BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20180002729 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20180002729 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of a general officer memorandum of reprimand (GOMOR), dated 5 January 2017, from his official military personnel file (OMPF). 2. The applicant states, in effect: a. The Department of the Army Suitability Evaluation Board (DASEB) reviewed and denied his request. The DASEB noted his evidence was not clear and convincing enough to warrant relief and the imposing authority was justified in the issuance of the GOMOR based on the evidence. b. In May 2017, his counsel obtained a letter from the applicant's accuser, which stated the applicant did not force her to have sex with him; they were in a sexually consensual relationship. c. The GOMOR stated that he forced her to have sex with him; therefore, it is an injustice because the accuser herself stated he did not force her to have sex with him in a notarized letter. The GOMOR is an injustice and inaccurate and also the dates do not match the dates contained in the Agent's Investigation Report. He further notes the first GOMOR was altered and he was not given an opportunity to rebut the second GOMOR before it was filed in his record. 3. The applicant provides: * a memorandum from Major General (MG) S.C., Commanding General, 84th Training Command, dated 22 February 2017 * a memorandum from Major General S.C., dated 18 May 2017 * DASEB Record of Proceedings, Docket Number AR20170007359, dated 19 October 2017 with denial memorandum * a letter from the accuser, Ms. S.D., dated 1 May 2017, with a notarized verification document CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the United States Marine Corps, the applicant enlisted in the United States Army Reserve (USAR) on 15 July 2006. He enlisted in the rank/grade of sergeant (SGT)/E-5 and soon entered active duty in the Active Guard/Reserve (AGR) Program. 2. The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 March 2006. 3. A redacted U.S. Army Criminal Investigation Command (CID) Form 94 (Agent's Investigation Report (AIR)), dated 1 August 2016, noted that CID was informed that Ms. S.D. reported she was sexually assaulted by the applicant. The report noted Ms. S.D. stated she and the accuser became a couple in March 2016 and the relationship did not become physical until the night of 28 or 29 July 2016 at the applicant's residence. Ms. S.D. stated she did not want to engage in sexual conduct due to her having a medical condition; however, she eventually consented. Moments later, she repeatedly told the applicant to stop but he did not until she pushed him off of her. 4. A final CID law enforcement report, dated 30 August 2016, noted that the Chief of Military Justice, 84th Training Command, had opined that probable cause existed to believe the applicant committed the offense of sexual assault in violation of the Uniform Code of Military Justice (UCMJ). It further noted it was up to the command to consider any action. 5. A final supplemental CID law enforcement report, dated 19 October 2016, noted that they were informed on 17 October 2016 that they had received a Military Protection Order, dated 3 August 2016, between the applicant and Ms. S.D., which did not alter the investigative findings. 6. As a result, MG S.C., the Commanding General, 84th Training Command, Fort Knox, Kentucky, issued the applicant a GOMOR on 5 January 2017. a. The GOMOR stated: You are hereby reprimanded for sexually assaulting your girlfriend on two separate occasions, in violation of Article 120, UCMJ. On or about 28 June 2016, you physically forced your girlfriend to engage in sexual intercourse despite her repeatedly saying "no", that she was having severe vaginal pain and did not want to continue. Between on or about 13 July and on or about 25 July 2016, you again physically forced your girlfriend to engage in sexual intercourse despite her repeated objections due to severe vaginal pain. You forced her onto the bed, forcefully spread her legs apart and inserted your penis into her vagina against her will. b. The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the UCMJ. c. The applicant acknowledged that he read and understood the unfavorable information against him and elected to submit a statement to the imposing authority on 12 January 2017. d. The applicant submitted a rebuttal statement to the imposing authority on 14 January 2017. In effect, he stated he never had any nonconsensual sexual intercourse with his girlfriend. There is no evidence of any nonconsensual sexual intercourse and the AIR is inconsistent, incorrect, false, and contains many contradictions and errors. The appellant continued to explain the incidents and circumstances that led to him receiving the GOMOR. e. The imposing authority reviewed the GOMOR, the appellant’s rebuttal submission and the facts and circumstances surrounding the issuance of the reprimand and directed that the GOMOR be filed in his OMPF. His filing determination memorandum also contained a statement that revised the date of the first incident in the GOMOR from 28 July 2016 to 28 June 2016 due to typographical errors in the CID report. The applicant acknowledge receipt of the memorandum on 28 February 2017. f. Although not available for review, the applicant submitted a request for removal of the GOMOR to the imposing authority, as evidenced by a 18 May 2017 memorandum that shows his request was denied. 7. The applicant is currently serving in an AGR status with the U.S. Army Noncommissioned Officer Academy, Joint Base McGuire-Dix-Lakehurst, New Jersey. 8. In addition to the evidence addressed above, the applicant provides a notarized letter from Ms. S.D., dated 1 May 2017. Ms. S.D. states, in effect, that the letter was not a recant letter but a letter of pardon. She was informed that the appellant received a GOMOR for sexual assault. Based on the report, she believes things were taken out of context. She does not believe the appellant should be reprimanded or separated from the Army for "sexual assault," Although the appellant was aggressive, he did not force her to have sex with him; they were in a sexually consensual relationship. He has continued to work on his relationships and being separated from the Army would greatly affect and hurt his family, which she does not want to happen. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Soldiers in individual OMPF's. a. Paragraph 1-1 states, in relevant part, that the intent of the regulation is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Paragraph 1-4 stipulates that the objectives of the regulation are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility. c. Paragraph 3-2c states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. d. Paragraph 7-2a states that once an official document is properly filed in the AMHRR, it is presumed to be administratively correct and filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. The OMPF is an administrative record as well as the official permanent record of military service belonging to a Soldier. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by the DASEB. DISCUSSION: 1. The applicant requests the removal of a GOMOR, dated 5 January 2017, from his OMPF. 2. The evidence of record shows that Ms. S.D. (the accuser) reported she was sexually assaulted by the applicant. After a CID investigation, it was determined by the Chief of Military Justice that probable cause existed to believe the applicant committed the offense of sexual assault, a violation of the UCMJ. As a result, the imposing authority (MG S.C.) issued an administrative reprimand (GOMOR) to the applicant as an administrative management tool at his discretion instead of a more severe punishment allowed under the UCMJ. 3. The applicant was afforded the opportunity to submit evidence in a rebuttal, before the imposing authority determined final disposition of the GOMOR in his OMPF. Based on a review of the facts and circumstances surrounding the issuance of the reprimand, the imposing authority directed the GOMOR to be permanently filed in his OMPF. 4. The applicant contends the GOMOR is untrue and unjust based on the accuser's letter, dated 1 May 2017. However, she states the letter was written not as a recant letter but a letter of pardon (or interpreted as clemency). This letter was written approximately three months after the filing of the GOMOR. The letter did not explain her previous allegations and reporting to CID as being untrue; therefore, it could be considered as retrospective thinking. 5. The applicant appealed the filing decision and requested removal of the GOMOR. It could be assumed that the imposing authority reviewed Ms. S.D.'s letter as part of the request. The imposing authority, after reviewing all matters in support, denied the applicant's request on 18 May 2017. 6. The governing regulation provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20180002729 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002729 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180002729 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2