BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180010029 APPLICANT REQUESTS: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in – * item 28 (Narrative Reason for Separation) – "Sufficient Service for Retirement" * item 26 (Separation Code) – "RBD" * removal of the unjustified negative information from the Federal Bureau of Investigation National Crime Information Center Identification Division database APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Letter, Applicant, undated with 23 attachments – * Attachment 1 – Memorandum, U.S. Army Military District of Washington, dated 22 October 2015, subject – General Officer Memorandum of Reprimand (GOMOR) * Attachment 2 – Sworn Statement, dated 4 November 2014 * Attachment 3 – Sworn Statement, dated 21 November 2014 * Attachment 4 – Offense/Incident Report, Charles County Sheriff's Office, dated 2 February 2013 * Attachment 5 – Judiciary Case Search Results, filing dated 1 August 2013 * Attachment 6 – Final Protective Order, District Court * Attachment 7 – Show Cause Order, Circuit Court for dated 10 November 2015 * Attachment 8 – Notice of Chapter 7 Bankruptcy Case, dated 3 December 2015 * Attachment 9 – Excerpt, Army Regulation 608-99 (Family Support, Child Custody, and Paternity), dated 29 October 2003 * Attachment 10 – Consent Order, Circuit Court for Prince George's County Maryland, dated 30 May 2012 * Attachment 11 – Memorandum, U.S. Army Military District of Washington, dated 5 April 2016, subject: Legal Review, Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) Investigation, (Applicant) * Attachment 12 – Excerpt, Army Regulation 600-8-24 (Officer Transfers and Discharges), dated 13 September 2011 * Attachment 13 – Email, Applicant and Senior Attorney, dated 2 December 2014 through 3 December 2014, subject: Criminal Investigation Division Appointment * Attachment 14 – Email, Applicant and Captain C____, dated 15 July 2014 through 16 July 2014, subject: Contact Information * Attachment 15 – Email, Captain C____, dated 6 November 2014, subject: Contact Info * Attachment 16 – not in evidence * Attachment 17 – Letter, U.S. Army Criminal Investigation Command (USACIDC), Freedom of Information Act, undated * Attachment 18 – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Attachment 19 – Letter, USACIDC, Freedom of Information Act, dated 21 July 2011 * Attachment 20 – Memorandum, Andrew Rader U.S. Army Health Clinic, Fort Myer, dated 23 June 2014, subject: Response to Health Information Privacy Complaint Submitted on 14 April 2014 to Commander, Rader Health Clinic * Attachment 21 – Application for Statement of Charges, District Court dated 14 February 2011 * Attachment 22 – Memorandum for Army Grade Determination Board, President, Office of the Under Secretary of Defense, dated 9 February 2017, subject: Letter of Recommendation (Applicant) * Attachment 23 – Memorandum for Army Grade Determination Board, President, Headquarters 11th Wing, Joint Base Andrews, dated 17 January 2017, subject: Letter of Recommendation (Applicant) 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 Army Board for Correction of Military Records (ABCMR). 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. Paragraph 2-8 provides that the ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR. The application may be returned without action if the applicant has not exhausted all other administrative remedies. 2. Army Regulation 600-8-24 (Officer Transfer and Discharges), effective 12 May 2006 and in effect at the time, prescribed the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. a. Paragraph 4-2 (Reasons for Elimination) stated while not all inclusive, when one of the following or similar conditions exits, elimination action may be or will be initiated for: (1) substandard performance of duty; (2) misconduct, moral or professional dereliction, or in the interests of national security; and (3) derogatory information. b. Paragraph 6-17 (Voluntary Retirement in Lieu of Mandatory Retirement or in Conjunction with the Scheduled Release from Active Duty) stated an officer who receives a notification memorandum of impending elimination may request retirement in lieu of elimination if the officer has 19 years and 6 months or more active Federal service on the date of such application. If the officer elects to retire and the elimination action involved misconduct or moral or professional dereliction, the Commanding General, U.S. Army Human Resources Command, will forward the retirement application and memorandum of notification for elimination with all supporting documentation to the Army Grade Determination Review Board (AGDRB). Any comment or rebuttal by the officer and the officer's Official Military Personnel File will be included in the forwarding documentation. The AGDRB will make recommendation as to the highest grade that the officer has served on active duty satisfactorily. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), effective 10 January 2008 and in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. a. Paragraph 1-4 (Responsibilities) stated the commanders of personnel service battalions, personnel service divisions, or transition centers will ensure the appropriate separation authority, narrative reason for separation, and SPD code are entered on separating Soldier's DD Form 214. b. Table 2-2 (SPD Codes Applicable to Officer Personnel) shows: (1) SPD code "RNC" corresponds with narrative reason for separation "Unacceptable Conduct" and regulatory authority Army Regulation 600-8-24, paragraphs 6-17d and 4-2b; (2) SPD code "RBD" corresponds with narrative reason for separation "Sufficient Service for Retirement" and regulatory authority Army Regulation 600-8-24, paragraphs 6-14c(1) or (2) or paragraph 6-14d or e." (3) Both SPD codes identify retirement. 4. 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 USACIDC elements. Paragraph 4-4b (Amendment of CID Reports) provides that: a. Requests to amend or unfound offenses in CID Reports of Investigations will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. b. The burden of proof to substantiate the request rests with the individual. c. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. d. The decision to list a person's name in the title block of a CID Report of Investigation is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. e. The decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. f. Requests for access to, or amendment of, USACIDC investigative reports will be forwarded to the Director, U.S. Army Crime Records Center, Attention: CICR-FP, 27130 Telegraph Road, Quantico, VA 22134 5. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to the Department of Defense (DOD) and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigation's National Crime Information Center, the Department of Justice's Criminal Justice Information System, the National Law Enforcement Telecommunications System, and State criminal justice systems. a. Paragraph 3-6a states an amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. Requests to amend reports will be granted only if the individual submits new, relevant, and material facts that are determined to warrant their inclusion in or revision of the police report. The burden of proof is on the individual to substantiate the request. Requests to delete a person's name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, nonjudicial, or administrative action is taken against the individual. In compliance with DOD policy, an individual will still remain entered in the Defense Clearance Investigations Index (DCII) to track all reports of investigation. b. Paragraph 4-3a states an incident will not be reported as a founded offense unless adequately substantiated by police investigation. A person or entity will be reported as the subject of an offense on the Law Enforcement Report (LER) when credible information exists that the person or entity has committed a criminal offense. The decision to title a person is an operational, rather than a legal, determination. The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence; rather, it ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes. Judicial or adverse administrative actions will not be based solely on the listing of an individual or legal entity as a subject on the LER. c. Paragraph 4-3d states that when investigative activity identifies a subject, all facts of the case must be considered. When a person, corporation, or other legal entity is entered in the "subject" block of the LER, their identity is recorded in Department of the Army automated systems and the DCII. Once entered into the DCII, the record can only be removed in cases of mistaken identity or if an error was made in applying the credible information standard at the time of listing the entity as a subject of the report. It is emphasized that the credible information error must occur at the time of listing the entity as the subject of the LER rather than subsequent investigation determining that the LER is unfounded. This policy is consistent with DOD reporting requirements. The Director, U.S. Army Crime Records Center, enters individuals from the LER into the DCII. FACTS: 1. The applicant states his narrative reason for separation should be changed to "Sufficient Service for Retirement" with assignment of SPD code "RBD" for the following reasons: a. inconsistencies between the GOMOR and nephew's and his ex-wife's statements; b. items in the GOMOR referencing T____ where he was fully exonerated from any wrong doing; c. his obligations per Army Regulation 608-99 (Management of Personal Affairs) were not protected and honored by the Joint Base Myer-Henderson Hall chain of command; d. actions required per Army Regulation 600-8-24 were never addressed or fulfilled during the Army Regulation 15-6 investigation, which ultimately led to his involuntary separation; and e. his ex-wife's position as a union president was used to leverage her opportunities for continued false accusations, resulting in a biased outcome of his Army Regulation 15-6 investigation. 2. A review of his records indicates he has not submitted a request to the U.S. Army Crime Records Center for removal of the negative information from the Federal Bureau of Investigation National Crime Information Center Identification Division database. As a result, this portion of his request will not receive further consideration in this record of proceedings. 3. The applicant was serving in the rank/grade of lieutenant colonel (LTC)/O-5 at the time he received his notification of elimination. 4. He was reprimanded in writing on 22 October 2015 by the Commanding General, U.S. Army Military District of Washington, for physically assaulting his ex-wife. The Commanding General stated: a. A CID investigation revealed the applicant physically assaulted his ex-wife in 2010 by chasing her up a staircase and tackling her, pulling at her pants and screaming. He only stopped the assault upon realizing that his adopted son was watching. b. In 2009, the applicant assaulted his adopted son through forms of corporal punishment that exceeded reasonable parenting measures on repeated occasions. He spanked him with a belt on multiple instances and at least once, the spankings resulted in physical injuries. On a separate occasion, he got drunk and choked his adopted son. c. After divorcing and leaving his ex-wife and adopted son, the applicant cohabitated with Ms. T____. As with his ex-wife, he was verbally and physically abusive to Ms. ____. d. Civilian courts have forbidden the applicant from contacting his ex-wife and Ms. T____. In September 2015, he violated a court-order with respect to his ex- wife by surprising her at her residence. His conduct was unlawful, inexcusable, and wholly unbecoming an officer and a gentleman. e. As a commissioned officer, the applicant is charged with the responsibility of setting the example for others to emulate. Clearly, his actions fell far below the standard expected of any Soldier in the U.S. Army. He must always lead by example. There is no excuse for his irresponsible and inappropriate behavior. The Commanding General seriously questioned the applicant's judgment and potential for further military service. f. The reprimand was imposed as an administrative measure and not as punishment pursuant to the Uniform Code of Military Justice. The Commanding General was considering filing the reprimand in the applicant's Army Military Human Resource Record in accordance with Army Regulation 600-37, paragraph 3-6, but would make his final decision after consideration of any written matters the applicant submitted. 5. On 19 November 2015, he responded to the GOMOR, stating the allegations described in the GOMOR are not credible and were the direct result of a messy divorce between him and his ex-wife. He never abused and or assaulted his ex-wife or his son, nor did he violate a court order by surprising his ex-wife at her residence. Further, he never was verbally and or physically abusive toward Ms. T____. 6. A review of his Army Military Human Resources Record does not show a GOMOR or any derogatory documents. 7. U.S. Army Military District of Washington memorandum, dated 17 March 2016, notified the applicant of initiation of elimination based on the following reasons: a. In 2010, he physically assaulted his ex-wife, Ms. L____. He stopped the assault when he realized his son was watching. This constitutes misconduct, moral or professional dereliction under Army Regulation 600-8-24, paragraph 4-2b. b. On repeated occasions, he assaulted his adopted son and on at least one occasion caused physical injuries. This constitutes misconduct, moral or professional dereliction under Army Regulation 600-8-24, paragraph 4-2b. c. He assaulted Ms. T____. This constitutes misconduct, moral or professional dereliction under Army Regulation 600-8-24, paragraph 4-2b. d. He received a GOMOR, dated 22 October 2015, which was filed in his Army Military Human Resource Record. This constitutes derogatory information under Army Regulation 600-8-24, paragraph 4-2c. e. On or about 12 January 2016, he violated a lawfully issued military protective order, which was given to him by LTC K____ on or about 22 September 2015. This constitutes misconduct, moral or professional dereliction under Army Regulation 600-8-24, paragraph 4-2b. f. On or about 12 January 2016, he violated a lawfully issued consent order, which was given to him by Judge C____ on or about 30 May 2012. This constitutes misconduct, moral or professional dereliction under Army Regulation 600-8-24, paragraph 4-2b. g. Conduct unbecoming an officer as indicated by the above referenced items. 8. On an unspecified date, he requested retirement in lieu of elimination under the provisions of Army Regulation 600-8-24, paragraph 6-61d. He stated he had 20 or more years of active Federal service and understood the effective date would be not later than 60 days from the date of approved elected retirement in lieu of elimination. 9. U.S. Army Military District of Washington Memorandum, dated 10 November 2016, subject: Recommendation to Discontinue Officer Elimination Proceedings, (Applicant), states that after careful review of the applicant's request for voluntary retirement in lieu of elimination, the Commanding General, U.S. Army Military District of Washington, recommended approval of his request. 10. On 12 February 2017, he requested retirement at the rank/grade of LTC/O-5. He stated: a. The alleged misconduct that forms the basis for initiation of his elimination and GOMOR are wholly unsubstantiated and based on either unsubstantiated allegations made by his vindictive ex-wife or unsubstantiated claims by others. In all instances, the misconduct alleged against him has been investigated and deemed meritless, and for those allegations that were not investigated, they are based on clearly biased statements that barely pass as evidence. b. The allegations are not documented in any military records, family advocacy records, or medical files, nor were they presented during civil divorce proceedings. There wasn't and were there ever photographs or medical documents during the investigation to support any allegations in the GOMOR packet. He was never given nonjudicial punishment for the allegations. A final USACIDC Report of Investigation of these allegations was never presented. c. He has served honorably for 26 years and never has received a below "Center of Mass" evaluation or any negative counseling. In spite of the circumstances, he continued to have the support of his chain of command and has continued to receive greater levels of responsibility and officer evaluation reports recommending his promotion. 11. On 30 March 2017, the Deputy Assistant Secretary of the Army (DASA) (Review Boards), reviewed his request for retirement in lieu of elimination, based on both misconduct and moral or professional dereliction and derogatory information, and the request for a grade determination submitted by the U.S. Human Resources Command. The DASA (Review Boards) approved the applicant's retirement in lieu of elimination and directed his placement on the Retired List in his current rank/grade of LTC/O-5. The DASA (Review Boards) determined his service in the grade of LTC/O-5 was satisfactory. 12. Joint Base Myer-Henderson Hall Orders 144-0007, dated 24 May 2017, released him from active duty on 31 August 2017 and placed him on the Retired List effective 1 September 2017. The orders show his assigned SPD code as RNC (Unacceptable Conduct). 13. He retired on 31 August 2017. His DD Form 214 shows in: * item 23 (Type of Separation) – Retirement * item 24 (Character of Service) – Honorable * item 25 (Separation Authority) – Army Regulation 600-8-24, paragraph 6-17d and paragraph 4-2b * item 26 (Separation Code) – RNC * item 28 (Narrative Reason for Separation) – Unacceptable Conduct BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Evidence of record shows his DD Form 214 correctly reflects his retirement and the narrative code for separation. The applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change to his DD Form 214 for the period ending 31 August 2017. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010029 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1