IN THE CASE OF: BOARD DATE: 3 February 2022 DOCKET NUMBER: AR20210007474 APPLICANT REQUESTS: * an upgrade of his discharge from other than honorable conditions to honorable * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the narrative reason for discharge as Secretarial Authority * removal of the general officer memorandum of reprimand (GOMOR) from his Army Military Human Resource Record (AMHRR) * removal of his name from the title block of the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER) 2017 * reimbursement of all back pay and erroneous payments he has made * a personal appearance hearing before the Board via video/telephone 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) * Counsel's Memorandum in Support of Application for Correction of Records with 14 exhibits – * Exhibit 1 – DD Form 214 * Exhibit 2 – Applicant's Affidavit, digitally signed * Exhibit 3 – Applicant's Awards * Exhibit 4 – three DA Forms 2166-9-1 (Noncommissioned Officer Evaluation Report (NCOER)) covering the periods 1 September 2015 through 22 December 2017 * Exhibit 5 – DA Form 2823 (Sworn Statement), 20 November 2017, Former Spouse * Exhibit 6 – Headquarters, National Training Center and Fort Irwin, Inspector General Office Letter, 26 February 2018 * Exhibit 7 – CID LERs, 12 April 2017 and 15 August 2017, with DA Forms 4833 (Commander's Report of Disciplinary or Administrative Action), 19 June 2017 and 10 May 2018 * Exhibit 8 – Headquarters, National Training Center and Fort Irwin, Memorandum (GOMOR), 3 November 2017 * Exhibit 9 – Case Files for Approved Separation * Exhibit 10 – Civilian Letter of Recommendation and Performance Evaluations * Exhibit 11 – Civilian Education Diplomas, Associate of Science, 17 May 2019 and Bachelor of Science, 17 August 2020 * Exhibit 12 – Defense Finance and Accounting Service (DFAS) Form 705 (Certificate for Income Tax Adjustment), 2020, and DFAS Letter, 27 January 2020 * Exhibit 13 – U.S. Army Trial Defense Service Letter, 4 April 2018 * Exhibit 14 – CID Letter, 25 June 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel. 3. Counsel states: a. The applicant is the victim of an overzealous command and the CID that took advantage of his ex-wife due to her ignorance of the military and her intent to seek therapy to help her with her own issues. Instead of allowing her to receive the counseling she needed in order to learn coping techniques for issues she was struggling with from her past and learn to better communicate with her husband, she was erroneously referred to CID. b. The applicant's ex-wife stated she was only made aware of her right to special victim's counsel after she started talking with the CID. She refused to cooperate with the CID after she understood their intent was to pursue an investigation into her husband for sexual assault. She then made it clear that every sexual encounter between her and her husband was consensual. The CID and the applicant's command ignored this and continued to pursue an investigation into the applicant for sexual assault. c. The applicant was advised by his counsel to accept an administrative discharge because of the pro-prosecution reputation of and so he could pursue the job offers he had received, ensuring stability for himself and his family, and so he could get on with his life and future. He was advised to fight the discharge under other than honorable conditions after the fact because of the common knowledge that was a pro-prosecution command. d. Counsel describes the applicant's military career, his marriage, the struggles his wife experienced as a military spouse, and his wife's depression issues. e. The CID, the applicant's wife's victim's advocate, and the applicant's command failed his wife in her quest for therapeutic help. When she sought help for her issues, many of which predated her relationship with the applicant, she was incorrectly referred to the post victim's advocate by her therapist who then convinced her to open an unrestricted sexual assault report against the applicant without explaining the difference between an unrestricted and restricted report. Her victim's advocate made it seem like this was something she had to do and made it seem as if she had to speak to the CID. The victim's advocate was later removed from her position after the applicant and his wife complained about her conduct. f. The investigation caused further hardship on the applicant's wife as she was pregnant with their first child. The applicant was prevented from communicating with her during her pregnancy, increasing the stress on both of them and creating a divide in their relationship that eventually resulted in their divorce. g. Counsel describes the applicant's separation process, the advice he received from his counsel at the time, his life after he was separated from the military, his successful civilian employment with exceptional performance, and his success in earning his associate's and bachelor's degrees. h. The CID agents investigating the applicant erroneously stated he was a suspect in an Article 120b (Rape and Sexual Assault of a Child) infraction. Article 120b concerns the rape and sexual assault of a child. Here there was no mention of any children. Counsel assumes arguendo that because the offense indicated was sexual assault, the CID was referencing Article 120(b) (Sexual Assault), not Article 120b. i. The applicant was unfairly and unjustly accused of sexual assault and erroneously separated from the military. As a result of the allegations perpetuated by the CID special agent, he was separated with a discharge under other than honorable conditions, despite a lack of charges, conviction, or even credible information to support opening a case. He was required to pay back a reenlistment bonus, including money that he had already paid taxes on, and he will suffer hardship maintaining his civilian job without the ability to renew his security clearance. All of this was because his wife's mental health issues were improperly used by the CID special agent without credible information after she was erroneously referred to the CID instead of to the counseling she sought. j. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(3), states any Soldier convicted of a sexually violent offense at a court-martial but whose sentence did not include a punitive discharge, will be processed for separation, and explicitly discusses separation for a sexual assault, but discusses it in the terms of conviction. In the applicant's case, there was not enough evidence to support an allegation that he committed sexual assault on his wife. To arbitrarily punish a service member through the issuance of a GOMOR and a discharge under other than honorable conditions without credible evidence is an abuse of the military justice system. k. The CID special agent erroneously relied on hearsay to pursue an investigation against the applicant. The CID special agent erroneously relied on distorted hearsay that it created out of the manipulations of his wife's statements to create allegations they could use to pursue an investigation. The CID special agent and the applicant's chain of command relied on the CID special agent's manipulation of her statements to determine that the applicant sexually assaulted his wife. Equity demands that the CID special agent's erroneous reinterpretation of her statement and unjust consequences resulting therefrom be remedied. 4. In the applicant's affidavit, he states: a. His military experience, his relationship with his wife, her experience of seeking help through a therapist, and her referral to the post victim's advocate. The post victim's advocate convinced her to open an Unrestricted Report for sexual assault against him without explaining the difference between Unrestricted and Restricted Reporting or what the outcome would be or that she had the right to an attorney. She later ended up filing a complaint and the post victim's advocate was removed from her position due to the outcome of the investigation. b. The applicant describes his involvement in the investigation, the no contact with his wife, the advice of his attorney, and his employment opportunities after his discharge. Since his discharge, he and his ex-wife have begun living together, along with their son. 5. Combat Aviation Brigade, 1st Infantry Division Order 238-01, 26 August 2015, promoted the applicant to the rank/grade of sergeant/E-5 effective 1 September 2015. 6. The State Marriage License, 6 September 2016, shows the applicant's marriage to on 2 7. The CID Form 94 (Agent's Investigation Report), 24 April 2017, shows Special Agent reported he issued and explained a DD Form 2701 (Initial Information for Victims and Witnesses of Crime) to the applicant's wife on 5 April 2017. He explained the special victim's counsel's role to her, who she accepted, and agreed to provide a statement at that time without the special victim's counsel's presence. Special Agent interviewed her and she stated she was sexually assaulted on four occasions by the applicant and detailed each occurrence. a. On 18 April 2017, Special Agent coordinated with Captain (CPT) Special Victim's Counsel, who stated he was now representing CPT made clear some of his concerns regarding the investigation and stated would not be cooperating any further with the investigation. He further stated, "The only reason my client even approached Family Advocacy Program (FAP) in the first place was to obtain family counseling services to improve communication between her and her husband in order to improve their marriage…My client believes her situation with her husband is a communication problem brought on in large part due to abuse in a prior relationship, which she sought to address through marital counseling. She does not believe this is a sexual assault problem in the same way that FAP or the government may perceive it. She does not want the investigation to continue, nor does she want her husband punished or prosecuted." 8. There is no DD Form 2910 (Victim Reporting Preference Statement) available for Board review to determine whether the applicant's spouse made an Unrestricted or Restricted Report. Of note, the DD Form 2910 clearly states a Restricted Report may be changed to an Unrestricted Report; however, it doesn't state whether an Unrestricted Report can be changed to a Restricted Report. 9. The CID memorandum (LER – 1st Corrected Final – 2017), 15 August 2017, shows the applicant as the named subject of the LER for the offense of sexual assault, Uniform Code of Military Justice (UCMJ), Article 120 (Rape and Sexual Assault Generally) and Article 120b (Rape and Sexual Assault of a Child). The report shows: a. The CID special agent was notified by the Fort Irwin Police Department that reported she was sexually assaulted by the applicant. She stated he forced her to have sex with him on several occasions during her marriage after she had told him she did not want to. b. The applicant waived his rights and admitted to an incident in January 2017, where he completed a sexual act on in order to try to get her "In the mood." He further stated he then had consensual sex with her. He recalled after getting out of the shower that he saw her mascara was running, so he knew she had cried while they had sex. c. declined to further participate with this investigation. On 18 April 2017, the special victim's counsel related that she did not wish to participate further with this investigation. On 7 June 2017, she completed a Victim's Declination to Participate in a Criminal Investigation form. d. On 19 July 2017, Trial Counsel, Office of the Staff Judge Advocate, Fort Irwin, opined probable cause existed to believe the applicant committed the offense of sexual assault and no further investigative activity was required. 10. There is no evidence of charges preferred against the applicant or of court-martial proceedings. 11. On 3 November 2017, the Commanding General, Headquarters, National Training Center and Fort Irwin, reprimanded the applicant in writing for sexually assaulting his wife based on the evidence obtained in a CID investigation. The commanding general stated: a. On more than on occasion between August 2016 and March 2017, the applicant sexually assaulted his wife against her will. In each instance his wife told him to stop and he ignored her pleas and proceeded to sexually assault her until she either felt pain or was brought to tears. On one occasion, she sought medical attention as a result of the assault. b. This administrative reprimand was imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under the UCMJ. Due to the fact that the applicant committed a sex-related offense, it is required by Army Directive 2014-29 to file this reprimand in the applicant's AMHRR. 12. The 2916th Support Aviation Battalion, 916th Support Brigade, memorandum (Separation under Army Regulation 635-200, Chapter (should read paragraph) 14-12c, Commission of a Serious Offense (Applicant)), 8 November 2017, notified the applicant that his battalion commander was initiating action to separate him for the commission of a serious Offense. The specific reason for the proposed action was that the applicant sexually assaulted his wife by engaging in sexual intercourse without her consent on one or more occasions between on or about 1 August 2016 and on or about 30 March 2017. 13. The applicant's memorandum (Request for Conditional Waiver – Separation under Army Regulation 635-200, Chapter (should read paragraph) 14-12c, Commission of a Serious Offense, (Applicant)), 8 November 2017, states he has been advised by his consulting counsel of the basis of the contemplated action to separate him for the commission of a serious offense and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. a. He voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or description of separation no less favorable than "honorable." Statements in his own behalf were submitted. b. He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He understood that if the separation authority refused to accept this conditional waiver of a hearing before an administrative separation board, his case will be referred to an administrative separation board. He requested a personal appearance before an administrative separation board and representation by military and/or civilian counsel. c. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were is issued to him. He further understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 14. His wife's DA Form 2823 (Sworn Statement), 20 November 2017, states: a. At no point before making her statement to Special Agent or the initial contact with the CID special agent was she aware of her right to a special victim's counselor. b. She and the applicant had consensual sex. The statement she made previously and what Special Agent stated were not accurate. She described in greater detail the occurrences mentioned in her previous statement. c. She believes the information stated to the CID special agent was misinterpreted, and she believes the issue with her husband is miscommunication between the two of them. At the time the statement was made with the CID special agent, she was unprepared and it was unexpected, as she wasn't informed of the entire Unrestricted Report filing process. 15. The applicant's memorandum (GOMOR Rebuttal and Matters Associated with Chapter Separation Packet), 21 November 2017, states he has been wrongfully accused, not only of sexually assaulting his wife, but of raping her. These allegations are based on the CID investigation and the interpretation of his wife's statement to the CID special agent. a. In the spring of 2017, his wife went to seek marital counseling at the Family Advocacy Office. Instead of providing marital counseling, the family advocate told her that she had been sexually assaulted by him. This ended up with his wife being taken to the victim's advocate and then to the CID Office. At the CID Office, she was pressured into talking about their marital issues and their communication issues related to sex. She was never told she could have a special victim's counselor. After the CID completed their interview, they informed her that she was eligible for a special victim's counselor. b. Once she met with a special victim's counselor, she was able to calmly talk through the situation and learn what her rights were. She was able to fully explain what she was trying to say to the CID special agent. Her special victim's counselor advised her of her rights and together they tried to explain the situation and her desires to the CID special agent; however, the CID special agent would not listen. c. He was issued a military protective order which prohibited him from all communication with his wife for 5 months. d. They filed three complaints with the Inspector General's Office; these investigations were founded, open, and under way. The complaints consisted of: the victim's advocate never informing her of her right to a special victim's counselor and never informing her of her right to a Restricted Report; the CID failing to inform her that she did not have to make a statement to them and that she had a right to a special victim's counselor; and that the Family Advocate Program broke the rules of confidentially and disclosed her personal and medical information without her permission. e. The Army does not have the evidence to prosecute him for sexual assault at a court-martial. The standard of proof required for a GOMOR or administrative separation is low. Low enough that they feel they can bulldoze what they see as an uncooperative "victim" and him into the ground and force them out of the Army. These actions do not match the Army Values of Duty, Honor, Personal Courage, and Integrity. 16. On 24 January 2018, the Commanding General, Headquarters, National Training Center and Fort Irwin, having carefully considered the GOMOR, the circumstances of the misconduct, and all matters submitted by the applicant, along with the recommendations of subordinate commanders, directed placing the GOMOR permanently in the applicant's AMHRR. 17. The Headquarters, National Training Center and Fort Irwin, memorandum (Administrative Separation Board – (Applicant)), 24 January 2018, appointed an Administrative Separation Board to make a recommendation as to whether the applicant should be separated from the U.S. Army prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense and, if so, to recommend the appropriate characterization of his service/discharge. 18. The Headquarters, National Training Center and Fort Irwin, Office of the Inspector General letter, 26 February 2018, responded to the applicant's spouse's allegation that failed to provide her with a copy of the DD Form 2701 (Initial Information for Victims and Witnesses of Crime). The command inspector general stated they referred the allegation to the command of investigation. After receiving the resulting command product, they reviewed the document and determined the command appropriately addressed the allegation. As a result, they closed the matter as an assistance case. This Inspector General Office would take no further action pertaining to the allegations. 19. The DD Form 2701 (Initial Information for Victims and Witnesses of Crime) is not in evidence for review. 20. The Administrative Separation Board's determination is not in evidence for review. 21. On 7 March 2018, the Commanding General, Headquarters, National Training Center and Fort Irwin, having carefully reviewed the separation packet for the applicant and consideration of all matters, directed the applicant be separated from the Army prior to the expiration of current term of service. He directed that the applicant's service be characterized as under other than honorable conditions and that he be reduced to the lowest enlisted grade. 22. The U.S. Army Human Resources Command email (Documented Sex-Related Offense – (Applicant)), 22 March 2018, requested documentation of the applicant's records with the assignment consideration code of "L3" – Documented Sex-Related Offense. 23. The applicant was discharged from the U.S. Army on 28 March 2018. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate or Rank) – Private * item 4b (Pay Grade) – E-1 * item 12c (Net Active Service This Period) – 6 years, 5 months, and 11 days * item 12i (Effective Date of Pay Grade) – 7 March 2018 * item 18 (Remarks) – Continuous Honorable Active Service – 18 October 2011 through 6 March 2018 * item 24 (Character of Service)- Under Other Than Honorable Conditions * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 14-12c * item 28 (Narrative Reason for Separation) – Misconduct (Serious Offense) 24. The applicant's military awards and noncommissioned officer evaluation reports attest to his dedicated and honorable military service. His associate's and bachelor's degrees, civilian awards, civilian letter of recommendation, and performance evaluations attest to his continued performance and professionalism after his discharge from the Army. 25. The U.S. Army Trial Defense Service letter from the applicant's counsel, 4 April 2018, states: a. He is writing this memorandum to assist the applicant. During the applicant's service in the Army, he has never been charged with a crime, nor has he ever been convicted of any crime. b. The applicant was detained and questioned by the CID special agent following an allegation of assault made by his then-wife. His wife later recanted this allegation and provided a statement to the CID Office that indicated she had not been assaulted by him. Unfortunately, he was titled by the CID as a suspect in a criminal investigation prior to the recantation by his wife. c. This is not a conviction, nor is it even proof that he was charged with any criminal offense. It is crucial to understand that he was never charged with any criminal offense and was not convicted of any criminal offense. 26. The CID letter, 23 July 2018, is not in evidence for review. 27. The DFAS Certificate for Income Tax Adjustment, 2020, and the DFAS letter, 27 January 2020, show the applicant's debt has been paid in full with no outstanding balance due. His debt was due to recoupment of the unearned portion of his reenlistment bonus. 28. The CID's letter, 23 June 2020, is not in evidence for review. 29. The CID letter, 25 June 2020, further responded to the applicant's request to correct information from the files of the CID and supplemented their response of 23 June 2020. The CID states that as they stated in their previous response dated 23 July 2018, the applicant has exhausted his remedies to correct information in his CID record through their agency. To appeal this amendment denial, he may write to the Army Review Boards Agency. 30. On 7 October 2021, the Army Review Boards Agency Case Management Division provided the applicant and his counsel a copy of the reports from the CID to allow the applicant the opportunity to submit comments. 31. On 5 November 2021, counsel's letter (Response to Use of the Department of the Army Report) responded to the reports from the CID, stating: a. He requests that the Board reject the report created by the CID special agent, and in support of this response, find in favor of the attached affidavit signed by the applicant's ex-wife. b. The charges laid out in the report are defective and at least one is completely incorrect. The report indicated a charge of Article 120b under the UCMJ, which is for the rape and sexual assault of a child. There were no children involved or even mentioned in the investigation. Instead, it was triggered after a conversation the applicant's ex-wife, not current girlfriend, had when she sought therapy for her own mental health. She was referred to the post victim's advocate instead of being provided the therapeutic help she sought. She mistakenly put her trust in the victim's advocate who convinced her to open an Unrestricted Report for sexual assault without explaining the difference between restricted and Unrestricted or the consequences of doing so. The victim's advocate was later removed from her position. c. The investigation into the applicant had no merit as there was no credible information to support any allegations against him of sexual assault. His ex-wife's statements with the CID were taken out of context and distorted. When understood her discussion with the CID special agent was distorted, she refused to cooperate any further and made clear that she did not want to move forward with charges or for her husband to be punished in any way. This willful misinterpretation led to an unfounded investigation and the destruction of an honorable and dedicated career in the military. When she realized the implications of speaking with the CID special agent, she clarified that every circumstance of intimacy between her and the applicant was consensual in nature. Since consent is the cornerstone of determining whether there was rape or sexual assault, where there is consent, neither of those crimes can be found. The consensual intimate relationship existing between the applicant and his wife in their married life eradicates the CID special agent's unfounded allegations. d. As further evidence supporting that had not actually made allegations against the applicant, she was not given information regarding her right to a special victim's counselor until after she made statements to the CID. As a spouse unsure of where to turn to deal with her depression and the communication problems with her spouse, the CID special agent should have sent her to the Military and Family Life Counseling Office on post instead of overzealously opening a case without an allegation. e. As a result of these allegations, the applicant was discharged from the Army under other than honorable conditions; was required to pay back a reenlistment bonus, including money that he had already paid taxes on; the creation of a division between he and his wife that resulted in divorce, and will suffer hardship maintaining civilian employment without the ability to renew his security clearance. He needs a Secret security clearance for his civilian position to continue to rebuild his life. All the hardship exists because his wife's mental health issue was improperly used by the CID special agent without credible information. f. Therefore, the report should be rejected in its entirety. 32. The affidavit from the applicant's ex-wife attached to the counsel's letter (Response to the Use of the Department of the Army Report) states: a. She is writing this affidavit to document that there was consent in every instance of touching between her and the applicant. b. At the time prior to and during the investigation of her husband, she had sought help for her own mental health. Instead of providing her that help, she was erroneously referred to the post victim's advocate. She was having personal issues from her past and was manipulated into reporting a sexual assault against her husband. c. Once she realized what was going on, she stopped cooperating with the investigating officers. She did not want to pursue charges against her husband because every instance of sexual contact between them was consensual. She was taken advantage of by her husband, she was taken advantage of by an overzealous victim's advocate, who was removed from her position due to failing to tell her of her right to an attorney prior to speaking with the CID special agent. d. She reiterates that every instance of contact between her and her husband was consensual. The investigation created a wedge between them that resulted in divorce, but after time and space, they realized they still cared for one another. The have been dating for 1 year and have a child together, with a second child on the way. She would not be in a relationship with him now if he had sexually assaulted her. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found relief is warranted. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board found counsel's arguments compelling when considered against the evidence in this case. The Board further found the applicant's statement and the statements made by his spouse during and after the investigation show the pursuit of the investigation was overzealous and possibly should have ended when the applicant's spouse refused to participate further. The Board found the resulting GOMOR and discharge for commission of a serious offense were not supported by the evidence. Based on a preponderance of evidence, the Board determined the applicant's record should be corrected by: * upgrading his character of service to honorable * changing the reason for discharge to Secretarial authority * removing the GOMOR from his AMHRR * removing his name from the CID LER in question * cancelling recoupment of his reenlistment bonus and returning to him any monies that were recouped 3. The Board noted that the applicant's reduction to pay grade E-1 was due to his original character of service. Changing the character of service will entail restoration of his rank/grade to sergeant/E-5. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * reissuing his DD Form 214 to show the following – * item 4a – SGT * item 4b – E05 * item 12i – 2015 09 01 * item 18 – omit the entry for continuous honorable active service * item 24 – honorable * item 25 – AR 635-200, chapter 5 * item 26 – KFF * item 27 – 1 * item 28 – Secretarial authority * removing the GOMOR from his AMHRR * removing his name from the CID LER in question * showing recoupment of his reenlistment bonus was cancelled and returning to him any monies that were recouped 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 Board considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The Board 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. 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. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). c. Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the AMHRR, 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 AMHRR. Soldiers must have received at least on evaluation (other than academic) since imposition. d. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 19 December 2016, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. An honorable discharge may be furnished when disqualifying entries in the Soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. b. Paragraph 3-7b (General Discharge) stated 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. c. Paragraph 3-7c (Under Other Than Honorable Conditions Discharge) stated a discharge under other than honorable conditions, is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. d. Paragraph 14-12c (Commission of a Serious Offense) stated Soldiers are subject to actions for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts- Martial. All Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provision of chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) or section II (Conviction by Civil Court) of this chapter will be processed for separation under a. (Minor Disciplinary Infractions), b. (A Pattern of Misconduct), or c. (Commission of a Serious Offense), as applicable. Any Soldier convicted of a sexual violent offense at a court-martial, but whose sentence did not include a punitive discharge will be processed for separation. 6. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. a. Paragraph 3-6a (Amendment of Records) 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. Requests to delete a person's name from the title block will be granted only if it is determined that there is no probable cause to believe 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 subsequent judicial, nonjudicial, or administrative action is taken against the individual. b. Paragraph 4-7 (DA Form 4833) states this from is used with the LER to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 7. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies for criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. Paragraph 4-4b (Amendment of CID Reports) provides that: a. Requests to amend or unfound offenses in CID reports of investigation 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, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 8. Department of Defense (DOD) Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by the DOD. a. DOD Components authorized to conduct criminal investigations will title and index subjects of criminal investigations as soon as the investigation determines there is credible information that the subject committed a criminal offense. Titling and indexing are administrative procedures and will not imply any degree of guilt or innocence. Once the subject of a criminal investigation is indexed in the Defense Central Index of Investigations (DCII), the information will remain in the DCII, even if the subject is found not guilty of the offense under investigation, unless there is mistaken identity or it is later determined no credible information existed at the time of titling and indexing. b. If a subject's information requires expungement from or correction in the DCII, DOD Components will remove the information as soon as possible. Judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. c. A subject is titled in a criminal investigative report to ensure accuracy and efficiency of the report. A subject's information is indexed in the DCII to ensure this information is retrievable for law enforcement or security purposes in the future. A subject who believes they were incorrectly indexed may appeal to the DOD Component head to obtain a review of the decision. DOD Components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible. 9. DOD Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), 21 July 2014, establishes policy, assigns responsibilities, and prescribes procedures for defense criminal investigative organizations and other DOD law enforcement organizations to report offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation for inclusion in the National Crime Information Center criminal history database. It is DOD policy that the defense criminal investigative organizations and other DOD law enforcement organizations submit the offender criminal history data for all members of the military service investigated for offenses, to include Article 120 (Rape and Sexual Assault), to the Criminal Justice Information Services Division of the Federal Bureau of Investigation, as prescribed in this instruction and based on a probable cause standard determined in conjunction with the servicing staff judge advocate or other legal advisor. 10. Secretary of the Army memorandum, dated 9 December 2014, subject: Army Directive 2014-29 (Inclusion and Command Review of Information on Sex-Related Offenses in the AMHRR), established new policy to ensure accountability for sex- related offenses. Sex-related offenses include violation of Article 120 of the UCMJ. Commanders will ensure that a Soldier's permanent record in the AMHRR is annotated for Soldiers who receive a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. For the purposes of this directive, "punitive administrative action" means any adverse administrative action initiated as a result of sex-related offenses and includes, but is not limited to, memoranda of reprimand, admonishment, or censure from all levels of command. This requirement applies to Soldiers in all components, regardless of grade. Commanders do not have the option to designate that these documents be filed locally or in the restricted folder of the AMHRR. Documents will be filed in the performance-disciplinary folder in the interactive Personnel Electronic Records Management System. The Commander, U.S. Human Resources Command, will designate and implement an appropriate code for use on Soldiers' record briefs to identify those Soldiers with a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. The requirement to annotate the AMHRR is retroactive to 26 December 2013. This policy does not prohibit a Soldier from appealing the placement of the notation in the AMHRR to the ABCMR. 11. Military Personnel Message Number 15-052 (Revision of Inclusion and Command Review of Information on Sex-Related Offenses in the AMHRR), 19 February 2015, provided that any court-martial conviction, nonjudicial punishment, or punitive administrative action for sex-related offense will be filed as a sex-related offense in the performance-disciplinary folder of the AMHRR. Commanders do not have the authority to designate any of these documents be filed locally or in the restricted folder of the AMHRR. Paragraph 3 provides that sex-related offenses include violation of any offense under the following sections or subsections of Title 10, U.S. Code, and equivalent articles of the UCMJ, to include: * Section 920 – Article 120 (Rape and Sexual Assault) – this includes rape, sexual assault, aggravated sexual contact, and proof of threat * Section 920b – Article 120b (Rape and Sexual Assault of a Child) – this includes rape, sexual assault, sexual abuse of a child, and proof of threat 12. DOD Instruction 6495.02 (Sexual Assault Prevention and Response: Program Procedures), 10 November 2021, establishes and implements policy, establishes procedures, provides guidelines and model programs, delegates authority, and assigns responsibilities regarding the prevention of and response to sexual assault in the DOD. a. Enclosure 4 (Reporting Options and Sexual Assault Reporting Procedures) states service members and military dependents 18 years and older who have been sexually assaulted have two reporting options: Unrestricted or Restricted Reporting. Unrestricted Reporting of sexual assault is favored by the DOD. However, Unrestricted Reporting may represent a barrier for victims to access services when the victim desires no command or DOD law enforcement involvement. b. Unrestricted Reporting. This reporting option triggers an investigation, command notification, and allows a person who has been sexually assaulted to access healthcare treatment and the assignment of a Sexual Assault Response Coordinator (SARC) and a Sexual Assault Prevention and Response Victim Advocate (SAPR VA). When a sexual assault is reported through Unrestricted Reporting, a SARC shall be notified, respond or direct an SAPR VA to respond, offer the victim healthcare treatment and a Sexual Assault Forensic Examination, and inform the victim of available resources. The SARC or SAPR VA will explain the contents of the DD Form 2910 and request that the victim elect a reporting option on the form. If the victim elects the Unrestricted Reporting option, a victim may not change from an Unrestricted to a Restricted Report. If the Unrestricted option is elected, the completed DD Form 2701, which sets out victims' rights and points of contact, shall be distributed to the victim in Unrestricted Reporting cases by DOD law enforcement agents. If a victim elects this reporting option, a victim may not change from an Unrestricted to a Restricted Report. c. Restricted Reporting. This 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. Restricted Reporting allows service members and military dependents who are adult sexual assault victims to confidentially disclose the assault to specified individuals (SARC, SAPR VA, or healthcare personnel) and receive healthcare treatment and the assignment of a SARC and SAPR VA. A sexual assault victim can report directly to a SARC, who will respond or direct an SAPR VA to respond, offer the victim healthcare treatment and a Sexual Assault Forensic Examination, and explain to the victim the resources available through the DD Form 2910, where the reporting option is elected. The Restricted Reporting option is only available to service members and adult military dependents. If a victim elects this reporting option, a victim may convert a Restricted Report to an Unrestricted report at any time. The conversion to an Unrestricted Report will be documented with a signature by the victim and the signature of the SARC or SAPR VA in the appropriate block of the DD Form 2910. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007474 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1