IN THE CASE OF: BOARD DATE: 27 March 2018 DOCKET NUMBER: AR20150018242 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 27 March 2018 DOCKET NUMBER: AR20150018242 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. ___________x______________ CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 27 March 2018 DOCKET NUMBER: AR20150018242 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: a. The removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), also known as an "Article 15" or non-judicial punishment (NJP), and a General Officer Punitive Reprimand imposed as punishment under the Article 15 proceedings, from his official military personnel file (OMPF). b. The expungement of his NJP from all Headquarters, Department of the Army (HQDA), U.S. Army Human Resources Command (HRC), U.S. Army Criminal Investigation Command (CID), and U.S. Africa Command (AFRICOM) systems of record, to include documents and files related to a proposed Involuntary Separation Board and an Army Grade Determination Review Board. c. The restoration of all rights and privileges lost based on error and injustice, a lack of due process and fairness, and the inaccuracy of the DA Form 2627. d. The removal of his name as the subject of the CID Report of Investigation (ROI) 0108-2012-CID667-7XXXX-6CX, dated 6 November 2012; correction of said ROI to show he was found "not guilty" of the charge of "abusive sexual contact (adult)"; and the total expungement of said ROI from CID systems of record. 2. The applicant states: a. His Article 15 and General Officer Punitive Reprimand are unfair, untrue, inaccurate, unjust, erroneous, and legally unsustainable and should be removed in order to clear his good name in retirement and so that he can avoid the potential loss of his Top Secret (TS) Sensitive Compartmented Information (SCI) (TS-SCI) security clearance. b. Errors in his record resulted from numerous due process violations, including application of the incorrect legal burden of proof for NJP (below the mandatory "beyond a reasonable doubt" criminal standard); refusal by the Commander to consider material exculpatory evidence (video DVD of CID interrogation); denial of his right to confront his accuser, examine the sole witness, and present matters in defense, extenuation, and mitigation; lack of essential elements of Articles 128 and 133; affirmative defenses of consent and mistake; failure to consider evidence objectively; refusal to give the benefit of the doubt to the accused; predetermination of the outcome prior to the hearing; and undue command influence stemming from an unethical CID titling decision as an unfair and prejudicial Article 120 offense, even though there was no evidentiary basis for the charge, which caused a "reverse halo effect" and political overreaction to a false charge of a possible sex crime – despite being later found "not guilty" of the offense. 3. The applicant provides a DA Form 2823 (Sworn Statement) and a 60-page narrative brief (attached), wherein he describes/chronicles what he calls the facts relevant to his case and request for relief, the alleged errors/mistakes of law, regulation, and policy as related to the investigation and the imposition of punishment, and the existence of injustice and inequity. 4. The applicant provides the following documents (arranged chronologically): * DA Form 67-9 (Officer Evaluation Report (OER)), covering the period 17 November 2007 through 19 April 2008 * DA Form 4980-5 (Bronze Star Medal Certificate), dated 20 May 2008, annotated with Permanent Orders Number 141-007, with accompanying narrative and citation * Permanent Order Number 212-002, issued by Headquarters, Multi National Force – Iraq, Joint Area Support Group – Central (Provisional), U.S. Embassy Baghdad on 30 July 2008 * OER, covering the period 8 April 2010 through 8 July 2010 * OER, covering the period 14 April 2012 through 14 May 2012 * DD Form 2412 (Defense Meritorious Service Medal), dated 14 May 2012, with accompanying citation * Orders A-08-215648, issued by HRC on 29 August 2012 * third-party letters of support, dated 27 September 2012, 1 October 2012, 4 October 2012, 8 October 2012, and 11 October 2012 * a memorandum from Senior Defense Counsel to Commander, U.S. Army Element, AFRICOM, dated 12 October 2012, subject: Article 15 Proceedings for Colonel (COL) [Applicant] * several pages of an email transcript, dated on or about 12 October 2012 * Record of Proceedings Under Article 15, UCMJ, initiated on 10 October 2012 and finalized on 29 October 2012, with attached General Officer Punitive Reprimand, dated 19 October 2012 * a memorandum from Senior Defense Counsel to Deputy Commander, AFRICOM, dated 16 October 2012, subject: Article 15 Appeal – Colonel [Applicant] * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 24 October 2012 * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), with accompanying Criminal Investigation Command ROI 0108-2012-CID667-7XXXX-6CX, dated 6 November 2012, and numerous associated documents * DA Form 4037-E (Officer Record Brief (ORB)), dated 21 January 2014 * Orders C-02-402575, issued by HRC on 24 February 2014 * OER, covering the period 10 March 2014 through 21 March 2014 * Certificate of Retirement, dated 1 October 2014 * Military Biographical Summary, dated 28 January 2015 * CID Agent Standards of Conduct Complaint, dated 24 August 2015 * third-party letter of support, dated 11 October 2015 * two DA Forms 2823 (Sworn Statement), both dated 19 October 2015 * 32 full-sized color photographs of himself, with and without his spouse and children, during various activities * an email from the applicant to the Director, Case Management Division, Army Review Boards Agency, dated 27 September 2017 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army on 17 May 1987. He served in various active and inactive capacities within the Army National Guard and U.S. Army Reserve, in stateside, overseas, and combat locations. He attained the rank of COL on 25 September 2009. 2. Orders A-08-215648, issued by HRC on 29 August 2012, ordered the applicant to active duty from the U.S. Army Reserve Control Group (Reinforcement) for a period of 21 days commencing on 4 September 2012. He was ordered to report to the U.S. Army Element, AFRICOM, in Stuttgart, Germany. 3. The applicant attended a Bible study fellowship event on 11 September 2012, hosted by the Ramstein Air Base Chaplain. During this event, the applicant interacted with a female enlisted member of the U.S. Air Force (hereafter referred to as the "female Airman"). Following this interaction, the female Airman filed a formal complaint against the applicant, wherein she alleged she was sexually assaulted by the applicant. The matter was referred to CID and an investigation was conducted, which established probable cause to believe the applicant committed the offense of abusive sexual contact against the female Airman. 4. The Commander, U.S. Army Element, AFRICOM, notified the applicant on 10 October 2012 that he was considering the imposition of punishment under Article 15, UCMJ, based on the applicant: a. violating Article 120 of the UCMJ, specifically by engaging in sexual contact with a female Airman on 11 September 2012. This charge was later rescinded; it was lined out and the words "not guilty" were hand-written and initialed by the imposing authority. b. violating Article 128 of the UCMJ, specifically by assaulting a female Airman on 11 September 2012, to wit: by repeatedly touching her on her stomach, legs, arm, and back, cupping her face and pulling it toward him, and hugging her and kissing her on the cheek. c. violating Article 133 of the UCMJ, specifically by conducting himself in a manner unbecoming an officer and a gentleman on 11 September 2012, to wit: by, while in uniform at a location in which junior enlisted personnel were present, repeatedly touching the female Airman on her arm, thigh, and stomach, and telling her how beautiful, smart, and skinny she was when he knew she was a junior enlisted Airman. He then asked her to accompany him to his car, where he showed her a shirtless picture of himself and hugged her and kissed her on the cheek. 5. The applicant was assigned the Senior Defense Counsel from the U.S. Army Trial Defense Service, Wiesbaden Branch Office, to serve on his behalf. On 12 October 2012, counsel submitted a 7-page memorandum, which constituted matters for the imposing officer's consideration prior to the imposition of NJP, as well as numerous third-party letters of support. In her summary, counsel states: a. There was no assault, no battery, no abusive contact, no conduct unbecoming, and nothing remotely sexual about anything that occurred between the female Airman and the applicant. b. The evidence did not support a finding, beyond a reasonable doubt, that there had been any criminal offense under the UCMJ. c. The only evidence against the applicant was a self-authored statement by the female Airman. d. Most importantly, from a legal perspective, the essential elements of the alleged offenses had not been met with evidence for any of the UCMJ articles charged. 6. The imposing officer found the applicant guilty, on 13 October 2012, of some (not all) of the specifications; specifically, the applicant was found guilty of violating Articles 128 and 133 but not guilty of violating Article 120. The imposed punishment consisted of the applicant's forfeiture of $5,175.00 pay for two months, and a written General Officer Punitive Reprimand filed permanently in the applicant's OMPF. The imposing officer directed the filing of the Article 15 (including the General Officer Punitive Reprimand) in the Performance folder of the applicant's OMPF. The applicant was advised of his right to appeal. 7. The applicant signed the DA Form 2627 on 13 October 2012; he did not demand trial by court-martial but he did elect to appeal the imposition of NJP and submit additional matters. 8. Counsel submitted a 4-page memorandum on 16 October 2012, which constituted the applicant's appeal of his Article 15. In this memorandum, addressed to the Deputy Commander, AFRICOM, counsel requested that the Deputy Commander wholly set aside the findings and punishment, both due to the failure to meet legal standards of proof and the severe injustice that would result from the mere existence of such derogatory information (guilty of assault/battery and conduct unbecoming) in the applicant's military personnel file, which posed even more adverse civilian consequences. Counsel addressed the following points of discussion: * collateral consequences of derogatory information * punishment unduly harsh and disproportionate * guilty findings not supported by evidence * Article 133, Conduct Unbecoming an Officer and Gentleman 9. The applicant was formally reprimanded in writing on 19 October 2012 by the Commander, U.S. Army Element, AFRICOM, as part of the imposed punishment related to his Article 15. 10. A reviewing official determined on 25 October 2012 that the Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust nor disproportionate to the offense committed. 11. The Deputy Commander, AFRICOM, denied the applicant's appeal of his Article 15 on 29 October 2012. 12. The applicant was released from active duty on 24 October 2012 following his completion of 1 month and 21 days on active duty and was reassigned to the U.S. Army Reserve Control Group (Reinforcement). 13. The applicant was honorably retired on 1 October 2014. 14. The applicant's Article 15 proceedings, including his General Officer Punitive Remand, were filed in the Performance folder of his OMPF on 20 November 2012. 15. The applicant provides: a. OERs and award citations that attest to his abilities and potential for greater service. b. Numerous third-party letters of support that attest to his professional abilities, leadership traits, high moral character, and outgoing personality. c. CID ROI Number 0108-2012-CID667-7XXXX-6CX, dated 6 November 2012, consisting of: * Commander's Report of Disciplinary or Administrative Action, dated 7 November 2012 (6 pages) * CID ROI – Final/SSI, dated 6 November 2012 (4 pages) * CID Form 94 (Agent's Investigation Report), dated 18 September 2012 (4 pages) * Air Force (AF) IMT 1168 (Statement of Suspect/Witness/Complainant), dated 12 September 2012 (7 pages) * DA Form 4137 (Evidence/Property Custody Document), dated 13 September 2012 (1 page) * a photocopy of a compact disc, undated * a composite sketch, undated * CID Form 87-R-E (Consent to Search), dated 13 September 2012 (1 page) * Evidence/Property Custody Document, dated 13 September 2012 (1 page) * pages consisting of six profile photographs, undated (9 pages) * DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 18 September 2012 (1 page) * a photocopy of a digital video disc containing a video of the applicant's interview with a CID agent, undated (the actual disc is also provided) * photographs, undated * Consent to Search form, dated 18 September 2012 (1 page) * Evidence/Property Custody Document, dated 18 September 2012 (1 page) * anatomy sketches, dated 18 September 2012 (2 pages) * Consent to Search form, dated 18 September 2012 (1 page) * Evidence/Property Custody Document, dated 18 September 2012 (1 page) * a memorandum from the Special Agent in Charge, Digital Forensic Examiner, to the Special Agent in Charge, Kaiserslautern CID Office, dated 18 September 2012 (1 page) * a photocopy of an evidence sleeve, undated, used to house the applicant's iPhone (1 page) * Agent's Investigation Report, dated 18 September 2012 (2 pages) * two photocopies of compact discs, undated * a diagram/drawing of the layout of the applicant's vehicle, dated 18 September 2012 (1 page) * Agent's Investigation Report, dated 6 November 2012 (1 page) * Record of Proceedings Under Article 15, UCMJ (6 pages) * a memorandum from the Chief, Crime Records Division, U.S. Army Crime Records Center, CID to an official at HRC, dated 15 March 2013 d. His Military Biographical Summary, dated 28 January 2015, which illustrates his varied military assignments, professional education and degrees, awards and decorations, and other qualification data. e. A 15-page CID Agent Standards of Conduct Complaint, dated 24 August 2015, wherein the applicant contends the CID agents who investigated his case should be professionally sanctioned, reprimanded, sent for additional corrective training, and/or relieved of duty. f. Sworn statements from his current spouse and ex-spouse, dated 19 October 2015 and 11 October 2015, respectively, which attest to the applicant's strength of character, outgoing and extroverted personality, high moral character, and the uncharacteristic nature of the charges for which he was punished. g. Thirty-two (32) color photographs of himself, his spouse, and his children in various poses in various formal and informal settings. REFERENCES: 1. Army Regulation (AR) 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. a. Paragraph 3-3 (Relationship of nonjudicial punishment to nonpunitive measures), subparagraph a. (General) provides that NJP is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct. Subparagraph b. (Reprimands and admonitions) (1) provides that Commanding officers have authority to give admonitions or reprimands either as an administrative measure (non-punitive) or as nonjudicial punishment (punitive). b. Paragraph 3-6 (Filing determination) provides that: (1) A commander’s decision on whether to file a record of NJP on the performance section of a Soldier’s OMPF is as important as the decision on whether to impose NJP itself. In making a filing determination, the imposing commander must weigh carefully 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 of his OMPF. 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 section. (2) If a record of nonjudicial punishment has been designated for filing in a Soldier’s restricted folder, the Soldier’s OMPF will be reviewed to determine if the restricted folder contains a previous record of NJP. In those cases in which there exists a previous DA Form 2627, which has not been wholly set aside but has been filed in the restricted folder and in which prior to that punishment the Soldier was in the grade of sergeant (SGT) or higher, the present DA Form 2627 will be filed in the performance folder. The filing should be recorded on the present DA Form 2627 in block 11. The Soldier concerned and the imposing commander will be informed of the filing of the DA Form 2627 in the performance folder. c. Paragraph 3-36 (Records of Punishment) provides that all Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627. d. Paragraph 3-37 (Distribution and filing of DA Form 2627 and allied documents), sub-paragraph b. (Original of DA Form 2627) (1) (Place of filing) (a) provides that the decision to file the report of NJP (DA Form 2627) in the Performance or Restricted folders of the OMPF will be made by the imposing commander at the time punishment is imposed. 2. AR 600-8-104 (Military Personnel Information Management/ Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF. It provides that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 3. AR 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance pertaining to investigative records, files, and reports. Paragraph 4-4b provides that requests to amend CID ROIs will be considered only under the provisions of this regulation. Requests for amendment of a CID ROI will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name was entered as a result of mistaken identity. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 4. Department of Defense Instruction (DoDI) 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense) contains the authority and criteria for titling decisions and states that titling only requires credible information that an offense may have been committed. It states that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the Defense Central Index of Investigations (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred." The criteria for titling are a determination that credible information exists that a person: may have committed a criminal offense or is otherwise made the object of a criminal investigation. 5. DoDI 5505.07 contains further legal guidance. a. Section 6.1. Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in DCII. (This Instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. b. Section 6.3. The DoD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. c. Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: (1) Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and DCII in the case of mistaken identity; i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII. (2) Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. d. Section 6.9. When reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 6. DODI 5505.07 also provides the following definitions: a. E1.1.1 – Credible Information: Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts are true. b. E1.1.2 – Criminal Investigation: Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution. c. E1.1.3 – DCII: A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DoD, as well as selected other Federal agencies, to determine security clearance status and the existence/physical location of criminal and personnel security investigative files. The DCII database is physically maintained by the Defense Security Service; however, the data it contains is the responsibility of the contributing agencies. d. E1.1.4 – Incidental: Any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes. e. E1.1.5 – Indexing: Refers to the procedure whereby an organization responsible for conducting criminal investigations submits identifying information concerning subjects, victims, or incidentals of investigations for addition to the DCII. f. E1.1.6 – Subject: A person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense. g. E1.1.7 – Title Block: Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses. h. E1.1.8 – Titling: Placing the name(s) of person(s), corporation(s), other legal entity, organization(s), or occurrence(s) in the title block of a criminal investigative report. DISCUSSION: 1. The applicant requests the removal of his Article 15 and General Officer Punitive Reprimand from his OMPF; the expungement of his NJP from all HQDA, HRC, CID, and AFRICOM systems of record (to include documents and files related to a proposed Involuntary Separation Board and an Army Grade Determination Review Board); and the restoration of all rights and privileges lost based on error and injustice, a lack of due process and fairness, and the inaccuracy of the DA Form 2627. 2. The applicant's request for the removal of his name as the subject of the CID ROI 0108-2012-CID667-7XXXX-6CX, 6 November 2012; correction of said ROI to show he was found "not guilty" of the charge of "abusive sexual contact (adult)"; and the total expungement of said ROI from CID systems of record, is premature. The applicant has not shown that he first petitioned CID for relief prior to petitioning the ABCMR. 3. The applicant's provided evidence and contentions were duly considered. 4. The applicant attended a Bible study fellowship event on 11 September 2012, hosted by the Ramstein Air Base Chaplain, where he interacted with a female Airman. Following this interaction, the female Airman filed a formal complaint against the applicant, alleging that she was sexually assaulted by the applicant. a. The matter was referred to CID and an investigation was conducted, which established probable cause to believe the applicant committed the offense of abusive sexual contact against the female Airman. b. The investigation revealed that the applicant repeatedly touched the female Airman on her stomach, legs, arm, and back, cupping her face and pulling it toward him; hugged her and kissed her on the cheek; and conducted himself in a manner unbecoming an officer and a gentleman on 11 September 2012. c. Further, it found that while in uniform at a location in which junior enlisted personnel were present, the applicant repeatedly touched a female Airman on her arm, thigh, and stomach, telling her how beautiful, smart, and skinny she was when he knew she was a junior enlisted Airman. He then asked her to accompany him to his car, where he showed her a shirtless picture of himself and hugged her and kissed her on the cheek. 5. The applicant received NJP for violations of Articles 128 and 133 of the UCMJ, specifically for assaulting a female Airman on 11 September 2012. a. His punishment consisted of his forfeiture of $5,175.00 pay for two months and a written General Officer Punitive Reprimand filed permanently in his OMPF. The imposing officer directed the filing of the Article 15 (including the General Officer Punitive Reprimand) in the Performance folder of the applicant's OMPF. b. The applicant was afforded the right to consult with counsel and he elected not to have his case considered by a trial by court-martial. He elected to appeal the NJP, his appeal was denied, the proceedings were found to have been properly conducted under law and regulation, and his NJP was found to be appropriate. 6. The applicant was formally reprimanded in writing by the Commander, U.S. Army Element, AFRICOM, as part of the imposed punishment related to his Article 15. Later, a reviewing official determined that the Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust nor disproportionate to the offense committed. The Deputy Commander, AFRICOM, denied the applicant's Article 15 appeal. 7. The applicant contends: a. His Article 15 and General Officer Punitive Reprimand are unfair, untrue, inaccurate, unjust, erroneous, and legally unsustainable and should be removed, in order to clear his good name in retirement and so that he can avoid the potential loss of his TS-SCI security clearance. b. Errors in his record resulted from numerous due process violations, including application of the incorrect legal burden of proof for NJP (below the mandatory "beyond a reasonable doubt" criminal standard); refusal by the Commander to consider material exculpatory evidence (video DVD of CID interrogation); denial of his right to confront his accuser, examine the sole witness, and present matters in defense, extenuation, and mitigation; lack of essential elements of Articles 128 and 133; affirmative defenses of consent and mistake; failure to consider evidence objectively; refusal to give the benefit of the doubt to the accused; predetermination of the outcome prior to the hearing; and undue command influence stemming from an unethical CID titling decision as an unfair and prejudicial Article 120 offense, even though there was no evidentiary basis for the charge, which caused a "reverse halo effect" and political overreaction to a false charge of a possible sex crime – despite being later found "not guilty" of the offense. 8. The evidence of record indicates the applicant attended a Bible study fellowship event hosted by the Ramstein Air Base Chaplain. The event occurred at a club on Ramstein Air Base called Club 7. a. Apparently, Club 7 is an alcohol-free club sponsored by the installation chaplain’s office at which Airmen can gather and relax in a casual atmosphere. Although it is unclear whether the club is exclusive to enlisted service members, the evidence of record indicates that the club primarily catered to enlisted service members, especially junior enlisted service members. A 2013 advertisement for the club indicates that the club "minister[s] to the spiritual and physical needs of single Airmen." See generally, https://www.kaiserslautern- american.com/club-7-a-home-away-from-home-2/. b. In his video-recorded interview with CID, the applicant claims he first arrived at Club 7 on or about 10 September 2012, which was the day before his interactions with the female Airman. He claims he arrived in workout attire and talked to 4-5 people. Having apparently enjoyed the atmosphere, and the fact that there was free food, the applicant went back to Club 7 on 11 September 2012, this time wearing his Army Combat Uniform, which clearly identifies his name, rank, and status as an Army field grade officer. 9. In his video-recorded interview with CID, the applicant claims he talked to "a few girls there." Regarding the female Airman, she was not in her uniform but instead was wearing "sweatpants and a t-shirt." Referring to the girl he spoke with at length (the female Airman), the applicant stated "there was a girl, I don’t remember her name" to whom he spoke and the conversation "was good." According to the applicant, her demeanor "was good." a. The applicant asked the female Airman if she wanted to see his travel photos, to which she said "yes." However, the applicant had left his iPhone in his car. Instead of going to his car to retrieve his iPhone, the applicant invited the female Airman to his car. She accepted the invitation. The two of them walked to his car in the parking lot. He sat in the driver’s seat and she in the passenger seat. He and the female Airman sat in his car for a "half hour" and he showed her photos taken during his travels to over "65 countries." He states he showed her "over 100 photos." According to applicant, he and the female Airman "laughed and told stories." She was "very friendly." According to the applicant, she "told me about her barracks, her friends.…" b. During the CID interview, the applicant admits that while in his care he showed her a photo of himself posing in jeans but without a shirt. He admits to dwelling on that particular photo long enough to explain that he had gained weight since the photo had been taken. He admitted to hugging the female Airman goodbye and kissing her on the cheek. He described it as a "very nice little conversation." Despite his lengthy conversation with her, the applicant claimed to CID that he couldn’t recall her name. He also stated that "she told me what she did, but it went in one ear and out the other," and that "rank never came out; she called me Tristan." Recalling his introduction to her, he claims that when she stated her name, "whatever it was," he said "I’m Tristan." During his interview with CID, the applicant describes his in-car conversation with the female Airman as "a really nice conversation" during which "we were having a great time" for "at least an half an hour." The applicant emphasized more than once that "she [the female Airman] was really nice" and that "we sat there the whole time having a really nice conversation." He admitted to hugging her goodbye and kissing her on the cheek. c. The applicant admitted that he knew that the group he mingled with was mostly under 20 years old. He therefore must have known that the group largely consisted of junior enlisted service members. He also stated that the female Airman's demeanor never changed throughout their in-car conversation, including until the time she left his car. After she left the car, the applicant said he "felt energized by people’s youth" and by "the enthusiasm, and the great future ahead of them." "It was nice." And when she left, "she seemed perfectly fine." 10. Although the applicant told CID his interactions with the female Airman were "good" and "very friendly," he later described the female Airman, in a 27 September 2017 email to the Army Review Boards Agency, as a "deranged, suicidal Airman." 11. The applicant claims: a. The evidence against him failed to meet the "beyond a reasonable doubt standard." The applicant is correct that "beyond reasonable doubt" is the correct standard the trier of fact is to apply, even at an Article 15 proceeding. See AR 27-10, paragraph 3-18.l., 3 October 2011. The evidence of record indicates, however, more than enough inculpatory evidence existed to meet this burden relative to the offense for which he was found guilty. Article 128, UCMJ, defines assault as bodily harm applied to another and that the bodily harm was done with unlawful force or violence. See Manual for Courts Martial (MCM), Part IV, paragraph 54.b(2), 2008 ed. Bodily harm is defined as any offensive touching of another, however slight. Id. at paragraph 54.c(1)(a). The elements for conduct unbecoming an officer are that the accused did or omitted to do certain acts and that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentlemen. Id. at paragraph 59.b. b. A "reverse halo effect" virtually compelled the imposing commander to find him guilty of something, regardless of whether the evidence was sufficient. By "reverse halo," the applicant apparently means that the sexual nature of the Article 120 charge on the DA Form 2726 (an offense for which he was found not guilty) unfairly prejudiced the imposing commander’s attitude toward the applicant and that a guilty determination on the other charges became a foregone conclusion. Yet applicant can point to no regulation or rule of law that deems it unfair or unjust to find an accused guilty of less serious offenses after finding him not guilty of a more serious charge. Consequently, applicant’s argument of a "reverse halo" effect is speculative and does not demonstrate by a preponderance of evidence that an error or injustice occurred in his case. 12. Much of the applicant’s written application focuses on the standard of proof at Article 15 proceedings. The applicant is correct in that a commander must be convinced beyond a reasonable doubt of the accused’s guilt before entering a finding of guilty. But the applicant is incorrect when he seemingly argues that the ABCMR must essentially re-litigate the case as if it (the ABCMR) were standing in the shoes of the imposing commander. In fact, in courts-martial cases (cases in which an accused’s liberty and property interests are in much greater jeopardy) the appellate standard of review is "whether considering the evidence in the light most favorable to the prosecution, a reasonable fact finder could have found all the essential elements beyond a reasonable doubt." See United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In weighing questions of legal sufficiency, an appellate court is "bound to draw every reasonable inference from the evidence in the record favor of the prosecution." See United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001). The test for factual sufficiency is "whether after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses," the appellate court is convinced of the accused’s guilt beyond a reasonable doubt. See United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). Proof beyond a reasonable doubt does not mean, however, that the evidence is free from conflict. See United States v. Goode, 54 M.J. 836, 841 (N. M. Ct. Crim. App. 2001). Thus, the standard of review the applicant would impose upon the ABCMR is contrary to the manner in which military appellate courts review courts-martial cases. Accordingly, the standard of review the ABCMR will apply in this case, as in all ABCMR cases, is whether the applicant has carried his burden of proving an error or injustice by a preponderance of the evidence. See AR 15-185, paragraph 2-9, 31 March 2006. 13. In this case, the female Airman stated under oath that "whenever he would get excited [the applicant] would either touch my arm and slightly rub it, or put his hand on my upper leg thigh region"; that at one point "he started touching my stomach saying how skinny I was"; that "he laughed again and touched my stomach"; that while in the applicant’s car the applicant "had his arm behind me, leaning my way, and me feeling very uneasy"; that the applicant brought her "face in his hands about three inches from his face, I pulled back and said yes, contemplating my escape"; that the applicant "did that" (meaning pulling her face to his) "a total of two times"; that the applicant "then felt my face with the back of his hand, saying how soft my skin was, and my hair, how soft that was also"; the female Airman then stated "I was fed up at this point" and soon after the applicant "brought me in for a hug and kissed me on the cheek and said it was nice to meet you"; stated "I felt so violated!"; that she "walked away as quickly as I could, afraid to go to my dorms, afraid of being followed"; after walking further way from the car, she was "shaking, about to cry"; afraid to go to her own barracks room, she "went upstairs to [her] fellow co-worker’s room"; she stated that inside Club 7 the applicant "touched my arm and leg both about 2-3 times"; that after pointing on her back to where a tattoo was located, the applicant "continued to partially feel my back but just barely enough to make me think he wasn’t"; that after the tattoo incident, "I felt way too uneasy so I finally made myself bold enough to tell him I had to go"; when asked if she told him she was uncomfortable, she said "I didn’t want to be rude, and I don’t like confrontation very much, and never know how to exit a conversation, so I just tensed up"; that in Club 7 the applicant "would place his hand on my bicep region, and playfully shove me or secretly place his hand there"; that "he would lay his hand on my upper thigh region almost on the inside/top area"; that in the car, "he would have his arm behind me, slightly touching my back" and "he grabbed my face two times to bring it near his about 3 inches from his with both hands"; also in the car, the applicant "touched my face with the back of his hand, commenting on my soft skin” and he “touched my hair, saying how smooth it was"; when asked if she felt sexually violated in any way, she replied "Yes. When the Colonel started to feel my leg and arm, I felt very violated. Uncomfortable. Uneasy. And kind of nauseous. It got worse, the feelings of nausea, and uneasiness when he would grab my face and touch my back and show me the picture with his shirt off on his phone in the car." As previously discussed, the elements of assault are bodily harm applied to another and that the bodily harm was done with unlawful force. See Manual for Courts Martial, Part IV, paragraph 54.b(2), 2008 ed. Bodily harm is defined as any offensive touching of another, however slight. Id. at paragraph 54c(1)(a). According to the female Airman’s sworn statement, the applicant touched the female Airman on her arm, thigh, face, back or hair approximately a dozen times. In her statement, she never once indicates providing her express consent for him to touch her. As for the "offensive" element of the assault charge, the female Airman described her reaction to applicant’s touch as "very uneasy," that she felt she needed to "plan [her] escape," that she was "fed up," "shaking" and "about to cry," and ultimately felt "very violated. Uncomfortable. Uneasy. And kind of nauseous." Significantly, the female Airman immediately reported her encounter with the applicant to her peers. The following day, she reported it to her chain of command. Thus, the elements of assault appear to have been met. Furthermore, the supporting evidence appears convincing and in excess of proof beyond a reasonable doubt. 14. The applicant argues that he should have been found not guilty of assault because the female Airman failed to conspicuously manifest her lack of consent. At the outset, it is important to establish that it is impossible to fully appreciate the dynamics of this case without noting the immense difference in military rank, military authority, and military savvy between the applicant and the female Airman. This is not a case where a one service member outranks a subordinate by a grade or two. This case involves a senior field grade officer with 28 years of military experience and a junior enlisted Airman only a few months removed from basic training. Significantly, the social interaction between the two was initiated and repeatedly escalated by the officer. The applicant himself admitted to repeatedly touching the female Airman. Thus, an Army Colonel apparently believed he could repeatedly and with impunity touch the face, hair, and thigh of a 19-year-old enlisted woman and then, when called to account for his behavior, essentially assert as his defense, "Well, she never told me to stop." The vast disparity in military authority between the applicant and the female Airman renders this defense untenable. The applicant has therefore failed to prove by a preponderance of evidence that the commander erroneously or unjustly found him guilty of assault. 15. The applicant claims it was "outrageous" for him to have been charged with abusive sexual contact under Article 120 and that this improper charging decision in turn caused the aforementioned "reverse halo effect." But the commander’s decision to initially proceed with this charge is understandable. The female Airman’s sworn statement, and the applicant’s video-recorded statement to CID, leave no doubt that the applicant repeatedly touched the female Airman throughout the evening. But the female Airman's statement also leaves little doubt that applicant’s physical touching was accompanied by a flurry of compliments about her physical attractiveness. According to the female Airman's sworn statement, the applicant, while touching her, told her she was "beautiful," "had a beautiful smile," that she reminded him of a TV actress, and that she was "beautiful, smart and nerdy." Based upon the applicant’s actions and words, an objective observer could infer that applicant’s interest in the female Airman was more than platonic, and that his touching of the female Airman might therefore have been done with an intent to arouse or gratify sexual desire. Thus, a reasonable person could find probable cause that the prima facie elements of abusive sexual contact were satisfied. In light of the foregoing, the applicant has failed to demonstrate by a preponderance of evidence that the commander’s decision to charge, or CID’s decision to title, the applicant under Article 120 was erroneous or unjust. 16. Throughout his application, the applicant contends that the attention he paid to the female Airman, and the compliments he made to her regarding how smart and beautiful she was, were tactics he employed to prevent the female Airman from committing suicide. But applicant’s assertion in this regard is not credible. On 18 September 2012, a CID agent interviewed the applicant regarding the female Airman's complaint against him. The interview was videotaped. The entire video is about 2 hours and 18 minutes long, but much of the video shows either an empty interview room or the applicant sitting in the room alone. The amount of time the CID agent actually spent interviewing the applicant is approximately 1 hour. During the interview, the applicant corroborates much of the female Airman's description of what happened on 11 September 2012. He admits he met the female Airman at Club 7; that he was in uniform; that Club 7 was occupied by "young people" that "made him feel old"; that he spoke to the female Airman at the club; that he invited her into his car; that he showed her a photo depicting himself posing and shirtless; that he repeatedly touched her throughout the evening; that he was alone with the female Airman in his car for about 30 minutes; that he knew she was only 19 years old; that he kissed her on the cheek; and that he hugged her goodbye. Conspicuously absent from the applicant’s story to CID is any mention that the female Airman expressed any suicidal ideations. Indeed, the word "suicide" or "suicidal" is never mentioned throughout the 1 hour interview. On the contrary, the applicant describes the female Airman’s demeanor during the evening as "good" and "very friendly." Since the CID interview occurred only one week after the incident, it is inexplicable why the applicant failed to mention the female Airman’s alleged suicidal ideations if she truly was, as he alleges, "a mentally unstable teen displaying so many red flags for suicide risk that I felt I had to do something to intervene." Furthermore, the applicant would be hard-pressed to find any Army suicide-prevention training materials that suggest that an appropriate anti-suicide tactic is to isolate a suicidal teenaged female from a group and to then invite her into one’s car (alone) in order to display to her a shirtless photo of oneself. Thus, applicant’s contention that he innocently was trying to help a suicidal service member is not credible. More disturbing, however, is the fact that the female Airman actually did manifest suicidal ideations on or about 12 October 2012. These ideations apparently were attributable to the female Airman's uncomfortable 11 September 2012 encounter with the applicant and the stress of being a witness against him. A cynical observer might infer that the applicant is now using the female Airman's post-encounter suicide ideations a) to bolster his argument that the female Airman is an unreliable witness to the events of 11 September 2012, and/or b) as a post-hoc justification of the lavish attention he paid to her that night. In any event, the applicant has failed to demonstrate that his behavior on 11 September 2012 was justified in light of the female Airman's alleged suicidal manifestations. The applicant has therefore failed to demonstrate by a preponderance of evidence that the Article 15 findings of guilt were erroneous or unjust. 17. The applicant cites to a 2007 ABCMR decision to argue the "truism" that, when reviewing a case, the ABCMR should apply a standard in which "any reasonable doubt should be resolved in favor of the applicant." For this proposition, that applicant cites to ABCMR case AR20070002883. In that case, the ABCMR corrected an applicant’s Article 15 document (DA Form 2627) by removing one UCMJ specification and by reducing the punishment. But the language to which the applicant cites is the first sentence in a paragraph that concludes, "For what is reasonably believed to be an honest mistake, the punishment would have been more fitting if the reduction [in rank] had also been suspended." Thus, in that particular paragraph, the ABCMR was articulating the reasons why it was invoking its equitable powers ("would have been more fitting") to reduce the quantum of punishment imposed. Contrary to the applicant’s implication, the ABCMR was not announcing a new standard by which it intended to review future Article 15 cases. As previously indicated, a more appropriate standard of review would be a standard deferential to the imposing commander’s role as trier-of-fact. Nor can any single ABCMR panel create new standards of review that are binding on future panels. Army policy has fixed the burden of proof and standard of review for all ABCMR decisions. The burden and standard are: [t]he 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. See AR 15-185, paragraph 2-9, 31 March 2006. Thus, the applicant’s reference to ABCMR case AR20070002883 does not bolster his argument that any error or injustice occurred in his case. 18. The applicant likewise cites to ABCMR case AR20050015003 as authority that the ABCMR is essentially required to re-litigate at its level Article 15 cases and to substitute its judgment for the commander’s. But the cited ABCMR case merely acknowledges that the Article 15-initiating commander must find an accused is guilty beyond a reasonable doubt before he or she may impose punishment. Neither the cited ABCMR cases, nor any other authority cited by the applicant, compels the ABCMR to displace its current standard of proof or its current burden of persuasion. Consequently, the applicant has failed to demonstrate that a standard or burden different from those articulated in AR 15-185 should apply in this case. The applicant has likewise failed to demonstrate by a preponderance of evidence that the commanders who imposed and reviewed the applicant’s Article 15 committed any error or injustice. 19. The applicant also cites to ABCMR decision AR2004104215 and asserts that "the ABCMR has … held that: 'Where consent is an issue, the defense of consent must be absent beyond a reasonable doubt. Moreover, a female who does not consent must manifest her lack of consent in some meaningful and tangible way or consent may be inferred. Finally, if the accused reasonably believed that the other person consented, that too is a complete defense to the allegation.'" (Numerous emphases omitted.) But the applicant’s assertion in this regard is not persuasive. First, ABCMR case AR2004104215 involved a situation in which the accused was found guilty of sexual assault at an Article 15 hearing. In this case, the applicant was of course found not guilty of a sexual misconduct charge, but was found guilty of assault consummated by a battery. Consequently, the only assault at issue in the applicant’s case is the one charged under Article 128. Second, no fair reading of the decisional document in AR2004104215 would permit as an inference that the ABCMR "held" or made a holding that is indicated by the above language placed in inner quotes. The language instead is contained within a section of the decisional document titled "Counsel’s Request, Statement and Evidence." In other words, the quoted language is not the ABCMR’s "holding." On the contrary, the quoted language is part of a synopsis of that applicant’s argument (actually, his counsel’s argument) in a case in which the ABCMR ultimately denied relief. Furthermore, even if one were to apply the quoted language to the applicant’s case, it would still not yield a decision favorable to him. There is significant evidence within the female Airman’s statement to conclude that applicant’s repeated touching offended her and that no reasonable officer of the applicant’s rank and military training could have inferred that the female Airman consented to the touching. The applicant is correct that nowhere in the female Airman’s statement does she indicate she told the applicant to "stop touching my face; stop touching my hair; stop touching my thigh." Nor does the female Airman indicate she ever slapped his hand(s) away. Her sworn statement does, however, provide compelling insight into why indications of her lack of consent may have been more indirect and less overt. In her statement, when discussing why she accompanied the applicant to his car despite feeling uncomfortable, the female Airman noted that she did so "because of his rank and I didn’t want to be rude." Additionally, there is no transcript memorializing what the applicant said to the commander during the Article 15 hearing. Given the applicant’s verbosity and his proclivity for self-incrimination (see, e.g., the video-recording of the applicant’s interview with CID), it is within the realm of plausibility that he himself indicated to the commander that the female Airman did not consent to his repeated touching. In any event, the applicant has failed to demonstrate by a preponderance of evidence that his Article 15 proceedings were either procedurally or substantively defective or that the presumption of administrative regularity should be ignored. 20. The applicant asserts that ABCMR decision AR2001058068 is persuasive authority that an officer facing Article 15 punishment has the right to confront the witnesses against him and that any abrogation of this right requires the Article 15 document to be removed. The applicant is correct that the applicant in the AR2001058068 case asserted that he was not permitted to confront a witness during the Article 15 proceeding and that this alleged impropriety violated paragraph 3-16.b(6) of AR 27-10. But the applicant is incorrect when he asserts that the ABCMR in that case agreed with that assertion or that it adopted that argument as a reason for providing relief. The decisional document in AR2001058068 merely recounts the paragraph 3-16.b(6) argument as one of the reasons the applicant in that case believed relief was warranted. The ABCMR did not cite to that argument as a reason for providing relief and did not even mention it in the "Conclusions" portion of the decision. The ABCMR likely was unpersuaded by the paragraph 3-16.b(6) argument in that case because it was inapposite to the salient issues, just as it is in this case. Paragraph 3-16 pertains, as its title in the regulation suggests, to summarized Article 15 proceedings. Summarized Article 15 proceedings are used only when the accused is an enlisted Soldier (not an officer) and when the imposing commander knows in advance that he or she intends to impose a relatively light punishment if the enlisted Soldier is found guilty. The applicant in the case is of course not an enlisted Soldier and summarized proceedings were not utilized. Thus, the applicant’s reliance upon paragraph 3-16 of AR 27-10 and upon the ABCMR’s decision in AR2001058068 is unavailing. Furthermore, the applicant was afforded an opportunity to elect a forum at which testimony is recorded, witnesses are subject to direct and cross-examination, a judge presides over evidentiary and legal sufficiency questions, and a jury decides guilt or innocence. That forum is a general court-martial. The applicant’s forum choice was the same as is offered to any Army officer who is served with Article 15 paperwork. He can accept the Article 15 forum and be guaranteed a much lesser punishment than might occur at a general court-martial if found guilty. Conversely, the officer can choose the complete array of adversarial and constitutional due process rights afforded at a general court-martial criminal trial, but at the same time risking a federal conviction and more severe punishment, including confinement. This choice is designed to further judicial economy by permitting both parties to agree to dispose less serious alleged offenses at a more informal forum. In this case, the applicant freely and voluntarily chose to have his case heard at an Article 15 proceeding. Yet he today seems to argue that he should have been afforded the full range of due process rights available at a court-martial despite having chosen the Article 15 route. The applicant claims he was deprived of the right to "confront my accuser." But there is no confrontation right at an Article 15 hearing. For an accused officer, such a right only exists at a general or special court-martial. The Article 15 rights for an officer are provided at AR 27-10, paragraph 3-18. Additionally, Article 15 proceedings are not adversarial in nature and there is no guaranteed right to examine or cross-examine witnesses. See AR 27-10, paragraphs 3-18.g(2) and 3-18.h. Furthermore, applicant and his counsel waived this objection by failing to make it at the time of the hearing or upon their appeal to Vice Admiral Lxxxxx, Deputy Commander, U.S. Africa Command. Consequently, the applicant has failed to prove by a preponderance of evidence that any error or injustice occurred when the female Airman did not appear as a witness at the Article 15 hearing. 21. The bulk of the applicant’s application tends to repeat the arguments that his behavior relative to the female Airman was completely innocent; that he did nothing wrong; and that there was insufficient evidence for a reasonable fact-finder to conclude he was guilty of violating either Article 128 or Article 133. As for the applicant’s assertion that his intent relative to the female Airman was completely innocent, it’s obviously true that no one can read, or could have read, the applicant’s state of mind to ascertain his true intentions. But it’s difficult to imagine that most reasonable and objective persons observing the applicant’s behavior as described by the female Airman (and by the applicant himself) would not be tempted to believe that the applicant was "testing the waters" relative to the female Airman. Of all the individuals at Club 7 that night, he focused his attention on the female Airman. She was the only one he invited to his car; she was the only one to whom he showed his shirtless photo; and she was the only one he repeatedly called beautiful and repeatedly touched. Even the individuals advocating on the applicant’s behalf acknowledge the inappropriateness of his behavior. The attorney who counseled him during the Article 15 process conceded that the applicant "exercised momentary bad judgment and engaged in overly familiar conversation with a teenage Airmen." His former spouse stated: I wish [the applicant] had had better judgment in mixing at all with the individuals decades his junior, since they might perceive his mere presence there as somehow inappropriate …. [The applicant] will need to have his own "coming to Jesus" moment about how the desire to be the center of attention can land even the most well intentioned of us in situations where we risk compromising our position and respectability. 22. The applicant’s current spouse, an Army officer herself, states that "[f]or those who do not know him well, and especially for a teenage girl, I can see how some people may perceive his intentions to be something other than purely social human interaction." She adds that, "In my opinion, [the applicant] needs to work on perception management and situational awareness" and that the applicant "temporarily lost situational awareness and had a lapse in judgment with respect to the level of familiarity he exhibited – and the perception he may have been creating." Thus, even the applicant’s own supporters concede his behavior is censurable. Yet if the applicant is provided the relief he seeks (removal of the Article 15 and the punitive written reprimand) his military record will incorrectly convey the impression of an officer who does not have difficulty with perception management, with situational awareness, or with lapses in military judgment – despite the fact that his own officer-spouse concedes that he does have those difficulties. In other words, the applicant will have reaped a windfall. Consequently, equity would not be served in this case by granting the relief the applicant seeks. 23. The applicant’s spouse raises a valid point about the actual gravamen of this case. An experienced practitioner of Army military justice might view the applicant’s case more as a fraternization case than an assault case. Consequently, it is surprising that the applicant was not charged with a violation of AR 600-20. The current version of AR 600-20 prohibits, among other behavior, officer-enlisted interactions which create an actual or clearly predictable perception of undue familiarity between the officer and an enlisted Soldier. See AR 600-20, paragraph 4-14.b, 6 November 2014. Past and current versions of the same regulation prohibit a relationship between an officer and an enlisted Soldier if it creates an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. See AR 600-20, paragraph 4-14.a and 4-14.b(5), 18 March 2008. The regulation also instructs that "in any relationship between Soldiers of different grade or rank, the senior member is generally in the best position to terminate or limit the extent of the relationship." Id. at paragraph 4-14.d. The regulation’s description of prohibited interactions echoes the applicant’s spouse’s concern regarding her husband’s "lapse in judgment with respect to the level of familiarity he exhibited – and the perception he may have been creating." Consequently, the command had a number of charging options at its disposal as it took measures to discipline the accused. It is not this Board’s function to second-guess the choice of discipline that a commander chooses in any given case, except where an error or injustice is present. In this case, the applicant’s conduct was censurable for several reasons, any of which would justify imposing non-judicial discipline against the applicant. Consequently, the applicant’s case does not warrant relief based on principles of equity. 24. The applicant’s argument that he was improperly charged and found guilty of conduct unbecoming an officer is also unpersuasive. The Article 133 specification in this case accuses the applicant of "repeatedly touch[ing] [the female Airman] … on her arm, thigh, and stomach" and of telling her "how beautiful, smart, and skinny she was” despite the fact that the applicant “knew she was an Air Force E-3." The specification states that "[s]uch conduct seriously detracted from your character as a gentleman and from your stature as a commissioned officer." In essence, the Article 133 specification accuses the applicant of improperly fraternizing with the female Airman. Contrary to the applicant’s arguments, it is well established that fraternizing behavior by a commissioned officer is sufficient to support a cognizable Article 133 charge. See generally, United States v. Harwood, 46 M.J. 26 (C.A.A.F. 1997), and United States v. Sanchez, 50 M.J. 506 (A.F.C.C.A. 1999). Consequently, the applicant has failed to prove by a preponderance of evidence that he was improperly or unfairly charged with, and found guilty of, Article 133, UCMJ. 25. The Article 15 and General Officer Punitive Reprimand were the end result of the applicant's lapse in judgment involving a junior enlisted Airman. Whether or not the incident involved any sexual acts or intent was never established; however, the applicant placed himself in a vulnerable position by willingly asking the female Airman to accompany him to his vehicle, where he showed her pictures of himself in a state of undress and touched and kissed her cheek. This act, committed by a senior commissioned officer on a junior enlisted Airman less than half his age, crossed a boundary line and erased any innocence from the encounter. The applicant was senior enough to know the implications and understand the negative perceptions that could, and did, result from this encounter. 26. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. 27. The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. There is generally a reluctance to remove adverse information from an OMPF when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions. Unfavorable information should be removed if it is untrue or unjust. In this case, there is no evidence that either the Article 15 or the General Officer Punitive Reprimand were unjust or untrue or inappropriately filed in the applicant's OMPF, nor is there evidence that would support changing CID’s decision to name the applicant in the titling block of the ROI in question or removing or expunging any records stemming from the events described in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018242 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2