IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160011888 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: 15 December 2016 DOCKET NUMBER: AR20160011888 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: 15 December 2016 DOCKET NUMBER: AR20160011888 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, in effect, correction of his Army Military Human Resource Record (AMHRR) and Official Military Personnel File (OMPF) by removal of a General Officer Memorandum of Reprimand (GOMOR) and allied documents, and set aside and removal of a DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]) and allied documents. He also requests that his general, under honorable conditions discharge be set aside or overturned or, in the alternative, a return to active duty for processing through the Integrated Disability Evaluation System (IDES). 2. The applicant states there is a complete lack of evidence to support the actions taken against him. He also states that Army officials failed to follow proper procedures with respect to the appeal of his Article 15 and Medical Evaluation Board (MEB) processing. 3. The applicant provides a self-authored statement. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, complete exoneration of the applicant (along with financial restitution) from all actions that resulted from the unsubstantiated allegations against the applicant by removing a GOMOR and all allied documents from his AMHRR/OMPF; setting aside and removing a DA Form 2627 and all allied documents from his AMHRR/OMPF; and overturning/setting aside the general, under honorable conditions discharge for misconduct or, in the alternative (with respect to the discharge), returning the applicant to active duty for completion of his processing by an MEB. 2. Counsel states the applicant served in the U.S. Army for 11 years as an infantryman. In June 2009, he became a recruiter and was assigned to the Dallas Recruiting Battalion, Lewisville Company, Carrollton Recruiting Station. a. In March 2011, at the request of another recruiter, the applicant was watching out for that recruiter's recruits who were in the Delayed Entry Program (DEP). One of the recruits was Future Soldier (FS) EG. The applicant called FS EG to see if she would be attending the upcoming FS training. When he spoke with her, she was upset and crying because she had been in a fight with her mother and had been kicked out of the house. Counsel states the applicant only talked to her once on his government cell phone. b. Then, on or about 26 April 2011, one day after missing her ship date and being dropped from the DEP, FS EG showed up at the recruiting office and spoke with Sergeant First Class (SFC) RS, Station Commander. He told her that she missed her ship date and no one had been able to get in touch with her for about a month. FS EG told SFC RS that she was not living at home because of problems with her mother and that her phone had been shut off. It was during this session that FS EG informed SFC RS that she and the applicant had been flirting and that he had sent pictures of his penis to her cell phone. She claimed the applicant's penis was pierced and that was a turn-off for her. FS EG also claimed that "nothing major had happened." (Counsel adds the issue of "piercing" is refuted by a Certified Nurse Practitioner (CNP).) On 28 April 2011, the applicant was counselled by SFC RS regarding the allegation and then, on 3 May 2011, by Captain (CPT) LS, Commander, Lewisville Recruiting Company Commander. c. CPT LS conducted a Commander's Inquiry (CI) into FS EG's allegations. The applicant denied the allegations. Then, on 19 May 2011, CPT LS spoke with FS EG, but she refused to make a sworn statement. When FS EG was asked to show the text messages or photos that the applicant allegedly sent her, she did not show any evidence and stated that the phone did not belong to her. She added that the "situation may have escalated from nothing." On 28 June 2011, CPT LS concluded that there was insufficient evidence the applicant engaged in inappropriate conduct with FS EG and that the allegations were unsubstantiated. (Counsel notes, on 19 May 2011, FS EG again enlisted in the U.S. Army; the same day she refused to make a statement in support of the allegations she made against the applicant. He adds that her credibility is called into question with respect to her declaration upon enlistment that she had not used drugs because she later acknowledged in a security clearance questionnaire that she had used marijuana on two occasions in 2008.) d. On 9 August 2011, CPT DW was appointed to be an Investigating Officer (IO) to conduct an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation into the allegations made by FS EG. From then until 5 January 2012, the IO was unable to make contact with FS EG. (Counsel notes that during that period, FS EG was working with someone in the U. S. Army as evidence by her Security Clearance Application, dated 13 October 2011.) On 5 January 2012, FS EG made a statement in which she claimed the applicant sent her a picture of a penis in response to the IO's question, "What kind of picture was sent by [the applicant] to your cell phone?" When asked if she had the pictures that the applicant allegedly sent her, she informed the IO that she had been in a bad car accident and her phone was damaged and lost during the accident. (Counsel notes that this was the third version of events FS EG offered regarding her phone issues and why she could not produce the pictures. In addition, the IO did not obtain an accident report, any evidence to verify FS EG's story of a vehicle accident, or copies of FS EG's phone records.) e. On 5 January 2012, the applicant declined to make a statement to the IO and invoked his right to counsel. On 16 February 2012, the IO completed the investigation and found there was not enough supporting evidence to confirm the allegations against the applicant and that "the statement of [the applicant] be taken based on his invoked right to a lawyer and …the alleged recruiter impropriety be moved to an Article 32 investigation." On 22 March 2012, Lieutenant Colonel (LTC) RE, Commander, Recruiting Battalion Dallas, concluded that there was insufficient evidence to substantiate recruiter misconduct by the applicant. In an undated legal review of the AR 15-6 investigation, CPT RY, Brigade Judge Advocate, concluded there was a preponderance of evidence to substantiate the allegations, contrary to the determinations of the IO. CPT RY recommended the applicant be given a GOMOR and he be considered for administrative separation based on a prior nonjudicial punishment (NJP) and "additional current allegations of drinking on duty." Counsel states that there was no basis for CPT RY's comment about current allegations of drinking on duty and he also violated the applicant's right to due process by commenting unfavorably on his invocation of the right to counsel, as well as basing his recommendation on evidence not contained in the AR 15-6 investigation. f. On 25 July 2012, Major General (MG) DM issued a GOMOR to the applicant for engaging in social activity of an unofficial nature and for sending sexually explicit pictures of his genitalia to FS EG. The applicant submitted a rebuttal to the GOMOR and denied the allegations. In October 2012, the applicant was punished a second time when Colonel (COL) WM, Brigade Commander, issued the applicant NJP for sending text messages of a sexual nature and a picture of genitalia to FS EG. The applicant accepted the NJP and did not request trial by court-martial because he believed he would be treated fairly by his command. He was found to have committed both offenses and his punishment was reduction to grade E-5, forfeiture of $1,497 for 2 months, 45 days of extra duty, and an oral reprimand. g. The applicant submitted written matters to his company commander who failed to forward the document to the brigade commander. The applicant attempted to make an oral presentation, but was cut short by the brigade commander and told that he had heard enough and that he was guilty of the charges. He was denied his right to present his case to his commander and to receive a full and fair examination of all facts and circumstances prior to the imposition of punishment. h. On 22 July 2013, the applicant was administered a pre-separation medical examination. Counsel states, based on his medical conditions, an MEB should have been initiated, but it was not. i. In October 2013, the applicant was notified he was being processed for separation under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations) chapter 14, paragraph 14-12c, based on commission of a serious offense. An Administrative Separation Board (ASB) convened on 29 January 2014. The company commander, who had assumed command 1 year after the alleged incident, was the only witness called by the government. His testimony was inconsistent with respect to when separation action was initiated against the applicant (i.e., either before or after he took command). Neither the station commander nor FS EG were called to testify. The applicant testified and character witnesses also testified on behalf of the applicant. The ASB reviewed the available evidence and concluded the allegations were supported by a preponderance of the evidence. The ASB recommended separation under honorable conditions. The applicant was discharged on 31 March 2014. j. On 27 March 2014, the applicant was notified that his MEB was accepted. He reported to the IDES office. Upon learning of his separation date, he was informed processing by the IDES would take precedence, his separation date might be delayed, and final disposition of his case would be determined upon completion of the IDES process. However, the MEB liaison was unable to get the applicant's separation date changed. k. Counsel asserts that the applicant's rights were violated by SFC RS, on 28 April 2011, and by CPT LS, on 3 May 2011, when they failed to read him his rights before discussing the allegations with him. In addition, COL WM failed to consider written matters submitted by the applicant during the Article 15 proceedings. Additionally, the Article 15 appeal authority failed to act on the applicant's appeal. Furthermore, the applicant was denied processing through the IDES and the recommendation of the ASB is beyond comprehension. 3. Counsel provides copies of the following documents; * brief in support of application (summarized above) * Commander's Inquiry (CI), dated 28 June 2011 (and revised version) * AR 15-6 investigation with legal review * GOMOR and allied documents * DA Form 2627 and allied documents * separation orders * enlistment and security clearance documents (FS EG) * medical examination * DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve on 29 August 2001 for a period of 8 years. He further enlisted in the Regular Army (RA) on 8 August 2002 for a period of 4 years. He was awarded military occupational specialty 11B (Infantryman). 2. He reenlisted in the RA on 10 September 2005 for a period of 6 years. He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 July 2008. He served in Iraq from 10 September 2002 to 7 August 2003, from 21 January 2005 to 10 January 2006, and from 12 May 2007 to 3 July 2008. a. On 22 June 2009, he was assigned to the U.S. Army Dallas Recruiting Battalion, Dallas, TX, as a recruiter. b. He was reassigned to the U.S. Army Lewisville Recruiting Company, Lewisville, TX, on 22 November 2010. 3. A DA Form 2627, filed in the restricted folder of the applicant's OMPF, shows he received NJP for violating a general regulation by wrongfully using a government owned vehicle for unofficial purposes by taking it home without proper authorization on or about 30 September and 1 October 2010. His punishment was reduction to sergeant (E-5) suspended, to be automatically remitted if not vacated before 29 August 2011; forfeiture of $1,400 pay, to be automatically remitted if not vacated before 29 August 2011; and oral reprimand. 4. On 25 July 2012, the applicant was reprimanded by MG DLM, Commanding General (CG), U.S. Army Recruiting Command (USAREC), Fort Knox, KY, for violating Article 92, UCMJ, through operation of a violation of USAREC Regulation 600-25 (Prohibited and Regulated Activities) by engaging in social activity of an unofficial personal relationship and having unofficial personal contact with FS EG, the subject of a recruiting effort, by sending her a sexually explicit picture of his genitalia and requesting that he and FS EG engage in sex. a. The reprimand was imposed as an administrative measure and not as punishment pursuant to the UCMJ. In accordance with AR 600-37 (Unfavorable Information), paragraph 3-4(b), the CG, USAREC, advised the applicant that he was considering filing the reprimand permanently in his OMPF, but he would consider any written matters the applicant wished to submit before making his filing decision. b. On 9 August 2012, the applicant submitted a rebuttal statement and matters for consideration to the CG, USAREC. He asserted that he did not commit the alleged offense. He provided a copy of the CI findings, dated 28 June 2011, and noted that the commander interviewed him and FS EG; he found insufficient evidence that the applicant committed the alleged misconduct; and also determined the allegations were unsubstantiated. He added, if the reprimand is to be filed, he requested it be filed locally. c. The company commander, battalion commander, and brigade commander all recommended the GOMOR be permanently filed in the applicant's OMPF. The brigade commander noted that the applicant's rebuttal was self-serving, he did not believe him to be credible, and FS EG's statement was consistent in multiple statements before she refused to cooperate. d. On 24 October 2012, after careful consideration of the facts and circumstances pertaining to the applicant's case, the chain of command's recommendations, and the rebuttal matters submitted by the applicant in defense, the CG, USAREC, directed the GOMOR and all enclosures be permanently filed in the applicant's OMPF. The GOMOR filing directive lists five enclosures. e. A review of the applicant's OMPF shows the GOMOR, dated 25 July 2012, along with 14 pages of allied documents (i.e., identified as enclosures to the GOMOR, including the filing directive, the chain of command's recommendations, applicant's rebuttal and supporting documents, and his Enlisted Record Brief) are filed in the performance folder of his OMPF. f. This review failed to reveal evidence that the applicant applied to the Department of the Army Suitability Evaluation Board for transfer of the GOMOR to the restricted folder of his OMPF or removal of the GOMOR from his OMPF. 5. A further review of his AMHRR/OMPF failed to reveal a DA Form 2627 related to the foregoing matter. It also failed to reveal a copy of an administrative separation packet. 6. U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison Command, Fort Knox, KY, Orders 076-0163, dated 17 March 2014, discharged the applicant from the RA on 31 March 2014. He was discharged under honorable conditions under the provisions of AR 635-200, paragraph 14-12c, based on misconduct (serious offense). 7. On 16 February 2015, the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge. (He submitted the same documentary evidence that he now presents to this Board.) a. The ADRB noted that information provided by the board's medical officer confirmed the applicant had a history of chronic post-traumatic stress disorder (PTSD). However, a field grade Article 15, dated 30 June 2011, for wrongful use of a government vehicle for unofficial purpose, and the offenses of having an unofficial personal relationship/unofficial contact with a FS and sending inappropriate text messages and photographs were not mitigated by PTSD. b. The ADRB also noted that the applicant's records are absent the specific facts and circumstances concerning the events which led to his discharge from the Army. c. The ADRB determined that the character of the applicant's discharge was improper based on the length and quality of his service, to include his combat service and the circumstances surrounding the discharge (i.e., the credibility of the FS). d. Accordingly, the applicant's original DD Form 214 (Certificate of Release or Discharge from Active Duty) was voided and a new DD Form 214 was issued. 8. The applicant's DD Form 214 shows he was honorably discharged on 31 March 2014 under the provisions of AR 635-200, paragraph 5-3 (Secretarial Authority). He had completed 11 years, 7 months, and 23 days of net active service during this period. 9. In support of the request the applicant and his counsel provide the following additional documents. a. Lewisville Recruiting Company, Lewisville, TX, memorandum, dated 28 June 2011, subject: CI [pertaining to the applicant], under the signature of CPT LS. It shows SFC RS (Station Commander) notified CPT LS (Commander), on 28 April 2011, he had counseled the applicant as a result of a report from FS EG that the applicant had a telephone conversation with FS EG involving inappropriate conversation and photographs. (1) CPT LS summarized the interview he had with the applicant on 3 May 2011, and also his interview with FS EG on 19 May 2011. * The applicant acknowledged, "…the relationship became more personal after FS EG started having problems with her mother at home." * FS EG denied any relationship with the applicant and she refused to provide a sworn statement or any text messages or photographs from her phone. (2) CPT LS listed actions (that involved the applicant) that he was taking to ensure the applicant's compliance with AR 601-95 (Delayed Entry and Delayed Training Program). (3) CPT LS found there was not enough evidence to consider the applicant's actions a possible recruiter impropriety. He noted, "The evidence that was collected, read, and heard is only an unsubstantiated amount of evidence and the possibility of a recruiting impropriety happening is very small since I could not collect creditable evidence." b. Lewisville Recruiting Company, Lewisville, TX, memorandum, dated 28 June 2011, subject: CI [pertaining to the applicant], under the signature of CPT LS. [The memorandum appears to be a revised copy of the memorandum summarized above and shows the following additional information.] (1) CPT LS provided additional information from the interview with the applicant on 3 May 2011, and also his interview with FS EG on 19 May 2011. * "On 3 May 2011, after I read [applicant] his rights and he elected not to have a lawyer present, I interviewed and counseled him concerning this issue." Also, "[Applicant] never admitted to actually forwarding photos of his genitalia to me [sic]." * On 19 May 2011, FS EG stated that the phone did not belong to her. She indicated that she did not want to proceed and that the situation may have escalated from nothing. (2) CPT LS found there was insufficient evidence that the applicant committed the alleged misconduct. He noted that FS EG chose not to give a sworn statement and attempts to locate the alleged pictures were unsuccessful. Therefore, the allegations are unsubstantiated. (3) CPT LS concluded, because the allegations of misconduct were not substantiated, he recommended counseling the applicant regarding his personal conversations with an FS and retraining on Prohibited Activities in AR 600-25. c. McKinney Army Recruiting Company, McKinney, TX, memorandum, dated 16 February 2012, subject: Report of Investigation (ROI) [pertaining to the applicant]. It shows CPT DW, IO, investigated the allegations (summarized above) against the applicant. On 5 January 2012, the applicant chose not to disclose information and he invoked his right to request a lawyer. The IO's interview with FS EG revealed that the applicant initially contacted her by phone in March 2011 and subsequent contacts were inappropriate and "gross." (1) The IO found that FS EG confirmed that the applicant did speak with her, the conversation was not about enlisting in the Army, and it was of a personal nature. He also found that FS EG confirmed in her statement that the applicant did exchange personal conversation and "sexting" and he sent pictures of genitalia to her from his personal phone. (2) Based on the evidence, the IO found there was not enough supporting evidence to confirm the allegations against the applicant. He recommended the applicant's statement be taken invoking his right to a lawyer and that the alleged recruiter impropriety be moved to an Article 32 investigation. d. U.S. Army 5th Recruiting Brigade, Fort Sam Houston, TX, memorandum, undated, subject: Legal Review of CI 4C9 [pertaining to the applicant]. (1) It shows CPT YR, Brigade Judge Advocate, reviewed the investigation and found it legally sufficient. He also found that there were no errors that would substantially affect the rights of the individuals involved. (2) He found there was substantial evidence that support the findings and the findings support the recommendation. He referenced the sworn statement of FS EG, as corroborated by the sworn statement of SFC RS. He added this is contrary to the determinations by the IO and battalion commander recommending unsubstantiating the case. (3) He recommended the brigade commander substantiate the case and request a GOMOR be issued by the CG, USAREC. He also recommended the brigade commander recommend to the battalion commander initiation of separation action due to the previously issued NJP for misuse of a government vehicle and the additional allegation of drinking while on duty. e. A DA Form 2627 that shows, on 4 October 2012, the applicant received NJP for violating a general regulation (USAREC Regulation 600-25), on divers occasions between 15 March 2011 and 30 April 2011, by wrongfully sending text messages of a sexual nature and a picture of his genitalia to the cell phone of FS EG, the subject of recruiting efforts. (1) On 27 November 2012, the applicant indicated that he did not demand trial by court-martial; he requested an open hearing; a person to speak in his behalf; and he submitted matters in defense, extenuation, and mitigation. (A copy of U.S. Army Trial Defense Service, Fort Hood, TX, memorandum, dated 10 October 2012, shows Major RF, Defense Counsel, provided matters for consideration on behalf of the applicant. He offered three specific matters to support a finding of reasonable doubt (i.e., FS EG was either unwilling or unable to provide any physical evidence to corroborate the allegation; the very specific claim of a photograph of the applicant's penis, which has a piercing, is refuted because the applicant did not have, nor had he ever had a genital piercing; FS EG had just been dropped from the DEP because she missed her ship date and it is reasonable that she made the allegation to regain entry into the DEP). His counsel added, the fact that the applicant provided no rebuttal against the allegation in a counseling session (on 28 April 2011) did not constitute an admission of guilt. (2) On 19 November 2012, the brigade commander found the applicant guilty of all specifications. The punishment imposed was reduction to sergeant (E-5), forfeiture of $1,497.00 pay per month for 2 months, extra duty for 45 days, and oral reprimand. He directed the DA Form 2627 be filed in the performance folder of the applicant's OMPF. The applicant was advised of his right to appeal to the next superior authority (CG, USAREC) within five (5) days and that an appeal after that time may be rejected as untimely. (3) The Article 15 Punishment Worksheet shows the brigade commander confirmed with his initials he imposed the punishment on 19 November 2012. (4) On 27 November 2012, the applicant indicated with his initials that he would submit additional matters in appeal of the NJP. (5) The DA Form 2627 does not show any action related to an appeal and the DA Form 2627 is not filed in the applicant's AMHRR/OMPF. f. U.S. Army Trial Defense Service, Fort Hood Field Office, Fort Hood, TX, memorandum, dated 28 November 2012, subject: Matters for Consideration on Appeal and Request for Set-Aside or Mitigation of Findings and/or Punishment [pertaining to the applicant], authored by Major RF, Defense Counsel, and addressed to the CG, USAREC. (1) He confirmed that the applicant denied the alleged misconduct. He reminded the CG, USAREC, that the standard of proof applicable at an Article 15 is the same as is applicable at a general court-martial; proof beyond a reasonable doubt. (2) He noted the FS did not provide any physical evidence to corroborate her allegations. The specific claim of a photograph of a penis with a piercing is unfounded as the applicant does not have a piercing. In addition, the timing of FS EG's allegation raises substantial doubt as to its truth because she had just been dropped from the DEP. In addition, the applicant never admitted guilt to the allegations. (3) He added that he drafted a similar memorandum for presentation to the brigade commander during the Article 15 proceedings; however, apparently the memorandum did not make it to him. Thus, the applicant was not afforded the full extent of his rights to fully present his case and present evidence. g. In an undated letter to MG DM the applicant appealed the NJP. The applicant asserted that he did not commit the alleged offense and the allegations of inappropriate conduct and contact with FS EG are unsubstantiated and untrue. He added that his assertion was supported by three levels of investigations conducted by the company commander, the IO to an AR 15-6, and the battalion commander. He offered an explanation of his contact with FS EG (i.e., health and welfare and to advise her of future training). After FS EG missed her ship date is when she alleged that the applicant was in contact with her the whole time. He added that FS EG was escorted from a (MEPS contracted) hotel the night before processing for fornicating in the hotel hot tub. He noted FS EG received field grade NJP during advanced individual training and was then discharged from active duty for disrespecting her commanding officer and dereliction of duty. He reasserted that he did not commit the alleged offenses. h. DA Form 200 (Transmittal Record), undated. The Remarks section shows the applicant sent four pages of rebuttal material to CPT YR, Brigade Judge Advocate, with confirmation of receipt on 29 November 2012. i. Extracts of three documents that show: * FS EG and SFC WW completed the certification for enlistment in the U.S. Army on 19 May 2011 and recertified it on 9 January 2012 * On 13 October 2011, FS EG acknowledged using marijuana (twice) in February 2008 j. Texas Health Physicians Group, Denton, TX, letter, dated 30 January 2014, that shows Ms. BF FNP-C, wrote, "I examined [the applicant] and no piercings were noted on the body or genitalia." k. Two DA Forms 2166-8 (NCOERs) while serving in principal duty of recruiter, in pertinent part, show the following: (1) for the period 1 June 2010 through 31 May 2011: (a) The applicant's rater indicated that he possessed the Army Values and that his overall potential for promotion and/or service in positons of greater responsibility was "fully capable." (b) The senior rater assessed his overall performance as "successful (3)" and his potential for promotion and/or service in positons of greater responsibility as "superior (3)". The senior rater commented, in pertinent part, "promote with peers." (2) for the period 1 June 2011 through 31 October 2011: (a) The applicant's rater indicated that he possessed the Army Values and that his overall potential for promotion and/or service in positons of greater responsibility was "fully capable." (b) The senior rater assessed his overall performance as "successful (2)" and his potential for promotion and/or service in positons of greater responsibility as "superior (3)". The senior rater commented, in pertinent part, "do not promote at this time." l. Personal Statement of the applicant, undated, in which he provides his personal background, early experience in the military, and events leading to his separation. The events are previously summarized (above) by the applicant and his counsel, along with documents provided in support of his request. (1) He asserts that he forwarded to his company commander a memorandum from his Trial Defense Counsel in response to the NJP; the company commander did not forward it to the brigade commander; and the applicant did not have a copy of the memorandum when he met in an open meeting with the brigade commander during which his company commander was present. He also asserts that the brigade commander did not afford him the opportunity to fully present his case. (2) He states that he had military and civilian representation at the ASB, along with two character witnesses who testified on his behalf. FS EG was not present and the new company commander who had no first-hand knowledge of the case testified against him. By majority vote, the ASB recommended separation with a general, under honorable conditions discharge. (3) He also states that he was not afforded the opportunity to fully take advantage of the Army Career Alumni Program transition processing and the installation clearance process was disorganized and difficult. He further states that the IDES process was circumvented as a result of his discharge. He adds that he wrote to the CG, USAREC, asking him to review his case, but he was not even given the courtesy of a written response. He concludes that he should not have been administratively discharged based on the allegations, he should have been separated based on medical conditions with an honorable discharge. 10. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 30 September 2016. The ARBA senior medical advisor noted that he was asked to review the case and determine if the applicant had PTSD or any other boardable Behavioral Health condition at the time of his discharge from the Army. a. The medical advisor made note of the applicant's Army Physical Fitness Test results and his non-compliance with the Army Body Composition Program. He also referenced the information the ADRB medical officer provided to that board, including the medical officer's opinion that, "These offenses are not mitigated by PTSD." b. His review of Veterans Administration records through the Joint Legacy Viewer identified 8 medical problems, including obstructive sleep apnea syndrome, PTSD, depressive disorder, knee pain, and obesity. He noted, in pertinent part, the applicant's electronic medical record (AHLTA) revealed a Report of Mental Status Examination, dated 15 July 2013, that shows PTSD screen negative; mild Traumatic Brain Injury screen negative; and Axis I: Anxiety Disorder, Not Otherwise Specified. From a behavioral health standpoint, the applicant was deemed fit for full duty, including deployment. He met psychiatric retention standards and did not require referral for an MEB. c. The ARBA senior medical advisor found that the applicant met medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), that were applicable to his era of service. He concluded that, based on the available documentation, the applicant's medical conditions were duly considered during his medical separation processing. 11. On 3 October 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. 12. On 30 October 2016, applicant's counsel stated that his brief to the Board indicated that the applicant was entered into the IDES, but the process was not allowed to continue through to completion, which was in contravention of applicable Army regulations. (Counsel quoted that portion of his brief.) He stated the ARBA medical advisory does not address the issue of why and how the MEB process was unlawfully short circuited by the CG, USAREC, exercising separation authority over the applicant. He concludes that the applicant's medical conditions should have served as the basis for a medical separation. REFERENCES: 1. AR 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR and the OMPF. Depending on the purpose, documents will be filed in one of six folders: performance, service, restricted, medical, finance, or State/Territory. The Authorized Documents table provides guidance for filing documents. It shows: * the DA Form 2627 will be filed in either the performance or restricted folder of the OMPF, as directed by item 4b of the DA Form 2627 * administrative letters of reprimand, admonitions, and censures of a non-punitive nature – the letter/memorandum, referral correspondence, member's reply, and allied documents will be filed in the performance folder of the OMPF unless otherwise directed; all other allied documents not listed will be filed in the restricted folder of the OMPF 2. AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 3. AR 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial. Section V (Suspension, Vacation, Mitigation, Remission, and Setting Aside), paragraph 3-28, shows that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. a. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. b. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627–2. When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action. 4. AR 40-501 provides standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for Soldiers and are cause for referral to an MEB. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the IDES. a. Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. Chapter 4 (Procedures), paragraph 4-10 (MEB), shows that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant and counsel contend that the applicant's records should be corrected by removing a GOMOR (dated 25 July 2012) and allied documents; setting aside and removal of a DA Form 2627 (dated 19 November 2012) and allied documents; and setting aside his administrative discharge and returning him to active duty in the U.S. Army for processing through the IDES. 2. On 25 July 2012, the CG, USAREC, issued the applicant a GOMOR for engaging in social activity of an unofficial personal relationship and having unofficial personal contact with the subject of a recruiting effort, by sending her a sexually explicit picture of his genitalia and requesting that they engage in sex. a. On 9 August 2012, the applicant submitted matters for consideration to the CG, USAREC. b. On 24 October 2012, the CG, USAREC, considered the applicant's rebuttal and the chain of command's recommendations, and directed the GOMOR and all enclosures be permanently filed in the applicant's OMPF. c. The GOMOR and allied documents are filed in the performance folder of his OMPF, as directed by the issuing authority. d. The reprimand was imposed as an administrative measure and not as punishment pursuant to the UCMJ. e. There is no evidence of record that shows the applicant submitted an appeal to the DASEB. f. The applicant provides no evidence that the CG, USAREC (who imposed the GOMOR), supports its removal from the applicant's records because the GOMOR is untrue, in error, or unjust. The evidence presented by the applicant and his counsel is insufficient as a basis for its removal from his OMPF. 3. On 4 October 2012, the brigade commander notified the applicant of his intent to impose NJP against him for, on divers occasions between 15 March 2011 and 30 April 2011, wrongfully sending text messages of a sexual nature and a picture of his genitalia to the cell phone of a FS, the subject of recruiting efforts. a. On 19 November 2012, in an open hearing, the brigade commander found the applicant guilty of all specifications. (1) The applicant contends he was not afforded the opportunity to present matters in mitigation to the brigade commander because he presented the memorandum that had been prepared by his defense counsel (on 10 October 2012) to the company commander and he did not have a copy of it with him when he appeared for the open hearing. The evidence of record shows the company commander accompanied the applicant and was present at the open hearing. The applicant contends the commander did not bring the memorandum with him. However, it is not easily understood why the applicant did not bring a copy of his defense counsel's memorandum to the meeting that was of such importance to his military career and in which he was to present matters in his defense, extenuation, and/or mitigation. (2) It is noted that the copy of the DA Form 2627 the applicant provides to the Board shows (in two places) that he entered the date 27 November 2012 for the date that he was presented the DA Form 2627 and also for the date of the open hearing; both dates are well after the two dates entered by the commander. b. On 19 November 2012, the applicant was advised of his right to appeal to the next superior authority (CG, USAREC) within five (5) days and that an appeal after that time may be rejected as untimely. He indicated that he would appeal the NJP. c. The DA Form 2627 is absent evidence that the appeal authority acted on any appeal. d. The evidence of record shows he submitted matters in appeal and it was received by the Brigade Judge Advocate on 29 November 2012. Thus, the evidence provided by the applicant shows he failed to submit a timely appeal. e. Notwithstanding the two dates of 27 November 2012 that appear on the copy of the DA Form 2627 that the applicant provides, the evidence of record shows the NJP was properly administered and the applicant was afforded due process, including his right to consult with an attorney and to present evidence in his behalf. The fact that the applicant failed to submit a timely appeal does not demonstrate that he was not afforded due process. f. The brigade commander directed the DA Form 2627 be filed in the performance folder of the applicant's OMPF. However, for reasons that are not clear, the DA Form 2627 (and allied documents) is (are) not filed in his OMPF. g. There is no evidence of "clear injustice" with respect to the administration and imposition of the NJP that is under review. As such, there is no basis to set aside the NJP. 4. The evidence of record shows the applicant underwent a pre-separation medical examination in July 2013, which included a Mental Status Examination. The applicant was deemed fit for full duty, including for deployment, and he met psychiatric retention standards. In that the applicant did not have any unfitting medical condition(s), there was no basis for referral of the applicant to an MEB or to continue any such processing through the IDES. 5. It is noted that FS EG was consistent in her statements pertaining to the allegations against the applicant; however, she offered inconsistent information about the cell phone and refused to make a sworn statement. It is also noted that she corrected a previous statement in which she denied her recreational use of marijuana. If is further noted that during counseling sessions pertaining to his military duties, the applicant initially acknowledged that he had a personal relationship with FS EG; however, he later invoked his right to representation by legal counsel. An AR 15-6 investigation was then conducted, which was the basis for the subsequent actions taken against the applicant. In the absence of evidence to the contrary, it is concluded that the applicant was afforded due process by the IO during the AR 15-6 investigation, including the opportunity to review (with his counsel) and rebut the findings and recommendations of the IO prior to the AR 15-6 investigation being presented to the approving authority. 6. The evidence of record shows that administrative separation action was initiated against the applicant, an ASB convened at which the applicant was represented by both military and civilian counsel, and the separation authority approved the applicant's separation. a. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the applicant's separation from the U.S. Army is presumed to have been appropriate. b. Subsequent to the date of the applicant's discharge, the ADRB determined the character of the applicant's discharge was improper based on the length and quality of his service. Accordingly, his discharge was upgraded to fully honorable based on secretarial authority. 7. The evidence of record shows that during the period of service under review, the applicant received NJP for misuse of a government vehicle; he received NJP for wrongfully sending text messages of a sexual nature and a picture of his genitalia to the cell phone of FS EG, the subject of recruiting efforts; and he was reduced to grade E-5. In addition, there was an allegation of drinking while on duty. a. The applicant and his counsel had the opportunity to refute and/or present evidence in extenuation or mitigation at the ASB. b. The ASB recommended the applicant be discharged from the U.S. Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011888 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011888 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2