IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220004077 APPLICANT REQUESTS: removal of the investigative report and derogatory information, and the Article 15 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) * Statement * Character Reference letters * NCO Evaluation Report * Enlisted Record Brief * Qualitative Management Program (QMP) Election Statement FACTS: 1. The applicant states he was found not guilty of the investigation items in the report. There was bias against his character and values. The Article 15 he received was for unprofessionalism as an NCO. He corrected his infraction and later received a “far Exceeded Standards” evaluation in 2021. He deserves a second chance to continue his career. He adds in a separate statement: a. He is requesting the removal of derogatory documents from his AMHRR for reconsideration of the Quality Management Program (QMP) Board. He would like to be reconsidered to remain the Army to complete the last four years to retire. He has completed all phases of his punishments and feels being separated is too much for the offense he committed. The material uploaded into his restricted file was unjustified. The 138 pages upload painted an unfair picture of his character. He was not found guilty of any of those charges according to his Brigade Commander. He was verbally told he was guilty of being unprofessional as an NCO and creating a hostile work environment for using an explicit vocabulary word. b. This punishment does not fit the crime, as he is an outstanding NCO whose current evaluations is far-exceeded standards. He has been a pillar in his brigade for the past two years since he has been dealing with this issue. He deserves a second chance from HRC and the Army. He knows soldiers with DUls and spousal abuse that have been retained by the Army. He is asking to show some loyalty and forgiveness to allow him to retire in 4 years. He is asking for the removal of the derogatory documents in his file and be reconsidered to resume his career and be an asset for his brigade and the Army. 3. The applicant provides: a. NCO Evaluation Report fir the rating period 29 December 2020 through 28 December 2021 that reflects and overall performance of “Exceed Standards” and potential rating of “Highly Qualified.” b. Multiple character reference letters speaking of his professionalism, military bearing, personal appearance, and loyalty to duty. The authors state the charges (that led the Article 15) are not a reflection of his character. The authors recommend his retention. 4. Review of the applicant’s service records shows: a. He had prior service in the Army National Guard from 20 January 2006 to 27 September 2007. b. He enlisted in the Regular Army on 28 September 2007 and held military occupational specialties 11B, Infantryman, and 88M, Motor Transport Operator. c. He served through multiple reenlistments in a variety of assignments, and he was advanced to staff sergeant/E-6 in November 2012. d. On 20 October 2014, the applicant’s commander notified him of his intent to punish him under Article 15, Uniform Code of Military Justice (UCMJ) for violating: * Article 86, one count of without authority, failing to be at the time prescribed to his appointed place of duty (Physical Training formation) * Article 91, one count of being disrespectful in language and deportment toward a senior NCO * Article 91, one count of assaulting an NCO who was then in the execution of his office. by chest bumping your chest against his chest e. The applicant consulted with counsel, declined trial by a court-martial, and opted for a closed hearing. f. On 27 October 2014, the imposing commander found him guilty of the three counts (failure to report, disrespect, and assault). His punishment consisted of forfeiture of pay and an oral reprimand. The imposing commander ordered the Article 15 filed in the restricted portion of his official record. The applicant elected not to appeal. f. On 5 October 2020, an investigating officer was appointed pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) to investigate the facts and circumstances surrounding allegations made by Private First Class (PFC) against the applicant, for alleged sexual harassment. (1) Facts. During September 2020, a number of incidents occurred between SSG and several other Soldiers, primarily PFC who made claims that he touched her side and lower back, stopping before he reached her buttocks. PFC also claimed to be touched on the back and side by him. The applicant also was witnessed rubbing or massaging several Soldiers' shoulders, including PFC PFC and PFC. (2) Finding (1): The preponderance of evidence indicates that [Applicant] violated the Army's sexual harassment policy defined in AR 600-20. His behavior fell into both the verbal and physical contact categories of sexual harassment and contributed to a hostile environment. (3) Finding (2): Though he makes contradictory claims for most allegations, multiple witnesses corroborate the majority of the claims made against him. Additionally, he admitted to the event that triggered the initiation of the formal complaint. Finally, his demeanor during the interview was angry, aggressive, and dismissive - behavior consistent with his alleged actions, rather than compassionate or remorseful. (4) Recommendation: Field Grade Article 15. g. On 3 February 2021, the applicant’s brigade commander notified him of his intent to punish him under Article 15, Uniform Code of Military Justice (UCMJ) for multiple violations, including: * Article 92, one count of sexually harassing SPC saying to her "tanker females are hot, but infantry females are hotter, but you're not my type because you're too young and white. Young females are too tight", or words to that effect. * Article 92, one count of violating a lawful general regulation, which was his duty to obey, by saying to PFC "bitch", or words to that effect h. The applicant consulted with counsel, declined trial by a court-martial, and again opted for a closed hearing. f. On 21 April 2021, the imposing commander found guilty of the two counts (sexual harassment and violating a general regulation). His punishment consisted of reduction to sergeant (E-5), suspended, to be automatically remitted if not vacated on or before 18 October 2021; forfeiture of $1,803.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated on or before 18 October 2021; extra duty for 45 Days. The imposing commander ordered the Article 15 filed in the restricted portion of his official record. The applicant elected not to appeal. g. On 12 April 2022, the applicant was notified that he had been denied continued service under the QMP. He acknowledged his options. h. He was honorably discharged from active duty on 1 October 2022 in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) due to non-retention on active duty. His DD Form 214 shows he completed 15 years and 4 days of active service this period with 3 months and 15 days of prior active service. He was assigned Reentry Code 3. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the counsel’s statement and 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 that removal of an Article 15/ UMCJ is generally not warranted unless it is factually incorrect. The Board found the character letters of support very compelling. However, the Board determined 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 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 3-28, setting aside and restoration, this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the Article 15 itself is set aside and removed from the Soldier’s records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary after the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. c. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states 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. It further indicates 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 Army Board for Correction of Military Records. 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 Army Military Human Resource Record. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627will be filed in the restricted folder. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004077 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1