ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20200009515 APPLICANT REQUESTS: a. correction of the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER), 23 October 2018, to read: "Nonjudicial disciplinary action, which does not constitute a criminal conviction"; removal of unnecessary information; and clearly indicate that nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), is not a criminal conviction and that criminal proceedings did not take place; and b. a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Tab 1 – * Brief in Support of Application for Disposition Amendment, undated * Department of Military Affairs, Boone National Guard Center, Orders 006-853, 6 January 2010 * Army National Guard Honorable Discharge Certificate, 24 February 2011 * Tab 2 – * Department of Defense Instruction (DODI) Number 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), 21 July 2014 * DODI Number 5505.11 (Fingerprint Reporting Requirements), 31 October 2019 * Tab 3 – Title 32, Code of Federal Regulations, Section 70.9 (Discharge Review Standards) (extract) * Tab 4 – * Army Regulation 195-2 (Criminal Investigation Activities), 9 June 2014 (extract) * Fort Bragg CID Office Memorandum (Referral of Adultery and Fraternization), 22 October 2018 * Law Enforcement Sensitive Case Activity Summary, 23 October 2018 * Tab 5 – * CID Letter, 26 April 2019 * Privacy Act Request to Change Record, 7 May 2020 * CID Letter, 28 May 2020 * Email Correspondence between Applicant and the CID, 29 May 2020 and 2 June 2020 * Tab 6 – Awards, Decorations, and Letters of Recommendation FACTS: 1. The applicant states the current disposition of the CID LER, 23 October 2018, does not conform with DOD policy contained in DODI 5505.11. This represents an error and an injustice. a. He enlisted in the Kentucky Army National Guard (KYARNG) in 2009. While serving in the KYARNG, he was selected above his peers to join the cadre of the Recruit Sustainment Program to help train and mentor Soldiers prior to them attending basic training. After serving 2 years, he was honorably discharged. After serving in the KYARNG, he enlisted in the Regular Army in 2015. Following basic training and advanced individual training, he reported to Fort Bragg, NC. For the duration of both his KYARNG and Regular Army career, he was an exemplary Soldier and received multiple certificates of achievement, several Army Achievement Medals, the Army Good Conduct Medal, and an outstanding performance review (see tab 6). His noncommissioned officer evaluation report described his performance as "phenomenal performance at all times" and that he also had "unlimited potential for promotion" (see tab 6). b. Statement of Facts: He was investigated by the CID based on an allegation of abusive sexual contact. The current disposition of the CID LER includes invasive language that is not consistent with DOD policy. Moreover, the current disposition is easily misinterpreted and stigmatizes him as someone who was found guilty of a criminal act or that a criminal proceeding took place. He requests amendment of the disposition to remove unnecessary language and the implication that a criminal act occurred or that there were criminal proceedings as a result of nonjudicial punishment. (1) The investigation ran from approximately July 2018 through January 2019. At the conclusion of the investigation, his chain of command recommended nonjudicial punishment, despite contrary evidence from the investigative organization who determined, in conjunction with his chain of command, that the situation in question was in fact consensual. (2) Per Army Regulation 195-2 (Criminal Investigation Activities) (see tab 4), the CID coordinated with his chain of command and generated an adult private consensual sexual misconduct memorandum (see tab 4). This memorandum and Army Regulation 195-2 clearly indicate the situation was consensual in nature. Maintaining his innocence, he accepted the nonjudicial punishment and submitted matters in his own defense. He was given nonjudicial punishment and the disposition was sent to the Criminal Justice Information Services. The current disposition includes language that does not conform to DOD policy that was in effect at the time the disposition was reported. Moreover, the current disposition does not indicate that nonjudicial punishment does not constitute a criminal conviction, nor does it indicate that criminal proceedings did not take place. c. Reporting of the disposition for the CID LER was improper and the current language is unjust. Per Army Regulation 15-185 (Army Board for Correction of Military Records), the Army Board for Correction of Military Records (ABCMR) can direct or recommend changes in military records to correct an error and injustice. Although the regulation for the ABCMR does not define "error" or "injustice," the regulations governing the Army Discharge Review Board provide that a discharge should be considered proper and without error unless, in the course of a discharge review, it is determined that: (1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made) (see Title 32, Code of Federal Regulations, section 70.9(b)(i)). (2) A discharge shall be considered just or equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the Discharge Review Board viewed in conjunction with the factors listed in this section and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance (see Title 32, Code of Federal Regulations, section 70.9(c)(3)). d. At the conclusion of the investigation, policy and guidance for reporting dispositions were found in DODI 5505.11. DODI 5505.11 establishes policy, assigns responsibilities, and prescribes procedures per part 20 of Title 28, Code of Federal Regulations, and section 534 of Title 28, U.S. Code, for Defense Criminal Investigative Organizations and other DOD law enforcement organizations to report offender criminal history data to Criminal Justice Information Services Division of the Federal Bureau of Investigation for inclusion in the National Criminal Information Center (NCIC) criminal history database. e. DODI 5505.11, in effect at the time the disposition was reported, provided clear and explicit guidance for the requirements for reporting the disposition to the NCIC and the language in which it must be reported. The current disposition of the CID LER does not conform to this policy. It represents an error and a failure to follow DOD policy. f. He understands that current policy requires dispositions to be reported to appropriate agencies and databases. It is his contention, however, that the current disposition does not conform to clearly established policy contained within DODI 5505.11. g. DOD policy clearly indicates an adverse finding or punishment pursuant to Article 15, UCMJ, does not constitute a criminal proceeding or conviction and must explicitly state that no criminal proceeding or conviction occurred. The current disposition lacks any language to indicate that nonjudicial punishment does not constitute a criminal conviction or criminal proceedings and is an error because it fails to mention that no criminal proceeding or conviction occurred. DOD policy contained within DODI 5505.11 clearly requires that dispositions be reported and recorded with specific, explicit language to indicate that nonjudicial punishment does not constitute a criminal conviction or that criminal proceedings took place. The current disposition represents an error because it is a clear error of law, procedure, and discretion and does not conform to authorized guidance that existed when the disposition was recorded based on the policy provided in DODI 5505.11. Additionally, the current disposition represents an injustice because it could easily be misunderstood and interpreted to mean that criminal proceedings took place or that a criminal conviction occurred. h. In conclusion, fingerprint background checks are performed by various industries, including the Federal Government, law enforcement, aviation, and healthcare industries. As a result, individuals with incorrect dispositions face serious possibilities of discrimination in employment opportunities. Additionally, individuals may be systematically denied employment due to the incorrect reporting of dispositions. Furthermore, even in the event that an individual is able to secure employment, this employment may have been delayed or obtained only after the individual was subjected to difficult and embarrassing administrative burdens requiring an explanation of this discrepancy. i. The current disposition is an error to follow established policy. Additionally, he was recommended for nonjudicial punishment despite contrary evidence from the investigative organization who determined, in conjunction with his chain of command, that the situation in question was in fact consensual. 2. He was awarded a certificate of achievement on 18 September 2009 for being on the Commandant's List for meeting or exceeding 95 percent of course standards. 3. He completed the Intelligence Analyst Course on 9 July 2015 with superior ratings in oral communication, leadership skills, and contribution to group work. 4. He was awarded: * two certificates of achievement on 14 June 2016 and 25 May 2017 * three Army Achievement Medals on 7 March 2017, 23 March 2017, and 16 May 2017 5. He completed the Basic Leader Course on 16 August 2017 with superior ratings in written and oral communication, leadership skills, and contribution to group work. 6. His DA Form 2166-9-2 (Noncommissioned Officer Evaluation Report (Sergeant)) covering the period 7 December 2017 through 28 June 2018 shows in: a. Part IVi (Rater Overall Performance), his rater commented: * flawlessly accomplished any and all tasks assigned; continuously demonstrated a high level of achieving top notch results * phenomenal performance at all times; a self-driven NCO constantly trying to pave the way for junior Troopers, peers and himself b. Part Va (Senior Rater Overall Potential), his senior rater marked "Highly Qualified"; and c. Part Vb (Senior Rater Overall Potential), his senior rater commented: "[Applicant] has unlimited potential for promotion. He has proven himself capable of performing duties above his paygrade. Send to first Advanced Leaders Course available and promote." 7. He provided two memorandums for record from his platoon leader and the brigade assistant S-2 intelligence officer attesting to his character. They stated that during the time they served with him, he consistently displayed character, creativity, teamwork, gratitude, and a determined sense of purpose. He was also honest, ethical, intelligent, and humble. Following the event, the applicant did not make excuses for his lapse of judgment. He is believed to be a high-quality, results-based leader. 8. The Fort Bragg CID Office memorandum (Referral of Adultery and Fraternization), 22 October 2018, states: a. During the conduct of the CID investigation, it was discovered that the applicant committed the offense of adultery and fraternization. b. Per the investigative guidelines in CID Regulation 195-1 (Army Criminal Investigation Program), the referenced adultery and fraternization was not within the CID investigative purview and was referred to the commander for disposition. Coordination with the company's trial counsel was recommended to ensure any action taken did not conflict with DOD guidance pertaining to the disposition of collateral misconduct in criminal investigations. 9. The Law Enforcement Sensitive Case Activity Summary, 23 October 2018, states Investigator coordinated with Lieutenant Colonel Captain Commander, Headquarters and Headquarters Company, 2nd Battalion, 82nd Aviation Regiment, 82nd Combat Aviation Brigade; and Captain to provide the adult private consensual sexual misconduct memorandum. It was determined that the applicant may have committed the offense of adultery and fraternization, which was not within the CID investigative purview. 10. The DA Form 2627 (Record of Proceedings under Article 15, UCMJ), 14 January 2019, shows: a. the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for: * engaging in sexual contact with (name masked) by touching, through the clothing, the genitals of (name masked) with his genitals, by causing bodily harm to her without consent and with an intent to arouse and gratify his own sexual desire on or about 30 July 2018 at or near Fort Bragg, NC * maltreat (name masked), a person subject to his orders, by making to her deliberate and repeated offensive comments of a sexual nature on or about 30 July 2018 at or near Fort Bragg, NC b. he did not demand trial by court-martial; c. he requested a closed hearing; a person to speak on his behalf; and indicated he would present in person matters in defense, mitigation, and/or extenuation; d. his punishment consisted of reduction in rank/grade to specialist/E-4, forfeiture of $1,298.00 pay per month for 2 months, and extra duty for 45 days; and e. he elected not to appeal. 11. The CID memorandum (LER – Final), 20 February 2019, lists the applicant's offenses as abusive sexual contact (adult) (Article 120, UCMJ) and housebreaking (Article 130, UCMJ). On 31 July 2018, a victim advocate reported that the applicant inappropriately touched (name masked) on 1 July 2018. (Name masked) reported to her chain of command that the applicant grabbed her by the waist and kissed her. The applicant was advised of his rights, which he invoked, and requested legal counsel. (Name masked), Trial Counsel, 82nd Combat Aviation Brigade, Fort Bragg, NC, opined probable cause existed to believe the applicant committed the listed offenses. No additional investigative efforts were required. There was sufficient evidence to provide to the command for consideration of action. 12. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 27 March 2019, states the applicant committed abusive sexual contact (adult) (Article 120, UCMJ) and housebreaking (Article 130, UCMJ) on 1 July 2018. 13. The applicant was awarded the Army Good Conduct Medal on 23 April 2019 for the period 13 October 2014 to 12 October 2017. 14. The CID letter to the applicant, 26 April 2019, responded to the applicant's 19 April 2019 request for release of information from CID files. CID supplied the applicant with a redacted copy of the LERs. a. In addition, the applicant was advised that DODI 5505.11 established policies and procedures for reporting criminal history data to the Federal Bureau of Investigation NCIC for all military service members and civilians investigated by DOD criminal investigative organizations for commission of certain offenses. Those subjects who have resultant judicial or nonjudicial military proceedings, or where a servicing staff judge advocate or legal advisor found probable cause existed to believe the subject committed the offense in which they were titled, will remain in the NCIC database. Reporting information to the NCIC depends on the offense committed. b. A check of the NCIC database reflected that the applicant was listed as the subject in LER, 23 October 2018, for abusive sexual contact (adult) and housebreaking. The disposition was updated to reflect "Received Non-Judicial Field Grade Article 15; Found Guilty of Abusive Sexual Contact (Adult), Forfeiture $1,298.00 for 2 months, extra duty for 45 days, reduced from E-5 to E-4 and No action taken for Housebreaking." Consistent with DODI 5505.11, retention of this criminal history data in the NCIC does conform to DOD policy. The applicant's name will remain in the NCIC database. 15. On 29 October 2019, the applicant's company commander recommended him for involuntary separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense with his service characterized as under other than honorable conditions. 16. He provided two character-reference statements, stating he was a remarkable Soldier. His work ethic, character, and skillset have been instrumental in the success of the company's daily operations and overall readiness. He continuously exceeds expectations for all tasks given to him. No matter what circumstances he was facing, he never broke his military bearing. He is one of the best Soldiers they have worked with. 17. On 7 February 2019, his immediate commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. a. The reason for the proposed action was committing sexual contact with his subordinate by touching her genitals with his genitals through the clothing, causing bodily harm to her, and for sending an inappropriate text message to his subordinate. b. The commander recommended characterization of his service as under other than honorable conditions. c. The commander advised him of his rights. 18. On 7 February 2019, he acknowledged receipt of the proposed action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. 19. On 10 February 2019, he consulted with legal counsel and indicated he understood he was entitled to an administrative separation board because he either had 6 or more years of Active and Reserve service at the time of notification of separation, or had been given notice he was being recommended for a separation under other than honorable conditions. He elected to: * request a personal appearance before an administrative separation board * request appointment of military counsel for representation * submit statements in his own behalf to the separation board * request copies of the documents that would be sent to the separation authority supporting the proposed separation 20. He provided a character-reference statement, stating that despite the difficult circumstances the applicant has encountered, he has always displayed a positive attitude and has continued to conduct himself as a noncommissioned officer, always striving to set a positive example for everyone in the organization. 21. On 19 February 2020, he submitted a rebuttal to his administrative separation, requesting retention on active duty for continued service or an honorable discharge. He stated that in all of his years of service he never had a misconduct incident. He took great pride in his military achievements and has always sought to train, lead and care for those within his scope of responsibility. He deeply regretted his actions and accepted responsibility for his mistake. 22. On 25 February 2020, his immediate commander recommended his separation prior to his expiration term of service under the provisions of Army Regulation 635-200, paragraph 14-12c. 23. On 27 February 2020, his battalion commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for a commission of a serious offense with issuance of a discharge under other than honorable conditions. 24. On 4 March 2020, his brigade commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for a commission of a serious offense with issuance of a discharge under other than honorable conditions. 25. On 22 April 2020, the separation board found the allegations that the applicant committed sexual contact upon a subordinate by touching her genitals with his genitals through the clothing, causing bodily harm, and sent an inappropriate text message to his subordinate were supported by a preponderance of evidence and warranted his separation. 26. On 7 May 2020, he requested amendment of the Military Police Report and the CID Report of Investigation. 27. On 19 May 2020, the separation authority directed his separation from the Army prior to his expiration term of service under the provisions of Army Regulation 635-200, paragraph 14-12c, and issuance of a general discharge under honorable conditions. 28. The CID letter, 28 May 2020, further responded to the applicant's 7 May 2020 request to correct information in the CID files and supplemented their initial response. The information he provided did not constitute new or relevant information needed to amend his report and the CID denied his request. 29. On 2 August 2020, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed 5 years, 5 months, and 1 day of net active service during this period. His service was characterized as general under honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the: * Army Achievement Medal (5th Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Driver and Mechanic Badge – Mechanic * Expert Marksmanship Qualification Badge with Carbine Bar * Driver and Mechanic Badge with Driver-Wheeled Vehicle Clasp 30. On 5 May 2021, the Army Review Boards Agency forwarded the CID report to the applicant for acknowledgement and/or response. 31. On 25 May 2021, he responded to the report. He provided no new statement or documents that were not already included in his initial application. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board carefully considered the applicant’s contentions, military record, and regulatory guidance. The Board considered the Law Enforcement Report and the Trial Counsel opine that there was probable cause to believe the applicant committed the offenses. Requests to amend reports are to be granted only when the individual submits new, relevant, and material facts that are determined to warrant inclusion in or revision of a police report. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records), effective 1 May 2006, prescribes policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 190-45 (Law Enforcement Reporting), effective 27 October 2016, prescribes policies, procedures, and responsibilities on the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents, listed in sections III and IV of appendix A, related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. 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 to track all reports of investigation. 3. Army Regulation 195-2 (Criminal Investigation Activities), effective 9 July 2014, prescribes policies and procedures pertaining to criminal investigation activities within the Department of the Army. It prescribes the authority for conducting criminal investigations, crime prevention surveys, protective service missions, force protection and antiterrorism efforts and the collection, retention, and dissemination of criminal information. It delineates responsibility and authority between installation law enforcement activities and the CID Command. a. Paragraph 4-2c(1) states the Commanding General, CID, will establish policies and procedures for the transmittal and maintenance of CID investigative records and reports; recommend to Department of the Army, Army Records Management and Declassification Agency standards for the retention of this material; direct the conduct of special studies and research utilizing data contained therein; and determines the release ability of information in these files. b. Paragraph 4-4b (Amendment of CID Reports) provides that: (1) Requests to amend or unfound offenses in CID report of investigations will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. (2) The burden of proof to substantiate the request rests with the individual. (3) The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 4. DODI 5505.11, change 2, enclosure 4 (Procedures), subparagraph 2e(2), effective 30 March 2017, states: "Adverse findings resulting from nonjudicial proceedings pursuant to Article 15, UCMJ, are recorded as 'nonjudicial disciplinary action.' An adverse finding or punishment pursuant to Article 15, UCMJ, is a disciplinary action, but does not constitute a criminal proceeding or conviction." 5. DODI 5505.11, section 3 (Procedures), paragraph 3.2d (Disposition), effective 31 October 2019, states adverse findings resulting from a summary court-martial, nonjudicial proceedings pursuant to Article 15 of the UCMJ, administrative action, or discharge do not constitute criminal proceedings. The disposition must be submitted to Criminal Justice Information Services using the following language for an Article 15 of the UCMJ: "Nonjudicial disciplinary action, which does not constitute a criminal conviction." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009515 1 1