IN THE CASE OF: 

		BOARD DATE: 25 April 2023

		DOCKET NUMBER: AR20220004981


APPLICANT REQUESTS:

*	Removal of the General Officer Memorandum of Reprimand (GOMOR), dated 
7 July 2020 from performance folder of his Army Military Human Resource 
Record (AMHRR)
*	Reinstatement back into the Active Guard Reserve (AGR) Program
*	Removal of sex related offenses code from Army Records
*	Receive promotion to Master Sergeant (E-8)
*	Removal/Expunge the U.S. Army Criminal Investigation Command (CID) 
investigation from his military and civilian records
*	Recertification as a 27D, Paralegal NCO
*	Receive backpay and allowances 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Counsel Legal Brief
*	Applicant Statement
*	Text Messages
*	List of 2019 Holidays, 7 August 2018
*	Inspector General Action Request, 8 September 2020
*	Request to amend CID Record, 17 August 2020, and 28 August 2020
*	Commander’s Report of Disciplinary or Administrative Action
*	27 May 2020 Law Enforcement Report (LER)
*	Fingerprint Card
*	1 September 2020 CID legal Review to Amend LER
*	2 November 2020 CID response to correct CID records
*	Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and 
Boards of Officers)
*	Promotion List Standing
*	GOMOR and Filing Instructions
*	Notification of Immediate Reenlistment Prohibition, 20 January 2021
*	2013-2021 DD Form 214 (Certificate of Release or Discharge from Active Duty)
FACTS:

1.  The applicant states the General Court Martial Convening Authority elected not to 
take the action to a court-marital and his commander initially elected not to impose any 
type of punishment. He received a GOMOR from the general officer for this type of 
matter. He provided overwhelming evidence to the GOMOR that would suggest or at 
the least indicate his innocence that was overlooked. He was never given an 
opportunity to present his case and receive an unbiased ruling. Instead, administrative 
action after another was imposed as a method to keep him administratively flagged until 
he eventually reached his separation/ETS date.

2.  Counsel reiterates the applicant’s requests/issues and states the basis for this 
request is both error and injustice. [Applicant] was accused of a sexual assault that was 
the product of several investigation, never proven beyond a vague, Criminal 
Investigation Division “probable cause" finding, and a myriad of questionable 
administrative tools that deprived him of his right to due process. While [Applicant] has 
clearly articulated the facts behind this request, counsel wants to separately discuss the 
legal errors and injustice present in this case.

	a.  Error: This case is fraught with error. The GOMOR in this case was issued in 
violation of the controlling Army Regulation and was contrary to the facts and findings of 
various levels of investigation. The unit used various flags in violation of the applicable 
Army Regulation and erroneously failed to lift them after the action was taken. Further, 
the unit failed to follow the applicable Army Regulation concerning his security 
clearance. They also failed to follow Army and FOIA regulations by not giving the 
applicant the required documents at the time of action or when reasonably requested. 
All these issues resulted in a lack of due process and ultimately kept the applicant from 
being promoted on time and having him discharged from military service.

		(1)  The first error in this case is that the GOMOR in issue was not accomplished 
in accordance with AR 600-37 (Unfavorable Information), paragraph 3-5c(b) because 
the GOMOR referral did not contain the applicable portions of the investigation that 
served as the basis of the GOMOR. As he stated in his memorandum, he was forced to 
file a FOIA (Freedom of Information Act) request to obtain the report of investigation 
after the GOMOR decision was already made. The applicant was entitled to have the 
report of investigation prior to rebutting the GOMOR because without that report, he had 
no idea what allegations he was rebutting.

		(2)  In addition, the GOMOR was given contrary to the facts and findings of 
various investigations. As shown in his memorandum and the various attachments to it, 
the applicant did not commit any offense. The AR 15-6 initiated by the legal command 
concluded there was no offense. The author of the GOMOR relied on a CID finding of 
“probable cause" to initiate the action. Of course, probable cause is even below the 
GOMOR threshold of “preponderance of the evidence.” 

		(3)  The GOMOR and this entire case were erroneous because the unit violated 
AR 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) regarding its use of 
Flags. AR 600-8-2, paragraph 2-1b states that flags are not to be used as punishment. 
He thinks an agenda driven unit used them for such in this case to prohibit him from 
being promoted and continuing his career. Paragraph 2-ld required that flags be initiated 
and removed within 3 working days of the action. Clearly, the unit failed several times in 
this requirement, most egregiously when it failed to remove the flag that made it 
impossible to reenlist. This blatant misuse of flags is reason enough for the Board to 
grant relief.

		(4)  Because the applicant did not commit any sexual assault, the sex offender 
coding dictate in AR 600-37 is not warranted or appropriate and the procedure that was 
used to give him this coding was erroneous. As stated above, the applicant proved that 
he did not commit any offense, sexual or otherwise. It appears the author of the 
GOMOR did not sufficiently consider all the facts and circumstances surrounding the 
allegations. Much like CID, the author came to an erroneous conclusion based on 
incomplete facts and circumstances. The author did not consider the fact that the 
complaining witness' statements went from nothing happened to sexual assault over 
time. While it is clear in the current sexual assault environment that there are many 
incentives for a victim to come forward, this non-victim did not come forward until she 
was faced with losing a plum assignment. The author did not consider that it would have 
been physically impossible for the applicant to commit any offense given the timing of 
various actions of the complaining witness roommate. The author did not consider the 
complaining witness' motives to fabricate or her many inconsistent statements that went 
from nothing happened to sexual assault. Further, paragraph 3-4d of AR 600-37 
requires due process of notice and an opportunity to respond to this coding. The 
applicant was never afforded that due process.

		(4)   Because of the failure of the unit to provide even basic due process, the 
applicant was denied his well- earned promotion to Master Sargent and the 
corresponding pay. Paragraph 1-11 of AR 600-8-19 (Enlisted Promotions and 
Reductions) is clear. Soldiers on the list for promotion to Sergeant First Class and 
above are not eligible for promotion if denied favorable personnel actions under the 
provisions of AR 600-8-2. [Applicant] was selected for promotion to MSG but became 
ineligible due to the unit violating the imposition and removal of flags provisions of AR 
600-8-2 as discussed above.

		(5)  The applicant also requests recertification as a paralegal,27D. He was 
wrongfully decertified due to all the above issues and should not have lost his 
certification. Counsel asks that he be restored to his previous status as a paralegal with 
an MOS of 27D. 

		(6)  This case is also in error because all the applicant’s Freedom of Information 
Act requests were improperly denied until it was too late for him to repair the damage 
that was done to his career. The appropriate office denied the original FOIA request on 
16 Jan 19, citing “pr-decisional" as the basis for the denial. While the AR 15-6 results 
had not been yet decided, the underlying evidence was available and should have 
provided. The applicant was reasonably requesting documents in the possession of the 
government that would have effectively shown him what the current accusations were 
against him. Without those documents, he could not adequately answer questions 
posed by the investigating officer. As such, the denial was incorrect.

		(7)  Further; the applicant’s case was just wrongly decided. There is no evidence 
any of the actions taken against him were taken after consideration of all the evidence 
available. The applicant was repeatedly asked, "why would she make this up." That is 
not the question to ask if someone is presumed innocent. It is the Investigating Officer's 
and imposing Commander's job to determine that answer, and they apparently failed to 
do the investigation that would lead to the answer. Also, there is no evidence that shows 
that any of these actions were taken after asking the question, "why did she keep 
changing her story." As shown in his memorandum attached to his petition, [Applicant] 
showed through an exact timeline that the events described were physically impossible, 
that Specialist (SPC) had inconsistent statements and that she also had a motive to 
fabricate her allegations. It appears that this fell on ears that were unwilling to listen, 
and the case was pushed forward to the detriment of [Applicant]. This is an obvious 
error in the processing and deciding of this case.

		(8)  Given the above displays of error, the overall processing in this case 
constitutes a gross lack of Due Process. This reaches a constitutional denial of 
[Applicant’s] rights guaranteed by the 5th Amendment to the United States Constitution. 
The 5th Amendment guarantees due process. Form the case law on the right to due 
process, it is clear that due process gives a citizen the right to notification of the 
deprivation of a right to life, liberty or property and the opportunity to be heard. See for 
example, 347 US 843 (1954) and 68 US 223 (1863). This concept is black letter law and 
undisputed. This right to be notified and heard is not shallow. The Supreme Court states 
that these must be meaningful.,424US 3I9 (1976). In this case, [Applicant] was not 
given meaningful notice or an adequate right to be heard. The fact that he was in the 
dark as to the allegations against him because he was not provided with the evidence 
against him and the fact that many of the flags imposed were not done correctly show 
that he was denied his 5th Amendment rights. It is unconscionable that an entity, such 
as the Army, and in particular, members of the legal community in the Army, who are all 
sworn to defend the Constitution of the United States, repeatedly violated the most 
basic protections provided by the Constitution. As such, we ask this Board to find error 
and provide the relief requested.

	b.  Injustice: This case also constitutes an injustice because the unit failed to take 
into account the [Applicant’s] spotless record and dedication to the Army. In addition, 
this case was wrongly decided in an environment that precluded [Applicant] from have a 
fighting chance of proving his innocence.

		(1) [Applicant] had a spotless career prior to these allegations. He volunteered for 
and served in the most difficult assignments available, and was destined for promotion 
to MSG. There is nothing in his past that would lead anyone to believe that his mere 
visiting a junior soldier in a hotel room where no sexual activity occurred was nothing 
more than a minor departure from his clean record of faithful service that he provided 
since he was 17 years old. Therefore, it is an injustice to deprive him of his job, his 
career, his promotion and all the benefits associated with that promotion due to untrue, 
unfounded allegations by an inconsistent soldier with motives to fabricate her story. 
Nowhere in the record of this case does it show that anyone in command punished the 
applicant or were even concerned about the fact he was temporarily in her room for 
short period of time. Instead, he was forced out with promotion due to fabrications. That 
is injustice to the core.

		(2)  The current environment in the United States military regarding allegations of 
sexual assault against service members is systemically designed to falsely conclude 
that every allegation is true. Beginning with allegations of sexual assault at the military 
academies and culminating with a Commander's setting aside court-martial findings 
against an Air Force Lieutenant Colonel (Lt Col), certain political figures have pressured 
the military to make changes to its policies. While laudable in 
intent, the actual effect has been abysmal. From Senator constant pursuit of changes to 
the UCMJ to former President comments that people who are accused of committing 
these offenses will be tried and discharged, these efforts have led to the type of unjust 
outcomes we see in this case. It is public knowledge that the Commander that set aside 
the findings for the Air Force Lt Col was denied his next star and chance to advance. 
This has set up sever [sic], negative incentives for commanders to eff on the side of 
alleged victims despite the evidence. No commander in their right mind that wants to 
advance will let someone off the hook for these types of allegations, even in contrary to 
overwhelming evidence as in this case.

		(3)  Due to the fact that [Applicant] was ultimately denied reenlistment and 
promotion contrary to his shown impeccable service in an environment that does not 
allow for commanders to exercise real command discretion, counsel asks this Board to 
find injustice. 

	c.  Conclusion: Given that this case is riddled with error and injustice, counsel 
requests this Board provide the relief requested. 

3.  The applicant also provides a self-authored statement (enclosed for the Board’s 
review) regarding the events that occurred. He requests the Board consider this 
memorandum and the memorandum from his attorney, and all noted attachments as his 
application. The basis for this application is both error and injustice. He was never 
honestly given an opportunity to prove his innocence, nor given an opportunity to 
receive a fair hearing on such an egregious matter. The General Court-Martial 
Convening Authority elected not to go to a court martial. His commander initially elected 
not to impose any type of punishment or administrative action. Instead, he received a 
reprimand, in which the filing decision is not based on innocence or guilt at a standard 
of beyond a reasonable doubt, but it is up to the issuing authority. He also had his 
security clearance suspended and a separation action that was initiated was never 
followed through with, and all these actions were due to an untrue allegation. The 
bottom line is that he was accused of a sexual crime that he absolutely did not commit, 
he was subject to numerous investigations, some of which cleared him, his due process 
rights were violated, and he was improperly flagged at various times during the 
processing of the case, which caused him not to be able to re-enlist and precluded him 
getting promoted to E-8 as he should have been. He has provided a by date chronology 
of the events (see his statement). 

4.  Review of the applicant’s service records shows: 

	a.  He enlisted in the U.S. Army Reserve (USAR) on 7 June 2000 and held military 
occupational specialty (MOS) 71D, now 27D, Legal Specialist. 

	b.  He served through multiple reenlistments in a variety of assignments, including 
mobilization from 1 November 2004 to 20 January 2006, with service in Kuwait from 
December 2004 to November 2005. 

	c.  He entered active duty in the AGR program on 28 February 2013. His last 
reenlisted in the USAR was on 26 October 2016 for 3 years. He was promoted to 
SFC/E-7 on 1 November 2016. 

	d.  The applicant’s name is listed on the AGR MSG/E-8 Promotion Sequence Report 
for the month of December 2020. 

	e.  On 9 July 2020, the U.S. Army Human Resources Command issued him a 
Notification of Eligibility for Retired Pay at Age 60 920-Year Letter). 


5.  On 8 March 2019, an investigating officer (IO) was appointed to conduct an 
investigation pursuant to AR 15-6, into an allegation against the applicant, who is an 
AGR Soldier assigned to the 75th Legal Operations Detachment (LOD), that the 
applicant had inappropriate sexual relations with SPC while in attendance at the 2019 
West Coast Regional On-Site In. 

	a.  Allegation: Did applicant have sexual relations with SPC while in attendance at 
the 2019 West Coast Regional On-Site in? By preponderance of the evidence, the IO 
did not find that [Applicant] had sexual relations with SPC.

	b.  Allegation: At any time before or after the 2019 West Coast Regional On-Site in, 
did applicant have sexual relations or maintain a sexual relationship with SPC . By a 
preponderance of the evidence, the IO did not find that at any time before or after the 
Western On-Site in the applicant had sexual relations or maintained a sexual 
relationship with SPC . 

	c.  Allegation: Does the relationship, if any, between the applicant and SPC 
constitute Fraternization as defined by Article 134 of the UCMJ? The IO determined 
since the applicant is neither a warrant nor a commissioned officer, any relationship that 
might exist could not constitute fraternization under Article 134.

	d.  Allegation: Does the relationship, if any, between the applicant and SPC 
constituted prohibited relationship as defined by AR 600-20, paragraphs 4 14 and 4-15? 
By a preponderance of the evidence, the IO did not find that there was a prohibited 
relationship between the applicant and SPC as defined in 600-20, paragraphs 4 14 and 
4-15.

	e.  Whether any personnel should be held accountable for any shortcomings or 
failures? Sergeant provided a sworn statement that SPC told her that the applicant was 
in her room. The fact that he was in the room of a junior enlisted Soldier of the opposite 
gender late at night and without a military reason is conduct contrary to good order and 
discipline or of a nature to bring discredit upon the armed forces in violation of Article 
134, UCMJ. The applicant should be held accountable for this conduct.

	f.  Recommendations: Based upon his findings, the IO recommended that the 
applicant receive a written counseling statement for being in the room of an enlisted 
Soldier which is conduct of a nature to bring discredit upon the armed forces in violation 
of General Article 134.

6.  On 28 October 2019, he requested a complete unredacted copy of the AR 15-6 
investigation with legal review where he was alleged to have committed inappropriate 
conduct with a SPC during the Western Regional onsite that took place around January 
2019. He stated that he is under CID investigation. He has reason to believe that the 
information contained in the AR 15-6 investigation will help dispute the allegations 
charged in the CID investigation. 

7.  On 16 January 2020, an official at the U.S. Army Reserve Legal Command informed 
the applicant that this email constitutes an informal denial under FOIA exemption 5 of 
his request for the AR 15-6 Investigation regarding alleged inappropriate conduct with a 
specialist during the On-Site. The requested AR 15-6 Investigation is incomplete and 
pre-decisional. As such, the requested documents are exempt from release. OTJAG is 
the formal denial authority. 

8.  On 27 January 2020, by memorandum to the Office of The Judge Advocate General; 
Subject: Request for Reconsideration: Initial FOIA Request Denial the applicant 
requested reconsideration of the FOIA request concerning an AR 15-6 investigation, 
whereas he was alleged to have committed inappropriate misconduct with a Specialist 
during the Western Regional Onsite on or around January 2019. He received an email 
on 16 January 2020 from LTC DCJA, United States Army Reserve Legal Command, 
denying his initial request. He has reasons to believe the investigation would dispute the 
allegation he committed inappropriate misconduct with a Specialist, that the command 
without cause forwarded his case to CID with allegations of a suspected sexual assault 
and that the command violated procedures in AR 15-6. The investigation will also show 
the command violated his due process rights and help establish in conjunction with 
other actions related to the investigation that members of the command have a clear 
vendetta against him. He has been flagged almost a year and his security clearance 
has been suspended for allegations he did not commit. 

9.  A Final Law Enforcement Report, dated 7 May 2020, shows the applicant was titled 
for the offenses of (1) Sexual Assault (UCMJ - Article 120) and (2) Abusive Sexual 
Contact (Adult) (UCMJ - Article 120) for an incident that occurred on 12 January 2019 at 
the. 

	a.  Report Summary: CID Office was notified by LTC that SPC wished to report a 
sexual assault; however, he was not privy to any specific details. LTC [Name] advised 
on an AR 15-6 investigation looking into a report of potentially prohibited relationship 
involving SPC [name] and applicant, but he was unaware of it was connected to the 
more recent report of sexual assault by SPC [Name]. The AR 15-6 documentation was 
obtained, which revealed that investigation was initiated after SPC [Name] hotel 
roommate during training complained she had to leave their shared room because SPC 
[Name] was engaging in sex acts with another individual, later identified as the 
applicant. Neither SPC [name] nor the applicant made statements during the AR 15-6 
investigation and no one that was interviewed referred to sexual assault. 

	b.  SPC [Name] hotel roommate was interviewed. She related that she entered their 
shared room when the applicant was reportedly in the room, although she never 
actually saw him. She related she was confused by the situation, so she questioned 
SPC [Name] to determine of she was being pressured into doing something with the 
applicant, reminding he that she had a boyfriend. She related SPC [Name] redacted. 

	c.  Trial counsel opined probable cause exists to believe the applicant committed the 
offenses of sexual assault and abusive sexual contact. 

   d.  The LER also indicates that a check of the US Army Crime Records Center 
and/or National Criminal Information Center (NCIC) was completed for the applicant 
which revealed the following information: 

*	Charge: Battery, 20061204, Police Department, Disposition: Dismissed
*	Charge: Driving while License Suspended or Revoked, 20070316, County 
Sheriff's Office, Disposition: Probation
*	Charge: Failure to Appear for Fingerprints Charge, 20070316, County 
Sheriff's Office, Disposition: Other
*	Charge: Battery, 20100822, County Sheriff's Office, Disposition: Other

10.  Office of the Staff Judge Advocate, Presidio of Monterey provided a memorandum 
to the Special Agent in Charge, Presidio of Monterey CID Office, Subject: Legal Opinion 
pertaining to CID Investigation [Number]. The memorandum states: 

	a.  The Presidio of Monterey CID Office has requested this office provide a legal 
opinion pertaining to the referenced investigation. This memorandum serves as a legal 
opinion from the Office of the Staff Judge Advocate, Presidio of Monterey, CA, 
regarding the referenced investigation. The offenses are: Sexual Assault (UCMJ - 
Article 120) and Abusive Sexual Contact (Adult) (UCMJ - Article 120)

	b.  After reviewing all documents and records pertaining to the investigation, this 
office provided the following legal opinion for the listed Subject(s)/Suspect(s) and 
offenses: Probable Cause exists to believe Subject/Suspect committed the offense(s). 
The investigation can be closed as all reasonable investigative activity has been 
completed and all reasonable leads have been exhausted.

11.  The DA Form 4833, Commander’s Report of Disciplinary or Administrative Action, 
dated 28 May 2020, shows the applicant as the offender, and the referred information 
are Abusive Sexual Contact (Adult), 12 January 2019, and Sexual Assault, 12 January 
2019. The Remarks block reads: “The General Court-Martial Convening Authority, COL 
[Name] “has the signed the non-prosecution memorandum in the applicant’s case.” 

12.  On 7 July 2020, the Commanding General, U.S. Army Legal Command 
reprimanded the applicant. 

	a.  The GOMOR states he is hereby reprimanded for his misconduct.
		(1)  An investigation conducted by the United States Army Criminal Investigation 
Command (CID) found that, on or about 12 January 2019, in, he engaged in multiple 
non-consensual sex acts with SPC. Despite SPC repeated attempts to get him to stop, 
to include repeatedly telling him no, he continued to perform non-consensual sex acts 
on SPC. As found by the CID investigating officer, his conduct constitutes sexual 
assault and abusive sexual contact under Article 120, of the UCMJ. Additionally, SPC is 
a subordinate junior enlisted Soldier assigned to his command. As a senior NCO, he is 
prohibited under AR 600-20 from having a sexual relationship with a junior enlisted 
Soldier and is thereby in violation of the UCMJ, Article 92, failure to obey a regulation.

		(2)  He is hereby reprimanded for his misconduct. He has shown himself to be 
culpable and derelict in your duties. His misconduct is unbecoming of an NCO, and has 
brought great discredit upon yourself, this command, and the USAR. As an NCO his 
conduct must be above reproach. He has a duty to uphold the Army Values and act 
responsibly in every situation, to do what is right, and to set a positive example for 
subordinates. He has failed in his responsibilities as an NCO and a leader. He (the 
imposing GO) seriously questions his (the applicant’s) judgment. His actions have 
embarrassed and disappointed his chain of command.

		(3)  This is an administrative reprimand imposed under the provisions of AR 600-
37, Unfavorable Information, and not as punishment under the UCMJ. He was advised 
that in accordance with AR 600-37, paragraph 3-4b, the imposing GO was considering 
whether to direct this reprimand be filed permanently in his AMHRR. Prior to making the 
filing decision, the imposing GO will consider any matters the applicant presents to him.

	b.  The applicant acknowledged receipt of the unfavorable information presented 
against him and the supporting documentation. He elected to submit matters on his 
behalf. On 13 July 2020, he submitted a rebuttal statement denying the allegations that 
he committed sexual assault, abusive sexual contact and engaged in a sexual 
relationship with a junior Soldier. He acknowledged how his action of being in a junior 
Soldier room have led to this point and understand the significance of making this 
irresponsible decision. As a senior NCO, he deeply regrets and apologizes for his 
behavior and negative attention brought to the command. There are many 
inconsistencies in the investigation. 

		(1)  The allegations of sexual assault, abusive sexual contact and inappropriate 
sexual relationship supposedly took place at the 10-13 January 2019 Western Regional 
Onsite in Committing sexual assault or abusive sexual contact is not synonymous with 
having a sexual relationship with another individual.

		(2)  The company commander conducted an informal Commander's Inquiry in 
January 2019, with all parties involved and the junior Soldier never indicated they had a 
sexual relationship or that he sexual assaulted and committed abusive sexual contact 
against her.

		(3)  On 8 March 2019, an AR 15-6 investigation was appointed by the U.S. Army 
Reserve Legal Command to investigate allegations of inappropriate sexual relations 
between a junior Solider and myself. On 22 May 2019, in an AR 15-6 report, an 
investigating officer (IO) found by a preponderance of the evidence that he did not have 
sexual relations or maintained a relationship with the junior Soldier before, during, or 
after the 2019 Western Regional Onsite held in from 10-13 January 2019.

		(4)  He has reason to believe that the sexual assault and abusive sexual contact 
allegations stems from the junior Soldier attempting to avoid potential adverse action.

		(5)  He understands that everyone processes events and behaves differently, but 
he wanted to point out certain behaviors and actions by the junior Soldier that doesn't 
necessarily correspond with a victim that has been sexually assaulted.

		(6) During the entire investigation starting from when he was initially flagged, he 
believes his due process and rights were violated or incorrect procedures were followed 
in response to the false allegations.

		(7) This matter has had a negative impact on his military and civilian career. He 
has been flagged for over a year and a half. This has prevented him from reenlisting, 
attending schools, using a government computer, receiving awards, using tuition 
assistance, and from being promoted. The sexual assault charge recently came up on 
his background check, when he submitted a renewal for a concealed weapons permit, 
that was denied because of the charge.  

		(8)  He again denied that he sexually assaulted, committed sexual abusive 
contact, or engaged in a sexual relationship with a junior Soldier. He asked the 
imposing GO to consider the matters he submitted, his overall service, and his potential 
for future service to this nation.

	c.  On 13 July 2020, a legal assistant attorney wrote on behalf of the applicant and 
stated: 

		(1)  He requested the imposing officer consider how low should the bar be set to 
end the applicant’s, or any other service member's career? In the applicant’s case, his 
actions have been investigated for 18 months, including granting multiple extensions to 
the AR 15-6 investigating officer. His timely request for a 30 day extension to gather 
evidence to respond did not receive any response from his staff, not even a denial.

		(2)  The incident has been the subject of three separate investigations: a 
commander's inquiry, AR 15-6, and criminal investigation. Whether intentional or not, all 
parties involved reasonably concluded that the matter would continue to be investigated 
until the correct result was reached. The applicant’s accuser certainly concluded that 
her testimony must change. As she was subjected to ever more formal questioning her 
memory "improved" to recall a lack of consent and specific details about her interaction 
with the applicant. Her last statement allegedly provided clarification of her original CID 
statement despite being "unable to recall the chronological order of the sex acts that 
took place and was only able to remember fragments of what occurred." 

		(3)  To conclude the applicant committed the egregious acts alleged in the 
reprimand you must disregard his accuser's initial statements to her roommate and the 
statement of her NCO roommate that nothing appeared non-consensual. The imposing 
GO must also conclude her memory improved over time and was not tainted by being 
questioned multiple times. Counsel requests that the imposing GO file this reprimand in 
the applicant’s local file. Filing it in his performance fiche would lower the standard to 
reflect that any allegation of sexual misconduct is sufficient to end a Soldier's career. He 
does not believe that to be the standard he or any other leader in the JAG Corps would 
intentionally adopt. 

	d.  On 6 August 2020, the imposing general officer stated on 7 July 2020, he issued 
a GOMOR to the applicant following a finding of probable cause that he committed a 
sex-related offense in violation of Article 120, UCMJ, and that his sexual relationship 
additionally violated AR 600-20 and Article 92, UCMJ. In the GOMOR, he informed the 
applicant that he was considering directing the GOMOR be filed in his AMHRR and 
gave him the opportunity to submit matters for his consideration. The applicant 
submitted matters for consideration. After careful consideration of the above subject 
matter, to include his military record, the imposing GO directed the GOMOR, this 
memorandum, and all supporting documentation (to include the investigation and his 
response be permanently filed in the performance-disciplinary section of his AMHRR.

13.  On 17 August 2020, he requested USACID review of additional matters related to a 
sexual assault and sexual abusive contact investigation in which he was a subject. On 
or around 7 May 2019, SPC reported a sexual assault to the Presidio of Monterey CID 
office. During the investigation, he invoked his rights to remain silent and he did not 
submit any matters on his behalf. The report of investigation was founded, and a judge 
advocate issued a probable cause opine. The matters that he wishes to submit are 
comprised mostly of texts. Once he spoke to the Trial Defense attorney in November 
2019, he was advised to save all communication between the Soldier and himself. By 
that timeframe, his call records only went back to July 2019. 

14.  On 8 September 2020, he filed an IG complaint requesting the IG to investigate 
whether regulations, procedures, and policies were not followed; determine whether 
certain actions were taken to delay or prolong an investigation which prevented him 
from otherwise reenlisting; investigation whether his due process was violated in the 
matter and work with the command to correct any injustice, if founded; determine 
whether his due process was violated; advise the procedures/timeline for reporting 
alleged sexual assaults; determine whether certain actions were taken to delay or 
prolong investigations and/or prevent him from being promoted; determine whether 
certain actions were taken or not taken to delay or prolong adjudication of his security 
clearance by DoD CAF; investigate whether his higher headquarters gave his 
commander incorrect advise related to his request for an extension.

15.  On 18 September 2020, the Deputy Director, U.S. Army Crime Record Center 
responded to the applicant’s request to correct information from the files of the 
USACIDC and supplements their response of 19 August 2020. The enclosed Action 
Officers Opinions (marked pages 1-6) and Law Enforcement Report (LER) are 
responsive to your request. A review of their files has determined that a similar request 
was submitted to this headquarters on 7 August 2020 (FA20-3331). Both requests are 
being combined in this response.

	a.  After careful review and consideration of his request and the evidence available, 
on behalf of the Commanding General, USACIDC, the Access and Amendment Refusal 
Authority for USACIDC records, and in accordance with AR 195-2, his request to amend 
LER [Number] is denied. This denial constitutes final action on behalf of the Secretary of 
the Army with respect to Army Regulation 195-2. 

	b.  A check of NCIC reflects that he is listed as the subject in the LER for Sexual 
Assault and Abusive Sexual Contact (Adult). The disposition has been updated to 
reflect “No action taken; charges dismissed by Courts Martial Convening Authority." 
Consistent with Department of Defense (DOD) Instruction 5505.11, retention of this 
criminal history data in the NCIC does conform to DOD policy. His name will remain in 
the NCIC 

	c.  He has exhausted your remedies to correct information contained in your 
USACIDC record through our agency. To appeal this amendment denial, he may wish 
to write to: Army Board for Correction of Military Records (ABCMR).

	d.  In reaching this decision, multiple USACID official reviewed his argument 
together with the documentation surrounding the incident and opened the following: 

		(1)  On 27 August 2020, a Special Agent at the CID Office at Joint Base Lewis-
McChord, WA, concerning an amendment of the LER, stated: 

		(a)  On 27 August 2020, the undersigned completed a review of the amendment 
request, alerts, and the associated documents concerning CID LER Number. The 
applicant is requesting the offenses be changed from “founded” to “unfounded.”

		(b)  On 15 July 2019, the Monterey CID Office dispatched an Initial LER listing 
the applicant as a Known But Not Titled (KBNT) entity for the offenses of Abusive 
Sexual Contact and Sexual Assault based upon the conduct of a unit AR 15-6. The 
victim is a fellow US Army Reservist. On 21 May 2020, a 2nd Status LER was 
dispatched to change the KBNT entity to applicant as the subject. The special agent in 
charge determined there was credible information to title after receiving a probable 
cause opine from the trial counsel. The applicant declined to provide a statement during 
the AR 15-6 and declined to provide a statement to CID. The victim provided a 
statement to CID detailing her version of the incident at military lodging. In accordance 
with DoDI 5505.7, there was credible information to list the applicant for the offenses at 
the time of titling. The applicant should not be removed from the title block at this time. 

		(c) The undersigned does concur with the probable cause closing opine by the 
supported trial counsel. The applicant is now presenting matters on his behalf which 
include text messages. 

		(2)  On 28 August 2020, an official at Quality Control – Polygraph Division stated: 

		(a)  He or She reviewed the LER and request for amendment and removal from 
title block and opine that the applicant should be retained in the title subject block of this 
LER for all the listed offenses. Credible information did exist at the time of the initial LER 
to warrant the applicant being titled as a subject in this investigation. There was no error 
in mistaken identity or error in application of the credible information standard at the 
time of the initial LER to support an amendment to this portion of the report.

		(b)  A further review of the LER attached and applicant’s request for amendment 
failed to discover any new substantive information warranting amendment to the 
probable cause determination made by the Staff Judge Advocate reflected in the 
summary of this LER regarding the listed founded offenses.

		(3)  On 30 August 2020, an official at the Investigative Operations Section stated: 

		(a)  A review was conducted of the above listed LER to determine if the credible 
information standard was correctly applied when the applicant was indexed as a subject 
for the offenses of Sexual Assault and Abusive Sexual Contact. The applicant was 
indexed for the aforementioned offenses on 21 May 20, when an 2nd Status Report was 
dispatched following a CID supervisor's determination that the credible information 
standard had been met, and a Probable Cause Opine had been given with regards to a 
Sexual Assault and Abusive Sexual Contact Investigation. This determination was made 
based on what the CID supervisor determined to be a credible complaint, and the 
investigation established probable cause to the Chief of Justice to believe the offense of 
Sexual Assault and Abusive Sexual Contact were committed by the applicant. 

		(b)  Prior to the approval of the 2nd Status Report, the victim provided two sworn 
statements to CID Agents wherein she stated the applicant touched her in a sexual 
manner and performed sex acts on her without her consent. The victim stated she said 
"no" after she was touched by the applicant and told him “No" during a sex act. The 
disposition for the applicant was retained in Army Law Enforcement Records and 
annotated in a Department of Army (DA) Form 4833 dated 21 Jul 20, wherein the action 
commander singed a no-pros memo, and no action was taken.

		(c) On 1 May 20, a legal opinion was obtained from the Chief of Justice, who 
opined probable cause existed to believe the applicant committed the offenses of 
Sexual Assault and Abusive Sexual Contact. Based upon his or her (the author) review, 
the applicant was properly indexed as a subject utilizing the credible information 
standard; therefore, the request to be removed should be denied. It is also their belief 
that the cited offenses have the appropriate investigative findings based upon the legal 
opinion received and therefore, they should not be altered.

		(4)  On 1 September 2020, a CID attorney reviewed the applicant’s request for 
amendment of CID Law LER. Based on the review of the LER and appeal, the attorney 
found there is no basis for granting his request for an amendment. There is credible 
evidence to title him for all the offenses and the LER contains sufficient evidence to 
support the titling decision.

		(a)  In accordance with DoDI 5505.7, Titling and Indexing Subjects of Criminal 
Investigations in the Department of Defense, February 28, 2018, a person is titled as a 
subject in the LER when there is credible information to believe that person may have 
committed the crime. Credible information is defined as "Information disclosed or 
obtained by an investigator that, considering the source and nature of the information 
and the totality of the circumstances, is sufficiently believable to lead a trained 
investigator to presume that the fact or facts in question are true." The attorney found 
that this standard has been met for all the offenses. He or She concurs there was 
probable cause to believe the applicant committed the offenses he was titled for.

		(b)  The applicant was titled with a violation of Article 120, Sexual Assault and 
Article 120, Abusive Sexual Contact, UCMJ. Based on their review of the LER, they find 
that credible evidence did exist to title the applicant with the offenses and the LER 
contains sufficient evidence to support the titling decision.

		(c)  In accordance with DoDI 5505.7 and AR 195-2, Criminal Investigations 
Activities, 21 July 2020, once a subject is titled, requests to amend or unfound offenses 
in LER will only be granted if it is determined that credible information did not exist to 
believe that the individual committed the offense for which titled as a subject at the time 
the investigation was initiated, or the wrong person's name was entered as a result of 
mistaken identity. Neither of these two reasons exists. Credible information exists to 
believe that the applicant committed the offenses he was titled for, and the wrong 
person's name was not entered into the title block as a result of mistaken identity. 
Finally, no new, relevant, or material facts were submitted in the appeal to warrant 
revision of the titling determination.

16.  On 20 November 2020, the Deputy Director, U.S. Army Crime Records Center 
again responded to the applicant’s request to correct information from the files of the 
U.S. USACIDC and supplements their response of 18 September 2020. He was 
advised that this agency processed his Privacy Act Request to Change Record and in 
their response the applicant was notified his request to amend Law Enforcement Report 
(LER) [Number] was denied. 

17.  On 20 January 2021, the U.S. Army Human Resources Command issue the 
applicant a Notification of Immediate Reenlistment Prohibition (IMREPR) Code 13
Transaction. the notification informed him that”

	a.  The Director of Military Personnel Management requires that Soldiers are notified 
when a document officially filed onto their AMHRR makes them eligible for Qualitative 
Management Program (QMP) board consideration.

	b.  During their monthly screening procedures, the following document(s) lead to the 
initiation of this process and may be viewed at  [website]. The document is LTR REP 
SRO, 2020-07-07.

	c.  Beginning in Fiscal Year 2021 (FY21), QMP (Qualitative Management Program) 
boards are being conducted annually, and by rank, therefore, there may be a delay from 
the time he is identified for QMP consideration and the QMP board review. To improve 
coordination efforts, this office has placed an IMREPR (Immediate Reenlistment) code 
of 13 indicating your AMHRR meets QMP board consideration. This administrative 
coding tool is also being used to notify and assist Human Resources and Retention 
Specialists in management decisions for the populations that they serve. This code 
places you in a non-promotable status and prevents you from a permanent change of 
station move unless approved by HRC. 

	d.  If he seeks removal of an unfavorable document from his record, he may petition 
to do so by applying to the Department of the Army Suitability Evaluation Board 
(DASEB) IAW existing procedures outlined in AR 600-37, Unfavorable Information, 
Chapter 7, Appeals. The intent of AR 600-37 is to ensure that only information that is 
substantiated, relevant, timely, and complete is filed in your record and to ensure that 
the best interests of both the Army and the individual Soldier are served by authorizing 
unfavorable information to be placed in, and when appropriate, removed from official 
personnel records.

	e.  He may submit matters of mitigation or extenuation for consideration to the 
President of the QMP Board. These matters must be submitted as one document and 
organized in the manner to be presented to the board. Since the board will be provided 
with his AMHRR performance folder, any documents in the restricted folder which 
formed the basis for referral to the QMP selection board should not be included. His 
correspondence must be submitted no later than ten business days prior to the board 
convene date in which your file will be reviewed. Specific instructions on submission of 
matters to the board, to include a hard suspense date, are contained within the 
corresponding board announcement messages. Consideration for potential denial of 
service by the QMP will be done in conjunction with each NCO Evaluation Board for 
SSG through SGM/CSM. The scheduled board dates are as follows: SFCs for a FY22 
date yet to be finalized, but currently projected to convene during October 2021.

18.  The applicant was honorably discharged from active duty on 8 February 2021 in 
accordance with chapter 4 of AR 635-200 (Active Duty Enlisted Administrative 
Separations) by reason of completion of is required active service. His DD Form 214 
listed his rank/grade as SFC/E-7 and that he completed 7 years, 8 months, and 11 days 
of active service.

19.  An advisory opinion was received from Headquarters, U.S. Army Reserve 
Command on 22 November 2022 in the processing of this case. An advisory official 
stated this Headquarters has conducted extensive research and provides the following:

	a.  Request for reinstatement back into the USAR AGR: The applicant was 
discharged in accordance with AR 635-200, paragraph 4-2c. Active duty Soldiers not at 
their retention control point (RCP) that fulfill their enlistment contract and a commander 
denies extension or reenlistment on active duty because non-retention is in the best 
interest of the Army will be discharged or released from active duty at their Expiration-
Term of Service (ETS).

	b.  Promotion to MSG/E-8: Records indicate that while the applicant was on the 
promotion list for MSG/E-8, he was ineligible for promotion due to his Suspension of 
Favorable Personnel Action (Flag) and failure to meet service requirements prior to his 
discharge on 8 February 2021.
	c.  Recertification as a 27D, Paralegal NCO: On 8 January 2021, the applicant’s 
MOS certification was decertified in accordance with AR 27-10, Judge Advocate Legal 
Services, paragraph 3-9e(2). The Judge Advocate General (TJAG) may withdraw TJAG 
certification of LAs, paralegal Soldiers, and court reporters based on a completed 
adverse action taken against the subject. Upon the completion of the adverse action, 
the subject’s SJA or other Supervisory SJA will take the actions prescribed in 
subparagraph (3). Adverse actions include conviction by court-martial, including 
summary court-martial; nonjudicial punishment imposed under UCMJ, Article 15; 
administrative letters of reprimand, admonition, or censure administered under AR 600–
37; or referred or adverse reports under AR 623–3.

	d.  After exhaustive review of this case, this Headquarters does not recommend 
relief for the applicant. The Flag against the applicant prevented his extension or 
reenlistment; therefore, backpay and reinstatement cannot be granted. The applicant 
may seek his local Army recruiter for enlistment, provided he is otherwise qualified for 
service.

20.  The applicant responded to the advisory opinion and stated while he can agree with 
a portion of the advisory opinion where it states that an administrative flag prevents 
promotions, reenlistments, and other personnel actions, he disagrees with the 
remaining portions of the opinion and notes that the opinion does not consider most of 
his application. The advisory opinion did not take into account that he was 
inappropriately flagged at multiple times, the allegation behind the action that initiated all 
of the actions against him was false, he received a GOMOR based off a probable cause 
opine, an AR 15-6 investigation by an Colonel (O-6), judge advocate general officer 
contradicts the GOMOR and the probable cause opine, no consideration was given to 
the text between the service member and himself after the incident, and the fact the 
service member made the claim only after being taken off a mobilization. 

	a.  Reinstatement back into the USAR AGR program: He was discharged due to an 
unwarranted and improper administrative flag at the time of his ETS for a pending 
administration separation board, due to receiving a GOMOR for a false allegation. The 
command never convened the separation board, and the flag for the GOMOR was 
never lifted as required. The command elected not to take the allegation to trial by court 
martial or convene a separation board back in August 2020, instead chose to give him a 
GOMOR based on a probable case determination. Later the command elected to send 
him to a separation board in October 2020, based off a probable case determination. 
However, as stated above, the command never convened the board. According to AR 
635-200, a Soldier would be notified in writing at least 15 days before the board hearing. 
He was administratively flagged and notified of a separation board on 6 October 2020 
and his ETS date was 8 February 2021. There was plenty of time to convene a board 
being he was an AGR. The flag was used as a punitive measure to prevent him from 
reenlisting and no board was ever convened. He was never given a chance to present 
his case to an impartial panel which is a right, and he was ultimately punished with the 
GOMOR and separated for a false allegation without being found guilty.

	b.  Promotion to MSG/E-8: The HRC 2019 USAR MSG “Considered and Selected 
List” came out on 21 August 2019. On 22 August 2019, USARLC suspended his 
security clearance without any notice, reasoning, or counseling, violating AR 380-67 
para 8-6. It appears this was done in response to him being on the promotion list. He 
received the GOMOR on 13 July 2020 and it was directed to be filed in his AMHRR on 6 
August 2020. Per AR 600-8-2, para 2-9b (4), a flag is removed on the date the 
appropriate authority directs the filing of the signed memorandum or the date the 
memorandum is rescinded without filing. The flag should have been lifted 6 August 
2020. Because it was not properly lifted in accordance with the AR, he was prevented 
from being promoted. If done appropriately, the flag would have been lifted 6 August 
2020, and he would have been promoted on the first day of the next month per AR 600-
8-19, since he was on the promotion list. HRC started promoting 27D, paralegals from 
the August 2019 list in May 2020. Number 1 and 3 was promoted on 1 May 2020. He 
was number 2 on the 27D list but was skipped due to the administrative flag. The only 
thing that prevented him from meeting service requirement was being administrative 
flagged. Again, he believes he should have never been flagged due to the allegation 
being false, and, in addition, the flag should have been removed after the GOMOR 
process.

	c.  Recertification as a 27D, Paralegal NCO: USARC opinion failed to take into 
consideration the allegation was false, and the GOMOR stated he committed acts that 
an administrative investigation stated did not happen. He would like to again highlight 
his reasonings I pointed out in his timeline: SGT the roommate, came back and spoke 
to the Soldier at great lengths, and she was of sound judgement. In the CID statement, 
the roommate stated the Soldier was fully dressed; she fully questioned her to ascertain 
whether she knew what she was doing, and the Soldier was aware, and the next day 
the Soldier was talking about never being with a black guy. He also submitted text 
between the Soldier and himself where she asked him to meet her for lunch in February 
2019 after the January 2019 incident. He further submitted other text and WhatsApp 
messages from February 2019 to April 2019. Most importantly the conversation where 
the Soldier contacted him before meeting with the AR 15-6 Investigative Officer and in 
April 2019, where they discussed who reported the incident. The fact that the Soldier 
made a claim only after being taken off a mobilization and that her statement changed 
from May 2019 to March 2020.

	d.  The USARC Advisory opinion stated I should seek a local Army recruiter for 
enlistment. He has sought out two different recruiters in. His DD Form 214 has reentry 
code of “1”, separation code of “MBK”, and reason for separation as completion of 
required active service. By all accounts, he should have been able to enlist. In 2021, he 
sought out a local Army recruiter in and an Army recruiter office in for enlistment in the 
USAR and found he is not qualified due to the sexual assault on his criminal 
background. When applying for federal employment he had to complete a OF 306. One 
question asks, “During the last 7 years, have you been convicted, been imprisoned, 
been on probation, or been on parole?” He answered no and found that receiving a 
reprimand for the sexual assault is considered being found “administratively convicted.” 
This has caused personal financial hardships in the inability to obtain meaningful 
employment in my civilian life with a sexual assault on his criminal background. His 
AMHRR also has the sexual assault code which prevents entry back into the service, if 
by chance he can get the sexual assault removed from his background.

	e.  The USARC Advisory opinion stated he is not eligible for backpay or 
reinstatement due to the FLAG. Again, he wants to state he would have been eligible for 
continued service if not for the flag, that was in place as a punitive measure to prevent 
him from being promoted, enlisting, or getting an extension for the reasons in this letter 
and his initial letter. He also believes given the opportunity to present his case, 
evidence, and question potential witnesses at a court-martial or separation board, an 
impartial panel may have viewed his case favorably. An opportunity he never received. 

	f.  It is clear from the facts of the case, a sexual assault never occurred. The 
Soldier’s account is contrary to her actions after the fact. Reflecting on his time as a 
paralegal and dealing with similar cases of sexual assault while in service, he can never 
recall a time where the victim sought out or willingly wanted to spend time with the 
perpetrator after a sexual assault incident took place. He believed that if the command 
believed he committed sexual assault against another induvial, he should have gone 
before a trial, due to the seriousness of the crime. Honestly any allegation of this type 
should be tried.

	g.  He asks the Board to provide the relief requested based on his application and 
the provided evidence that supports his claim.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered.

	a.  The evidence of record shows a CID investigation found probably cause the 
applicant committed the offenses of Sexual Assault and Abusive Sexual Contact (Adult) 
during an incident that occurred on 12 January 2019 at the. As a result, he was 
reprimanded by his Commanding General for misconduct. He was afforded the 
opportunity to review all the evidence against him and to submit matters on his own 
behalf prior to a final filing decision and he did so. After careful consideration of his 
case, the imposing GO ordered filing of the GOMOR in the applicant's AMHRR. The 
GOMOR is currently filed in the performance section of his AMHRR. 

	b.  The Board recognizes that a GOMOR is primarily used as a tool for teaching 
proper standards of conduct and performance, to train, and rehabilitate Soldiers. The 
Board also recognizes that the quality of service of a Soldier in the Army is affected by 
conduct that is of a nature to bring discredit in the Army or prejudicial to good order and 
discipline. Once the GOMOR was filed in his AMHRR it became a permanent record 
and will not be removed from or moved to another part unless directed by certain 
agencies, to include this Board. The GOMOR is properly filed, and the applicant has not 
proven this GOMOR to be either untrue or unjust. Thus, the Board determined there is 
insufficient evidence to support its removal from his AMHRR. 

	b.  Based on the AR 15-6, the subsequent CID investigation, and receipt of the 
GOMOR, the applicant was flagged/suspended from receiving favorable personnel 
actions, including promotions. Additionally, the bar to reenlistment that was imposed 
against him prevented him from meet the service remaining requirements for promotion.

	c.  The Board found no reason to reinstate the applicant to the AGR program. The 
applicant was separated at the expiration of his term of service with Separation Code 
MBK and RE Code 1. Regulatory guidance provides that Soldiers not at their retention 
control point that fulfill their enlistment contract and a commander denies extension or 
reenlistment on active duty because non-retention is in the best interest of the Army will 
be discharged or released from active duty at their ETS. The Board found no error or 
injustice. 

	d.  The Board also noted that a trained CID investigator, together with a Judge 
Advocate attorney, determined probable cause existed to believe the applicant 
committed the offenses of Sexual Assault and Abusive Sexual Contact. Additionally, he 
was properly indexed as a subject utilizing the credible information standard. He 
appealed this decision, and his case was reviewed and re-reviewed by various 
elements of CID, all reaching the same conclusion: There was no error in mistaken 
identity or error in application of the credible information standard at the time of the 
initial LER to support an amendment to the report. 

?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice. Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.

	 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.

?
REFERENCES:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. The ABCMR begins its consideration of each case 
with the presumption of administrative regularity. The applicant has the burden of 
proving an error or injustice by a preponderance of evidence. The ABCMR may, in its 
discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an 
administrative hearing) or request additional evidence or opinions. Applicants do not 
have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a 
formal hearing whenever justice requires.

2.  Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of 
Officers), 1 April 2016, 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 600-37 (Unfavorable Information), 10 April 2018, 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 Official Military 
Personnel File (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 3–4. Filing of information on sex-related offenses. Filing in the Army 
Military Human Resource Record. Commanders will ensure that a Soldier’s 
performance-disciplinary folder is annotated when a court-martial conviction, non-
judicial punishment, or punitive administrative action for a sex-related offense is 
received. Punitive administrative action means any adverse administrative action 
initiated as a result of the sex-related offenses identified below and includes, but is not 
limited to, memoranda of reprimand, admonishment, or censure, from all levels of 
command. Sex-related offenses include a violation of the following sections of 10 USC 
and equivalent articles of the UCMJ: 

*	Section 920–Art. 120: Rape and sexual assault generally. This includes rape, 
sexual assault, aggravated sexual contact, and abusive sexual contact.
*	Section 930–Art. 130: Stalking.
*	Section 920b–Art. 120b: Rape and sexual assault of a child. This includes 
rape, sexual assault, and sexual abuse of a child.
*	Section 920c–Art. 120c: Other sexual misconduct. This includes indecent 
viewing, visual recording, or broad-casting.
*	Section 925–Art. 125: Kidnapping.
*	Section 880–Art. 80: Attempt (to commit any of the offenses listed in this 
paragraph).

	c.  Paragraph 3-5 (Filing of nonpunitive administrative memoranda of reprimand, 
admonition, or censure) states a memorandum, regardless of the issuing authority, may 
be filed in the AMHRR, and managed by the U.S. Army Human Resources Command 
or the proper State Adjutant General (for Army National Guard personnel) upon the 
order of a general officer (to include one frocked to the rank of brigadier general). The 
general officer directing filing must exercise general court-martial convening authority 
over the recipient, be the designee or delegate of the individual exercising general 
court-martial convening authority over the recipient, been a filing authority from the 
recipient's losing command pursuant to paragraph (f)(1) below, or be the chief of any 
designated special branch pursuant to Title 10, U.S. Code, section 3064, acting 
pursuant to their statutory authority over members of their respective special branches. 
Memoranda filed in the AMHRR will be filed in the performance folder.

	d.  Paragraph 7-2 (Policies and Standards) states 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.

	e.  Paragraph 7-3c (Filing Authority to Redress Actions) states an officer who 
directed filing an administrative memorandum of reprimand, admonition, or censure in 
the AMHRR may request its revision, alteration, or removal, if evidence or information 
indicates the basis for the adverse action was untrue or unjust, in whole or in part. An 
officer who directed such a filing must provide the DASEB a copy of the new evidence 
or information to justify the request.

4.  Army Regulation 600-8-104 (Army Military Human Resource Records Management), 
7 April 2014, 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 (Authority for Filing or Removing 
Documents in the AMHRR Folders) 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 another authorized agency. Appendix B (Documents Required for Filing in 
the AMHRR and/or Interactive Personnel Electronic Records Management System) 
shows memorandums of reprimand, censure, and admonition are filed in accordance 
with Army Regulation 600-37.

5.  Army Regulation, 600-8-19, Enlisted Promotions and Reductions, prescribes policies 
and procedures governing promotions and reductions of Army enlisted personnel. 
Paragraph 1–11. Non-promotable status. Soldiers (SPC through master sergeant 
(MSG) except as noted) are non-promotable to a higher rank when one of the following 
conditions exists:

*	Field or HQDA bar to continued service.
*	Subject to denial of continued service by the Qualitative Management Program.
*	Selected for denial of continued service by the Qualitative Service Program 
and/or Qualitative Retention Program.
*	A Soldier fails to meet the service remaining requirement for the next higher 
grade (to SFC and above). Failure to reenlist or extend their current enlistment to 
meet the service remaining requirements within 30 days (for Regular Army and 
USAR (AGR) or 60 days (for USAR TPUs, Army Reserve elements (AREs), and 
multi-component commands or units only) of the announced promotion effective 
date results in removal from the applicable centralized selection list
*	Soldier is denied favorable personnel actions under AR 600–8–2 (applicable for 
promotion to PV2 through SGM). Failure to initiate DA Form 268 (Report to 
(FLAG)) does not affect the Soldier’s non-promotable status if a circumstance 
exists that requires imposition of a suspension of favorable personnel actions 
(Flag) under the provisions of AR 600–8–2

6.  Army Regulation, 635-200, Active Duty Enlisted Administrative Separations, 
prescribes the policies, procedures, and authority for separation of Soldiers upon 
expiration term of service (ETS) or fulfillment of active duty obligation, and the general 
provisions governing the separation of Soldiers before ETS or fulfillment of active duty 
obligation to meet the needs of the Army and its Soldiers. The regulation implements 
laws and policies governing voluntary retirement of Soldiers for length of service, and 
criteria governing uncharacterized separations and the issuance of honorable, general, 
and under other than honorable conditions discharges, within the Department of the 
Army (DA). Chapter 4 provides for Separation for Expiration of Service Obligation. It 
states a Soldier will be separated upon expiration of enlistment or fulfillment of service 
obligation. Active duty Soldiers not at their retention control point (RCP) that fulfill their 
enlistment contract and a commander denies extension or reenlistment on active duty 
because non-retention is in the best interest of the Army will be discharged or released 
from active duty at their ETS.

7.  Army Regulation, 27-1, Judge Advocate Legal Services, prescribes the policies and 
procedures pertaining to the administration of military justice and implements the 
Manual for Courts-Martial, United States, 2019 (MCM), and the rules for courts-martial 
(RCMs) contained in the MCM. Paragraph 2-1 states The Judge Advocate General 
(TJAG) certify all members of the JAGC and approve the professional qualifications of 
JALS civilian attorneys to ensure that all members maintain the highest levels of ethical 
and moral behavior and professional proficiency to perform legal duties in the JALS. 
TJAG may withdraw TJAG certification of LAs, paralegal Soldiers, and court reporters 
based on a completed adverse action taken against the subject. Upon the completion of 
the adverse action, the subject’s SJA or other Supervisory SJA will take the actions 
prescribed. Adverse actions include conviction by court-martial, including summary 
court-martial; nonjudicial punishment imposed under UCMJ, Article 15; administrative 
letters of reprimand, admonition, or censure administered under AR 600–37; or referred 
or adverse reports under AR 623–3.

8.  Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and 
procedures for offense and serious-incident reporting within the Army; for reporting to 
the DOD and the Department of Justice, as appropriate; and for participating in the 
Federal Bureau of Investigation National Crime Information Center, Department of 
Justice's Criminal Justice Information System, National Law Enforcement 
Telecommunications System, and State criminal justice systems.

	a.  Paragraph 3-6a (Amendment of Records) states an amendment of records is 
appropriate when such records are established as being inaccurate, irrelevant, untimely, 
or incomplete. Amendment procedures are not intended to permit challenging an event 
that actually occurred. Requests to amend reports will be granted only if the individual 
submits new, relevant, and material facts that are determined to warrant their inclusion 
in or revision of the police report. Requests to delete a person's name from the title 
block will be granted only if it is determined that there is no probable cause to believe 
the individual committed the offense for which he or she is listed as a subject. It is 
emphasized that the decision to list a person's name in the title block of a police report 
is an investigative determination that is independent of whether subsequent judicial, 
nonjudicial, or administrative action is taken against the individual.

	b.  Paragraph 4-3a states an incident will not be reported as a founded offense 
unless adequately substantiated by a police investigation. A person or entity will be 
reported as the subject of an offense in the LER when credible information exists that 
the person or entity has committed a criminal offense. The decision to title a person is 
an operational, rather than a legal, determination. The act of titling and indexing does 
not, in and of itself, connote any degree of guilt or innocence; rather, it ensures that 
information in an ROI can be retrieved at some future time for law enforcement and 
security purposes. Judicial or adverse administrative actions will not be based solely on 
the listing of an individual or legal entity as a subject in the LER.

	c.  Paragraph 4-3d states that when investigative activity identifies a subject, all facts 
of the case must be considered. When a person, corporation, or other legal entity is 
entered in the "subject" block of the LER, their identity is recorded in Department of the 
Army automated systems and the DCII. Once entered into the DCII, the record can only 
be removed in cases of mistaken identity or if an error was made in applying the 
credible information standard at the time of listing the entity as a subject of the report. It 
is emphasized that the credible information error must occur at the time of listing the 
entity as the subject of the LER rather than subsequent investigation determining that 
the LER is unfounded. This policy is consistent with DOD reporting requirements. The 
Director, Crime Records Center, enters individuals from the LER into the DCII.

	d.  Paragraph 4-7 (DA Form 4833) states the DA Form 4833 is used with the LER to 
record actions taken against identified offenders and to report the disposition of 
offenses investigated by civilian law enforcement agencies.

9.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, 
mission, objectives, and policies pertaining to the Army Criminal Investigation Program. 
Chapter 4 contains guidance for investigative records, files, and reports.

	a.  Paragraph 4-4 contains guidance for individual requests for access to or 
amendment of CID ROIs. Requests to amend CID ROIs will be considered only under 
the provisions of this regulation.

	b.  Paragraph 4-4b states requests for amendment of CID ROIs will be granted only 
if the individual submits new, relevant, and material facts that are determined to warrant 
revision of the report. The burden of proof to substantiate the request rests with the 
individual. Requests to delete a person's name from the title block will be granted if it is 
determined that credible information did not exist to believe that the individual 
committed the offense for which titled as a subject at the time the investigation was 
initiated, or the wrong person's name has been entered as a result of mistaken identity. 
The decision to list a person's name in the title block of a CID ROI is an investigative 
determination that is independent of judicial, nonjudicial, or administrative action taken 
against the individual or the results of such action. Within these parameters, the 
decision to make any changes in the report rests within the sole discretion of the 
Commanding General, CID. The decision will constitute final action on behalf of the 
Secretary of the Army with respect to requests for amendment under this regulation.

10.  DOD Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal 
Investigations in the DOD) serves as the authority and criteria for CID titling decisions.

	a.  Titling ensures investigators can retrieve information in an ROI of suspected 
criminal activity at some future time for law enforcement and security purposes. 
Whether to title an individual is an operational decision made by investigative officials, 
rather than a legal decision. Titling or indexing alone does not denote any degree of 
guilt or innocence. The criteria for titling are a determination that credible information 
exists that a person may have committed a criminal offense or is otherwise made the 
object of a criminal investigation. In other words, if there is a reason to investigate, the 
subject of the investigation should be titled.

	b.  It also directs that judicial or adverse actions shall not be taken solely based on 
the fact that a person has been titled in an investigation. By implication, the DODI does 
not prohibit consideration of titling in making judicial or administrative decisions but does 
prohibit using titling as the sole basis for those decisions. It further indicates that 
regardless of the characterization of the offense as founded, unfounded, or insufficient 
evidence, the only way to administratively remove a titling action from the DCII 
database is to show either mistaken identity or a complete lack of credible evidence to 
dispute the initial titling determination.

	c.  Credible information is defined as information disclosed or obtained by an 
investigator that, considering the source and nature of the information and the totality of 
the circumstances, is sufficiently believable to lead a trained investigator to presume 
that the fact or facts in question are true.
11.  DODI 5505.7 contains further legal guidance.

	a.  Section 6.1. Organizations engaged in the conduct of criminal investigations shall 
place the names and identifying information pertaining to subjects of criminal 
investigations in title blocks of investigative reports. All names of individual subjects of 
criminal investigations by DOD organizations shall be listed in the DCII. (This instruction 
does not preclude the titling and indexing of victims or "incidentals" associated with 
criminal investigations.) Titling and indexing in the DCII shall be done as early in the 
investigation as it is determined that credible information exists that the subject 
committed a criminal offense.

	b.  Section 6.3. The DOD standard that shall be applied when titling and indexing 
subjects of criminal investigations is a determination that credible information exists 
indicating the subject committed a criminal offense.
	c.  Section 6.6. Once the subject of a criminal investigation is indexed, the name 
shall remain in the DCII, even if a later finding is made that the subject did not commit 
the offense under investigation, subject to the following exceptions:

		(1)  Section 6.6.1. Identifying information about the subject of a criminal 
investigation shall be removed from the title block of an ROI and DCII in the case of 
mistaken identity (i.e., the wrong person's name was placed in the ROI as a subject or 
entered into the DCII).
 
		(2)  Section 6.6.2. Identifying information about the subject of a criminal 
investigation shall be removed from the title block of an ROI and the DCII if it is later 
determined a mistake was made at the time the titling and/or indexing occurred in that 
credible information indicating the subject committed a crime did not exist.

	d.  Section 6.9. The reviewing official shall consider the investigative information 
available at the time the initial titling decision was made to determine whether the 
decision was made in accordance with the standard stated in paragraph 6.3.

12.  DODI 5505.11 (Fingerprint Card and Final Disposition Report Submission 
Requirements) implements policy, assigns responsibilities, and prescribes procedures 
for reporting offender criminal history data to the Criminal Justice Information Services 
Division of the Federal Bureau of Investigation by DOD law enforcement organizations 
for inclusion in the National Crime Information Center criminal history databases. 
Paragraph 6 (Procedures) states dispositions that are exculpatory in nature (e.g., 
dismissal of charges, acquittal) shall also be filed.

13.  The FY 21 NDAA, section 545 (Removal of Personally Identifying and Other 
Information of Certain Persons from Investigation Reports, the DCII, and Other Records 
and Databases), states not later than 1 October 2021, the Secretary of Defense shall 
establish and maintain a policy and process through which any covered person may 
request that the person's name, personally identifying information, and other information 
pertaining to the person shall be corrected in or expunged or otherwise removed from a 
law enforcement or criminal investigative report of the DCII, an index item or entry in the 
DCII, and any other record maintained in connection with a report of the DCII, in any 
system of records, records database, record center, or repository maintained by or on 
behalf of the Department.

	a.  Basis for Correction or Expungement. The name, personally identifying 
information, and other information of a covered person shall be corrected in or 
expunged or otherwise removed from a report, item or entry, or record of the DCII, in 
the following circumstances:

		(1)  probable cause did not or does not exist to believe that the offense for which 
the person's name was placed or reported or is maintained in such report, item or entry, 
or record occurred, or insufficient evidence existed or exists to determine whether or not 
such offense occurred;

		(2)  probable cause did not or does not exist to believe that the person actually 
committed the offense for which the person's name was so placed or reported or is so 
maintained or insufficient evidence existed or exists to determine whether or not the 
person actually committed such offense; and

		(3)  such other circumstances or on such other bases as the Secretary may 
specify in establishing the policy and process, which circumstances and bases may not 
be inconsistent with the circumstances and bases provided by sub-para (1) and (2).

	b.  Considerations. While not dispositive as to the existence of a circumstance or 
basis set forth in subparagraph (1), the following shall be considered in the 
determination whether such circumstance or basis applies to a covered person for 
purposes of this section:

		(1)  the extent or lack of corroborating evidence against the covered person 
concerned with respect to the offense at issue;

		(2)  whether adverse administrative, disciplinary, judicial, or other such action 
was initiated against the covered person for the offense at issue; and

		(3)  the type, nature, and outcome of any action described in subparagraph (2) 
against the covered person.

14.  DOD Instruction 5505.18, Investigation of Adult Sexual Assault in Department of 
Defense. Sexual assault is an intentional sexual contact characterized by the use of 
force, threats, intimidation, abuse of authority, or when the victim does not or cannot 
consent. This includes domestic abuse (as defined in DoDI 6400.06) related sexual 
assaults. The term “sexual assault” includes the following offenses under the Uniform 
Code of Military Justice: Rape, in violation of Article 120; Sexual assault, in violation of 
Article 120; Aggravated sexual contact, in violation of Article 120; Abusive sexual 
contact, in violation of Article 120; Other sexual misconduct, in violation of Article 120c; 
and Attempts to commit any of the above offenses, in violation of Article 80. Between 
2007 and the present, amendments to the UCMJ changed the Article 120 and Article 
125 offenses in name and character. Depending upon the date the alleged offense was 
committed, investigators must refer to the name and character of the offense applicable 
to the Uniform Code of Military Justice provisions in effect at that time.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220004981


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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