IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20210014384 APPLICANT REQUESTS: through counsel - a. removal of the general officer memorandum of reprimand (GOMOR), 18 December 2017, and allied documents from his Army Military Human Resource Record (AMHRR); b. removal of any record of request for or relating to his retirement in lieu of proceedings for withdrawal of Federal recognition (WOFR); c. amendment of Military Department of Nebraska Office of the Adjutant General Orders 162-702, 11 June 2018, to reflect an honorable discharge and removal of any notation that his resignation was in lieu of proceedings for WOFR; and d. amendment of Military Department of Nebraska Office of the Adjutant General Orders 162-702 to reflect voluntary resignation and to make consistent all other relevant records. 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 Letter, 3 June 2021, with evidentiary documents labeled and organized as exhibits – * Exhibit 1 – Denial of Request for Unredacted Copy of Investigation with request * Exhibit 2 – DD Form 214 for the period ending 7 October 1988 * Exhibit 3 – DD Form 214 for the period ending 1991 (not available) * Exhibit 4 – DD Form 214 for the period ending 20 August 2001 * Exhibit 5 – DD Form 214 for the period ending 28 October 2003 * Exhibit 6 – Military Department of Nebraska Office of the Adjutant General Orders 162-702, 11 June 2018 * Exhibit 7 – National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 7 December 2010, and NGB Form 22, effective 30 June 2018 * Exhibit 8 – 16 – Noncommissioned Officer (NCO) Evaluation Reports (NCOERs) covering the periods September 1991 through August 2005 * Exhibit 9 – two Officer Evaluation Reports (OER) covering the periods October 2007 through October 2012 * Exhibit 10 – Meritorious Service Medal Certificate and Orders, 9 June 2017 * Exhibit 11 – Affidavit of Applicant, notarized 1 June 2021 * Exhibit 12 – Affidavit of Juris Canonici Licentiata, Esquire, notarized 18 September 2020, with résumé * Exhibit 13 – Informal Memorandum (After Action Report (AAR) for Chaplain Activities for Sergeant and Spouse (Prior to the 5 January 2017 Suicide of Staff Sergeant ), * Exhibit 14 – Biography of Major General (MG) The Adjutant General (TAG), Nebraska National Guard * Exhibit 15 – Psychologist Licensure of MG TAG * Exhibit 16 – GOMOR, 18 December 2017, with allied documents * Exhibit 17 – Department of Veterans Affairs (VA) Rating Decision, 31 December 2018 * Exhibit 18 – Licensed Clinical Psychologist (Dr Letter, 28 May 2019 FACTS: 1. The applicant defers to counsel. 2. Counsel states (see statement): a. There is an injustice to correct in the applicant's permanent records. This injustice is the result of a GOMOR the applicant received for fraternization. The investigation and resulting GOMOR were fundamentally flawed and legally insufficient for several reasons: (1) The investigator had a clear conflict of interest which tainted the findings and recommendations. Specifically, the investigator was a Judge Advocate who was heavily involved in the Catholic Church in. Not insignificantly was ground zero in the Church's cover-up scandal regarding the abuse of minors. Given the investigator's inappropriate and incorrect analysis of Canon Law combined with his lack of analysis regarding other relevant facts, this demonstrates an inappropriate bias that prevented him from making objective findings and recommendations. (2) Separately, but consistent with the bias described above, the investigation lacked legal sufficiency in that it failed to establish that the applicant knew the party in question was enlisted. While the investigation may have established that others who were familiar with the party in question were familiar with his grade, the facts also clearly establish that when the applicant met this individual for the first time, he was not wearing any uniform and no rank was discussed by anyone. This individual wasn't even in the same Branch of Service as the applicant, much less from. Further there was a complete lack of analysis regarding the information that would support the applicant's subjective belief that this person was an officer. Fraternization is not a "strict-liability" crime and thus his lack of knowledge renders the GOMOR legally insufficient. (3) The applicant was diagnosed with severe post-traumatic stress disorder (PTSD) as a result of both his pre­ chaplain military service and his military duties relating to his ministry as a chaplain. Further, the VA has service connected his PTSD. The diagnosis and service connection are not surprising given his military record and duties. Given that this matter was referred for a WOFR action, we feel the Nebraska National Guard (NEARNG) failed in its regulatory duty to evaluate him for PTSD. When a Service Member is facing administrative discipline, the command has an independent obligation to assess the potential for PTSD as a mitigating factor, and had that been done, the applicant would have been able to present the information we now know to be true as mitigation. (4) The GOMOR resulted from the Military Department's violation of the applicant's First Amendment rights. That is, when the Military Department analyzed his conduct from a Canonical basis and relied on language of Canonical significance, it violated the Constitutional mandate regarding the Separation of Church and State. While this argument might not be applicable if the Archdiocese for Military Services would have investigated this matter, the fact is that did not refer this to the Archdiocese for evaluation and instead relied on a flawed Cannon Law analysis. (5) The GOMOR concluded that the applicant "should not be entrusted with the care of the most vulnerable and exploitable[.]" This language in the GOMOR itself is a finding of Canonical significance and demonstrates an inappropriate governmental finding that the applicant lacks the ability to minister under the law of the Church. Not only does this violate his First Amendment rights, it also violates his 14th Amendment substantive and procedural due process rights. Further, it again supports the inappropriate conflict of interest by the investigator in that the investigative bias leaked into the thought process of Brigadier General (BG) . Even if, as counsel assumes, this was inadvertent, the legal consequences remain the same. If the Military would never apply Sharia Law in an analysis of conduct by a Muslim Chaplain, applying Canon Law to this matter is equally egregious. (6) Further, the investigation clearly establishes that the applicant was not providing pastoral care at any relevant time. The fact that the lack of pastoral care is essentially ignored in the investigation and the GOMOR inaccurately implies, if not concludes, that the opposite is legally sufficient. This is true because it further demonstrates the bias, legal sufficiency, and Constitutional issues at play. (7) Counsel offers this preview of their argument in support of the fact that they need the unredacted copy of all investigative materials. The Board will note that the over-redacted copy of the file that was provided to the applicant failed to even identify the investigator. He and his client are entitled to a completely unredacted copy as the applicant has a legitimate legal interest in this material that is necessary to present to the ABCMR. The applicant and counsel were unable to obtain an unredacted copy of the official investigation in this manner. They made a request but were denied an unredacted copy. b. In summary: (1) The investigation was improperly biased because of religion, that bias was adopted in the issuance of the GOMOR and further spilled into the decision to seek the applicant's administrative dismissal from the service (resignation in lieu of WOFR). (2) The investigation, GOMOR, and resignation in lieu of WOFR proceedings was contrary to the applicant's First Amendment rights in that they improperly violated the separation of church and state. (3) Contrary to statute and Army regulation, the command failed to account for and consider the applicant's severe and chronic post-traumatic stress disorder (PTSD) during both the underlying investigation and in mitigation of the consequences – including the decision to force him to resign in lieu of WOFR. (4) The factual basis for the GOMOR was legally insufficient because there was no evidence that the applicant was aware of the rank of the other service member. c. Facts. (1) Background. (a) The applicant enlisted in the Army National Guard (ARNG) on 15 September 1987 and was commissioned in October 2007. The applicant served honorably over those years. On 30 June 2018, the applicant retired from service under honorable conditions (general discharge). However, the applicant's NGB Form 22, effective 30 June 2018, indicates an honorable discharge. This retirement was in lieu of proceedings for WOFR, which are the subject of this appeal. (b) The first part of the applicant's military career he served primarily as a chaplain assistant, attaining the rank of master sergeant. The applicant's NCOERs throughout his service were exemplary. The applicant then attended the seminary to become a Catholic priest and was commissioned as a Chaplain candidate. The applicant was ordained in 2010 and thereafter was sworn in as a chaplain. (c) The applicant deployed twice as a chaplain assistant, once to Kosovo and a second time to Bosnia. During the applicant's Bosnia deployment, then a sergeant first class, he lost a very close friend. While on a combat patrol, the applicant's friend was killed when a semi-tractor trailer veered into their lane and rammed head-on into the high-mobility multipurpose wheeled vehicle he was driving. The applicant was part of the quick reaction force that secured the scene and extracted his friend's body. The applicant wrote about this very situation. This memoir is attached to the applicant's affidavit and was prepared during his attendance at the Officer Basic Course. In the National Guard, chaplains serve as part of the casualty notification team. This is gut- wrenching business. (d) A tipping point came in January 2017, when National Guard service member killed himself. The service member had reached out for chaplain assistance in the weeks leading up to his suicide (see exhibits 11 and 13). Through a series of miscommunications between leadership and the chaplaincy, no chaplain reached out to this Soldier. After the suicide, the applicant prepared a very pointed and critical AAR to his commanding officer stating that leadership (including the State Chaplain) had failed this Soldier (see exhibit 13). The applicant took this situation very personally and felt significant guilt – guilt over the fact that he did not personally do more. Objectively, the situation was caused more by a lack of institutional planning, but that did not comfort the applicant. Even worse, after providing this AAR, the applicant was told to "cease and desist" by the chain of command, claiming the applicant was "hindering an official investigation." This is ironic given that the applicant was providing detailed information to help the investigation. This left the applicant feeling as if the leadership was whitewashing his concerns. This left the applicant very angry and bitter. It was at this time that the applicant began to "butt heads" with the senior leadership and, as is common among those suffering with PTSD, began to lose his military bearing. (e) Although not formally diagnosed with PTSD until after the applicant's retirement, it is evident that he was showing overt signs of PTSD that were ignored by the leadership. In fact, just a few months prior to the incident which led to the GOMOR in question, the applicant had approached TAG to inform him of his desire to retire as a result of his caregiver fatigue. TAG talked the applicant out of retirement. Ironically, TAG used the very same suicide that drove the applicant over the edge as his justification for suggesting the applicant should not retire. TAG told the applicant that if he left the military now, the suicide would taint the view of his entire military career. It is not a minor detail that TAG is a formerly licensed psychologist, having earned his doctorate in psychology from the University of. (2) Incident and Findings. (a) In July 2017, Headquarters and Headquarters Company, 1st Battalion, 376th Aviation Regiment (Security and Support), was on annual training at Volk Field in Wisconsin (see exhibit 16). The 376th Aviation Regiment (Security and Support) is a National Guard regiment made up of units from. Because the unit's assigned chaplain was scheduled to be absent from Volk Field for several days, the applicant was sent to Volk Field to provide unit support from 17 to 19 July. The applicant flew to Volk Field in a Blackhawk helicopter. The ride was in excess of 3 hours. During that flight, the solitude and whirring of the rotors mentally took the applicant back to Bosnia and the quick reaction force flight to recover the body of his dead friend. Upon arriving at Volk Field, the applicant asked the chaplain assistant who picked him up to take him for pizza and beer. There they met up with other Soldiers and Airmen and ended up socializing for several hours. The sworn statements, when taken together, indicated that as many as seven rounds of drinks were consumed by the applicant and the others who were all of legal drinking age. It is uncontroverted that he was intoxicated. It is important to note there was no rule or regulation prohibiting the consumption of alcoholic beverages at this time. (b) One person among the group was in civilian clothes. It is uncontroverted that this person was previously unknown to the applicant. It is also uncontroverted that at no time in the evening was this person's rank revealed to the applicant. While others in the group, who were also unknown to him, knew this individual was an Airman from the Air National Guard, there is no evidence that anyone told the applicant of this fact. In fact, based on the social nature of the discussion, rank never came up. The discussion involved football, family, drinks, military occupations, and civilian occupations. Given that the conversation suggested that this individual had significant responsibility, both in the military and in his civilian occupation, along with the way the individual conducted himself, the applicant assumed this individual was a company-grade officer. (c) After the group finished socializing, the individual in civilian clothes went to the applicant's room where they engaged in additional social conversation. This led to a consensual romantic encounter. The consensual nature of the encounter is uncontroverted. Other than rank, which was unknown to the applicant, there was no violation of military regulation whatsoever. The encounter was not witnessed by anyone. Instead, it was reported based on the suspicions of others. (3) The Investigation and GOMOR. (a) On 23 August 2017, TAG initiated an administrative investigation under Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) by appointing a colonel from the Massachusetts National Guard as the investigating officer (IO). The identity of the IO has not been disclosed to us, and the applicant does not remember his name, so we mean no disrespect to him or his rank by referring to him simply as the IO. (b) In his "Recommendations" the IO states that "[Applicant's] fraternization is particularly egregious for several reasons." Among the "egregious factors" cited by the IO is that the applicant "disregarded the clear standard of his Church for celibacy. See Roman Catholic Code of Cannon Law, Canon 277, Section l." The IO went on to conclude that the applicant's actions violated a duty of "pastoral care," noting that the "Army depends on chaplains to counsel it's most vulnerable and fragile Soldiers, including those who are contemplating suicide and those who are grieving over the death of family members of fellow Soldiers." Finally, the IO stated: [g]iven that [Applicant] could not observe the clear boundaries established by the Army concerning fraternization and by his Church concerning celibacy, and that he could not observe such boundaries in the context of listening to an enlisted person sharing his personal problems, his misconduct raises substantial doubt whether be can be trusted to provide appropriate pastoral care to soldiers in private settings. (c) Based on these "aggravating factors," the IO recommended a permanently filed GOMOR and initiation of WOFR proceedings against the applicant by the Nebraska National Guard. What is notable about the IO's recommendations cited above is that the IO makes no reference of violations of Canon Law in his findings. Further, there is no finding that at the time of the incident in question that the applicant was engaged in "pastoral care" with another service member. In fact, the sworn statement of the individual in question states he was not with the applicant "for the purpose getting spiritual guidance and counseling" but was instead seeking to spend time with him on a social basis. (d) Further, there is no evidence in the record that the Airman in question was struggling with thoughts of suicide or dealing with the deaths of other service members. Instead, the Airmen states the only discussion they had regarding anything that could be perceived as negative was "difficulties [he] was having with other Airmen during his temporary duty." As such, based on the record there is no support in the findings or the evidence itself or the editorialized conclusions of the recommendation section regarding pastoral care and exploitation of the vulnerable or fragile. As is discussed in detail below, this is improper under Army Regulation 15-6 and these aggravating factors should not have been considered. (e) Other significant findings were supported by the personal observations of the IO. Specifically, the IO opined that the Airman in question had a very youthful appearance, looking to be no more than 20 or 21 years old. Interestingly, the IO did not inquire as to actual age, college education, background, or other relevant facts that the applicant likely learned per the topics of discussion. Additionally, the IO cited the opinion of another enlisted service member that the civilian-clothed service member was enlisted. Again, although the witness testified that he knew the Airman was enlisted based on a prior encounter, this witness did not provide any information that would support that he knew or would have known the Airman was enlisted. In other words, there was no questioning by the IO regarding the specifics supporting the basis of his knowledge, or any actual analysis as to whether there could be an honest disagreement on that point. Further, there was no analysis as to the credibility of the opinion regarding the individual's level of intoxication. It was merely adopted from the statement as fact. (f) In the applicant's rebuttal, he affirmatively states he did not know the age and assumed the individual was a company-grade officer. The applicant specifically states the reasons for his assumption, including the level of responsibility the individual was touting; his description of his civilian occupation; and the fact that he held himself out to be a mature college graduate. Other than the unjustified opinions cited above, there is no evidence in the record to dispute this. Additionally, there is no analysis of the purely subjective nature of this critical fact. (g) Ultimately, the Nebraska National Guard adopted both findings. In fact, in the GOMOR, BG adopted the most vulnerable language used in the recommendations. Specifically, the GOMOR stated the applicant "should not be entrusted with the care of the most vulnerable and exploitable." Ultimately, WOFR proceedings were initiated against the applicant and, as authorized in the WOFR regulations, the applicant was allowed to resign in lieu of WOFR. d. Grounds for Findings of Injustice. There is a level of impermissible bias that permeates throughout the investigation, GOMOR, and the decision to seek WOFR. The following are cited as the grounds in seeking relief. (1) Redacted Investigation. As a preliminary matter, in attempting to assist the applicant file this request, they sought to obtain an unredacted copy of the investigation and all relevant documents. The Nebraska National Guard refused their request. As a matter of due process, the subject of an investigation should have unredacted access to the totality of their investigation when necessary for further proceedings. (2) The investigation was improperly biased because of religion and that bias was adopted in the issuance of the GOMOR. In order to be eligible to serve as an IO in an administrative investigation, an individual must be impartial, unbiased, and objective and demonstrate sound judgment. The religious bias that permeates the report and leaks into the GOMOR itself creates a manifest injustice to the applicant. The IO's conflict of interest and bias that taints the findings and recommendations are clear on the face of the investigation. Instead of relying solely on Army regulation, the lay investigator based his findings on the law of the Catholic Church. By doing so, the IO clearly inserted his personal concept of morality and appropriate behavior on top of the appropriate military standard that was to be solely relied upon in this case. (3) The investigation, GOMOR, and resignation in lieu of WOFR proceedings violated the first amendment of the U.S. Constitution in that it improperly violated the separation of church and state. The GOMOR resulted from the Nebraska Military Department's violation of the applicant's first amendment rights. That is, when the IO analyzed the applicant's conduct from a canonical basis and the military used canonical language in the GOMOR itself, it violated the constitutional mandates regarding the separation of church and state and the free exercise of religion. (4) Contrary to statute and Army regulation, the command failed to account for and consider the applicant's severe and chronic PTSD. Both federal law and Army regulation require that the Army pro-actively take steps to determine whether PTSD is a causal factor in mitigation of a service member's conduct that results in derogatory administrative actions. Because the record lacks evidence that these regulations were followed (and supports a finding that these regulations were not followed), the entire process should be voided. (5) The factual basis for the GOMOR was legally insufficient because there was no evidence that the applicant was aware of the rank of the other service member. Separately, but consistent with the bias described above, the investigation lacked legal sufficiency in that it failed to establish that the applicant knew the party in question was enlisted. In the investigation, the IO correctly points out that the individual Armed Services treat the issue of fraternization differently. The Air Force has a standard that would not prohibit the consensual intimate relationship of this type under these circumstances. The IO, however, repeatedly states the Army has a "bright line" rule prohibiting all enlisted and officer romantic relationships. e. Conclusion. Based on the above outlined injustice caused by errors of regulation and the bias in the investigation and subsequent disciplinary action, they respectfully request that this Board correct the applicant's military records. Specifically, they request that this Board remove the GOMOR and record of investigation from the applicant's permanent folder in his AMHRR. They also request that the Board order correction of the applicant's retirement records to reflect a voluntary retirement based upon nearly 30 years of honorable service. 3. The applicant's records show he enlisted into the Nebraska Army National Guard (NEARNG) on 15 September 1987 and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist). On 24 August 1991, the applicant changed his MOS to 71M (Chaplain Assistant) (which subsequently changed to MOS 56M effective 1 October 2001). The applicant attained the rank/grade of master sergeant/E-8 effective 20 June 2004. 4. The applicant was appointed as a Reserve commissioned officer in the ARNG and executed the oath of office effective 15 October 2007. The applicant was promoted to first lieutenant/O-2 effective 22 July 2009 and to captain/O-3 effective 11 May 2012. 5. The NEARNG memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 17 October 2007, notified the applicant that he completed the required years of qualifying service and was eligible for retired pay upon application at age 60. (Note: The applicant will reach 60 years of age in 2029.) 6. The applicant became the subject of an Army Regulation 15-6 investigation into the facts and circumstances as to whether the applicant violated Army Regulation 600-20 (Army Command Policy) or otherwise committed misconduct during annual training conducted at Volk Field, WI, on or about 17 July 2017. The Army Regulation 15-6 Report of Investigation, 8 November 2017 (see attachment and auxiliary documents), shows: a. The IO was appointed as the result of a chaplain assistant's reported concern on 17 July 2017 that the applicant had engaged in improper fraternization. On 19 July 2017, a chaplain assistant related this concern to the battalion chaplain. On 20 July 2017, an informal Commander's Inquiry into the matter was conducted. On 23 August 2017, the Nebraska National Guard Adjutant General appointed an IO to determine whether the applicant] violated Army Regulation 600-20 at Volk Field, WI, on 17 July 2017. Coinciding with drill weekends, the IO and the assistant IO conducted interviews of witnesses on 8 September and 21 October 2017. b. Conclusions. (1) The sexual relations between the applicant and the Airman were consensual; no referral of the matter for a sexual assault investigation is needed. (2) Army Regulation 600-20 prohibits intimate or sexual relations between officer and enlisted personnel (see paragraph 4-14c(2)). (3) Army Regulation 600-20 also prohibits conduct that would give rise to clearly predictable perceptions of undue familiarity between an officer and an enlisted Soldier. The regulation cites repeated visits to bars and eating establishments as examples of conduct that would give rise to such a perception (see paragraph 4-14b)). (4) Army Regulation 600-20 prohibitions apply to officers and enlisted Soldiers of different military services (see paragraph 4-14a)). (5) The applicant violated Army Regulation 600-20 prohibitions against sexual relations between officers and enlisted Soldiers and conduct that gives rise to perceptions of undue familiarity between an officer and an enlisted Soldier. c. The IO recommended: (1) The applicant's fraternization is particularly egregious for several reasons. First, the applicant's drinking and flirtation with an enlisted Soldier was done in uniform and in the presence of his subordinates. Consequently, the applicant showed plain disregard for how his actions impacted military order and discipline. Second, the applicant's actions not only violated the Army's "bright-line" prohibition of sexual relations between officers and enlisted personnel, but it also disregarded the clear standard of the applicant's church for celibacy (see Roman Catholic Code of Cannon Law, Canon 277, section 1). Third, and perhaps most significantly, the provision of pastoral care and counseling is a fundamental duty of chaplains (see Army Regulation 165-1 (Army Chaplain Corps Activities) paragraph 16-1). Here, the applicant began kissing an enlisted Airman in the midst of that Airman sharing personal problems with the applicant. The Army depends on chaplains to counsel it's most vulnerable and fragile Soldiers, including those who are contemplating suicide and those who are grieving over the death of family members or fellow Soldiers. Given that the applicant could not observe the clear boundaries established by the Army concerning fraternization and by his church concerning celibacy, and that he could not observe such boundaries in the context of listening to an enlisted person sharing his personal problems, his misconduct raises a substantial doubt as to whether he can be trusted to provide appropriate pastoral care to Soldiers in private settings. (2) Given the clear violation and aggravating factors presented, the IO recommend the issuance of a permanently filed GOMOR to the applicant. (3) The IO also recommend that the applicant's command initiate WOFR proceedings against the applicant. (4) Pursuant to Army Regulation 165-1, paragraph 8-10, the approval authority should direct the Nebraska ARNG Senior Chaplain to notify the Active Component's Chief of Chaplains of any WOFR initiated against, or GOMAR issued to, the applicant. The approval authority should direct the Nebraska ARNG Senior Chaplain not to provide any information concerning any adverse personnel action against the applicant to his ecclesiastical endorsing agent (i.e., the Roman Catholic Diocese of Lincoln) unless he first receives approval to do so from the Active Component's Chief of Chaplains. The approval authority should also direct the Nebraska ARNG Senior Chaplain to order the applicant to notify his ecclesiastical endorsing agent of the WOFR proceeding against him. (5) Finally, the IO recommend that the approval authority provide a copy of this investigation report to (redacted) command through the Nevada National Guard Adjutant General for a determination as to whether to provide any counseling for, or discipline against, (redacted). 7. The applicant was reprimanded in writing on or about 18 December 2017 by the Land Component Commander, Joint Forces Headquarters, NEARNG, Lincoln, NE, wherein he stated: You are hereby reprimanded. It has been reported to me that despite the trust and authority granted you as an Officer and Chaplain, you violated the Army's command policy by having inappropriate relationship with an enlisted service member. Based on a [Army Regulation] 15-6 Investigation (see enclosure), you engaged in a sexual relationship with an enlisted service member while you were an Officer and a Chaplain in the Nebraska National Guard and thereby violated AR [Army Regulation] 600-20, para[graph] 4-14b and 4-14c. That relationship created an actual or clearly predictable perception of undue familiarity and was prejudicial to good order and discipline. Your conduct is disappointing and inexcusable. As an Officer, I expect you to follow regulations, policy, and the Army Values. The Army Values of Duty, Honor, and Integrity are of vital importance. As a Chaplain, I expect you to be above reproach. Violations and actions such as this, by an Officer and Chaplain with your years of experience, indicate that you should not be entrusted with the care of the most vulnerable and exploitable Soldiers. Your actions have tarnished the reputation of Officers and Chaplains and cause me to question your integrity, judgment, professionalism, and potential for future military service. This reprimand is imposed as an administrative measure IAW [in accordance with] AR [Army Regulation] 600-37, and not as punishment under UCMJ [Uniform Code of Military Justice], Art[icle] 15. It is, however, intended to promptly and directly signal my disapproval of your conduct. Army Regulation 600-37 directs that administrative reprimands may be filed for up to three (3) years in your local Military Personnel Records Jacket (MPRJ) or permanently in your Official Military Personnel File (OMPF) upon order of a General Officer. It is my intent to direct that this administrative reprimand be filed permanently in your OMPF, with a copy of the inquiry, and any rebuttal documents you care to submit. The final decision to file this administrative reprimand will not be made until you have had an opportunity to exercise your rights. If you elect to submit a rebuttal, you will have a maximum of fourteen (14) days from the date you receive this reprimand. Extensions may be requested in writing. After I receive your response, I will reevaluate this situation and determine if, and how, this reprimand should be maintained. 8. The applicant acknowledged receipt of the GOMOR on 18 December 2017. He submitted rebuttal matters on 20 December 2017, clarifying his position and requesting filing the GOMOR at the local level and not in his OMPF. He stated: a. He admits he could have made better decisions on 17 July 2017. He admits to consuming multiple drinks, which could have clouded his perception and he did not act appropriately as an officer and chaplain; however, he was not the only person who was drinking that night in light of the facts that the eyewitnesses to the 17 July 2017 evening presented observations after seven rounds of drinks. The Army Regulation 15-6 investigation indicates that seven rounds of drinks were ordered during the course of multiple hours. Those who provided eyewitness opinions and personal interpretations of actions during the course of the evening each participated in those rounds of drinks and their recollections, observations, and conclusions should be weighted accordingly. b. The Army Regulation 15-6 investigation for violation of Army Regulation 600-20, paragraphs 4-14b and 4-14c (Relationships between Soldiers of Different Rank), based its recommendations on the "the Army's bright line prohibition on relations between officers and enlisted personnel" and a violation of "boundaries" in the context of pastoral care. (1) He did not know the Nevada Air National Guard (NVANG) service member was enlisted. The service member was in civilian clothes, of a legal age to drink, and presented with the responsibilities of an ANG officer. There was never any discussion of rank with the service member but based on his discussion with the service member and the fact that he was in uniform, he mistakenly assumed the service member was a company-grade officer. At no time during the evening in question (17 July 2017) did the NVANG service member identify himself as having an enlisted rank. The Army Regulation 15-6 investigation reveals that discussion that night included "family, big 10 football, drinks and military and civilian occupations," but not rank. The NVANG service member was in civilian clothes and presented as being "in charge" of rooms, keys, check-in-procedures, laundry, etc., for housing at Volk Air Field during annual training and working in the Nevada hotel industry in a civilian occupation of responsibility. The NVANG service member had a comportment of maturity and responsibility, and the age of a college graduate or an ANG lieutenant or captain, as two separate Army Regulation 15-6 interviews indicate. The comportment, the context and manner in which the service member presented himself and his responsibilities, suggested the NVANG service member was an officer. While it was a mistake to make a presumption in this regard, there were mitigating circumstances, which shed light on the factors contributing to that mistake. The Army Regulation 15-6 interviews indicate that some individuals previously knew the NVANG service member was enlisted, but that information was not discussed or presented during the course of 17 July 2017 and no testimony indicates that it was communicated that night. (2) A follow up interview (8 September 2017, NVANG Base) clarifies that no pastoral care or boundary violations occurred. The NVANG service member clarifies the intention "to spend more time to enjoy his company" rather than pastoral care. When asked to clarify if the NVANG service member had shared information with a chaplain or with a friend, the NVANG service member clarifies the information was shared "as a friend." This is a clarifying statement that no pastoral care boundaries were violated. c. Army Regulation 600-20, paragraph 4-14c(3)(f), provides that "should inappropriate relationships occur...Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair." In view of a 30-year record of distinguished service to military service members and family without blemish, it seems disproportionately harsh to establish a permanent and continual record over the evidence that was presented from the IO. He believes he has followed the law, regulations, and policies of the country, state, and Army to the best of his abilities. He knows there are some things he could have done better. d. Additionally, it is fair to note that chaplains are held to a higher standard. It is equally true that chaplains are subject to a higher amount of stress and more likely to experience burnout and compassion fatigue due to a cumulative level of trauma. The NEARNG has no program in place to assess or screen for stress injuries in chaplains who are on call 24 hours, 7 days a week to respond to Commanders Critical Information Requirements (CCIRs) – deaths, suicides, next of kin notifications, arrests of service members, funerals, etc. The use of self-medication to combat depression or anxiety with alcohol, addictive, or destructive behaviors is well documented. e. He requests consideration be given to his rebuttal and filing the GOMOR at the local level and not in his OMPF. He has served his county, state, and the Army for 30 years and hopes a different course of action involving counseling would be considered rather than a permanent and continual record when viewing his record as a whole. 9. After carefully considering the matters submitted in rebuttal, the Land Component Commander, Joint Forces Headquarters, NEARNG, directed filing the GOMOR in the applicant's AMHRR on 18 January 2018. 10. A review of the applicant's AMHRR shows the GOMOR and auxiliary documents are filed in the performance folder. 11. The applicant's records contain the following documents: a. an Election Form (Election of Options), 26 March 2018, wherein the applicant selected the following option by placing an "X" by the statement: "I elect to tender my resignation as an officer of the Army National Guard and as a Reserve Officer of the Army in lieu of proceedings for withdrawal of Federal recognition, under the provisions of Section V, NGR [National Guard Regulation] 635-101 [Personnel Separations – Efficiency and Physical Fitness Boards]; b. the applicant's Resignation (Resignation in Lieu of Board Proceedings for WOFR), 26 March 2018, with his signature wherein he notes: I, [Applicant], having been informed that proceedings have been initiated to withdraw my Federal recognition, do hereby voluntarily tender my resignation as an officer of the Nebraska Army National Guard and as a Reserve Officer of the Army under the provisions of Section V, NGR [National Guard Regulation] 635- 101. I have been advised of the reasons for initiation of action to withdraw my Federal recognition, of my rights to appear before a board of officers, to be represented by counsel, to submit a brief on my behalf, and any other statements, to present witnesses in my behalf, and to have a reasonable time (at least 30 days from the date of notification) to prepare my case. I hereby waive these rights with the understanding that if my resignation is accepted, I may be separated either under honorable conditions or under conditions other than honorable. I also understand that I may be furnished an honorable, general, or other than honorable discharge certificate as determined by Commander, U.S. Army Human Resources Command. c. the Deputy Chief of Staff, G-1, Headquarters, First Army, Rock Island, IL, memorandum (Withdrawal of Federal Recognition – (Applicant)) to TAG, State of Nebraska, Joint Force Headquarters, 3 April 2018, noted in paragraphs 1 and 2: (1) Resignation in lieu of board proceedings to withdraw the Federal recognition submitted by the applicant, 26 March 2018, is forwarded for your review and final action under the provisions of National Guard Regulation 635-101, paragraph 24. (2) Recommend acceptance and issuance of separation orders. A copy of the resignation will be appended to the separation orders and forwarded to the Chief, National Guard Bureau; and d. the TAG, Nebraska National Guard, Joint Force Headquarters, memorandum (Resignation in Lieu of Proceedings for Withdrawal of Federal Recognition – (Applicant)), 11 June 2018, wherein TAG notes: (1) As the separation authority pursuant to National Guard Regulation 635-101, paragraph 24, he is in receipt of the resignation in lieu of proceedings for WOFR of the aforementioned service member from the NEARNG and the Reserve of the Army for moral or professional dereliction. Based upon his review of the evidence, he accepts the applicant's resignation in lieu of proceedings for WOFR. This statement was preceded with an "X" in the "Yes" box; and (2) National Guard Regulation 635-101, paragraph 24b, authorizes TAG to complete the separation and provide a characterization. Based upon his review, he directed the characterization of the separation as "General (under honorable conditions)" and directed the G-1 to take all actions necessary to carry out this determination. 12. Military Department of Nebraska Office of the Adjutant General Orders 162-702, 11 June 2018, separated the applicant from the ARNG effective 30 June 2018 with an under honorable conditions (general) separation. The applicant was transferred to the Retired Reserve. The additional instructions contain the following additional instructions: "Resignation in Lieu of Proceedings for WOFR. Requested by Officer on memo[randum] dated 26 March 2018. Followed by recommended acceptance from 1st Army on memo[randum] dated 3 April 2018. Then approved by TAG-NENG [Nebraska National Guard] on memo[randum] dated 11 June 2018." 13. NGB Form 0123E, Special Orders Number 134-AR, 13 June 2018, withdrew the applicant's Federal recognition effective 30 June 2018 by reason of his separation under honorable conditions. 14. The applicant was honorably discharged from the NEARNG in the rank/grade of captain/O-3 and transferred to the Retired Reserve effective 30 June 2018. The applicant's NGB Form 22 shows he completed 30 years, 9 months, and 16 days of total service for retired pay. 15. The applicant's AMHRR is void of a medical diagnosis of PTSD or evidence that shows he failed to meet retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 16. The applicant, through counsel, provides the following organized and labeled exhibits in addition to those documents discussed above: a. Exhibit 1 contains counsel's 18 January 2019 request to the NEARNG for an unredacted copy of the investigation against the applicant. It also contains an email from the NEARNG Attorney-Adviser, noting the NEARNG was not authorized to release an unredacted copy of an administrative investigation. b. Exhibits 2, 3, 4, and 5 contain numerous DD Forms 214 showing the applicant's periods of active duty service during his military service. c. Exhibit 7 contains the applicant's NGB Form 22, effective 7 December 2010, showing he was honorably discharged from the NEARNG for reappointment as a commissioned officer. d. Exhibit 8 contains 16 NCOERs covering the periods September 1991 through August 2005, showing his duty assignments and performance as a chaplain assistant. e. Exhibit 9 contains two officer evaluation reports, covering the periods October 2007 through October 2012, showing the applicant's duty assignment and performance as a chaplain. f. Exhibit 10 contains a DA Form 638 (Recommendation for Award) with Meritorious Service Medal Certificate showing the applicant was awarded the Meritorious Service Medal for exceptional meritorious achievement while serving as chaplain for the 110th Multifunctional Medical Battalion for the period 1 April 2010 to 31 April 2016. g. Exhibit 11 contains a 7-page notarized affidavit from the applicant, 1 June 2021, noting his military service, his deployments to Kosovo and Bosnia-Herzegovina, his stressful times as a chaplain performing casualty notifications, dealing with the suicide of a service member, and his unknowing engagement in fraternization with an enlisted Airman. He requests removal of the GOMOR and investigation from his records, removal of any notation about retiring in lieu of WOFR, and correction of any record that suggests any characterization of service to read honorable. h. Exhibit 12 contains the affidavit of Esquire, notarized 18 September 2020, a canon lawyer, who believes the GOMOR exceeded its scope by brining into analysis any aspect of the applicant's status as a Catholic priest. Also included is his résumé. i. Exhibit 13 contains an informal memorandum (AAR for Chaplain Activities for Sergeant _ and Spouse (Prior to the 5 January 2017 Suicide of Staff Sergeant 20 January 2017, showing the applicant's observations and timeline of a Soldier who committed suicide. j. Exhibits 14 and 15 contain the biography of MG TAG, Nebraska National Guard, and his Nebraska Public Health Licensure Unit Certification of Licensure which expired on 1 January 2007. k. Exhibit 17 contains a partial VA Rating Decision, 31 December 2018, that notes the applicant's medical conditions; however, it does not show a PTSD medical diagnosis or a VA disability rating. l. Exhibit 18 contains a licensed clinical psychologist (Dr. letter, 28 May 2019, that indicates the applicant is his client and he has seen the applicant for weekly therapy since April 2018. He diagnosed the applicant with PTSD due to his military service, in particular, his deployment to Bosnia, the suicide of a service member, and his helicopter flight to Wisconsin for training that triggered previous incidents during his military service. 17. On 14 February 2022, the Chief, Special Actions Branch, NGB, provided an advisory opinion in this case. This official stated: a. The applicant has petitioned the board to amend all records associated with his resignation from the NEARNG as well as the associated GOMOR and investigation. The applicant states that both the investigation and the subsequent GOMOR were biased and violated his First Amendment rights due to an inappropriate reliance on his faith to punish him. b. The NEARNG investigated the applicant for engaging in a sexual encounter with a junior enlisted Airmen from the Nevada Air National Guard during a training mission. The following account is supported by input from both the NEARNG and the applicant. In July 2017 the applicant supported a major training mission in Wisconsin, upon arrival at the training mission the applicant joined multiple other military personnel at a local restaurant where he met the airmen. The two engaged in multiple rounds of drinks with other personnel and at a later point in the evening or soon thereafter the two engaged in a consensual sexual encounter. This encounter was discovered by personnel who were present at the restaurant and witnessed what they perceived as inappropriate behavior. After reporting their suspicions to the leadership at the mission the encounter was discovered, and the applicant underwent an AR 15-6 investigation. The applicant believes that the investigation was unfairly biased because the IO and the NEARNG Commander were both practicing Catholics, who allowed their personal beliefs about the case affect their decisions during the investigation and punishment process. The applicant states that references to canonical law and other religious specific topics show an expressed bias on behalf of the IO. Furthermore, he states language utilized by his commanding general referring to a failure to protect the “most vulnerable” was an apparent correlation between his same-sex encounter with the Airmen and the abuse by Catholic priest in Boston and around the country. The applicant cites these and other similar factors as proof of the unjustness of the proceedings and requests that the board strike all records of the proceeding from his permanent personnel file and amend his records to show a voluntary resignation and honorable discharge. c. The core facts about this case are not in question. Both the NEARNG and the applicant’s accounts are virtually the same in regards to the events that occurred at the training. The core issue is the alleged presence of bias in his investigatory and non- judicial proceedings. Based on a review of the investigation documents, the IO did make references to canonical law and other violations of the Catholic priesthood. These statements do appear to be unnecessary, especially since the archdiocese does not appear to have taken steps to remove their ecclesiastical support in response to the applicant's action. Absent of any such church action, the statements are unnecessary, since at that time the applicant was solely being investigated for his violation of Army regulations, specifically Army regulation 600-20 (Army Command Policy). The applicant also believes that the bias extended into the non-judicial punishment phase of the process. Based on the input of the State the statement by the Commander NEARNG was in response to a belief that the applicant had abused his role as a chaplain by engaging in a sexual relationship with an Airmen, who the commanding general and the IO believed was seeking guidance at the time. There is no substantiating evidence that this was directly related to the same-sex nature of the fraternization, except for speculation based on the commanding general's religious affiliation. The applicant contends that due to this perceived bias in the process based on his religion, the resulting personnel actions should be voided, and his records should be amended. d. In regard to the investigation process, the statements made by the IO do appear unnecessary, especially without any ecclesiastical involvement in the process, but they do not appear to have biased the investigation. As mentioned previously, the recollection of events submitted by the NEARNG and the applicant are virtually the same, and there is no discrepancy regarding the facts as outlined by the investigation. Next, the allegation against the Commander NEARNG use of certain terms in the issuing of the GOMOR has been explained and supported in the state’s response. Similarly, the wording of the GOMOR does not affect the facts that led to its issuance. It was based on his actions that are known to be factual and not contested. The claims of bias must be examined by the impact they had on the proceedings, of which there does not appear to be any. e. Along with the request to void and remove the investigation, the applicant has requested that his documents be amended to remove any record of a “resignation in lieu of WOFR” and to show an honorable discharge. This request should be denied since the applicant chose those options at the time the state informed him that they were pursuing WOFR actions. Based on documents provided by the state the applicant was provided counsel and decided to pursue a resignation as well as waive his right to a WOFR board which may have chosen to retain him. Based on this, reversing the decision would negate the entire agreement as well as allowing the applicant to circumvent the proper procedure. f. It is the recommendation of this office that the applicant’s request be disapproved in totality. Based on a review of the document, there does not appear to be any bias that unjustly affected the investigatory or administrative process. While some terminology by the IO is unnecessary based on the situation, both processes appear to have been executed as it would have been for any other officer in the same situation. Furthermore, the removal of all records pertaining to the WOFR and the applicant’s resignation would be inappropriate since he chose that option after being afforded proper counsel and being made aware of all his options. g. The Army National Guard Office of the General Counsel was consulted on this recommendation. h. The NEARNG concurs with this recommendation and provided input for consideration. 18. The applicant provided his objections and rebuttal to the Advisory Opinion on 1 March 2022. The applicant states, in effect: a. As a preliminary matter, it appears from the letter and supporting e?mails that the NEARNG provided additional information in rebuttal to his appeal. He respectfully requests a copy of any information provided by the NEARNG and additional time to review and respond to any matters not fully addressed. He believes this is appropriate because the NGB Judge Advocate's (JA) references to said material imply that in the NEARNG submission that are demonstrably false from the record. b. He also objects to consideration of this NGB advisory opinion because it exceeds the scope of an advisory opinion contemplated by Title 32, Code of Federal Regulation Section 581.3. While he does not dispute this Board’s ability to seek advisory opinions, those opinions must be limited to the expertise of the Agency. In Paragraph 6 of the Advisory Opinion, it specifically states that NGB JA consulted with and sought the approval of the NEARNG prior to finalizing the opinion. How can this be an advisory opinion if the opposing party has editorial rights? This opinion can no longer be deemed “advisory” because it overtly provides information outside the expertise of the Agency. In other words, this is no longer an objective third party opinion, it has become an opinion advocating the outcome desired by the NEARNG. He believes this opinion is improper and respectfully request that it not be considered by the Board. c. Statement of Issues (1) As the NGB JA did not discuss the standard of review that was being applied, the applicant outlines the following issues set forth by his appeal. Ultimately, the issue is whether injustice occurred when the NEARNG: (2) VIOLATED ESTABLISHMENT CLAUSE. The NEARNG unconstitutionally applied a “religious standard” contrary to the Establishment Clause of the First Amendment, when they used Canon Law as an “aggregating factor” to initiate WOFR proceedings contrary to the normal and usual practice of the NEARNG. (3) VIOLATED FREEDOM OF RELIGION CLAUSE. The NEARNG unconstitutionally applied a “religious standard” contrary to the Freedom of Religion Clause of the First Amendment, when they used Canon Law as an “aggregating factor” to initiate WOFR proceedings contrary to the normal and usual practice of the NEARNG. (4) FAILED TO CONSIDER PSTD. The NEARNG failed to follow DoD guidance, regulation and policy by failing to consider my PTSD in mitigation to the allegations given his spotless 30?year career and the behavior was demonstrably outside his normal conduct—which resulted in a punishment that was unusually severe and contrary to the punishment given to numerous other senior leaders for fraternization. (5) INAPPROPRIATELY APPLIED CATHOLIC CANON LAW. The NEARNG allowed bias (whether conscious or subconscious) in the investigatory process when the IO who was Catholic, overtly and incorrectly, applied Canon Law as an “aggregating factor” to recommend the most severe punishment available to the NEARNG when that punishment was extremely rare in the NEARNG. (6) USED UNUSUAL PUNISHMENT BEYOND NORMAL STANDARDS FOR THE NEARNG. The NEARNG allowed bias (whether conscious or subconscious) when BG L (a practicing Catholic) adopted the canonical language of the IO (a practicing Catholic) and adopted the IO’s recommended severe punishment when such punishment was outside the norm for similar violations in the NEARNG. (7) Because - as explained more fully below - the NEARNG violated each of these individual standards, he respectfully requests that this Board grant his appeal. Granting the appeal would be a just result even if only one of these standards were violated, but all of them collectively is even more compelling for the Board's consideration. d. Statement of Disagreement with NGB Factual Summary. The NGB JA appears to have made factual findings in this matter which are new and not supported by the appeal packet. To the extent these findings were based on a formal response by the NEARNG in this matter, he again request review of this information. Based on the e?mails and memorandum provided by the NGB JA, the memorandum states this matter was handled by the NEARNG “as it would have been for any other officer in the same situation.” This position appears to be a reiteration of a comment made in an e?mail where the JA states “[u]ltimately his punishment seems to be in line with what would have happened to any officer in his situation.” [e?mail dated 9 February 2022]. This is objectionable for several reasons. (1) First, this is a new factual finding that is being made by the NGB JA and not supported by the record of appeal. Specifically, the record of appeal contains no findings that a GOMOR and initiation of WOFR proceedings are a common consequences for fraternization in the NEARNG. (2) Second, this statement is factually incorrect. In his capacity as a Chaplain for the NEARNG, he provided spiritual counseling to Soldiers who were in the administrative process. In his experience, initiation of a WOFR against a Soldier was almost unheard of. In this regard, he provided the affidavit from his former counsel, lieutenant colonel (LTC) (retired) . As this individual is no longer his counsel, this affidavit was provided in his capacity as a former NEARNG JA with first?hand knowledge. His former counsel served years as administrative defense counsel, advisor to the board, Brigade JA, and on Active Duty Special Work, with the responsibilities of the Deputy State JA. His former counsel states that in his extensive experience the initiation of WOFR was so rare that it amounted to the “nuclear option.” In fact, he states that in his experience, it was more likely that a senior leader (LTC/Colonel) who was caught fraternizing or engaged in inappropriate sexual conduct would be given the opportunity to resign without WOFR. It was not uncommon that such resignations would be accepted without “paper.” In other words, a GOMOR was not always issued as a matter of course. (3) In fact, his former counsel states that at the relevant times, he was only aware of two WFOR actions that the State conducted. He was also never involved in a case as defense counsel in which a WOFR was threatened while he was a member of the NEARNG. He was aware of one incident in which a WOFR was informally “discussed” but that Senior Leader was allowed to resign without a WOFR being conducted. Ironically, BG was involved in that case, so it would be factually incorrect to say that initiating a WOFR action against him was the “ordinary” consequence even for BG. On the contrary, it was extraordinary. (4) Please understand that he offers this affidavit in rebuttal of statements of the NGB JA, or what may be references to new information sought by the NGB JA. He does not offer it to disparage the JA, the NEARNG, or any individual. It is offered because it is relevant to what amounts to incorrect factual assertions by the NGB JA. While he does not suggest malice, they are incorrect, nonetheless. (5) An objective reading of the NGB JA opinion reveals that this belief that the consequences were consistent with prior discipline in the NEARNG is a significant basis for the recommendation to deny his appeal. Because this is an incorrect (if not inappropriate) finding of fact by the NGB JA, he respectfully requests the Board reject the recommendation of the NGB JA. To the extent the NGB JA is suggesting that this is a punishment that would be consistent with their own experiences, he would again object as he does not believe that is appropriate for an advisory opinion. First, the NEARNG’s history and pattern of administrative discipline is not within the expertise of this JA. Further, he believes it distorts the appropriate legal standard to be applied. He believes the standard is whether injustice resulted from the issues outlined above as the WOFR was the adopted recommendation of the IO. e. NGB Analysis is incomplete: The NGB JA recommended that his appeal be “disapproved in totality” without addressing the totality of his appeal. Before commenting on the substance of the NGB JA memorandum, it is important to note that the memorandum does not address the failure of the IO and BG to consider or address his severe and chronic PTSD during either the investigation or in mitigation of the consequences. This violates Department of Defense (DOD) regulation and policy and is sufficient in and of itself to grant his appeal. (1) The Military’s affirmative duty to consider PTSD as mitigation in misconduct cases should not be controversial. He has provided a copy of the original Memorandum from the Secretary of Defense providing supplemental guidance where PTSD should be liberally considered in mitigation of discharge upgrade requests. Additionally, the Army and Navy have recently agreed to settle class actions lawsuits involving this issue— while a similar lawsuit was recently filed against the Air Force. https://law.yale.edu/yls?today/news/veterans?clinic?sues?air?force? proposed?nationwide?class?action. Despite the significant strides in understanding and removing the stigma of PTSD, these settlements establish the Military continues to do a poor job of applying these standards. This has created additional work and difficulty for the Correction Boards that the Force should be able to easily resolve. (2) The NGB JA does not provide any information to dispute the circumstances or evidence he provided to show he was suffering from PTSD at the time of the incident. Given his 30 years of prior unblemished behavior; the fact that he discussed his caregiver fatigue with The Adjutant General (TAG) in the months leading up to this event; the fact that the TAG talked him out of retiring because of his caregiver fatigue; and the Command’s knowledge of the anger and stress he was under regarding the suicide of another Soldier; the leadership failed in its obligations to consider this in mitigation. The failure to even address it in any way demonstrates the extreme focus they had on their incorrect belief of rules regarding celibacy in the Catholic church. (3) If he were a single Lutheran or Muslim Chaplain, it is unlikely the IO in this case would have used an analysis of Lutheran Orders or Sharia Law as aggravating factors (and it would be equally inappropriate for them to do so). If improper religious aggravating factors were not considered by the IO, he finds it hard to believe BG would have included them in his GOMOR. The NGB JA suggests this is mere speculation, but if both were non?Catholic it is unlikely that they would discuss Canon Law and be sympathetic to its misinterpretation. As the IO overtly states his belief of Canon Law was an aggravating factor, it is more than mere speculation that their language and application of canonical language was merely unnecessary rubric. The IO overtly discusses his (incorrect) interpretation of Canon Law and the fact that it was used as an “aggravating” factor in his recommendation of the most severe discipline possible in his case. In the affidavit provided by his former counsel, he explains that WOFR is not only the highest possible administrative punishment for an Officer in the NEARNG, but it is the highest possible punishment period. Because the NEARNG has no working l punishment. Therefore, initiating a WOFR action is the most severe consequence for any misconduct and has rarely been used. (4) Additionally, the NGB JA fails to discuss the fact that at the time of the incident, he was not aware of the rank of the individual because they were off duty. The fact that he had never met this individual before, had never seen him in uniform, he was from another state and other circumstances support his belief in this regard. Not to mention the fact that he was intoxicated and his PTSD had been triggered by the long helicopter ride. Because of this he does not believe he should be guilty of fraternization if he had no intent to fraternize and had no knowledge of disparate rank. In fact, had the Airman been an officer as he believed, no violation of Army regulation would have taken place. But for the IO’s and BG irrelevant and incorrect belief of Canon Law, there would have been no punishable action. (5) Even if fraternization is a “strict liability” offense (which he does not believe), the lack of knowledge, lack of intent, and PTSD should have been considered in mitigation. It was, at worst, an honest mistake of judgement. The fact that the Air Force rules are different also led to this honest mistake. As explained in his appeal, the Air Force regulation does not consider it Fraternization for the Airman involved—thus providing the Airman the freedom to pursue consensual relations with an officer of a different Branch. Being intoxicated and naive under the circumstances may not have been a defense, but it certainly should have been considered in as mitigation. (6) The heavy focus by the IO on religious aggravating factors without so much of a mention of any mitigating factors, demonstrates their improper focus regarding their perception of his standards as a Catholic Priest. It is not even that they downplayed the mitigating circumstances - they were never even discussed. The most obvious explanation for this is a personal disgust over their perceptions of his violation of Church law (as opposed to secular rules and regulations). This is not merely implied by the record. Their focus on Canon Law is overt and the critical part of the record. Ironically the NGB JA ignores the mitigation in concluding this language is merely “unnecessary” instead of stating what it truly is - the language is constitutionally unlawful. Thus, it creates injustice in and of itself. f. NGB JA incorrectly minimizes the nature of the Constitutional Violation that has occurred. While the NGB JA acknowledges that the language of the IO and BG were “unnecessary,” the suggestion is that this is somehow language that is merely superfluous and had no actual impact on the consequence. This is demonstrably false from the record. The IO made a specific finding that the consensual relationship was “particularly egregious” because the IO believed he “disregarded the clear standard of his Church for celibacy.” The IO went on to say that he violated a duty of “pastoral care” even though the affidavit’s, collected by the IO, clearly demonstrate this was not a pastoral encounter. The Airman stated twice under oath that he came to his room as a “friend” and not seeking spiritual care. The IO chose to ignore the facts from affidavit’s and instead substituted his own religious opinions. (1) When an IO uses a lay interpretation of violations of Church law as “aggravating factors” it cannot be said that this language was merely superfluous. On the contrary, the face of the record establishes that this language was critical to both the IO’s findings and recommendations. Additionally, the record establishes that BG adopted this language in the GOMOR to make what amounts to an ecclesiastical finding that he was not to be trusted with Pastoral duties. Again, this is more than superfluous language - it is the heart of the matter. (2) This is further demonstrated by the fact that he was not judged by any Army Regulation relating to chaplains, he was judged by their perception that his violation of Church law was so egregious as to constitute an “aggravating factor.” This “aggravating factor” resulted in the recommendation of WOFR, and ultimately initiation of WOFR. Any fair reading of the investigative findings, recommendations and the GOMOR make it obvious that you cannot untangle the language as merely superfluous adjectives that had no bearing on the actual outcome. After all, the BG used the nuclear option in punishing him for fraternization - which appears to have never been done. The only basis for this in the record is the inappropriate “aggravating” factor. (3) What is most egregious, and what the NGB JA overlooks, is that the record of appeal makes it clear that the language used by the IO and adopted by BG was canonical in significance. (See original affidavit of RF) By “finding” that he could not be trusted to provide pastoral care, they were essentially finding that he was not fit to be a Priest. The constitutional violation of this finding cannot, as the NGB JA suggests, be downplayed. It is wholly inappropriate for the Army to make a determination as to his fitness for pastoral care. (4) Further, the NGB JA states that NEARNG has taken the position that the language was unintentional in that it was based on the “belief” of the IO and BG that this incident occurred during pastoral care. This position by the NEARNG is not supported by the findings. As discussed in his appeal, the IO made no finding that the incident occurred during a moment of pastoral care. The Sworn statement of the Airman affirmatively stated that he sought a social visit with him and had no intention of seeking spiritual guidance or counseling. (5) Further, as pointed out in appeal, AR 15?6 requires specific findings to be made based on the evidence, and the recommendations must be supported by the findings. As no finding of pastoral care was made, any ex post facto reading of such a conclusion into the IO’s report of investigation is improper. Even if the NGB JA believes that such a finding “could” be supported by the record - there was no such finding. As such, the NGB JA is advocating for the result that the NEARNG apparently wants. He respectfully submits that it would be improper to gloss over the actual record, especially the lack of consideration of mitigating factors as the NGB JA has done. Again, he does not suggest malice, but malice is irrelevant to the injustice of seeking the nuclear option based on an incorrect and unlawful application of church law. As a Soldier the typical punishment could have been a resignation that, while career ending, would not have included a downgraded characterization of service. It is not even clear it would have included a GOMOR as he left. (6) To the extent that the NGB JA is suggesting that the “unnecessary” language was harmless because he had no “ecclesiastical” consequences, he requests that any such argument be ignored because it is outside the scope of the appeal and an improper suggestion. This is true for two reasons. First, it suggests a legal standard for which the NGB JA provides no support for. The legal issue is whether the IO and BG violated his Constitutional rights by attempting to use the U.S. military to enforce what they believed to be religious law. The issue is not, as the NGB JA seems to suggest, whether there was extraneous harm. Second, not only is it pure speculation, but it is factually incorrect as outlined in the attached affidavit by. (7) As a civilian, the improper finding that he was unfit to be a Priest forced him to undergo numerous psychological evaluations. In fact, he had to seek specialized psychological evaluations by a specialist who was both a Ph.D. in psychology, but also a recognized expert in Canon Law. Of course, he was found to be of extremely low risk (the best possible standard) to abuse the Priest?Penitent relationship. Further, because engaging in a consensual adult relationship is not a violation of Canon Law, he was ultimately restored to full ministry. The interim lengthy and public suspension while the Diocese conducted their investigation based on the “findings” of the GOMOR, however, make it nearly impossible for him to minister effectively in his home Diocese. (8) Unfortunately, this subsequent exoneration of his credentials does not cure the past harm, nor does it prevent ongoing harm. As outlined in RF’s affidavit, as long at the DOD appears to have made an official government finding as to his fitness for ministry (which is per se unconstitutional), he is subject to further scrutiny at the will of the Church. Thus, the injustice in this case is ongoing. He merely asks this Board to correct that. (9) Importantly, the NGB JA does not dispute that an ecclesiastical finding by the IO or BG violates the First Amendment of the United States Constitution as outlined in our appeal. The NGB JA cites no case that suggest such a violation of the Constitution can amount to harmless error. More importantly, the original record in this is contrary to such a finding. The fact that the Army cannot, constitutionally, use an ecclesiastical standard as the basis for any punishment should not be controversial. While it is true that the Archbishop for the U.S. Military could initiate action on his credentials, this would not be a military proceeding, it would be a Church matter. Resolution of the Church matter could subsequently impact his ability to be a Chaplain, but that would be separate and distinct from what happened here. Here we have the military making the determination that he was not fit to be a Priest. That is the violation he is discussing. (10) To suggest that the Army can use an ecclesiastical standard as an aggravating factor to enhance administrative, non?judicial or judicial punishment is a clear violation of the First Amendment as outlined by the Supreme Court of the United States. For these reasons he respectfully request that the ABCMR disregard the improper advisory opinion of the NGB JA. g. The NGB JA applies an incorrect legal standard suggesting that post WOFR due process cures the underlying Constitutional violation. (1) The NGB JA suggests that because the NEARNG initiated a WOFR and he could have fought that action, that this somehow cures the Constitutional violations that caused the WOFR to be initiated in the first place. This is not the correct legal standard for the Board to review this action. The issue properly before this Board is whether there was an unconstitutional standard applied in the investigation and/or impacted the consequences that followed. If the improper findings and recommendations led to the initiation of WOFR proceedings, then the proceedings are unjust even if he could have expended blood and treasure to win them. A suggestion to the contrary is akin to arguing that because could theoretically prevail against the unprovoked military invasion by Russia, then that protects Russia from the illegality of the underlying invasion. He does not believe that this is the appropriate legal standard - nor should it be. (2) He is asking this Board to correct the unjust application of Church law in a military investigation. The consequence of the application - as is overtly stated in the investigative findings, recommendations and GOMOR - was to apply “aggravating factors” to initiate the most severe consequences available to the NEARNG. These factors necessarily prevented them from discussing any mitigating factors - including those they were obligated by separate policy and regulation to consider (PTSD). (3) Based on his experience and the affidavit of LTC had he just been an COL or LTC and engaged in sexual misconduct, he would most likely have been given the opportunity to resign without the initiation of a WOFR. In that case, his orders would show an “honorable” discharge. Even if he was given a GOMOR and given the opportunity to resign, his characterization of discharge would be without a downgrading caveat. That is not what happened to him, and the only logical conclusion is that the IO and BG L were biased by their incorrect perception of his obligations as a Priest. Why is this the logical conclusion? Because that is what the findings say and the GOMOR adopted the same language as the findings. (4) What the NGB JA also fails to appreciate is that the record shows that he wanted to resign before this incident happened. His decision not to fight the WOFR and accept the offer to resign (which is part of the WOFR process) is not a legal waiver of his right to appeal to this Board. While he is required to exhaust administrative remedies, he is not required to fight to the proverbial death in the administrative process. Given his PTSD, caregiver fatigue and frustration, his decision to not fight was the right one for him at the time. Knowing what he knows now, and given the healing that he has subsequently received, he would fight the WOFR today. But that is ultimately not relevant. It is incorrect for the NGB JA to suggest that he had to waive his right to seek redress for the unjust instigation of the WOFR. For these reasons, he respectfully requests that this Board not adopt the recommendation of the NGB JA. h. Request for Relief. He respectfully requests the Board to grant the relief requested because the violation of his Constitutional rights cannot be unwound from the IO’s findings, recommendations, and BG GOMOR. Further, he request relief be granted for their failure to consider his PTSD which they had overt evidence of both prior and during these administrative actions. These and the other grounds raised in his appeal support granting the simple corrections to his record. (1) In fairness, he does not dispute that if he had been offered a GOMOR with an opportunity to resign outside of the WOFR process, he would have accepted that. He is not seeking to undue his resignation. Had BG considered his mitigation and chosen a differently worded GOMOR without initiating a WOFR, he would not have appealed to this Board. If this Board believes that removal of the GOMOR entirely is a bridge too far, he would request that the offending ecclesiastical language be permanently redacted. He would also request that the retirement order be amended to show an Honorable discharge without reference to WOFR proceedings. (2) Although, he believes the relief requested in his appeal is an appropriate and efficient way to restore a just result, at least redaction and removal of the WOFR reference in his retirement order would be a major step in correcting and preventing further harm from the unlawful ecclesiastical analysis used to support the GOMOR and initiation of WOFR against him. (3) Contrary to the apparent position of the NEARNG now, it is highly unlikely that a WOFR would have been initiated absent the improper “aggravating factors.” This is the truth, and he respectfully request that his retirement order be amended accordingly. A complete dismissal (as recommended by the NGB JA and as is desired by the NEARNG) would be a whitewash of the clearly impermissible standard applied to his administrative action. Even if both the IO and BG had no ill intent, allowing a religious standard - much less an improperly applied religious standard - to be overtly used as an aggravating factor causes injustice not only to him, but to the Force as a whole. It puts the U.S. Military at risk to distracting and costly litigation. Finally, it will encourage leaders to ignore regulation and apply inconsistent standards in the application of military justice contrary to law, regulation and policy. g. Finally, he would like to respectfully inquire as to why he was addressed as a master sergeant (MSG)? If this was merely an oversight as a result of his prior service as an NCO, he understands. He does not imply any snide intent, he just wants to make sure that their aren’t consequences resulting from the WOFR that he was not aware of but may need to amend in his appeal. 19. Based on the applicant's contention(s) the Army Review Board Agency medical staff provides a written review of the applicant's medical records, outlined in the "MEDICAL REVIEW" section of this Record of Proceedings. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation reflects the applicant is service connected for PTSD. Regarding whether Command was required to obtain a Mental Status Exam (MSE) prior to separation, records reflect the applicant did not meet the criteria for a mandatory MSE; notably, although the applicant’s GOMOR rebuttal alludes to Chaplains being higher risk for distress and need for a screening process, the applicant falls short of asserting he had PTSD or request an evaluation. In terms of mitigation, fraternization is not a normal progression or sequela of trauma. Accordingly, the applicant’s service-connected PTSD is not mitigating for the misconduct leading to the applicant’s Resignation In Lieu of Board Proceedings for WOFR. 2. The applicant was discharged from the ARNG and transferred to the Retired Reserve on 30 June 2018 with a General characterization. The applicant was the subject of an administrative investigation, AR 15-6, addressing whether the applicant violated AR 600-20, para 4-14b and 4-14c, during annual training on or about 17 July 2017. The investigation was initiated after a Chaplin’s Assistant voiced concern related to improper fraternization. The applicant was found to have engaged in fraternization by having sexual relations with an Enlisted service member as an Officer and creating perceptions of undue familiarity. The Investigating Officer recommend a GOMOR be permanently filed in the applicant’s Official Military Personnel File (OMPF) and Withdrawal of Federal Recognition (WOFR) proceeding initiated. In March 2018, the applicant submitted Resignation in Lieu of Board Proceedings for WOFR. The applicant is requesting removal of his GOMOR and allied documents, removal of any record or request relating to his resignation in lieu of WOFR, an Honorable characterization, and discharge orders reflecting voluntary resignation. The applicant asserts several contentions. However, this advisory will focus on the applicant’s contention the NG had a regulatory obligation to evaluate him for PTSD and assess the potential PTSD was a mitigating factor. The applicant contends if the evaluation had been conducted, he would have been diagnosed with PTSD and provided mitigation. 3. The applicant is 50% service connected for PTSD. In October 2018, the applicant requested therapy for PTSD. The applicant reported trauma both in-service, death of a friend while deployed to the Balkans and suicide of a fellow Soldier in 2017, and as a civilian due to “exposure to the aftermath of crime and suicide” with the State Patrol and FBI. The applicant indicated his friend died in Bosnia in 2004 related to a landmine and he had to assist with retrieving his remains. The difficulty with the suicide in 2017 related to feeling the chaplainry responded poorly. The applicant reported prior supportive sessions and active engagement in non-VA care. The provider clarified contraindications of having multiple treatment providers; the applicant would have to choose VA or civilian care. A letter submitted by the applicant indicates the applicant did continue seeing a non-VA provider which the VA provider unaware of. The applicant reported a consistent history of employment to include roles requiring a high level of functioning, e.g., Chief of Staff on Capitol Hill and Campaign Manager for’s 2003 Senate Campaign. At the time of the appointment, the applicant reported he had taken a leave of absence from his role in a small parish due to trauma symptoms. The applicant asserted only one disciplinary action in-service for consuming too much alcohol; he did not disclose fraternization. The applicant started trauma treatment surrounding death of his friend in 2004 and Chaplin role in the civilian world. The provider’s notes reflect a lack of distress and shortly after, sessions focused on occupational and psychosocial stressors. In November, the applicant had a Compensation and Pension (C&P) exam denying abuse or trauma in childhood or pre-military; this is incongruent with later documentation. The applicant noted childhood depression and suicidal ideation for which he met with the school guidance counselor. The applicant reported depression in- service, but did not seek help. The applicant reported his trauma was taking cover while in Bosnia when there was artillery fire, a fellow friend killed and recovering the body, and delivering death notifications. The provider diagnosed PTSD. In December, the applicant started medication management. 4. In January 2019, the applicant reported childhood traumas resulting in anger; he reported emotional abuse by his mother, mother nearly driving into oncoming traffic, and being humiliated. In November, the applicant requested therapy refocus on trauma. However, sessions returned to psychosocial stressors after the provider did not agree with prescribing the applicant a service dog. Specifically, the applicant requested assistance with obtaining a service dog. When the provider noted he did not meet criteria and concern the applicant was perceiving this as optimal treatment, contraindicating evidenced based practices, the applicant stated the provider was denying a veteran service and requested the provider obtain consultation and clarification. The provider proceeded with obtaining consultation, to include supervisors, reiterating he did not meet criteria; the applicant brought in an article on PTSD and service animals pushing the provider to qualify him. In December, the writer noted the applicant’s report of trauma was diffuse negating trauma treatments and offered other options. 5. In February 2020, the applicant reported he’d started the process of obtaining a service dog through a civilian agency. While the applicant’s report of trauma symptoms increased, e.g., difficulty leaving his home, his actions were incongruent, e.g., went on a cruise. The applicant discontinued therapy in March, opting to not engage in telehealth treatment during COVID. The applicant continued with psychiatry thru June, discontinuing after obtaining a letter supporting a service animal. 6. In May 2022, the applicant requested PTSD treatment. During the intake, the applicant reported childhood trauma was the divorce of his parents. The applicant indicated seeing non-VA providers during COVID, reason for opting for non-VA care unknown. The applicant indicated traumas involved his friend’s death and retrieving his body which included “sprint(ing) through a minefield,” mugging in Rome with asserted TBI, and secondary trauma from being a Chaplin in the civilian and military realms. The applicant returned to the VA for medication management and attended three therapy sessions in July and August. 7. The applicant supplied a May 2019 letter from a psychologist indicating the applicant had been seeing him weekly since April 2018. The provider opined since the drinking and sexual relations was “out of character” for the applicant and occurred after accumulating traumas, PTSD influenced the misconduct. 8. In reviewing the applicant statements in the packet, the applicant states he informed two separate individuals he had PTSD and caregiver fatigue, once in 2016 and another in 2017, with desire to retire. However, after encouraged to continue serving, the applicant did not submit a retirement request. Specific to the basis for separation, the applicant contends the helicopter ride to Volk Field triggered memories of being on the helicopter with his friend’s body activating a desire to drink once they landed. The applicant raised concerns that the Command did not consider whether PTSD was mitigating in the reason for resignation. 9. In the applicant’s 20 December 2017 GOMOR rebuttal, he states, “Chaplains are subject to higher amount of stress and more likely to experience burnout and compassion fatigue due to a cumulative level of trauma,” and “The use self-medication to combat depression or anxiety with alcohol, addictive, or destructive behavior is well documented.” The applicant stated there are “no program(s) in place to assess or screen for stress injuries in Chaplains …” While the applicant’s statement outlines his belief that Chaplains are at a risk for behavioral health symptoms resulting in self- medication, the rebuttal is inexplicably absent of a direct assertion of PTSD or request for a behavioral health evaluation. 10. According to DoDIs, ALARACTs, and OTSG/MEDCOM at the time of discharge, the applicant was not required to have a Mental Status Exam (MSE) prior to separation. Specifically, at the time of separation, the applicant was not pending an Under Other than Honorable separation, had not deployed or been sexually assaulted during the previous 24 months, and was not diagnosed or alleged service-related PTSD or TBI influenced the misconduct. Although it is acknowledged the applicant contends he informed leadership he was struggling with PTSD in 2016 and 2017, the only available documentation is his GOMOR rebuttal which is absent of an assertion he had PTSD or request for a behavioral health examination. 11. Kurta Questions: a. Does the applicant have a condition or experience that may excuse or mitigate the discharge? "YES. The applicant is service connected for PTSD." b. Did the condition exist, or the experience occur during military service? "YES. Irrespective of whether the applicant met criteria for a diagnosable condition, VA records do support the applicant was experiencing some level of symptoms while in- service." c. Does the condition or experience actually excuse or mitigate the discharge? "NO. Fraternization is not a normal progression or sequela of trauma." d. Does the condition or experience outweigh the discharge? "NO." BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. a. The evidence of record shows the State ARNG conducted an AR 15-6 investigation of the applicant for engaging in a sexual encounter with a junior enlisted member. The Board reviewed and agreed with the advising official’s finding that while the references to canonical law and other violations of the Catholic priesthood are clearly unnecessary, such statements do not appear to have biased the investigation. The applicant was issued a GOMOR based on his actions that were known to be factual and not contested at the time The Board determined the applicant violated the regulations and would have been treated the same regardless of branch or same sex nature. Based on the evidence, the Board determined the GOMOR is neither untrue nor unjust, and therefore, did not find reason to remove it. b. The evidence of record also shows the applicant chose to request resignation in lieu of withdrawal of Federal recognition. He was informed of the action regarding withdrawal of Federal recognition and still decided to pursue resignation. The Board agreed that reversing this action would allow the applicant to circumvent the proper procedure and is not equitable. c. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. 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. 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 15-6 establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides guidance on the various medical conditions and physical defects that may render a Soldier unfit for further military service, and that fall below the standards required for service. These medical conditions and physical defects, individually or in combination, are those that: significantly limit or interfere with the Soldier's performance of their duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service. 4. Army Regulation 165-1 (Army Chaplain Corps Activities) establishes the policies, duties, and responsibilities of the U.S. Army Chaplain Corps in meeting the Army's religious and moral requirements in support of Title 10, U.S. Code; Department of Defense directives and Department of Defense instructions; and Chief of Chaplains (CCH) requirements. The Chaplain Corps consists of all military and Department of the Army Civilian religious support professionals. a. Chapter 8 (Chaplain Personnel Management) states the CCH manages all Regular Army chaplains through the Department of the Army Chaplain-Personnel and U.S. Army Reserve (USAR) chaplains through Department of the Army Chaplain- Reserve Component Integration. ARNG Chaplain Corps assets are managed by that State's Senior ARNG Chaplain in coordination with the ARNG Staff Chaplain and Department of the Army CCH. b. Paragraph 8-10 (Adverse Personnel Actions) states when notified of an impending command adverse action against a chaplain (Active Component or Reserve Component), the Senior ARNG Chaplain, USAR Command Senior Chaplain, ARNG Staff Chaplain, or senior supervisory chaplain in a deployed environment will: (1) immediately inform the CCH, Deputy CCH, or Office of the CCH; and (2) direct the chaplain concerned to contact their ecclesiastical endorsing agent. No chaplain will contact the endorsing agent of any other chaplain about pending or probable adverse personnel actions without CCH permission. c. Chapter 16 (Pastoral Care and Counseling), paragraph 16-1, states pastoral care and counseling is an essential capability of the Chaplain Corps, a key part of nurturing the living. Pastoral care and counseling describes a broad range of activities involved in caring for and strengthening Army personnel to survive and grow through the multitude of experiences that are part of military life. Chaplains respect confidentiality in their provision of pastoral care and counseling. Chaplains respect, honor, and guard the trust of those they serve in ministry as officers in the Army Profession, so that an individual's trust and personal privacy are not violated. 5. Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign Plan, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Harassment/Assault Response and Prevention Program (formerly the Army Sexual Assault Victim Program). a. Paragraph 4-14a states the term "officer" used in this paragraph includes both commissioned and warrant officers unless otherwise stated. The term "noncommissioned officer" refers to Soldiers in the grade of corporal to command sergeant major/sergeant major. The term "junior enlisted Soldier" refers to Soldiers in the grade of private to specialist. The provisions of this paragraph apply to both relationships between Soldiers in the Active and Reserve Components and between Soldiers and personnel of other Military Services. This policy is effective immediately, except where noted below, and applies to opposite-gender relationships and same- gender relationships. b. Paragraph 4-14b states Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier or between an NCO and a junior enlisted Soldier. Examples of familiarity between Soldiers that may become "undue" can include repeated visits to bars, nightclubs, eating establishments, or homes between an officer and an enlisted Soldier or between an NCO and a junior enlisted Soldier, except for social gatherings, that involve an entire unit, office, or work section. All relationships between Soldiers of different grade are prohibited if they: (1) compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; (2) cause actual or perceived partiality or unfairness; (3) involve, or appear to involve, the improper use of grade or position for personal gain; (4) are, or are perceived to be, exploitative or coercive in nature; or (5) create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. c. Paragraph 14c(2) states certain types of personal relationships between officers and enlisted Soldiers or between NCOs and junior enlisted Soldiers are prohibited. Prohibited relationships include dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships between officers and enlisted personnel or between NCOs and junior enlisted Soldiers. This prohibition does not apply to: (1) marriages between an officer and an enlisted member or between an NCO and a junior enlisted Soldier; (2) personal relationships between members of the ARNG or USAR, when the relationship primarily exists due to civilian acquaintanceships, unless the individuals are on active duty (other than annual training), on full-time National Guard Duty (other than annual training), or serving as a dual status military technician; and (3) personal relationships between members of the Regular Army and members of the ARNG or USAR when the relationship primarily exists due to civilian association and the USAR member is not on active duty (other than annual training), on full-time National Guard Duty (other than annual training), or serving as a dual status military technician. d. Paragraph 14e states all military personnel share the responsibility for maintaining professional relationships. However, in any relationship between Soldiers of different grade or rank, the senior member is generally in the best position to terminate or limit the extent of the relationship. Nevertheless, all members may be held accountable for relationships that violate this policy. 6. 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 OMPF 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 OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, 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 OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. 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. 7. 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. The AMHRR includes, but is not limited to the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. 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. 8. National Guard Regulation 635-101 (Personnel Separations – Efficiency and Physical Fitness Boards) prescribes the criteria and procedures for determining the capacity and general fitness of commissioned and warrant officers for continued Federal recognition in the Army National Guard. Limitations on separations: a. The separation of an officer under the provisions of this regulation will be accomplished upon the approved recommendations of a board of officers convened by competent authority, except as provided in subparagraph b below. b. An officer will be separated from the ARNG and as a Reserve of the Army without board action when he: (1) submits a resignation in lieu of proceedings for the WOFR in accordance with paragraphs 23 and 24 and the resignation is accepted by the appropriate authorities of the State concerned, or (2) has less than 3 years commissioned service and fails to meet standards of service school while participating in basic branch course due to disciplinary reasons or academic or leadership deficiencies. c. An officer with 20 or more years of qualifying Federal service for retired pay when being considered for separation because of substandard performance of duty will be given an opportunity to elect transfer to the Retired Reserve. d. Section V (Resignation in Lieu of Withdrawal of Federal Recognition) states when an officer has been notified that he is being considered for WOFR, he may submit a resignation at any time prior to final action on the board proceedings. Paragraph 24b states resignations will be submitted through channels to the State Adjutant General for action. A copy of the resignation will be appended to the separation orders issued by the State Adjutant General and forwarded to the Chief, National Guard Bureau. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014384 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1