ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170013286 APPLICANT REQUESTS: * upgrade of his bad conduct discharge to honorable * in effect, removal of his name from the title block of U.S. Army Criminal Investigation Command (CID) Reports of Investigation (ROI) 0038-14-CID044- XXXXX-XX and 0036-14-CID044-XXXXX-XX * removal of his name from the sex offender list * upgrade of his reentry eligibility (RE) code * back pay for his period of excess leave from 30 January 2015 through 30 January 2017 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 12 June 2017 * three self-authored statements addressed to the Army Review Boards Agency (ARBA) * Department of the Army, Office of the Chief of Legislative Liaison letter * self-authored request for CID reports under the Freedom of Information Act * CID letter to the applicant, dated 9 September 2014 * two self-authored requests to the U.S. Army Court of Criminal Appeals * unsigned, undated document of unknown source titled, “In the United States Federal Courthouse of Ohio, Assignment of Errors” * Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation initiated June 2013 and 20 pages of allied documents * DD Form 458 (Charge Sheet), dated 7 October 2013 * Headquarters, U.S. Army South memorandum, regarding Uniform Code of Military Justice (UCMJ), Article 32 preliminary hearing, dated 12 November 2013 * partial document, purported to be UCMJ, Article 32 hearing transcript, 21 pages * CID ROI 0038-14-CID044-XXXXX-XX, CID ROI –36-14-CID044-XXXXX-XX and numerous allied investigative reports and documents * numerous pages of email correspondence with multiple individuals * 37 pages of evidence claimed to have been not considered in any investigations, including telephonic interviews, sworn witness statements, memoranda for record, DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), and email correspondence * Headquarters, U.S. Army Medical Department Center and School letter, dated 15 January 2015 * Department of the Army, Office of the Judge Advocate General letter, dated 14 July 2016 * Department of Defense Instruction (DODI) 6495.02 (Sexual Assault Prevention and Response (SAPR) Program Procedures) excerpt * Army Regulation 600-20 (Army Command Policy) excerpt * Army Regulation 195-2 (Criminal Investigation Activities) excerpt * four character statements dated 2017 * ARBA letter, dated 10 October 2017 * DD Form 149, dated 30 October 2017 * medical records in excess of 1,400 pages FACTS: 1. The applicant states: a. His record should be changed due to the fact that he suffers from post-traumatic stress disorder (PTSD), sleep apnea, sinus and breathing problems from the burn pits in Iraq, anxiety, depression, severe migraines, bulging disc, bilateral ankle surgery, Lasik eye surgery, hypotension (low blood pressure), problems with his feet, and erectile dysfunction. b. In the near future he would like to purchase a home, get married, and have a great paying job, but he was falsely accused of sexual misconduct without CID doing a full, unbiased, fair and thorough investigation free from prejudice. He understands the military’s zero tolerance for crime, but rules, regulations, protocols, and procedures must be followed when determining facts in these reports. He understands commands are trying to make an example out of people, but they must have integrity when making determinations that punish people with career ending results. c. His 5th Amendment Constitutional rights were violated because he did not receive due process, as his command did not report the alleged sexual assault to CID in accordance with Army Regulation 195-2 (which supersedes and revises Army Regulation 635-1) and DODI 6495.02. Additionally, the CID report never states they found any evidence to support his command’s internal Army Regulation 15-6 investigation. There is no evidence CID found probable cause. d. He is requesting an upgrade to honorable discharge for three main reasons. First, he earned it, secondly he needs his benefits to survive outside of the military, and finally because the facts of his case were not thoroughly investigated. He started his military career on 17 February 1998 and that was the proudest day of his life. On that day he swore to uphold the Constitution of the United States and to protect his country from enemies, both foreign and domestic. The Government that he swore to serve and protect has become the domestic enemy and now he needs protection from them. Despite his circumstances, he proudly served his country for 19 years and given the chance, he would gladly choose the same path all over again. e. While serving in the military, he suffered many injuries, which he listed above, that now require immediate medical attention. Several of his disabilities were at the onset of the damage to his character and career, which were stellar until he was unfairly found guilty of misconduct. He was a Soldier known to help other Soldiers advance their careers through training and mentoring. Now, he is the one in need of help. He needs medical attention so he can survive both physically and mentally outside of the military. He is respectfully requesting an upgrade because medical attention is unaffordable through the limited jobs for which he qualifies. Without the upgrade, he fears his health will continue to degenerate and he will be unable to provide for and help raise his younger children. f. He has been consistently denied a full and thorough investigation into his case. His appointed lawyer did not have his best interests at heart. Without his knowledge or consent, his lawyer struck a deal to drop the sexual assault charge if he would plead guilty to assault. He refused to plead guilty to assault because he believed then, as he believes now, the facts of the case would exonerate him. Because he refused to plead guilty, he was given a bad conduct discharge and the investigation was prematurely closed. He was then made to register as a sex offender without ever having signed or been given any paperwork stating he was found guilty of sexual assault. He trusted the Government to provide him with due process of the law and they failed him. His own defense attorney lied to a CID agent, stating he didn’t want to give a statement or take a polygraph test, but you can see that he was the one who called CID after 8 months had passed to see why they weren’t involved in this investigation from the beginning. He is asking the Board to reopen his case based on the facts of the case and the new evidence he has provided. g. His command subjected him to multiple Army Regulation 15-6 investigations in succession to make it seem as if he had a problem following orders. His military career reflects he never had a problem taking or following orders Lieutenant Colonel (LTC) D____ appointed officers to investigate him that were not trained in that profession. The UCMJ, Article 120 infraction was not reported on the final Army Regulation 15-6 investigative report, but it was introduced at the Article 32 hearing. Sergeant First Class (SFC) M____ and Sergeant Major (SGM) E____ wrote sworn statements claiming they were in his chain of command at the time of the alleged incident and verified the incident happened, but SFC M____ was not his platoon sergeant and SGM E____ was not stationed with him at the time of the alleged incident. See his provided NCOER covering the period 9 January 2012 through 27 August 2012 as proof. These Soldiers were in direct violation of Articles 107 and 131 when they falsified documents and committed perjury while under oath. The alleged assault took place in 2011 and he wasn’t questioned until 2013. h. There were so many policies, procedures, regulations, and protocols broken and not followed, all of which were put in place to allow for due process of the law for both the defendant and the victim, but he was denied due process. UCMJ, Article 92 was broken when his command failed to report the assault he allegedly committed to the proper authorities. His rights were also abridged when he was arraigned by general court-martial from 19 through 22 February 2014, before a thorough and impartial investigation was completed. CID’s final report was not done until 10 March 2014. According to Army Regulation 195-2, CID will determine appropriate investigative action in accordance with this regulation for all criminal incidents or allegations to it or developed through its own sources. He is just asking for the right to have his case adjudicated fairly and unbiasedly, which is a right he earned when he enlisted in the military. i. His battalion commander, LTC D____ violated due process of the law when she directed Captain (CPT) L____, also a part of the 187th Medical Battalion, 32nd Medical Brigade, U.S. Army Medical Department Center and School to head an Army Regulation 15-6 investigation on him for potentially breaking a no contact order by staring down Private First Class (PFC) K____, in an attempt to intimidate her, a student who formerly lodged a sexual harassment complaint against him, and for allegedly trying to bribe her with money to drop the charges. The Board should know that these charges involving PFC K____ were dropped before going to trial. His rights were violated because in contravention with Army Regulation 195-2, the Army Regulation 15- 6 investigating officer, CPT L____, questioned him about wrongful sexual contact of a different Soldier, Sergeant (SGT) F____, from on or about 1 January 2011 to on or about 28 February 2011. His rights were further abridged because CPT L____ never made mention of the Article 120 wrongful sexual contact violation in his Army Regulation 15-6 investigative report, yet it was reintroduced at his Article 32 hearing on 18 November 2013. No charges or specifications may be referred to a general court-martial for a trial until a thorough and impartial investigation of all the matters set forth has been made. j. While the Army Regulation 15-6 investigation may have been appropriate for the reason it was initiated, to determine if he broke a no contact order pertaining to PFC K____ or attempted to intimidate or bribe her, it became unlawful and unethical when CPT L____ began questioning him during the interview about an alleged rear end touching of two female Soldiers who were roommates at the time, one of them being at the time PFC H____, who is now SGT F____. DODI 6495.02 states to ensure that resolution of unrestricted reports of sexual assault cases are expedited. A unit commander who receives an unrestricted report of sexual assault shall immediately refer the matter to the appropriate Military Criminal Investigative Organization (MCIO) and he or she shall not conduct internal command directed investigations into sexual assault or delay immediately contacting the MCIOs while attempting to assess the credibility of the report. He was not given due process because he was questioned by a non-qualified, uncertified, and untrained officer about an unrestricted report of an alleged sexual assault and in doing so, his command was noncompliant with DOD guidance. k. It should not have taken 8 months for CID to be notified and they were initially notified by the applicant himself that he was being charged with two counts of sexual assault, without CID having been immediately notified of the incidents by his command. When he notified CID on 4 February 2013 at 1520, the prosecutor, CPT W____ notified them on the same date at 1705, just a few hours after he had called CID. The prosecutor then called the applicant’s attorney to tell him that the applicant reported the incidents to CID. This should have been reported to CID from the beginning, but both his command and CID claim everything was done appropriately. If it was all done properly, why did CID have to call the Staff Judge Advocate to figure out why this wasn’t previously reported to the CID? All of this was swept under the rug because Fort Sam Houston, TX, had the highest unfounded sexual assault cases throughout the services in 2012 – 2014. l. His battalion commander, LTC D____, and brigade commander, Colonel (COL) F____ were biased, unfair and showed undue command influence when he was charged on 7 October 2013, without a full and thorough CID report. Additionally, the prosecution, CPT W____ and CPT L____ (the Army Regulation 15-6 investigative officer) did not turn over the sworn statements made by SGT F____, SGM E____, and SFC M____, which violates the court-martial rules of discovery. The alleged victim, SGT F____, told CPT L____ during the Army Regulation 15-6 investigation via a sworn and signed email that her chain of command was SFC M____ and SGM E____. Those two individuals also wrote sworn official documents stating they verified this alleged wrongful sexual contact between himself and his accuser did exist and at trial they said she asked to be removed from his supervision. This was never brought to his attention because SFC M____ and SGM E____ were not his leadership at the time of this alleged offense. This was all evidence in the possession of the trial counsel, which was favorable to the defense, but not provided to him at the time, denying him the opportunity to rebut the statements. The prosecutor didn’t turn over the evidence to him during the court-martial. He didn’t receive it until he was given a guilty verdict and it was included with his record of trial. m. The prosecutor had additional evidence in her possession that should have been turned over to the defense but wasn’t, namely three sworn statements made by the alleged victim, SGT F____, on 25, 26, and 27 June 2013. None of these statements were brought to his attention, to the attention of CID, nor were they entered in the Article 32 hearing when evidence from the Army Regulation 15-6 hearing was admissible as evidence. In her 26 June 2013, statement she claims her platoon sergeant was SFC M____, but on her statement for the Army Regulation 15-6 investigation she says it was SFC C____ was the one who sent them into the sterilization room as part of the mass casualty exercise. This is the exercise wherein the sexual assault supposedly transpired. SFC C____ was their platoon sergeant at the time, not SFC M____. Additionally, this training exercise took place on 9 December 2010, not in January or February 2011 as they claimed. If you look at his NCOER, you will see their chain of command at the time was SFC C____, First Sergeant (1SG) R____, and COL G____. SFC M____ and SGM E____ were not even in his chain of command when this alleged incident took place. SGM E____ wasn’t stationed at Fort Lewis, WA, until 13 February 2011 and he didn’t become their first sergeant until they deployed to Iraq on 14 April 2011. That is also when SFC M___ became his platoon sergeant. n. 1SG R____ wrote a memorandum for record stating she was never informed of anyone inappropriately touching anyone else during her time in the command. COL G____ wrote an email stating their deployment manning document was never changed to place the victim somewhere different; it was changed because of Soldiers failing the medical certifications needed to deploy. He has provided sworn statements made by exculpatory witnesses, such as those above mentioned, who were not interviewed by CID, the prosecution, or his military defense attorney. o. The alleged victim has also not been consistent with her story, which can be seen in the court-martial documents he provided. For instance, at the trial she said that at the motor pool he told her to grab his bags from the Humvee and take them to his car, which she refused to do, but if you look at the Article 32 hearing transcript, she said she didn’t have anything to do with him at the motor pool and she says his bags were at the company by the cages. How could he tell her to grab his bags at the motor pool in one statement and in another they’re at the company cages? During the Article 32 hearing she stated she was sure he touched her, said he loved her, and grabbed her a**, but also said he just kind of pinned her and that he never really touched her. He just kind of put his hands on her a** and just hovered really close. She also stated he clearly abused his power and authority, which all her friends could see, yet in another statement she said he pulled her aside, out of the view of the unit, to do pushups. How could her friends see that then? Also, she said he was flirting with her, blowing her kisses, and putting his hands on her shoulder and winking at her around October or a couple of months after, but how is that possible when she also stated she was away from the company around the end of October and November and didn’t return until December. These are all inconsistencies in her testimony and sworn statements. p. He couldn’t care less if she said he touched her, but he wants this to be right and fair because he is African American and she is Caucasian and his board panel was majority Caucasian, with two female LTCs. He felt the court-martial proceedings were racist, command influenced, and prejudiced because all of the charges against him pertaining to the African American females were dropped, but what he was ultimately charged with was an incident from three years prior and based solely on hearsay, and either inconsistent or false statements. There was no integrity or respect throughout his trial and nothing was done correctly. It was all about making sure he received a guilty verdict by any means necessary, but he refuses to let the truth be unheard when he knows the truth is in the documents. He is ready and willing to take a polygraph test to enable the truth to be heard. q. He appreciates the Board looking at his concerns and hopes he can receive some kind of justice for this false allegation which destroyed his life both in the military and outside the military. All he ever wanted to do was to finish his career and make his country happy that he served the greatest military ever. He would not be taking it this far if he were guilty, but he does have a conscience and he cannot leave this world knowing he was falsely accused of a sex crime that he did not commit. He never committed anything close to this in his life and he cannot let anyone destroy his character, his family name, his kids, or his legacy based on a false allegation that was not even properly investigated, did not adhere to proper procedures, and was based on hearsay and false testimony. The only reason he hasn’t gone to the local news, radio stations, or media is because he knows it’s a long process, but he’s running out of options when it comes to the military doing the right thing instead of trying to save face. He has suffered tremendously since this incident and lost his military retirement which he was so close to because of this false allegation. Having to register as a sex offender has rendered him barely able to get a job, much less one he is qualified for, because potential employers look at him as if he raped a little girl or something similar. This is unfair to him and his children. He has maintained his innocence since being out of the military and is still fighting for the truth to be told. r. He has addressed all of these errors and injustices in detail in the enclosed document titled “Appeal for Assignment of Errors” for the Board to review. 2. The applicant enlisted in the U.S. Navy on 18 February 1998 and was honorably discharged on 20 September 2005, after 7 years, 7 months, and 3 days of net active service due to non-retention on active duty. 3. He enlisted in the Regular Army on 21 November 2005 and was awarded the military occupational specialty (MOS) 68E (Dental Specialist). 4. He served in Iraq from 16 April 2011 through 22 November 2011. 5. The applicant provided an NCOER covering the period 9 January 2012 through 27 August 2012, which shows: a. SFC G____ was his rater, CPT S____ was his senior rater, and COL G____ was his reviewer. b. SFC M____ and SGM E____ were not his raters, intermediate raters, or senior raters for the period in question, and neither were 1SG R____ or SFC C____. While it shows none of these individuals were in his rating chain, it does not show whether or not they were either in his NCO Support Channel or otherwise held more senior enlisted positions to his within his unit at the time of the NCOER. 6. A C Company, 187th Medical Battalion, 32nd Medical Brigade, U.S. Army Medical Department Center and School memorandum, dated 16 November 2012, details the findings and recommendations of an Army Regulation 15-6 Commander’s Inquiry into alleged inappropriate relationships by the applicant, of C Company, 187th Medical Battalion, with female students. It states: a. A thorough investigation was conducted surrounding the allegations against the applicant of inappropriate relationships with female students. b. Based on the documentary evidence, interviews, and sworn statements it was found that the applicant knowingly gave his phone number to female students in an attempt to make personal relationships with them. c. Army Regulation 600-20 (Army Command Policy), paragraph 4-15 states that any relationship between permanent party personnel and initial entry training trainees not required by the training mission is prohibited. d. A preponderance of the evidence did not support the allegation of inappropriate relationships. e. Although not listed as specific allegations for investigation in the investigating officer’s appointment order, he commented that the applicant admitted to using the Delta Company laundry facilities. He made the statement that previous students told him NCOs were doing their laundry there. The investigating officer found the applicant used an extreme lack of judgment by listening to information from students, including students who use this facility on a regular basis. The fact they were in civilian clothes does not excuse the applicant for not knowing whether or not they were students or permanent party. f. The applicant’s lack of judgment in using the Delta Company laundry facilities put him in a position that could potentially have led to an inappropriate relationship with female students. There is no supporting evidence he did actually have an inappropriate relationship with a female student. The investigating officer recommended a Letter of Reprimand be placed in the applicant’s local file and counseling with the commander. 7. A Headquarters, 187th Medical Battalion, 32nd Medical Brigade memorandum, dated 6 December 2012, filed in the applicant’s restricted folder in his Official Military Personnel File (OMPF) states: a. The applicant was hereby reprimanded for engaging in an inappropriate us of Government property. Being a U.S. Army Training and Doctrine Command (TRADOC) instructor, he was not authorized to use the laundry facilities in any of the Advanced Individual training barracks. His action had an impact on the good order and discipline of the unit and could bring discredit upon the Armed Forces. His adherence to Army values was questionable and continued conduct of this nature would cause his commander, CPT L____ to question his ability to led Soldiers as an NCO as well as his fitness for further service. b. This was an administrative reprimand and not punishment under Article 15 of the UCMJ. This reprimand would be filed locally, in his administrative folder, and be made known only to member is his chain of command, current and future, while stationed within the 187th Medical Battalion; 32nd Medical Brigade, however, if he committed further misconduct during this period, the reprimand might be forwarded to the Commanding General with the recommendation that he file it in the applicant’s OMPF. 8. Two DA Forms 7279 (Equal Opportunity Complaint Form) submitted by PFC K____ and PFC C____ on 13 March 2013, show both students made official complaints of inappropriate sexual comments and contact toward them by the applicant and requested remedies of UCMJ action and removal from his position as an instructor. Among their complaints, were the following: * the applicant made inappropriate comments of a sexual nature * he made inappropriate sexual gestures with his face and tongue * inappropriately followed the students on Facebook and commented on their pages in a sexual manner * sent an inappropriate text from his personal cell phone to PFC K____ which included a picture of his penis 9. A 32nd Medical Brigade memorandum, dated 20 March 2013, signed by COL F____, appointed CPT D____ as an investigating officer pursuant to Army Regulation 15-6, to conduct an informal investigation into allegations the applicant sexually harassed PFC K____ and PFC D____. At a minimum, the investigation should answer: * whether the applicant sexually harassed PFC K____ and PFC D____ or any other individual (which includes influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments of a sexual nature) * any other information the investigator believed to be relevant to this investigation 10. A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 28 March 2013, states an investigation board commenced on 20 March 2013 and completed findings and recommendations on 28 March 2013. A corresponding memorandum, dated 2 April 2013, detailed the investigation findings and recommendations, stating: a. This investigation was initiated in response to Sexual Harassment complaints submitted by PFC K____ and PFC D____. Their sworn statements, corroborating evidence, and additional interviews of others gathered during the course of the investigation depict several instances of sexual harassment and fraternization. b. In November 2012, the applicant was investigated internally via a Commander’s Inquiry, subsequent to which he was reprimanded for utilizing the student’s laundry facility. While using the laundry facility, he would engage in conversation with females there and give out his phone number. While no solid evidence of inappropriate relationships occurred from this incident, it did serve as the catalyst for his lack of judgment with trainee and Soldier relationships. c. Numerous witnesses stated the applicant made comments of a sexual nature and sent texts from his private phone number of a sexual nature. A student witness, not one of the complainants, PFC S____, stated he would roll his tongue around in his mouth in a sexual manner while making comments such as “I tear pu__y apart.” Corroborating sworn statements, text messages, and telephonic interviews are included in the evidence. d. The applicant was interviewed on 27 March 2013, and stated he never made any sexual or inappropriate comments to Soldiers/Students and he never sent text messages to PFC K____. Once he was shown the texts sent from his personal cell phone number, including one describing student/instructor relationships and the sexual photo, he stated that was his old phone that he had given to his brother a couple of weeks prior. As he was unable to provide any evidence the phone was sent to his brother, the investigator believed the texts were sent from the applicant and by lying about it he provided a false official statement. e. The sworn statements and evidence provided throughout the investigation substantiated sexual harassment violations of the applicant against PFC K____, PFC D____, PFC S____, Private (PVT) F____, PVT K____ and SPC W____. These Soldiers providing the sworn statements and complaints displayed no malicious intent toward the applicant and had no reason to lie about their claims. As a result and based on the evidence, the allegations of inappropriate/sexual conduct and sexual harassment were found to be true. The applicant was also found guilty of fraternization and providing false official statements. f. Based upon his findings and conclusions, the investigating officer recommended the applicant’s immediate removal from any student/Soldier interaction and any disciplinary action within the discretion of the Command. His reduction in rank and separation from the Army were also recommended. 11. A legal review of the Army Regulation 15-6 Investigation, dated 4 April 2013, found the proceedings of the investigation were conducted in accordance with law and regulation. There was sufficient evidence in the record to support the investigating officer’s findings and the findings in turn adequately supported the investigating officer’s recommendations. 12. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 20 May 2013, in a closed hearing he was found guilty of disobeying lawful orders of which he had knowledge, issued in 32nd Medical Brigade Policy Memorandum #5, dated 1 December 2010, by: * wrongfully “liking” the Facebook page of PFC D____, an IET Soldier, and commenting on her page with “I see you? You go girl!” * sending a “Friend Request” to PVT K____, an IET Soldier * wrongfully texting PFC K____, an IET Soldier, when not required by the training mission * wrongfully texting PVT K____, and IET Soldier, when not required by the training mission * maltreating PFC K____, a person subject to his orders, by sexually harassing her with actions including making sexual faces to her, calling her, and sending her a picture of his penis * maltreating PFC D____, a person subject to his orders, by sexually harassing her by asking her if she was a “freak” in regards to her sexual behavior * maltreating PFC S____, a person subject to his orders, by sexually harassing her with actions including making sexual gestures with his tongue, and comments to include, “I tear pu__y up,” or words to that effect and telling her she had a “big as_” * maltreating PVT F____, a person subject to his orders, by sexually harassing her with actions including making sexual jokes and telling her, “If I gave you a dollar you’d have to bend it over me,” or words to that effect * maltreating PVT K____, a person subject to his orders, by sexually harassing her by commenting to her that she had a big behind * making two false official statements to CPT D____, with the intent to deceive, which he knew were totally false 13. The imposed punishment was reduction to the rank/grade of sergeant/E-5, forfeiture of $500.00 pay per month for 2 months, with the suspension of 1 month’s forfeiture of pay, to be automatically remitted if not vacated before 20 November 2013. On 20 May 2013, the applicant initialed on the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) he intended to appeal and submit additional matters. 14. Email correspondence between the applicant and 1SG P____, dated 22 and 23 May 2013, shows the applicant emailed his 1SG to inform him he did not want to appeal the findings or impending NJP under Article 15 of the UCMJ. On 23 May 2013, he initialed on the DA Form 2627 he did not appeal the findings and NJP. 15. A DA Form 2166-8, covering the period 28 August 2012 through 21 May 2013, shows his rater was SFC M____, his senior rater was LTC T____ and his reviewer was COL B____ and that he received a Relief for Cause NCOER for the period in question for his duties as instructor and writer for the Dental Specialist Course. It shows: * he received all “No” ratings in Part IV - Army Values/Attributes/Skills/Actions * he received two “Needs Improvement” ratings for displaying inappropriate judgement when dealing with trainees, not meeting the expectations of an instructor, compromising integrity, allowing personal issues to interfere with military duties, and needing to improve leadership skill to meet Army Values * his senior rater rated both his performance and overall potential as “Poor” and commented the applicant should not be promoted or sent to advanced schooling, could not understand his responsibility in accepting Army policies, and needed to depart the Army as he was not fit for military service 16. A Headquarters, 187th Medical Battalion, 32nd Medical Brigade memorandum, dated 17 June 2013, shows LTC D___ appointed CPT L____ as an investigating officer pursuant to Army Regulation 15-6, to conduct an informal investigation into allegations pertaining to the applicant of: * disobeying a direct verbal/written order when he failed to adhere to a no-contact order given to him by his chain of command * conduct unbecoming of an NCO when the applicant attempted to intimidate an enlisted student who formerly lodged a sexual harassment complaint against him by staring her down * conduct unbecoming of an NCO when the applicant allegedly tried to bribe an enlisted student to drop her allegation of sexual harassment against him * the investigation should address whether the applicant committed a violation of the UCMJ or other regulation by disobeying an order given to him or engaged in activities with enlisted members in the Dental Specialist (68E) program that were outside the scope of professional or academic requirements * the investigation should address any other information the investigating officer believed to be relevant to this investigation 17. The applicant provided a Medical Record, which shows he had multiple pulmonary nodules discovered in July 2013, depression/anxiety/PTSD, and obstructive sleep apnea found in a sleep study conducted on 26 June 2013. 18. A Headquarters, 187th Medical Battalion, 32nd Medical Brigade memorandum, dated 11 July 2013, shows the Army Regulation 15-6 investigating officer, CPT L____, made the following findings, conclusions, and recommendations: a. The initial incident that caused the commander to direct investigation of the breaking of a no-contact order was the identification by MAJ C____ of the applicant on the third floor of Willis Hall, close to where PFC K____ was attending class. It was verified the applicant was seen outside where PFC K____ was attending class and verified by SGM H____, the senior enlisted advisor that the applicant’s job did not have duties on the third floor in that area. There were several other verified instances where the applicant was in close proximity to PFC K____ after the no-contact order was given. The written no-contact order made to the applicant was unable to be located by the command when requested; nonetheless, the former Charlie Company Commander, CPT L____ submitted a memorandum for record stating the no-contact order was given in writing and statements made by 1SG P___, CPT M___, SFC M____ and 1LT D___ (all included) all verify this fact. There is no evidence indicating the applicant acted in a purposeful manner to make contact with PFC K___ after the issuance of the no-contact order and any encounters between them after the no-contact order may have been incidental. The applicant did, however, knowingly make a false official statement by claiming there was not a no-contact order. b. PFC K____ claimed the applicant attempted to intimidate her by looking and staring at her menacingly, for lodging a sexual harassment complaint against him. She notified her class leadership, SFC V____ and MAJ C____ of such and another student, SPC F____ witnessed such staring on 7 June 2013. The investigating officer determined after investigation that the applicant did stare at PFC K____ in an intimidating fashion, as corroborated by a witness, which is proof of maltreatment. c. The investigation of conduct unbecoming of an NCO by allegedly trying to bribe an enlisted student to drop the allegation of sexual harassment, was initiated in response to information presented by PFC K____ at the final disposition of the previous Army Regulation 15-6 investigation in March – April 2013, also in part concerning PFC K____. During that disposition, PFC K____ stated she was contacted by PFC S____, who was contacted by SPC B____, who spoke to the applicant and offered $5,000.00 to drop the sexual harassment allegation against the applicant. The applicant stated he never spoke with anyone about a $5,000.00 bribe, and in a telephonic interview, SPC B___ stated that a bribe was never made but the applicant just wanted to talk to PFC K____ about the investigation. The prior Army Regulation 15-6 investigation concluded SPC B____ was contacted by the applicant regarding PFC K____ and SPC B____ did in fact sent text messages to PFC S____ asking for permission to give the applicant her phone number (the text messages and witness statements are provided in the supporting evidence). PFC S____ confirmed that SPC B____ told her the applicant was offering a “large amount of money for everyone not to talk.” Based on the available evidence, the investigating officer concluded the applicant did offer some sum of money in an attempt to secure personal safety by having the allegation of sexual harassment against him dropped. d. Before the disposition of the most recent previous Army Regulation 15-6 investigation, PFC K____ discussed being touched on her buttock by the applicant. She gave little detail of the event and despite being in a training area, could identify no witnesses. She also discussed another incident that occurred, which involved her roommate from Building 1002. PFC K____ stated there was a previous incident involving the applicant and a SPC F____. Now SGT F____ stated that during 2011, prior to deploying to Iraq, she was cornered by the applicant while in the field at Camp Rilea, OR. Prior to deployment, the deployment manning document projected SGT F____ to be co-located with the applicant at Forward Operating Base Liberty. SGT F____ informed her platoon sergeant, SFC M____, that she was not comfortable around the applicant and wanted to be removed from his supervision. SFC M___ brought this to the attention of 1SG E____ who worked with the command to change the deployment manning document. e. The applicant displayed conduct contradictory to good military order and discipline. The investigation unearthed a clear and pervasive pattern of behavior by the applicant incongruent with the Army Values. The investigating officer found the allegations of intimidating a Soldier and attempting to bribe a Soldier to be substantiated. He further found the applicant guilty of maltreatment of SGT F____, making false official statements, wrongful interference with an adverse administrative proceeding, obstructing justice, and soliciting another to commit an offense. f. Based on his findings and conclusions, the investigating officer recommended the applicant be closely supervised by his senior leadership and continue to have no contact with students and/or junior Soldiers while disciplinary action was taken at the discretion of the command. His recommendation was that the applicant be tried and punished as a court-martial may direct. This Army Regulation 15-6 investigation did not specifically reference UCMJ Article 120, wrongful sexual contact in its findings. 19. The applicant provided 26 pages of evidence which he claims was in part garnered by the Army 15-6 investigation, but not considered at the Article 32 hearing, general court-martial, or by the CID, which includes the following: * 25 June 2013, telephonic Army Regulation 15-6 investigation interview of SGT F____ * 27 June 2013, DA Form 2823, by SGT F____ * email correspondence between the investigating officer and SGT F____, dated 26 June 2013 * 27 June 2013, telephonic Army Regulation 15-6 investigation interview of SFC M____ * 27 June 2013, telephonic Army Regulation 15-6 investigation interview of SGM E____ * 3 July 2013, telephonic Army Regulation 15-6 investigation interview of SFC M____ * email correspondence between the applicant and Mr. M____ , Camp Rilea Site Manager, dated 3 October 2014 * email correspondence between the applicant and COL G____, dated 29 October 2013 * character statement, dated 8 January 2014 provided by COL G____ 20. A DD Form 458 (Charge Sheet), dated 7 October 2013, shows the applicant was charged with the following: * wrongfully engaging in sexual contact by intentionally touching the buttocks of SGT F____ , without her permission on or about between 1 January 2011 and on or about 28 February 2011 at Camp Rilea, OR * committing sexual contact upon PFC K____ by intentionally touching her buttocks with his hand and caused her bodily harm though an offensive touch between on or about 1 March 2013 and 11 June 2013 * willfully disobeying a lawful command of his superior commissioned officer, CPT L____, to have no contact with PFC K____ on diverse occasions between on about 8 May 2014 and 19 June 2013 * maltreating SGT F____, a person subject to his orders, on divers occasions between on or about 1 August 2010 and 31 December 2010, by saying “don’t you look so pretty today,” and “I love you Holzy” * maltreating SGT F____, a person subject to his orders, between on or about 1 January 2011 and 28 February 2011, by cornering her so she could not escape and whispering in her ear, “I love you Holzy.” * maltreating SGT F____, a person subject to his orders, between on or about 1 January 2011 and 28 February 2011, by telling her to carry his bag to his vehicle, dropping her to do push-ups when she declined to carry his bag, and telling her “next time just do what I say and we won’t have any more problems.” * unlawfully grabbing the shoulder of SGT F____ with his hand on or about between 1 January 2011 and 28 February 2011 * wrongfully endeavoring to influence the actions of PFC K____ between on or about 1 March 2013 and 12 June 2013, by offering her the sum of $5,000.00 if she would retract her sexual harassment allegations against him and end the pending investigation * wrongfully endeavoring to influence the actions of PFC S____, between on or about 1 March 2013 and 12 June 2013, by offering her a sum of several thousand dollars if she would refuse to say anything against him during the pending investigation * wrongfully endeavoring to influence the actions of SPC B____ , between on or about 1 March 2013 and 12 June 2013, by offering him the sum of $5,000.00 if he would refuse to say anything against the applicant during the pending investigation * wrongfully soliciting SPC B____, between on or about 1 March 2013 and 12 June 2013, to communicate to PFC K____ that the applicant would pay her the sum of $5,000.00 to retract her sexual harassment allegations against him and end the pending investigation * wrongfully soliciting SPC B____ between on or about 1 March 2013 and 12 June 2013, to communicate to PFC S____ that the applicant would pay her the sum of several thousand dollars to refuse to say anything against him during the pending investigation * making a false official statement, with intent to deceive, when he stated that “a no contact order did not exist or words to that effect when asked about a no contact order between him and PFC K____ * making a false official statement, with intent to deceive, when he stated he never stared at or intimidated PFC K____ or touched her buttocks, or contacted SPC B____ or PFC S____ offering money to drop allegations, or inappropriately touched or cornered SGT F____ 21. A Headquarters, U.S. Army South memorandum, dated 12 November 2013, states a UCMJ, Article 32 investigation would be conducted on 18 November 2013, to investigate the facts and circumstances concerning the charges preferred against the applicant. Evidence provided prior to the hearing that the investigating officer would consider was the Army Regulation 15-6 investigation. The investigating officer would try to arrange for the appearance of any witnesses the applicant wanted to testify if the applicant would identify them by 15 November 2013. The applicant was additionally informed of the following rights: * be informed of the charges under investigation * be informed of the identity of the accuser * be present throughout the taking of evidence * be represented by counsel at all times during the investigation * be informed of the purpose of the investigation * be informed of the right against self-incrimination * cross-examine witnesses who are produced * have witnesses produced * have evidence, including documents or physical evidence, within the control of military authorities produced * present anything in defense, extenuation, or mitigation for consideration by the investigating officer * make a statement in any form 22. The applicant provided email correspondence between himself and his trial defense counsel, dated 3 January 2013, wherein he was informed by counsel that he would not be able to produce every possible witness as the Government will object to a cumulative number of people saying the same things. He was advised they would need primarily fact witnesses, people who can dispute what the Government’s witnesses are saying. They will have to carefully pick the best witnesses as the Government will not fly everyone the applicant knows in for trial. 23. A CID Summary of Investigative Activity, dated 4 February 2014, states: a. The Special Agent (SA) In Charge was contacted by the applicant at about 1520 on 4 February 2014, inquiring if CID was supposed to investigate all Article 120 offenses pertaining to Soldiers. The SA informed him that CID does investigate all sexual assault offenses, but not sexual harassment. The applicant then stated he had been accused of committing abusive sexual contact against a female, that he had been through an Article 32 hearing, and was pending court-martial at the end of February. He stated a friend told him CID was supposed to investigate all Article 120 offenses. The SA conducted a name check on the applicant and it revealed he did not have an investigation. The SA would have to make contact with the Staff Judge Advocate (SJA) to find out what happened. The applicant did not know if this was something he should have his lawyer bring up at the court-martial. b. The SA made contact with the Chief of Military Justice who conducted a check of the SJA database and found that an Army Regulation 15-6 investigation was conducted on the applicant in July 2013 and he did not know why CID was not notified about the sexual assault. There were ultimately three Army Regulation 15-6 investigations pertaining to the applicant and they were all to be forwarded to the SA. There was no known reason why this was never reported to CID. The SA explained that CID would have to open an investigation c. The basis for the initiation of the CID investigation was information which revealed the applicant sexually assault PFC [redacted] who is now known as SGT [redacted] 24. The applicant provided email correspondence from his trial defense counsel, dated 5 February 2014, wherein counsel advised the applicant he had just received word from trial counsel that the applicant went to CID asking about the lack of an investigation against him. Counsel states this was extremely ill-advised. CID now opened an investigation against him and what would most likely happen now is that he would be titled with sexual assault. CID would probably just adopt the Army Regulation 15-6 investigation against him and do very little work on their own. Even if he were to win at trial, he would still be titled as a sex offender, which will show up during Government background searches. Counsel was very disappointed he went to CID without talking to him first. Unfortunately, he did not better his position for the court-martial and has taken away the command’s failure to refer to CID as a weapon against them. 25. A CID Summary of Investigative Activity, dated 10 February 2014, states: a. On 10 February 2014, SGM [redacted] was interviewed by the SA who stated SGT [redacted] had requested to be moved out of the company the applicant was in, but SGT [redacted] did not provide any details as to why. SGM [redacted] stated the memorandum he provided for the Army Regulation 15-6 investigation was accurate and he did not have any further details pertaining to the wrongful sexual contact. b. The SA also interviewed SFC [redacted] on 10 February 2014, who stated SGT [redacted] came to him requesting removal from the company the applicant was in . There was a rumor after their deployment that the applicant sexually harassed SGT [redacted] in a sterilization room during the field training exercise. SFC [redacted] stated SGT [redacted] did not provide any details. SFC [redacted] stated the memorandum he provided for the Army Regulation 15-6 investigation was accurate and he did not have any further details pertaining to the wrongful sexual contact. c. The SA also interviewed Mr. [redacted], the Training Site Manager, Camp Rilea, Armed Forces Training Center, Camp Rilea, OR, in an attempt to locate the sterilization room which might have been used for the wrongful sexual contact. Mr. [redacted] stated he could not definitively determine what was meant by “sterilization room” and could not provide an exact incident. d. A database search revealed the applicant as the subject of a CID investigation under ROI 0036-14-CID044-XXXXX-XXX. 26. A DD Form 2707-1 (Department of Defense Report of Result of Trial), dated 22 February 2014, shows the applicant was arraigned and tried by general court-martial on 22 February 2014, where he was charged with and found guilty of * wrongfully engaging in sexual contact by intentionally touching the buttocks of SGT F____ without her permission between on or about 1 January 2011 and 28 February 2011 at Camp Rilea, OR * maltreating SGT F____ , a person subject to his orders, on divers occasions between on or about 1 August 2010 and 31 December 2010 at Joint Base Lewis McChord, WA, by saying to her “don’t you look so pretty today,” and “I love you Holzy,” or words to that effect * maltreating SGT F____, a person subject to his orders, between on or about 1 January 2011 and 28 February 20111, by telling her to carry his bag to his vehicle, dropping her to do push-ups when she declined to carry his bag, and telling her “next time just do what I say and we won’t have any problems” * making false official statements, with intent to deceive, on or about 2 July 2014, when he stated he never stared at or attempted to intimidated PFC K____, never touched her buttocks, never contacted SPC B____, and never inappropriately spoke to or touched or cornered SGT F____ 27. The DD Form 2707-1, dated 22 February 2014 shows he was found not guilty of four of the remaining charges and one of the charges was dismissed by the Government after a motion by the defense. 28. On 22 February 2014, he was sentenced to be discharged with a bad conduct discharge and his sex offender registration was required based on the guilty findings. 29. The applicant provided email correspondence between himself and a representative at CID, dated 3 April 2014, which he has highly redacted, which states (where legible) the email was in response to the applicant’s request for review of all CID investigations associated with him as he felt CID did not do a thorough job. It states there is no reference within DODI 6495.02 that prohibits CID from using information disclosed during a formal Army Regulation 15-6 investigation. The Army Regulation 15-6 investigation was reviewed through the unit’s higher headquarters and found to be sufficient and legal by the supporting SJA. 30. He also provided a letter signed by a Family Medicine Service Doctor. LTC W____ (U.S. Army Reserve) on 14 October 2014, which states: a. This letter was being written on behalf of the applicant whom he had been providing care at the Family Medicine Clinic at Fort Sam Houston since February 2013. He was writing out of sincere concern for the applicant’s health and emotional well- being. The first electronic physical profile he wrote for the applicant was in February 2013, although this system had been in regular use since 2009. He felt it pertinent to comment on this as providers often see patients who seem to get physical profile after physical profile to get out of doing physical training or going to the field to the weapons range. b. The applicant’s lack of physical profiles prior to February 2013 is suggestive to him of a record consistent with a Soldier who was busy working and not going to sick call on a regular basis. The applicant has many orthopedic issues, but did not complain. The doctor felt the applicant’s health will be in jeopardy without continued medical care which he has earned over his years on active duty. c. The applicant had several medical conditions, to include: hypertension, hyperlipidemia, pulmonary nodules of unclear etiology, PTSD, anxiety, chronic insomnia, right knee quadriceps tendon tear, disease in both ankles, sinus disease, obstructive sleep apnea, bulging disc at L5-S1 associated with radiating pain down his leg, femoral acetabular impingement of his right hip, degenerative disc disease of his cervical spine, and recurrent issues with migraines. d. The doctor sincerely hoped the applicant would be allowed to continue on active duty and continue to receive medical care. He has been very worried about the applicant’s emotional stability during this exceedingly difficult legal process. 31. A letter from the Commanding General, U.S. Army Medical Department Center and School, dated 15 January 2015, thanked the applicant for his email to President Barack Obama concerning his court-martial and subsequent discharge from the service. a. In his email, the applicant expressed concerns of a procedural error involving the lack of CID investigation into the sexual assault allegation made against him. After reviewing the applicant’s concerns, the Commanding General determined he was afforded all the due process rights to which he was entitled and that there was sufficient evidence to convince his panel of a guilty verdict. b. While the sexual assault allegation initially was not reported to CID, CID was notified of this allegation on 4 February 2014 and they initiated an investigation. The CID investigation established probable cause to believe he committed the offense of sexual assault. c. His case would be automatically reviewed by the Army Court of Criminal Appeals and counsel would be appointed to represent him throughout the appellate process. If any legal errors were found during the appellate process, the Army Court of Criminal Appeals could address them. 32. The applicant provided a partial CID Agent’s Investigation Report, pertaining to ROI 0036-14-CID044-XXXXX-XXX, dated 10 March 2014 (only page 1 of 3 is available) states: a. On 4 February 2014, at about 1705, the CID office was notified by CPT [redacted], Trial Counsel, Office of the SJA, Joint Base San Antonio, Fort Sam Houston, TX, that the applicant had sexually assaulted and offered a bribe to PFC [redacted]. b. Preliminary investigation revealed that subsequent to an Army Regulation 15-6 investigation it was determined the applicant committed the offenses of abusive sexual contact when he intentionally placed his hand on PFC [redacted] buttocks and bribery when he offered PFC [redacted] $5,000.00 for her to drop the previous sexual harassment complaint c. On 18 February 2014, the SA interviewed PFC [redacted] who provided a sworn statement wherein she stated SPC [redacted] initially contacted her and asked if he could pass along her phone number to the applicant. PFC [redacted] stated she told SPC [redacted] “no” she didn’t want to talk to the applicant. PFC [redacted] stated she received a phone call from the applicant who stated $1,000.00 - $2,000.00 would help drop the charges against him. PFC [redacted] stated the applicant never came out and stated he would pay her off, only the money would help drop the charges. She thought the text messages were still on her phone. 33. A CID Agent’s Investigation Report, pertaining to ROI 0038-14-CID044-XXXXX- XXX, dated 10 March 2014, states: a. This investigation was initiated based on information obtained from ROI 0036-14- CID044-XXXXX-XXX, which revealed during the conduct of the investigation that the applicant assaulted PFC [redacted]. b. On 6 February 2014, the SA reviewed the Army Regulation 15-6 investigation from the above listed ROI and extracted all memoranda and statements that pertained to the incident between SGT [redacted] and the applicant and summarized all the documents in the report. c. Between 6 February 2014 and 10 February 2014, four witnesses were interviewed by the SA. Those who provided memoranda for the Army Regulation 15-6 investigation stated the information they previously provided was accurate and they did not have further details. d. On 10 February 2014, the SA coordinate with the applicant’s trial defense counsel regarding undergoing an exculpatory polygraph examination. e. On 18 February 2014, SGT [redacted] provided a sketch of the camp ground at Camp Rilea, OR in which she depicted the outline of the sleeping tents and treatment tents, sketching the treatment tent where she was sexually assaulted by the applicant. 34. A CID Final ROI 0036-14-CID044-XXXXX-XXX, dated 12 March 2014, shows their investigation established probable cause to believe the applicant committed the offenses of abusive sexual contact and cruelty of subordinates when he placed his hand on PFC [redacted] buttocks. Further, investigation established probable cause to believe he committed the offense of bribery when he offered PFC [redacted] money to drop the charges of abusive sexual contact. On 22 February 2014, the applicant was convicted by a general court-martial and found guilty of the offenses of wrongful sexual contact, cruelty and maltreatment, and false official statements. The applicant was sentenced to a bad conduct discharge and required to register as a sex offender. 35. A U.S. Army Medical Department Center and School memorandum, dated 19 May 2015, informed the U.S. Army Human Resources Command of a documented sex- related offense for the applicant and forwarded the documentation of the offense for filing in the Performance Folder of his OMPF. The materials were reviewed by the Staff Judge Advocate and determined they include an offense or offenses meeting the criteria for a sex-related offense, that the service member received adverse administrative action or punishment under the UCMJ as a result of the offenses and that he was given notice and opportunity to respond. 36. A letter from the Office of the Judge Advocate General, Chief, Criminal Law Division, dated 14 July 2016, thanked the applicant for his recent letter to President Barack Obama concerning his court-martial conviction. The letter informed him his case was pending before the U.S. Army Court of Criminal Appeals and to protect the integrity of the military justice system, it was deemed inappropriate to comment on active cases. The author of the letter was confident the Court of Criminal Appeals would resolve his case on its individual facts and merits, the principles of due process of law, and the independent professional judgment of the military judges. 37. Headquarters, U.S. Army Fires Center of excellence and Fort Sill General Court- Martial Order Number 4, dated 10 January 2017, shows the sentence of a bad conduct discharge, adjudged on 22 February 2014, had been finally affirmed. The automatic reduction in rank/grade to private/E-1, as required by UCMJ, was effective 26 November 2014. All else having been complied with, the bad conduct discharge would be executed. 38. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a bad conduct discharge under the provisions of Army Regulation 635-200, chapter 3, on 31 January 2017, due to court-martial. He completed 11 years, 2 months, and 10 days of net active service this period. Item 18 (Remarks) shows he was credited with 747 days of excess leave (creditable for all purposes except pay and allowances). His RE code is listed as “4” and his separation code is listed as JJD. 39. The applicant provided four character statements all dated between May and June 2017, written by his sister, a former colleague, a former classmate, and his nephew. All attest to the applicant’s determination, positive attitude, strong sense of responsibility, and integrity. 40. In the processing of this application, CID provided ARBA with numerous military police reports pertaining to traffic incidents, and another ROI from 2012 pertaining to larceny of Government property, which involve the applicant, but are unrelated to the incidents pertinent to the application. CID also provided a complete copy of CID Final ROI 0036-14-CID044-XXXXX-XXX, dated 12 March 2014, referenced above. A copy of the CID received reports were provided to the applicant and he was given an opportunity to submit comments. He responded to the CID reports on 15 December 2017, stating: a. In his rebuttal he reiterates much of his previously stated arguments provided with his application to the Board. His primary concern is that his command improperly conducted their own informal Army Regulation 15-6 investigation and subsequent Article 32 hearing regarding an alleged unrestricted report of sexual assault. b. The Army Regulation 15-6 investigation (presumably the third Army Regulation 15-6 investigation) never stated anything about an alleged sexual assault, but during the investigation, the investigating officer questioned him about touching the buttocks of SGT F____, which made the information become an unrestricted report of sexual assault. According to DODI 6495.02, a unit commander who receives an unrestricted report of sexual assault shall immediately refer the matters to the appropriate military CID office and not conduct an internal command directed investigation on sexual assault. c. It was not until his Article 32 hearing that he realized his command was trying to charge him with two sexual assaults and he felt as if his command was taking things into their own hands and bypassing the guidance in DODI 6495.02. He tried to seek redress of this issue with CID, but he was told because he didn’t submit a sworn statement to a CID agent, there was nothing they could do for him. d. Once he reported to CID that his command did not follow protocol by not involving CID from the start, his trial defense counsel tried to offer a plea deal to drop the sexual assault to an assault charge, but he was still confused because his command came at him with full force saying he touched a female Soldier back in 2011 and they were trying to charge him in 2014 without any evidence and inconsistent witness statements. e. He was falsely accused of a crime he did not commit and was not afforded due process, which resulted in a guilty verdict, all because of his command’s wrong-doing. 41. On 18 February 2018, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion stating: a. The applicant’s first contact with Behavioral Health was on 10 June 2013, when he presented with feelings of anger and hurt because he was pending an involuntary separation. He felt his command was punishing him. On 25 June 2013, he was seen by Behavioral Health and reported he had received NJP for fraternization with several women with whom he worked. b. On 9 September 2013, after completing his Department of Veterans Affairs (VA) Compensation and Pension (C&P) Examination, his Medical Evaluation Board (MEB) Narrative Summary (NARSUM) Addendum was completed. The NARSUM indicated the applicant did not have any diagnosis that did not meet retention standards. His diagnosis of adjustment disorder, described by the VA as PTSD, depressive disorder not otherwise specified and panic disorder, was found to meet retention standards. c. The applicant’s VA electronic medical record indicates he has a service- connected disability rating of 100 percent for limited motion of his ankles. His VA medical records also indicate he has been diagnosed with depressive disorder not otherwise specified and PTSD. d. Based on the available military and medical documentation, it is the opinion of the ARBA psychiatrist that the applicant did not have a mitigating behavioral health condition for the misconduct leading to his discharge from the Army. Wrongful sexual contact, cruelty/maltreatment, and making false official statements are not known symptoms of any major mental disorder, to include PTSD, depression or anxiety. As such, there is no nexus between any of these disorders and the offenses leading to his bad conduct discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 42. The applicant was provided a copy of the advisory opinion on 21 February 2018 and given an opportunity to submit comments, but he did not respond. 43. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 44. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 45. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 46. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the CID elements. It states requests to amend or unfound offenses in CID ROIs 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 if 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. 47. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. It states: a. Individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 3, provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. 48. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of RE codes. a. RE code 1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. c. RE code 4 applies to Soldiers separated from their last period of service with a nonwaiverable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at the time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. They are ineligible for enlistment. 49. Army Regulation 635-5-1 (SPD Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. SPD code JJD is the appropriate code to assign to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, chapter 3, due to court- martial. 50. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. It stipulates an RE code of 4 will be assigned to members separated with an SPD code of JJD. 51. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences. It states: a. Excess leave is a nonchargeable absence granted for emergencies or unusual circumstances or as otherwise specified, to include involuntary excess leave while awaiting punitive discharge. b. The General Court-Martial authority may direct excess leave if the Soldier is sentenced by court-martial to dismissal or a punitive discharge and is awaiting completion of the appellate review. Excess leave begins the day the sentence is approved or any day after the sentence is approved and ends upon final judgement, when the sentence is ordered executed, or other appropriate action is promulgated. c. Soldiers in an excess leave status are not entitled to pay and allowances for the period of excess leave. This includes entitlement to physical disability retired pay should the Soldier become disabled while in an excess leave status. Further, no leave accrues during a period of excess leave. 52. Title 10, U.S. Code, section 832, article 32, provides that a preliminary hearing is required before referral to a general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer, detailed by the convening authority. a. The purpose of the preliminary hearing shall be limited to determining the following: * whether or not the specification alleges an offense under this chapter * whether or not there is probable cause to believe that the accused committed the offense charged * whether or not the convening authority has court-martial jurisdiction over the accused and over the offense * a recommendation as to the disposition that should be made of the case b. After a preliminary hearing, the hearing officer shall submit to the convening authority a written report that includes a statement of the reasoning and conclusions of the hearing officer for each specification, recommendations for any necessary modifications of the charges or specifications, an analysis of any additional information submitted after the hearing of an offense that is relevant to disposition under this title. c. If evidence adduced in a preliminary hearing indicated the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused is present at the hearing, is informed of the nature of each offense considered, and is afforded opportunities for representation and cross-examination. 53. Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) establishes procedures for investigations and boards not specifically authorized by any other regulation or directive. a. This regulation does not require that a preliminary inquiry, administrative investigation, or board of officers be conducted before taking adverse administrative action, such a s relief for cause, against an individual. Subject to the provisions of this regulation, the evidence gathered during an inquiry, investigation, or board conducted under the provisions of this regulation may be used in any administrative action against an individual, regardless of the particular procedures used, and regardless of whether that individual was a subject or designated as a respondent. b. Investigating officers and board members will be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service, demonstrated sound judgment, and temperament. Investigating officers and board members must be impartial, unbiased, be objective, and have the ability to complete the investigation in a timely manner. c. The approval authority may approve, disapprove, modify, or add to the findings and recommendations, consistent with the evidence included in the report of proceedings. The approval authority may also concur in or disagree with recommendations that cannot be implemented at his or her level. The approval authority may take action different than that recommended with regard to a respondent or other individual. The approval authority may consider any relevant information in making a decision to take adverse action against an individual, even information the investigating officer or board did not consider. 54. Department of Defense Instruction 6495.02 (Sexual Assault Prevention and response (SAPR) Program Procedures), dated 28 March 2013, establishes policy, assigns responsibilities, and provides guidance and procedures for the SAPR Program. a. Service members and military dependents 18 years and older who have been sexually assaulted have two reporting options: Unrestricted or Restricted reporting. The Unrestricted reporting option triggers an investigation, command notification, and allows a person who has been sexually assaulted to access medical treatment and counseling. The Restricted reporting option does not trigger an investigation. The command is notified that “an alleged sexual assault” occurred, but is not given the victim’s name or other personally identifying information. b. In establishing the Restricted reporting option, it is recognized that a victim may tell someone (i.e. a roommate, friend, family member) that a sexual assault occurred before considering whether to file a Restricted or Unrestricted Report. If the person to whom the victim confided the information is in the victim’s officer or NCO chain of command or law enforcement, there can be no Restricted Report. c. Independent investigations are not initiated by the victim. If information about a sexual assault comes to a commander’s attention from a source other than a victim who has elected Restricted reporting or where no election has been made by the victim, that commander shall report the matter to an MCIO and an official (independent) investigation may be imitated based on that independently acquired information. d. Commander SAPR response procedures include the requirement that a unit commander who receives an Unrestricted Report of a sexual assault shall immediately refer the matter to the appropriate MCIO, to include any offense identified by UCMJ. A unit commander shall not conduct internal command directed investigations on sexual assault (i.e. no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief. 1. Regarding the applicant’s request to change his discharge characterization and reentry code, the board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity. The Board agreed with the medical advisory that the applicant does not have a mitigating Behavioral Health Condition for the misconduct leading to his discharge from the Army; that wrongful sexual contact, cruelty/maltreatment and making a false official statement are not known symptoms of any major mental disorder to include PTSD, Depression or Anxiety; and that there is no nexus between these behaviors and the offenses leading to the applicant’s Bad Conduct Discharge. The Board agreed that the applicant’s discharge characterization and reentry code are appropriate for the serious misconduct. 2. Regarding removal of his name from the title block of U.S. Army Criminal Investigation Command (CID) Reports of Investigation (ROI) 0038-14-CID044-XXXXX- XX and 0036-14-CID044-XXXXX-XX the Board found insufficient evidence 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 that the wrong person's name was entered as a result of mistaken identity. 3. Regarding removal of his name from the sex offender list, the seriousness of the misconduct without mitigating factors or other evidence of error or injustice warrants retaining the applicant’s name on this document of record. 4. Regarding the applicant’s request for back pay for his period of excess leave from 30 January 2015 through 30 January 2017, the Board found that the applicant is not entitled to this back pay as voluntary excess leave while awaiting punitive discharge are not entitled to pay and allowances for the period of excess leave and no leave accrues during a period of excess leave. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. Title 10, U.S. Code, section 832, article 32, provides that a preliminary hearing is required before referral to a general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer, detailed by the convening authority. a. The purpose of the preliminary hearing shall be limited to determining the following: * whether or not the specification alleges an offense under this chapter * whether or not there is probable cause to believe that the accused committed the offense charged * whether or not the convening authority has court-martial jurisdiction over the accused and over the offense * a recommendation as to the disposition that should be made of the case b. After a preliminary hearing, the hearing officer shall submit to the convening authority a written report that includes a statement of the reasoning and conclusions of the hearing officer for each specification, recommendations for any necessary modifications of the charges or specifications, an analysis of any additional information submitted after the hearing of an offense that is relevant to disposition under this title. c. If evidence adduced in a preliminary hearing indicated the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused is present at the hearing, is informed of the nature of each offense considered, and is afforded opportunities for representation and cross-examination. 3. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 3, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review was required to be completed and the affirmed sentence ordered duly executed. 6. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of RE codes. a. RE code 1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. c. RE code 4 applies to Soldiers separated from their last period of service with a nonwaiverable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at the time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. They are ineligible for enlistment. 7. Army Regulation 635-5-1 (SPD Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. SPD code JJD is the appropriate code to assign to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, chapter 3, due to court- martial. 8. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. It stipulates an RE code of 4 will be assigned to members separated with an SPD code of JJD. 9. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences. It states: a. Excess leave is a nonchargeable absence granted for emergencies or unusual circumstances or as otherwise specified, to include involuntary excess leave while awaiting punitive discharge. b. The General Court-Martial authority may direct excess leave if the Soldier is sentenced by court-martial to dismissal or a punitive discharge and is awaiting completion of the appellate review. Excess leave begins the day the sentence is approved or any day after the sentence is approved and ends upon final judgement, when the sentence is ordered executed, or other appropriate action is promulgated. c. Soldiers in an excess leave status are not entitled to pay and allowances for the period of excess leave. This includes entitlement to physical disability retired pay should the Soldier become disabled while in an excess leave status. Further, no leave accrues during a period of excess leave. 10. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the CID elements. It states requests to amend or unfound offenses in CID ROIs 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 if 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. 11. Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) establishes procedures for investigations and boards not specifically authorized by any other regulation or directive. a. This regulation does not require that a preliminary inquiry, administrative investigation, or board of officers be conducted before taking adverse administrative action, such a s relief for cause, against an individual. Subject to the provisions of this regulation, the evidence gathered during an inquiry, investigation, or board conducted under the provisions of this regulation may be used in any administrative action against an individual, regardless of the particular procedures used, and regardless of whether that individual was a subject or designated as a respondent. b. Investigating officers and board members will be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service, demonstrated sound judgment, and temperament. Investigating officers and board members must be impartial, unbiased, be objective, and have the ability to complete the investigation in a timely manner. c. The approval authority may approve, disapprove, modify, or add to the findings and recommendations, consistent with the evidence included in the report of proceedings. The approval authority may also concur in or disagree with recommendations that cannot be implemented at his or her level. The approval authority may take action different than that recommended with regard to a respondent or other individual. The approval authority may consider any relevant information in making a decision to take adverse action against an individual, even information the investigating officer or board did not consider. 12. Department of Defense Instruction 6495.02 (Sexual Assault Prevention and response (SAPR) Program Procedures), dated 28 March 2013, establishes policy, assigns responsibilities, and provides guidance and procedures for the SAPR Program. a. Service members and military dependents 18 years and older who have been sexually assaulted have two reporting options: Unrestricted or Restricted reporting. The Unrestricted reporting option triggers an investigation, command notification, and allows a person who has been sexually assaulted to access medical treatment and counseling. The Restricted reporting option does not trigger an investigation. The command is notified that “an alleged sexual assault” occurred, but is not given the victim’s name or other personally identifying information. b. In establishing the Restricted reporting option, it is recognized that a victim may tell someone (i.e. a roommate, friend, family member) that a sexual assault occurred before considering whether to file a Restricted or Unrestricted Report. If the person to whom the victim confided the information is in the victim’s officer or NCO chain of command or law enforcement, there can be no Restricted Report. c. Independent investigations are not initiated by the victim. If information about a sexual assault comes to a commander’s attention from a source other than a victim who has elected Restricted reporting or where no election has been made by the victim, that commander shall report the matter to an MCIO and an official (independent) investigation may be imitated based on that independently acquired information. d. Commander SAPR response procedures include the requirement that a unit commander who receives an Unrestricted Report of a sexual assault shall immediately refer the matter to the appropriate MCIO, to include any offense identified by UCMJ. A unit commander shall not conduct internal command directed investigations on sexual assault (i.e. no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013286 31 1