time of the misconduct, the seriousness of the incident, and the lack of post NCOERs, awards, and military schools (after issuance of the written reprimand). The board determined the applicant had not provided sufficient evidence to show the field-grade NJP has served its intended purpose and that it is in the best interest of the Army to transfer it at this time. 15. His NCOER covering the period 2 October 2021 through 1 October 2022 shows his rater rated his performance as "Exceeded Standard" in all five elements of Part IV and provided positive comments. In Part V, his senior rater rated his overall potential as "Qualified" and commented: "[Applicant] is in the top 30% of NCOs that I have senior rated. Promote to MSG and send to MLC [Master Leader Course]. [Applicant] has reached his potential in the Army." ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicants petition and available military records, the Board determined the applicant did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant. The Board noted the applicant’s NCOER’s prior to the Article 15 and after which shows he has performed exceptionally well in his duties as an NCO since the imposition of the contested Article 15. The Board considered the applicant’s rank and length of service and found the applicant, as a senior NCO knew right from wrong. The Board agreed, based on the evidence in the applicant’ record, the incident did occur and the applicant acknowledged with his acceptance of the Article 15. The Board found insufficient evidence to remove the Article 15. Therefore, relief was denied. 2. The purpose of maintaining the Army Military Human Resource Record (AMHRR) is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, 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 of the AMHRR unless directed by an appropriate authority. The Board agreed, there does not appear to be any evidence the contested Article 15 was unjust or untrue or inappropriately filed in the applicant's AMHRR. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign Plan, military discipline and conduct, Army Military Equal Opportunity Program, Army Harassment Prevention and Response Program, and Army Sexual Harassment/Assault Response and Prevention Program. a. Paragraph 4-14 (Relationships between Soldiers of Different Grades) states Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier. All relationships between Soldiers of different grades are prohibited if they: (1) compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; (2) cause actual or perceived partiality or unfairness; (3) involve, or appear to involve, the improper use of grade or rank or position for personal gain; (4) are, or are perceived to be, exploitative or coercive in nature; or (5) create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability to the command to accomplish its mission. b. Paragraph 7-7 (Sexual Harassment) states Title 10, U.S. Code, section 1561 (Complaints of Sexual Harassment: Investigation by Commanding Officers), defines the term "sexual harassment" to mean any of the following, to include conduct that involves unwelcome sexual advances, requests for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature when: (1) 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; or (2) is so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the environment as hostile or offensive. 3. The Manual for Courts-Martial governs the procedures and punishments in all courts-martial and whenever expressly provided, preliminary, supplementary, and appellate procedures and activities. a. Article 15, UCMJ, authorizes any commanding officer to impose NJP without the intervention of a court-martial upon enlisted members assigned to the unit of which he or she is in charge. However, NJP may not be imposed upon any member of the Armed Forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. b. Rule 704 (Immunity) states for testimonial immunity, a person may be granted immunity for the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial. 4. 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. 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 3-6a provides that a commander's decision whether to file a record of NJP in the performance folder of a Soldier's AMHRR is as important as the decision relating to imposition of the NJP itself. In making a filing determination, the imposing commander must carefully weigh the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted folder. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. b. Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant 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 folder or restricted folder 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. However, the superior authority cannot direct the filing of a DA Form 2627 in the performance folder that the imposing commander directed to be filed in the restricted folder. c. Paragraph 3-43 contains guidance for transfer or removal of DA Forms 2627 from the AMHRR. Applications for removal of a DA Form 2627 from the AMHRR based on an error or injustice will be made to the ABCMR. There must be clear and compelling evidence to support removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR. 5. 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, 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 Department of the Army and required for filing in the AMHRR and/or interactive Personnel Electronic Records Management System. DA Forms 2627 are filed in the performance folder or the restricted folder of the AMHRR. The decision to file the original DA Form 2627 in the performance folder or the restricted folder will be made by the imposing commander. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008419 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1