Soldiers look down on ordinary people

In the judicial disciplinary proceedings, the 2nd Military Service Senate of the Federal Administrative Court took part in the closed main hearing on May 16, 2006, in which:
Judge at the Federal Administrative Court Prof. Dr. Widmaier as chairman,
Judge at the Federal Administrative Court Dr. Frentz,
Judge at the Federal Administrative Court Dr. Deiseroth
as
Lieutenant Colonel Grade,
Staff Sergeant Drossel
as honorary judges,
Government Director ...
as representative of the armed forces disciplinary attorney,
Lawyer ...,
as a defender,
...
as clerk of the office,
recognized for right:

  1. Upon appeal by the soldier, the judgment of the 2nd Chamber of the Troop Service Court of North of December 7, 2004 is overturned.
  2. The soldier is demoted to the rank of sergeant major because of a breach of duty.
  3. The soldier has to bear the costs of the first instance. Half of the costs of the appeal process are imposed on the soldier and half on the federal government, which also has to bear half of the necessary expenses incurred by the soldier.

reasons

I.

1 After graduating from high school, the 46-year-old soldier started doing basic military service on July 2, 1979 in the German Armed Forces with the P ... company ... Due to his application and obligation for voluntary service in the Bundeswehr, he was appointed to the service of a soldier on December 7, 1979. His period of service was initially gradually set at twelve years until he was appointed a professional soldier on August 26, 1987. Repeated applications for admission to the career of officers in the military technical service were rejected.

2 The soldier was last promoted to Sergeant Major on October 5, 1992.

3 After that he was initially employed at the H ... school ... in D. as a tank grenadier sergeant. On October 1, 1994 he was promoted to 3./P...Btl ... in H. as Panzerfeldwebel Leopard 2 and platoon leader and on January 1, 1999 to 4./P...Btl ... in St. as Panzerfeldwebel Leopard 2 and company sergeant transferred. On July 1, 2003, the soldier was transferred to the headquarters company of the P ... Brig ... in N. as Panzer Sergeant Leopard 2 and on December 1, 2003 to 1./H...Btl ... in K. as a mobilization preparation sergeant . Since January 5, 2004 he has been in the 1./H..Btl ... the function of S 1 / S 3 Sergeant. He is responsible for the personnel processing for reservists as well as the planning, organization and implementation of exercise projects of the H ... Btl ....

4 In the last scheduled assessment of July 5, 2000 by the company commander 4./P...Btl ..., the performance in the assessment period in the individual characteristics was rated once with level "7" (caring behavior), nine times with level "6 "And otherwise rated" 5 ". In the aptitude and aptitude assessment, the assessing supervisor set the rating “e” for the characteristic “aptitude for leading people / team skills” and otherwise the rating level “d”. In the description of his outstanding character traits, he is portrayed as a soldier who is characterized by his pronounced understanding of leadership, his well-balanced "instinct" in dealing with people and a very high degree of pleasure in his job. He has a sincere and steadfast character and never tries to exaggerate the outside world. What he says and does is identical. All in all, he is a credible and amiable "original". The next higher disciplinary superior stated in his statement of August 21, 2000 that the soldier belonged to the top of the company sergeant in the battalion, so that he underlined the recognizable suitability for an UmP-7 post. He rated the soldier's eligibility for funding as "D".

5 Commander P ... Brig ..., as another superior superior, underlined this good assessment because, from his point of view, the soldier had also made impressive achievements.

6 In the special assessment of March 16, 2005, the soldier's performance in the individual marks was rated five times with a “7” and eleven times with a “6”. When assessing his suitability and ability, he was given the rating “E” for “sense of responsibility”, “intellectual ability” and “suitability for leadership / team skills” and the rating “D” for “ability to manage operations and operations”. Under “Outstanding character traits, camaraderie, professional self-image, proven performance in action and additional statements”, the following was stated: “HptFw ... is characterized by a high degree of straightforwardness, loyalty and a sense of duty. His professional self-image and his inner attitude towards the soldier profession are impeccable. There is also an excellent cooperation with the battalion command and he is also recognized by the reservists for his uncomplicated and open manner and enjoys their unreserved trust. He got used to his job quickly and without difficulty. Since the post of S1 / S3 officer FD in the battalion is not occupied, HptFw ... performs his duties. He shows a commendable attitude towards service, outstanding personal commitment and exemplary fulfillment of duties. Recognized by his comrades, subordinates and superiors alike, he is popular because of his friendly, courteous and sometimes mischievous manner. "

9 The soldier's current next disciplinary superior, the witness Captain B., stated in the main appeal hearing that the soldier had not received any negative attention since he was reassigned to his area of ​​responsibility. He is extremely ready for action. The relationship with his comrades and the reservists in military training was very good. There were no alcohol-related incidents. The soldier abstains from any alcohol consumption - even at official events with reservists.

10 According to the excerpt from the disciplinary book of March 15, 2005, the soldier was given two formal recognitions on December 20, 1984 and May 11, 1990 for exemplary performance of his duties. In terms of discipline, he has not yet appeared negatively. Apart from the criminal proceedings, which are in some cases the same, the soldier has so far been unencumbered under criminal law.

11 On February 28, 2000, the commander P ... Btl ... set a performance level for the soldier in recognition of his permanently outstanding overall performance in accordance with Section 27 (3) sentence 1 BBesG.

12 On August 20, 1981, the soldier received the bronze rifle cord and on October 22, 1986 the badge for service in the troops in gold. The Federal Minister of Defense awarded him the Gold Cross of Honor of the Bundeswehr on February 6, 2002 for loyal fulfillment of his duties and above-average performance, and on February 26, 2003 the soldier received the Bundeswehr Medal (Flood Aid 2002).

13 The unmarried soldier is paid according to salary group A 8, 10th grade and receives monthly gross salaries of € 2,394.37, which, taking into account the statutory deductions, results in net salaries of € 1,954.38. His financial situation is in order.

II

14 1. As a result of a submission to the public prosecutor's office in accordance with Section 33 (3) WDO, criminal proceedings against the soldier took place at the public prosecutor's office in September 2002, in which the district court K. - 1 Js 11217/02 11 Cs - with a penalty order of September 5, 2003, imposed a total imprisonment of eight months against the soldier for double sexual abuse of an incapable of resistance and insult in a state of reduced culpability, the execution of which was suspended on probation against payment of a fine of € 1,000 for three years (applied criminal provisions: Section 179 Paragraph 1 No. 1, Sections 185, 21, 53 StGB). The penalty order is legally binding on October 28, 2003.

15 2. In the judicial disciplinary proceedings duly initiated by the commander 7th P ... division on November 21, 2003 by handover on December 2, 2003 (charges 1, 3 and 8), the military disciplinary attorney put the soldier in the on On June 30, 2004, the following allegation dated June 21, 2004 was a breach of duty:
"1. As a company sergeant of the 4./P..Btl ... the soldier led his unit on the night of 09.03. On March 10th, 2001 in B., Camp A., while heavily drunk, his hand under the blanket of his company, then Fahnenjunker Christian-Werner K., who was drunk in his bed and turned his back, touched his boxer shorts clothed buttocks and left his hand there for a few seconds before pulling it back again. The flag boy who pretended to be asleep was shocked, intimidated and scared.
Alternatively:
On March 9, 2001, the soldier, at least negligently, through the consumption of alcoholic beverages, put himself in a state of full drunkenness that precludes guilt and carried out the above-mentioned actions at the said time.
2. From January 21, 2002 until the beginning of March 2002, he knocked several times with his hand on the buttocks of the ensign Christian, who was the platoon leader, in the duty room in the company block of 4./P...Btl ..., S. -Werner K ..
3. At times in the summer of 2002 that can no longer be precisely determined today, the soldier in the office of 4./P...Btl ... touched private D. immorally by pinching his buttocks and patting them. He also grabbed his genitals.
4. The soldier took hold of the buttocks of the staff sergeant at that time, Florian Kl., Who also belonged to the company, at times that can no longer be determined before September 25, 2002 and referred to him several times as a 'cocksucker' and a 'gay wanker'.
5. On August 6th, 2002 he named the then Oberfähnrich Christian-Werner K. in the office of 4./P...Btl ... in connection with his property damage report of July 25th, 2002 and in the presence of Sergeant Mike R. and the private Sven D., who both also belonged to the 4./P...Btl ..., a 'liar'.
6. On August 26, 2002 around noon in the company block of the 4./P...Btl ... to Oberfähnrich K., he was due to a decision of the company's 'council of elders' and because of his weaknesses in character from the community of NCOs were expelled, although there was no 'council of elders' at all.
7. On August 30, 2002 around 12 noon he informed the corps of the 4./P...Btl ... in the company's U-room that Oberfähnrich K. had been excluded from the community of NCOs. As a justification, he said that Oberfähnrich K. was a 'human character pig'.
8. On August 31, 2002, after 10:00 p.m. in the company block of 4./P...Btl ..., room 207, the soldier, while heavily drunk, pulled private D., who was drunk in his field suit and boots and was sleeping on his bed. took off his boots, pulled his pants and pants down to above his knees and touched his bare genitals.
Alternatively:
On August 31, 2002, by drinking alcoholic beverages, the soldier, at least negligently, put himself in a state of full drunkenness that precludes guilt and carried out the above-mentioned actions at the said time.
9. On December 23, 2002 he sent the following SMS to the cell phone of Sergeant Marco N., who had been interrogated as a witness on September 25, 2002 by the commander of the P ... Btl 143 with regard to his sexual assaults against other soldiers:
'Wish you death. But you're the son of a border guards, that is, of a murderer. And so is your behavior. You are the dirt on this earth. But that could be better, you're dead stupid and nobody can take that away from you. So son of a murderer. Death.'"

30 By judgment of December 7, 2004, the 2nd Chamber of the North Troop Service Court downgraded the soldier to the rank of sergeant for a service offense.

31 With regard to the legal assessment, the troop service chamber stated: Due to the behavior found, the soldier has an obligation to care (Section 10 (3) SG) and to behave in a respectful and trustworthy manner while on duty (Section 17 (2) sentence 1 SG) injured. In addition, due to the behavior in accusation items 1 to 9, he has the duty to camaraderie (§ 12 sentence 2 SG) and due to his behavior in accusation item 9, the duty to behave in a respectful and trustworthy manner outside of work and outside of official accommodation (§ 17 para . 2 sentence 2 SG) violated. The soldier had deliberately violated his official duties and committed an official offense according to Section 23 (1) SG.

32 With regard to the assessment of the measure, the Chamber stated, among other things, that the misconduct was extremely serious. The soldier had abused his prominent position as a company sergeant, disregarded the personal rights of subordinate soldiers and their dignity and disqualified himself so permanently that his replacement was necessary. As a superior, contrary to his duty in accordance with Section 10 (1) SG, he had given a very bad example. Through the assaults, the physical contact and the defamatory statements, he had impaired the human dignity of the witnesses, which was protected under Article 1, Paragraph 1 of the Basic Law. The law on the protection of employees from sexual harassment in the workplace is also affected, which unequivocally states that any harassment in the workplace is an official offense. Depending on the nature and gravity of the service offense, the starting point for the assessment considerations in the present case had to be a downgrading, because in addition to the core allegations of sexual assault and repeated sexual contact, the soldier had massively impaired the honor and dignity of the witnesses through verbal derailments. At his expense, it was important that he had to be relieved of his position as company sergeant because of his behavior. For him it was said that he had shown decent or very decent service up to his breach of duty and after being transferred to the H ... Btl ... The fact that he was in a "wet phase" of alcoholism during the period in question had been taken into account in his favor. After weighing all the incriminating and exonerating circumstances in the act and in the person of the soldier, the downgrading to the rank of sergeant was indispensable because of the gravity of the service offense.

33 In a brief dated February 7, 2005, received by the Military Service Senates of the Federal Administrative Court on February 8, 2005, his defense counsel at the time lodged a full appeal against this judgment served on the soldier on January 12, 2005, and requested that the judgment of the Troop Service Court be set aside, Alternatively, refer the proceedings back to the Troop Service Court North for renegotiation.

34 In support of this, he essentially submitted:
The troop service court had recognized that at the time of the alleged acts the soldier had suffered from a serious alcoholic illness, which according to the credible testimony of the witness senior medical officer Dr. W.led to the fact that - in connection with alcohol abuse - latent schizophrenic traits had gained the upper hand in the soldier and it had come about that the soldier - completely different from his previous official and personal appearance - simply freaked out. The witness Hauptmann B. had also credibly stated before the troop service court that the soldier had returned to his service after the successful alcohol therapy in accordance with his previous official classifications. The current disciplinary superior, Captain B., was not able to understand the accusations made. The first instance judgment did not sufficiently appreciate the connection between the undoubtedly existing alcoholic illness and the anomalies the soldier had with it, which in this context would not be glossed over in any way. The fact is that all the alleged acts were committed in a state of intoxication, whereby, interestingly, both the perpetrator and the victim were in a state that any possibility or ability to control was excluded due to alcohol. It is criticized that in this connection only the witness, Oberfeldarzt Dr. W. had been heard. Despite the suggestion of evidence, an expert was not called in and also not heard, which was again criticized from the defense's point of view. The witness chief medical officer Dr. W. described the medical treatment, i.e. the progress and outcome of alcohol cessation, and furthermore assumed that the soldier had schizoid traits; the court, however, did not owe one consequence in the grounds of the judgment. During the period from March 2001 until the final medical treatment, the soldier was not himself; the past and current business assessments could not be interpreted otherwise. The soldier suffered from a serious split in personality over the period of time that was accused, which only subsided - now completely - after successfully carrying out alcohol therapy. At most, this fact was touched upon at the hearing. In the verdict, however, in no way had any consideration been given to the guilty responsibility of the soldier at the time of the offense. On the other hand, the soldier was assumed to have a memory, which he obviously could not have had, especially since he could only gain knowledge of the respective course of the crime from hearsay by third parties.

36 The soldier's physical as well as psychological deficits could only be explained by a psychological expert opinion, which is hereby expressly requested.

37 With the exception of charges 4, 5 and 7, the soldier was in an absolutely guilt-free state at the time of the offense.

38 As proof of this, a corresponding expert opinion should be obtained using the soldier's medical files, which were created on the occasion of his treatment in the K. Bundeswehr Hospital.

39 An expert report in this regard would show that the soldier's personality was highly divided at the time of the offense. The following is said about the individual allegations:

40 Re accusation point 1:
Witness K. was fast asleep at the time of the crime and was woken up by witness Kl. After the event and asked about his perceptions. Witness K. did not know anything and, according to his testimony, was "traumatized" by an event that occurred in deep sleep. The soldier was said to have been completely drunk at the time of the offense and was subsequently not found in front of the accommodation building, either in terms of location or time, and was brought to his room by Sergeant Robert P. It should be noted that the testimony of witness K. is not based on his own perceptions.

42 Regarding accusation point 2:
It is true that the soldier patted witness K. amicably; this was evidently customary in the soldier's office. When the witness K. protested against the soldier's behavior, the soldier immediately stopped doing it. For this reason one could not blame the soldier on the ground.

44 Regarding accusation point 3:
The court of first instance alleged that witness D. had a predecessor in the soldier's office. However, the process was different: Witness D. came to the soldier's office at his own request, as he felt that he was in good hands there. If the soldier had indeed been such a monster, as shown in the evidence, witness D. would not have "gone into the lion's den" of his own free will. In contrast to the usual alcohol problem, witness D. had massive drug problems and should therefore be put into repair. The soldier's superior wanted to remove D. from duty because he was unsustainable due to drug problems, whereupon the soldier vehemently advocated witness D. Witness D. wanted to acquire a C1 driver's license on business, and the responsible medical sergeant refused to allow him to take the test because of obvious drug problems. D. therefore urgently asked to be able to stay with the soldier in the office. This wish had been granted to witness D. There were serious objections to the testimony of witness D. Witness D. was of the opinion that he had been helplessly at the mercy of both the soldier and his superior, especially since the soldier and his superior were on the dozen. The "you" in the Bundeswehr is quite common, but in no way leads to a wall against conscripts. Witness D. was also not intimidated because of the soldier's relationship with his superiors.

46 Allegations 4 and 5 could be assumed to be true.

47 Re accusation point 6:
The witness K. and the soldier hated each other profoundly. In this context, witness K. was expelled from the council of elders, who in reality did not exist. The overall process concerns the fact that a non-member is excluded from a non-existent association. In fact, the soldier wanted to discipline witness K., because he had shown himself to be extremely arrogant and harassed towards subordinates. In this connection the soldier may have chosen the wrong means to discipline the witness K., but from a legal point of view a wrong assessment had been made.

49 Allegation point 7 can be assumed to be true.

50 Re accusation point 8:
Witness D. was politely asked by the soldier before the "night of the crime" whether the soldier could spend the night in his room. Witness D. expressly affirmed this. The friend of witness D. was supposed to appear on the following Sunday morning to pick up D., who had slept through the intoxication he had envisaged and put into practice. The friend of witness D. was in Stadtallendorf at the time and attended the open house in the neighboring barracks, together with her friends and other acquaintances. D. stayed in the said room of his own free will and could have been picked up by his girlfriend at any time, which was also what happened. Witness D. did not lie in bed in the room in question out of fear of the soldier in full gear, but because he was no longer able to undress due to drunkenness. At any rate, this was later reported to the soldier, who had no memory of the incident, by Sergeant Mike R. The witness D. got drunk on the evening in question with a mixture of Jägermeister and whiskey. The whiskey was obtained from the friend of the witness Mike R. at a gas station. Due to his drunkenness, D. was no longer oriented in terms of location and time. The soldier's memory ends at around 8 p.m. However, because of his own drunkenness, witness D. was unable to assess the level of drunkenness of the soldier. The soldier could not explain how the serious injury to the soldier had come about on the night of the crime, as his memory did not start again until the following day. The testimony of witness D. had been wrongly assessed by the court of first instance.

52 Re accusation point 9:
The troop service court recognized that the otherwise well-read soldier would never utter such a text. The text is completely mutilated; the soldier is able to write text messages almost blindly. Immediately after regaining consciousness, the soldier apologized to the recipient of the SMS.

54 In conclusion, the following should be said about the taking of evidence by the troop service court and its assessment: At the time of the oral hearing and the questioning of the soldier, all the witnesses were together in a common room and evidently agreed to "wipe out" the soldier. The witness Dr. W., who was also in this room, noticed and made it known to some extent on the occasion of his own interrogation. It cannot be ruled out that the witnesses would have agreed to the detriment of the soldier in order to incriminate him excessively at the hearing.

55 By resolution of the Senate on February 14, 2006, Chief Medical Officer Dr. W., specialist in neurology and psychiatry, commissioned with the preparation of a psychiatric report on the question of whether the soldier, when committing the alleged acts in the period between March 9, 2001 and December 23, 2002, was due to a mental disorder, due to a profound disturbance of consciousness or because of some other serious mental abnormality was unable to see the injustice of his act and to act on this insight, or whether his ability in this regard was considerably reduced.

III

56 1. The appeal is admissible. It is permissible, its formalities are observed (Section 115 (1) sentence 1, Section 116 (1) sentence 2, section 2 WDO).

57 2. Since the soldier's appeal has been expressly and in full in accordance with the essential content of its grounds, the Senate has to make its own findings of fact and guilt in the context of the allegation (Section 123 Sentence 3 in conjunction with Section 107 Paragraph 1 WDO) to legally appreciate this and to draw the resulting conclusions and to decide on the appropriate disciplinary measure, taking into account the prohibition of deterioration (Section 91 (1) sentence 1 WDO in conjunction with Section 331 (1) StPO).

58 3. The soldier's calling is partly justified.

59 a) Due to the admission of the soldier, insofar as it can be followed, the documents and documents made the subject of the main appeal hearing pursuant to Section 91 (1) sentence 1 WDO in conjunction with Section 249 (1) sentence 1 StPO, the documents pursuant to Section 123 sentence 1 WDO read out statements of the witnesses Leutnant der Reserve K., Oberfeldwebel Kl., Obergefreiter der Reserve D. as well as the statements of the witnesses Hauptmann B. and Oberleutnant der Reserve M. and the expert Oberfeldarzt Dr. The Senate determined the following facts:

60 According to the convincing statements of the expert, senior medical officer Dr. The soldier, who had been drinking alcohol regularly since he was 16 years old - even if initially only on weekends - suffered from an alcohol disease in 2001 and 2002 with excessive alcohol consumption and tears in the film. Since taking up his post as a company sergeant of the 4th / P..Btl ... in January 1999, he regularly got drunk to the point of unconsciousness. This mainly happened on weekends, but also at business events during the week; in the latter cases he usually took vacation leave on the following day because he foresaw that he would not be fit for duty that day. At least his company commander at the time, Captain Bräuer, knew about the soldier's alcohol problem from his superiors, but did not take any measures in this regard. From February to April 2003, the soldier underwent inpatient alcohol cessation therapy in a Bundeswehr hospital at his own request. The soldier has been abstinent ever since. Repeated outpatient follow-up examinations and a continuous check of the blood values ​​by the military doctor have so far shown no evidence of relapses in drinking behavior.

61 Re accusation point 1:
In March 2001, the soldier's company was at Training Area B. After a company evening, during which the soldier had drunk so considerable amounts of alcohol - which could no longer be determined in detail - that he could no longer remember what had happened, he entered at a time no longer determinable in the night of March 9th to 10th, 2001 a room in the accommodation block of 4th / P..Btl ... in camp A., where the witnesses (at that time) Fahnenjunker K. and (at that time) Sergeant Kl. and two other soldiers were housed. The soldier first went to the bunk bed of the witness Kl., Who slept in the lower bed in the drawn sleeping bag and woke up when the soldier entered the room. At this point in time, the witness K., who was lying upstairs in the bunk bed next to it, turned his head to the wall and pretended to be asleep so that he could no longer visually follow what was going on. The soldier then touched the body of witness Kl. With his hand, who later discovered that his sleeping bag had been opened. When this witness rolled over on his stomach, the soldier let go of him. Thereupon the soldier put his hand under the blanket in the bed of witness K. and touched his buttocks. The witness K. then turned around, shocked and intimidated, and caused the soldier to leave the room. On the following day, the soldier apologized to the soldiers concerned for the "nocturnal disturbance".

63 The soldier agreed to have no memory of the incident. He could not imagine having touched witness K. by the buttocks.

64 The admission of the soldier is not capable of shaking the credible incriminating testimony of the witnesses K. and Kl. Who were heard before the troop service court. Doubts about the credibility of the soldier's admission arise from the fact that he expressed himself differently. In the main appeal hearing, he agreed not to have any memory of the incident. Although this coincides with his admission before the troop service court that he knew nothing more because he was "too drunk", it contradicts his submission in his statement of appeal that witness K. was soundly asleep at the time of the crime. But if the soldier didn't know anything, he couldn't have noticed that witness K. was sound asleep. The soldier's lack of remembrance, asserted before the Senate, and the inability to imagine such a course of action do not invalidate the testimony of witnesses. The latter show a high degree of agreement. In particular, the testimony of witness K. is free of contradictions and consistently consistent. In the interrogation by Lieutenant Colonel O. on September 4, 2002, the witness K.from that the soldier had touched his buttocks; in front of the troop service court he explained, "afterwards I felt a hand under my blanket and saw the soldier leaving the room", furthermore that he still remembered the incident very well, the incident was "bad" for him, and In his petition to the Armed Forces Commissioner on August 27, 2002, he wrote that the soldier's hand had touched his buttocks. The fact that the witness K. could not see the soldier touching his buttocks - namely, he had turned his back to the soldier - is of secondary importance for the provability, because he had previously entered the room by the soldier and his approach to the bed had followed the witness Kl. This and the observation of the witness Kl. That the soldier fiddled with his hands on the bed of the witness K., in view of the fact that at this point in time no other person was involved in the event, it can be concluded with certainty that the soldier was the has committed alleged acts. This is also supported by the fact that he did not oppose the factual criminal charge in the - legally binding - penalty order. The other confirmed allegations also show that such behavior was not alien to the soldier at the time.

65 Due to his defamatory behavior, which encroaches on the privacy of witness K., the soldier who, as a company sergeant in the rank of sergeant in accordance with Section 1 (5) SG in conjunction with Section 3 (1), Section 4 (1), first sentence, No. 2 VorgV of The superior was in violation of Sections 7, 10, Paragraph 3, Section 12, Clause 2 and Section 17, Paragraph 2, Clause 1 of the SG.

66 A breach of the duty of loyalty (Section 7 SG) exists, on the one hand, because the soldier has committed a criminal act in the official field (Section 179 (1) No. 1 StGB) (cf. dated November 26, 2003 - BVerwG 2 WD 7.03 - Buchholz 235.01 § 38 WDO 2002 No. 14 = NVwZ 2004, 884), and on the other hand because it also violates § 2 Paragraph 2 No. 1 of the law for the protection of Employees against sexual harassment in the workplace (Employment Protection Act - BeschSchG - Federal Law Gazette I p. 1406, 1412).

67 The soldier knew what he was doing and wanted to. He acted willful, with regard to Section 17 (2) sentence 1 SG, conditionally willful.

68 Despite the (presumably considerable) alcoholism, he was also sane and thus culpable within the meaning of Section 20 of the Criminal Code. This can be concluded from the fact that his behavior in the witnesses' room was purposeful and thus still controlled. Because he looked for certain points there - the beds of the witnesses - and responded to the turning of the body of the respective witness by first letting go of the witness Kl. And going to the witness K., from where he was left the room with still a sense of direction. If the soldier had already been in a state of total drunkenness, his actions would have been significantly less controlled or purposeful, or not at all. Under these circumstances - without blood alcohol levels determined at the time - only a considerably reduced culpability can be assumed, but not a culpability. This assessment is supported by the statements made by the expert Dr. W. confirms that both in his report and in the main appeal hearing of the soldier's limited ability to see and control with an estimated blood alcohol concentration of "over two per mille" or "between two and three per mille" at the time.

69 Regarding accusation point 2:
Between January 21, 2002 and the beginning of March 2002, the soldier attacked the witness (at that time) Ensign K., who was deployed as platoon leader of platoon II - approaching from behind - several times, but at least twice, while on duty in the company block of 4th / P ... Btl ... on the buttocks. Witness K. then said (in a similar manner): “Sergeant major, don't do that!” And looked at the soldier in horror. However, this did not prevent the soldier from repeating the act. Only after a conversation between the two people in the presence of the then confidant of the NCOs, witness S., who had been questioned in front of the troop service court, in which witness K. addressed these incidents and the soldier then promised not to touch him any longer, did he refrain from further harassment Exit witness K.

71 In the main appeal hearing, the soldier agreed that he did not touch witness K. by the buttocks because of the tense relationship between them at the time. In his interrogation before the troop service court, he had testified that if he should have behaved in this way, the incidents must have occurred before January 21, 2002 because of the broken relationship with witness K. In the appeal, however, he admitted the "friendly patting" and noted that this was obviously so common in the department.

72 The contradicting statements made by the soldier are unable to shake the credible testimony of witness K., who was heard before the troop service court. Regarding the point in time, the witness clearly stated that the handles on his buttocks had taken place after his return to the unit from January 2002 and that he had memorized this date very precisely because it had left a lasting impression on him up to the present point in time. In his interrogation by Lieutenant Colonel O. on September 4, 2002, the witness testified that there had been a conversation with Sergeant S. (person of trust) and the soldier in February or March 2002, in which the soldier had admitted that he had touched the witness. The credibility of the witness is further supported by the fact that the soldier did not deny the meeting with the confidant mentioned by the witness, which mainly took place because of the underlying incidents.

73 By touching the buttocks after prior announcement of a recognizable rejection, the soldier violated Section 2 Paragraph 2 No. 2 BeschSchG and thus also Section 7 SG. In addition, because of the impairment of honor in the alleged behavior, he violated his obligations under Section 10 (3), Section 12 sentence 2 and - because of the suitability of this behavior to reduce his official reputation - Section 17 (2) sentence 1 SG.

74 The soldier knew what he was doing and wanted to do it too. He acted deliberately, with regard to Section 17 (2) sentence 1 SG, conditionally deliberate.

75 Regarding accusation point 3:
At times that can no longer be determined in the summer of 2002, the soldier repeatedly pinched the buttocks of the witness (then) Gefreiter D. in the office of 4./PzBtl 143 in passing - sometimes several times a day - in passing or patted him there. When witness D. once bent over a table in the office to do something, the soldier grabbed his genitals from behind.

77 The soldier admitted to patting witness D. but not touching his genitals.

78 Insofar as the soldier denies having taken witness D. by the genitals, his admission is refuted by the credible testimony of the witness questioned before the troop service court. It is not evident that he wanted to take revenge on the soldier by making unfounded accusations. It should be taken into account that the witness even had a friendly relationship with the soldier at the beginning. In addition, the soldier must allow himself to be held up as an indication of his commission of the crime that he accepted the criminal charge of the same nature in the penalty order of September 5, 2003.

79 The soldier intentionally violated Sections 7, 10, Paragraph 3, Section 12, Clause 2 and Section 17, Paragraph 2, Clause 1 of the SG.

80 The violation of the duty of loyalty (§ 7 SG) is to be assumed due to the criminal conviction for insulting (§ 185 StGB) in the penalty order of September 5, 2003, which was rooted in the official area.

81 The soldier knew what he was doing and wanted to. He acted deliberately, with regard to Section 17 (2) sentence 1 SG, conditionally deliberate.

82 Regarding accusation point 4:
At times in 2002 that can no longer be determined more precisely - but before September 25, 2002 - the soldier repeatedly attacked the witness Kl. Belonging to the same company in the office of the 4./P..Btl ... and at other locations in the H ... barracks in S. on the buttocks. In at least two cases he called the witness Kl. In the same period within the company block of 4./P...Btl ... as a "cock sucker" and a "gay wanker".

84 The soldier has confessed to this.

85 The soldier has intentionally (or partially intentional) violated Section 10, Paragraph 3, Section 12, Clause 2 and Section 17, Paragraph 2, Clause 1 of the SG.

86 Re accusation point 5:
On August 6, 2002 the witness (then) Oberfähnrich K. was in the office of the 4th / P..Btl ... to discuss a property damage report dated July 25, 2002 with the soldier. In the presence of Sergeant R. and the witness D. the soldier called the witness K. a "liar" because he believed his information in the damage report to be false.

88 The soldier has confessed to this.

89 With the deliberate defamation, which was likely to diminish his official reputation, he intentionally (or partially deliberately) violated Section 10 (3), Section 12 (2) and Section 17 (2) (1) SG.

90 Regarding accusation point 6:
On August 26th, 2002 around noon in the company block of the 4th / P..Btl ... the soldier told witness K. that he was one of the non-commissioned officers due to a decision by the company's "council of elders" because of his weaknesses in character had been excluded. There was no “council of elders”, and thus such a decision, in the company.

92 The soldier confesses.

93 There is a violation of the duty of care (Section 10 (3) SG) because the soldier, as company sergeant and leader of the corps of non-commissioned officers, deceived the witness about the intention and attitude of this community towards him. As a superior (Section 1 (5) SG in conjunction with Section 3 Sentence 1 VorgV), he must always endeavor to protect a subordinate from unreasonable disadvantages, including immaterial damage. Furthermore, the soldier has violated the duty of comradeship (§ 12 sentence 2 SG), because he lied to the witness about an officially relevant and at the same time concern him. After all, the internal duty of conduct (Section 17 (2) sentence 1 SG) is violated here. For the determination of a violation of the last-mentioned obligation, it does not matter whether damage to reputation has actually occurred in the specific case. All that is required is that the soldier's behavior was likely to trigger a reputation-damaging effect (established case law, last judgment of March 22, 2006 - BVerwG 2 WD 7.05 -). This is the case, as here, when a superior tells a subordinate the untruth out of an intangible intention to harm.

94 With regard to Section 10 (3) and Section 12 (2) SG, the soldier acted (directly) deliberately because he knew and wanted what he was doing. With regard to Section 17, Paragraph 2, Clause 1 of the SG, conditional intent is to be assumed because he considered it possible that the untrue statement that incriminated the witness could damage his professional reputation, and he accepted this approvingly.

95 Re accusation point 7:
During a meeting of the NCOs of the 4th / P..Btl ... arranged by the soldier on August 30, 2002 at 12 noon in the classroom of the company, he informed the NCOs present that the witness K. had been excluded from the community of NCOs because he was a "human character pig".

97 The soldier confesses.

98 The defamatory value judgment of the soldier about the witness against third parties - subject to him in accordance with Section 1 (5) in conjunction with Section 3 sentence 1 VorgV - constitutes an intentional violation of Section 10 (3) and Section 12 sentence 2 SG conditional willful violation of his obligations under Section 17 (2) sentence 1 SG.

99 Regarding accusation point 8:
The Senate does not consider this allegation to be proven, which is why the soldier was released from it. The Senate has not been able to gain the certainty required under Section 91 (1) WDO in conjunction with Section 261 StPO that the soldier has committed the misconduct alleged in the allegation.

101 With a view to an upcoming company evening in the 4./P..Btl ... the soldier had announced to witness D., who had been questioned before the troop service court, that he would spend the night in his room in the company block because there was a room that was otherwise available to him is occupied. Since he had been warned by a comrade not to spend the night with the soldier in the same room, but his girlfriend was unable to pick him up after leaving the party and he was also heavily drunk, he had not undressed before going to bed, but in laid his field suit with boots on his stomach in the bed. At a time no longer determinable in the night of August 31st to September 1st, 2002, witness D., lying alone in room 207 in the company block of 4th / P. an unidentified person ("someone") made trouble on him. After the person, dressed in a field suit, had left the room, which had now been lit, the witness found that his boots had been removed and his field pants and underpants had been pulled down to his knees. The witness then pulled up his pants or boots and tried to be clear about what had happened to him. He was "hot and cold". When he called his girlfriend to pick him up immediately, the heavily drunk soldier entered the room about five minutes after the incident, grinned at the witness and said (analogously): "D., do you even know where you are?" then down to the underpants and lay down in the bed of Private T., who was not present himself. At the sight of the soldier, witness D. suddenly felt anger and shame because he was of the opinion that the soldier had been the person who could have touched him immorally beforehand. He grabbed the soldier by the foot, pulled him out of bed and shouted (analogously): “You pig, what have you done?” The soldier replied (analogously): “I have not done anything and don't know anything.” The witness then hit angry and uncontrollably attacked the soldier who operated on the nasal mucosa because of the injuries that occurred and who was on sick leave for several weeks.

102 In the main appeal hearing, the soldier agreed to have no memory of this incident. In the main hearing in the first instance, he had still remembered taking off the boots of the witness who was lying “on the bed in his official suit”.

103 The Senate is not in the position specified in Section 91 Para.1 sentence 1 WDO in conjunction with Section 261 of the Code of Criminal Procedure, against which reasonable doubts must no longer arise, convinced that the soldier has committed the alleged breach of duty. It is true that because of the soldier's admission to the troop service court that he had taken off the witness’s boots, and because of the fact that the same room was also the place of sleep for the soldier that night and that he therefore had a reason to stay there at the time of the crime, one speaks certain probability that he also committed the other alleged acts.

104 However, there is no reliable evidence of the alleged allegation. Because in the statements of the sole witness D. there are contradictions in the core area. While in the timely interrogations of September 2 and 3, 2002, he said that “someone” had “tampered with” him and “someone in a field suit” had left the room, he said on December 7, 2004 before the troop service court now that he had woken up because he had been "tugged around" and that he had seen the soldier leave the room. In the later interrogation he also said that he had worn a service suit, while in the earlier interrogations he assumed that he was wearing a field suit. In the earlier interrogations he had no recollection of the conduct of the acts himself; at the time he (only) suspected that the soldier must have undressed him and touched his genitals. In the main hearing at first instance, however, he said that it was the soldier who grabbed his genitals. The last-mentioned - shorter - statement is in view of the different earlier statements, which are each characterized by a high level of detail, to be assessed as not credible. However, there is no direct evidence that the soldier carried out any of the other accused actions, in addition to taking off his boots. It cannot be completely ruled out that a third person went to room 207 in front of the soldier and there immorally touched the witness. In application of the principle “in dubio pro reo”, which also applies in military disciplinary law, the Senate assumes in favor of the soldier that it cannot be established beyond doubt that he acted in the accused manner.

105 He was therefore to be exempted from this charge.

106 The partially pertinent legally binding penalty order of the local court K. dated September 5, 2003 - see point 2 thereof - does not contradict this assessment according to § 123 sentence 3 in conjunction with § 84 paragraph 2 WDO. From the wording of Section 84 (1) sentence 1 WDO, but above all from the meaning and purpose of this legal regulation, according to which only the factual determinations found in accordance with the constitutional procedural guarantees and procedural rules of criminal procedural law can be legally binding that only the actual findings of a legally binding judgment in criminal proceedings, but not those of a legally binding penalty order, are binding (established case law, judgments of July 1 - BVerwG 2 WD 34.02 - BVerwGE 118, 262 and of April 27, 2004 - BVerwG 2 WD 4.04 - BVerwGE 120, 350 = Buchholz 232.1 § 5 ATGV No. 2).

107 Regarding accusation point 9:
After his replacement as company sergeant of 4./P..Btl ..., the soldier sent on December 23, 2002 from a location outside of military facilities that was no longer identifiable to the cell phone of Sergeant N., a member of 4./P .. .Btl ..., the following SMS:
"Wish you death. But you're the son of a border guards, that is, of a murderer. And your behavior is exactly the same: You are the dirt on this earth. But that could be better, you're dead stupid and nobody can take that away from you. So son of a murderer. Death."

110 At the time of the crime, the soldier was - probably considerably - intoxicated. The following day, he sent the recipient an apology via SMS, which he said was accepted.

111 The soldier admits the charge. He only became aware of what he was doing, which was completely incomprehensible to him, the day after he had sent the SMS.

112 With this statement, which was detrimental to his official reputation, the soldier violated § 12 sentence 2 and § 17 paragraph 2 sentence 2 SG. Despite being drunk, he still knew what he was doing and wanted to act that way; he acted deliberately, with regard to Section 17 (2) sentence 2 SG, conditionally deliberate.

113 Overall, the soldier has committed an official offense within the meaning of Section 23 (1) SG due to the culpable violations of duty (charges 1 to 7 and 9).

114 b) Pursuant to Section 58 (7) in conjunction with Section 38 (1) WDO, the nature and severity of the service offense as well as its effects, the degree of guilt, personality, previous leadership and motives of the soldier must be taken into account in the type and extent of the disciplinary measure .

115 When applying this standard, the Senate, in contrast to the Troop Service Chamber, considers the reduction by one rank to be sufficient.

116 aa) Character and gravity of the service offense
The nature and gravity of a service offense are determined by the injustice content of the misconduct, i.e. by the significance of the duties violated.

118 According to this, the misconduct, which is characterized by repeated intrusions into the intimate sphere as well as the honor and dignity of subordinate comrades, weighs heavily. This is evident from the fact that the soldier has committed criminal injustice and was sentenced to a suspended sentence of eight months for double sexual abuse of a person incapable of resilience and insult in a state of reduced culpability; In this respect, however, it must be taken into account that the soldier was exempted from disciplinary law in one of the two cases (accusation point 8), which were criminally assessed as sexual abuse of a person incapable of resistance.

119 A superior's breach of his or her duty of care carries considerable weight. According to the established case law of the Senate, the duty of care (Section 10 (3) SG) is one of the most noble duties of a superior towards his subordinates, who must have the - justified - feeling that they are not only regarded by them as recipients of orders, but that they are makes use of the command and other powers granted to him only with due consideration of his personal interests, that he is guided in all actions and measures by benevolence towards the respective subordinate and that he always tries to protect him from damage and unreasonable disadvantages (established case-law, see, inter alia, judgment of November 24, 2005 - BVerwG 2 WD 32.04 - NZWehrr 2006, 127 = NVwZ 2006, 608). In particular, he must strictly respect the physical integrity as well as the personal honor and dignity of the subordinate. This obligation is of particular importance in the military field. Because in the military relationship of superiority and subordination, subordinates are particularly in need of protection, also because the powers of command granted to the superior to carry out official tasks to unlawfully intervene in the legal sphere of subordinates can be abused.

120 The importance of the duty of care of a superior vis-à-vis subordinates in the event of a violation of dignity also results from the fact that the dignity of every person is fundamentally protected under Article 1, Paragraph 1 of the Basic Law. The fundamental right to protection, which also applies to the armed forces via Article 1, Paragraph 3 of the Basic Law, is (also) concretized in the military area by the superiors' duty of care, standardized in Section 10, Paragraph 3 of the SG.

121 The soldier's violation of the duty of comradeship (Section 12 sentence 2 SG) is also serious. Because the cohesion of the Bundeswehr is based essentially on camaraderie according to § 12 sentence 1 SG. The official tasks in peacetime and to an even greater extent in the event of an emergency require the soldiers' mutual trust and the awareness that they can rely on one another at all times. A superior who treats a subordinate comrade in an unworthy or defamatory manner undermines the cohesion of the service, disrupts service operations and at the same time endangers his personal authority as a superior and thus ultimately also the operational readiness of the troops (last judgment of November 24, 2005 a.a.O. with further references).

122 Furthermore, the duty standardized in Section 17 (2) sentence 1 SG to live up to the trust and respect that one's service as a soldier requires is not a mere secondary duty, but is of considerable importance because of its functional reference to military service operations ( established case law, see, inter alia, judgment of November 24, 2005 loc. cit.).

123 The peculiarity of the duty offense is further characterized by the fact that the soldier has seriously violated the duty of loyalty to the legal system (§ 7 SG) by making a criminal offense in the official area through sexual abuse of an incapacitated comrade and insult (§ 179 Paragraph 1 No. 1, § 185 StGB) (see judgment of October 21, 2004 - BVerwG 2 WD 17.04 -).

124 In addition, violating the Employment Protection Act is not easy for a soldier in a superior position.

125 It is of particular importance for the weight of the service offense that the soldier held a prominent position as a company sergeant during the period of the crime and repeatedly abused it. As a superior, contrary to Section 10 (1) SG, he set an extremely bad example in terms of attitude and the fulfillment of duties.