IN THE CASE OF: BOARD DATE: 4 April 2023 DOCKET NUMBER: AR20220008788 APPLICANT REQUESTS: * removal of a general officer memorandum of reprimand (GOMOR), 18 October 2021, from his Army Military Human Resource Record (AMHRR) * an upgrade of his service characterization to honorable * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum (Upgrading Characterization of Discharge from General under Honorable Conditions to Honorable Discharge; (Applicant)), 15 June 2022, with 16 enclosures * Enclosure 1 – Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Memorandum (Filing Determination of GOMOR – (Applicant)), 10 January 2022 * Enclosure 2 – Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Memorandum (Initiation of Officer Elimination – (Applicant)), 10 January 2022 * Enclosure 3 – Army Review Boards Agency (ARBA) Letter, 17 May 2022 * Enclosure 4 – U.S. Army Human Resources Command (HRC) Memorandum (Probationary Officer Elimination Case), 7 June 2022 * Enclosure 5 – Letter from Sergeant (SGT) Mother, 7 February 2022 * Enclosure 6 – Letter from SGT Spouse, 7 February 2022 * Enclosure 7 – Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Memorandum (Record of Witnesses Interviewed during the Investigation), 8 June 2021 * Enclosure 8 – DA Form 2823 (Sworn Statement) (Captain (CPT) 20 May 2021 * Enclosure 9 – DA Form 2823 (Staff Sergeant (SSG) 21 May 2021 * Enclosure 10 – DA Form 2823 (1SG 21 May 2021 * Enclosure 11 – DA Form 3881 (Rights Warning Procedure/Waiver Certificate) (SGT 25 May 2021 * Enclosure 12 – 1st Battalion, 87th Infantry Regiment, Memorandum (Response to Memorandum of Reprimand for SSG 8 March 2022 * Enclosure 13 – Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Memorandum (Filing Determination of GOMOR – SGT 11 April 2022 * Enclosure 14 – DA Form 4856 (Developmental Counseling Form), (SSG 7 April 2022 * Enclosure 15 – Aaronic Priesthood Ordination Certificate, 28 September 2014 * Enclosure 16 – DA Form 67-10-1 (Company Grade Officer Evaluation Report (OER)) Covering the Period 6 June 2020 through 26 April 2021 FACTS: 1. The applicant states: a. The GOMOR was erroneously filed in his AMHRR because the due process under Army Regulation 600-8-24 (Officer Transfer and Discharge) has been violated. He was asked to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2, and he opted to provide a rebuttal, but he was not given the opportunity to do so. Additionally, he was asked by ARBA to provide a signed and completed DD Form 149 to the Army Board for Correction of Military Records (ABCMR) along with any evidence that would have supported his case by 17 June 2022 and he did not get the opportunity to do so before he received orders dated 7 June 2022 for separation from the U.S. Army on 13 June 2022. b. He did not have an extramarital affair with Sergeant (SGT) . She was living with her husband, mother, and children on Fort Drum, NY, and he was never living with the SGT at any time. He refers to the two statements from SGT mother and her husband. c. The investigating officer (IO) did not visit SGT home at any time. Furthermore, the IO had three statements from military personnel who stated they had no knowledge of an inappropriate relationship. His unit made the decision to separate him before even receiving any statement from SGT who declined to give a statement on 25 May 2021. It was not until 8 March 2022 before she submitted a memorandum for record. d. On 11 April 2022, SGT received a GOMOR that was filed locally in her personnel file, as shown in the Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, memorandum (Filing Determination of GOMOR – SGT 11 April 2022. She was not flagged at the time he was flagged, but she was later flagged on 7 April 2022, which was removed within a week on 14 April 2022. She was even given the opportunity to attend school, receive a permanent change of station from Fort Drum, and was promoted to SSG. The memorandum for his investigation is still missing from his GOMOR packet. Having an extramarital affair is against his personal and religious beliefs. e. He has served honorably in the Army for over 6 years, as both as an enlisted Soldier and as an officer. While serving, he completed his second and third master's degrees in mathematics and organizational leadership, and he is currently pursuing his Doctor of Philosophy in organizational leadership. He wishes to continue his career as an Army officer. He refers to his officer evaluation report (OER). f. He is an Aaronic Priest in the Latter-Day Saints and a law-abiding citizen who would love the opportunity to continue serving our country or rejoin the Army as soon as possible. There is no greater place to be beside serving this great nation. He asks the Board to upgrade his service characterization to honorable in order to rejoin the Army. 2. His Aaronic Priesthood Ordination Certificate, 28 September 2014, certifies he was ordained to the office of Priest in the Aaronic Priesthood in The Church of Jesus Christ of Latter-day Saints. 3. He was serving in the Regular Army in the rank/grade of first lieutenant (1LT)/O-2 when he received a OER covering the period 6 June 2020 through 26 April 2021. His OER shows in: a. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), his rater rated his overall performance as "PROFICIENT" and commented: "[Applicant] has been a top performer during his rating period. [Applicant] is capable of handling any leadership challenge placed before him, with excellent results. [Applicant] was hand selected amongst his peers to serve in a Division level duty position"; and b. Part VI (Senior Rater), his senior rater rated his potential as "HIGHLY QUALIFIED" and commented: "[Applicant] ranks within the top 30% of 1LTs in this battalion. A branch detailed AG [Adjutant General] officer, [Applicant] has been hand selected to start an AG job at Division ahead of schedule. Great potential, send to CCC [Captains Career Course] and promote to Captain." 4. The Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, memorandum (Appointment as Army Regulation 15-6 IO to Investigate Allegation of an Inappropriate Relationship), 12 May 2021, appointed an IO to investigate the facts and circumstances surrounding an allegation that the applicant and SGT engaged in an inappropriate relationship. 5. The two DA Forms 2823, 20 May 2021 and 21 May 2021, consist of sworn statements from two of SGT supervisors, stating they do not know the applicant and were not aware of a relationship between him and SGT 6. The DA Form 2823 from the applicant's 1SG, 21 May 2021, states: * he was the applicant's battery 1SG for 4 months from on or about June 2020 to October 2020 (note: the alleged relationship was from December 2020 to May 2021) * he doesn't know SGT and was not aware of a relationship between her and the applicant * the applicant was moved to another unit because of the constant conflict he caused * the applicant's professionalism, demeanor, character, and lack of respect for others is not something the battalion typically see in the field artillery 7. The DA Form 3881, 25 May 2021, shows SGT requested a lawyer in connection with the investigation into engaging in an inappropriate relationship. 8. The Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, memorandum (Record of Witnesses Interviewed during the Investigation), 8 June 2021, lists all individuals interviewed by the IO during his investigation. 9. The Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, memorandum from the IO (Findings and Recommendations for Army Regulation 15-6 Investigation of Allegations of an Inappropriate Relationship between (Applicant) and SGT 9 June 2021, states: a. Summary. The applicant and SGT engaged in an inappropriate relationship between December 2020 and May 2021 in violation of Army Regulation 600-20 (Army Command Policy), paragraph 4-14, and Article 134b (Extramarital Sexual Conduct), Uniform Code of Military Justice (UCMJ). b. Summary of Relevant and Material Facts. (1) The applicant and his spouse were married in April 2016 and are still currently married. His spouse filed for a divorce on 4 May 2021, which is after the allegations of extramarital conduct were made. The applicant is a commissioned officer in the rank/grade of 1LT/O-2. (2) SGT is currently married. She is a noncommissioned officer (NCO). (3) On 20 May 2021, he interviewed the applicant's spouse. During the interview, the applicant's spouse stated she was told by SGT that the applicant was only supposed to stay at her house until he found his own place. The applicant's spouse also stated the applicant admitted to having sexual relations with SGT (4) On 25 May 2021, SGT declined to make a statement during the interview and elected to speak to a lawyer. On 7 June 2021, the applicant declined to make a statement during the interview and elected to speak to a lawyer. c. Findings. After carefully considering the evidence, he found: (1) The relationship between the applicant and SGT is personal in nature and to the extent that it has created undue familiarity between two Soldiers. SGT stated the applicant was at her house to gather his things and he was currently on her sofa talking to another individual. SGT told the applicant's spouse (according to the applicant's spouse) that the applicant was only supposed to stay at her house until he found a place of his own. Based on these statements, he concluded that the applicant was living at SGT house, which would support the establishment of a personal relationship between the two Soldiers. (2) The relationship that exists violates Army Regulation 600-20, paragraph 4-14. Based on the conversation between SGT and the applicant's spouse, it is evident that the applicant was living at SGT place of residence the applicant admitted to having sexual relationship with SGT which both violate Army Regulation 600-20 as it creates an actual perception of undue familiarity between an officer and an enlisted Soldier. Furthermore, the applicant had SGT phone number saved in his phone as "SGT which confirms he was aware that she was an enlisted Soldier. Lastly, SGT made reference to getting in trouble for their relationship due to "rank structure," which confirms she was aware that the applicant was an officer or, at a minimum, of a different grade that would warrant getting her into trouble. (3) The relationship that exists between the applicant and SGT violates Article 134 (Extramarital Sexual Conduct). Based on the interview he had with the applicant's spouse, the applicant admitted to having a sexual relationship with SGT . The validity of this statement is corroborated by the fact that the applicant had nude pictures of another female on his phone who appeared to be a specialist in the Army. Furthermore, the validity of the applicant's spouse's statement that the applicant admitted to having sexual relations with is further corroborated by the statements made by the applicant's 1SG that allude to the applicant's lack of professionalism, character, and respect for others. Both the applicant and SGT were aware of their own marital statuses at the time of their relationship. Based on these conclusions concerning the marital status of each Soldier, the element of Article 134 is satisfied. Lastly, the applicant maintained nude pictures of female Soldiers on his phone and established sexual relationships with two females other than his spouse. Based on the above statements of fact, he concludes this information could easily be disclosed to the public and in turn bring discredit upon the Armed Forces, which satisfies Article 134. d. Recommendations. Based on the findings, he recommends consideration of administrative or appropriate action under the UCMJ against both the applicant and SGT for violating Army Regulation 600-20, paragraph 4-14, and Article 134, UCMJ. He believes their relationship was unknown to the leadership of either Soldier and the relationship was purely personal in nature. 10. The Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, memorandum from the commanding general (Report of Investigation – Army Regulation 15-6 Investigation Concerning Allegations (Applicant) was Engaged in a Prohibited Relationship), 18 October 2021, states that having considered the report of investigation and the legal review (not in evidence), he approves the IO's findings and recommendations. 11. On 18 October 2021, the Commanding General, Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, reprimanded the applicant in writing for engaging in a prohibited relationship with an NCO that created the actual perception of undue familiarity between an officer and an enlisted Soldier. He further stated: a. An Army Regulation 15-6 investigation established that between December 2020 and May 2021, the applicant developed a prohibited romantic relationship with this NCO while both were married to other individuals. b. This is an administrative reprimand imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15, UCMJ. 12. The applicant's memorandum (Rebuttal to GOMOR; (Applicant)), 3 December 2021, states: a. He would like to accept responsibility for his actions and apologize to his command team, the U.S. Army, and all those involved with the investigation for this situation. He has examined his actions and is taking the necessary steps to alleviate any breaches of professional conduct which may reflect negatively on his character and integrity. b. He respectfully disagreed with and disputed the findings which concluded that he and the NCO engaged in an inappropriate relationship. In reaching the IO's conclusion, the IO based his findings on relevant and material facts set out in his report that cited policies had been breached. However, an objective look at the relevant and material facts relied on by the IO does not support such a finding. c. The only direct evidence of an inappropriate relationship came from his wife. His wife is, regrettably, disgruntled after he told her that he wanted to file for divorce. This conversation occurred before the events of the investigation. He strongly believed she manipulated the story to defame his personal and professional character in retaliation for him initiating a divorce. To rely on her biased statements alone in support of a permanent filing of this GOMOR would be a mistake. He respectfully requested viewing any information provided by her with skepticism. Given her motives, it is likely possible that she altered or mis-conveyed text messages when she presented them to the IO. He requested consideration of his wife's less-than-honest motivations when deciding whether to permanently or locally file the GOMOR. 13. The Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, memorandum from the commanding general (Filing Determination of GOMOR – (Applicant)), 10 January 2022, states that having reviewed the GOMOR, supporting documents, rebuttal matters as applicable, and the filing recommendations of the applicant's chain of command, he directed filing the GOMOR in the applicant's AMHRR. 14. The Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, memorandum from the commanding general (Initiation of Officer Elimination – (Applicant)), 10 January 2022, notified the applicant that he is required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24. The commanding general stated: a. His actions are based upon the following reasons for elimination: between December 2020 and May 2021, the applicant engaged in a prohibited relationship with an NCO and created the perception of undue familiarity between an officer and an enlisted Soldier while both were married to other individuals. Based on this behavior, the applicant received a GOMOR, which was filed in his AMHRR in accordance with Army Regulation 600-37. b. In conjunction with this action, a suspension of favorable personnel actions flag was initiated against the applicant. 15. The two letters from SGT husband and mother, 7 February 2022, attest to the applicant storing his furniture and boxes in SGT garage and that the applicant never lived in SGT house. 16. His memorandum (Response to Initiation of Elimination – (Application)), 16 February 2022, he states: a. The IO concluded that he was living at SGT house, which would support the establishment of a personal relationship between the two of them as being involved in an extramarital affair. He will present four significant pieces of evidence to prove this accusation is not true. b. The IO's findings were based upon limited evidence. The IO makes assumptions that were not supported by proof. There was no evidence that his wife has seen the text messages between him and SGT nor was there evidence of romantic texting. There was no text evidence that he was spending time at SGT house. This accusation is false. c. He is willing to present his text message logs as evidence to prove there was no extramarital relationship between them. There are three witnesses who submitted their sworn statements testifying they were not aware of any relationship: CPT and SSG who work closely with SGT and his 1SG who works closely with him. d. At no time did he admit to his wife that he had sex with SGT . His spouse's previous statements and actions imply that she is trying to devise a scheme on the basis of valid reason that will allow her to get a divorce. She has admitted to having control and possession of his phone without his knowing, which opens up the possibility to tampering with evidence that she sent to the IO. 17. The GOMOR issued to SGT is not in evidence for review. 18. The 1st Battalion, 87th Infantry Regiment, memorandum from Staff Sergeant (SSG) (Response to Memorandum of Reprimand for SSG 8 March 2022, states: a. She requests consideration of the evidence presented in addition to her performance over the entire time she has served and requests filing the GOMOR locally. b. With due respect to the IO, the Army Regulation 15-6 investigation report is deeply unsettling. The report misinterprets text messages, distorts facts, and relies entirely on easily disprovable circumstantial evidence.? (1) She first met the applicant in late 2020. He offered to help her with submitting a physician assistant (PA) application packet. She texted him once in December 2020, asking him a question about the PA packet. A few months later, he asked if he could store his furniture in her garage. She spoke to him on a few occasions via phone, but it was always about her PA packet or logistics around his stored furniture. On 4 May 2021, she received a call from his spouse, who explained that she had discovered pictures and text messages from other women on the applicant's phone and that she wanted a divorce. He came to her house on 4 May 2021 to retrieve his furniture from her garage and she has not heard from him since. (2) The IO "conclude(s) that the applicant was living at SGT house," and uses this to "support the establishment of a personal relationship." At no point did the applicant live or stay at her house. This is confirmed by the statements made by her husband and her mother, both of whom lived with her at her house for the entirety of the period when the alleged inappropriate relationship occurred. (3) The IO relies heavily on out-of-context text messages sent on 4 May 2021. The reason she said "[Applicant] was just here" is because he was at her house picking up his furniture from her garage. While he was picking up this furniture, her mother and her husband were both at the house. When the applicant was on "my sofa talking to Rudy now," he was sitting on the sofa, talking to someone on the phone and explaining the situation he was going through with his spouse. Her mother was sitting on the sofa with him. With her mother as a witness, she can assure that nothing inappropriate happened on the sofa as the IO unfairly assumed. (4) The IO relies heavily on the applicant's spouse's claim that the applicant confessed late one night to an extramarital affair between them. She is insulted by the suggestion that pictures of another black female Soldier somehow shows she committed adultery. The IO is plainly suggesting that the applicant's sexual misbehavior with another black female Soldier directly reflects her own proclivities and morality. The applicant receiving lewd photos from another female Soldier suggests, on the contrary, that if she and the applicant were having an affair, his spouse would have found some evidence on his phone indicating as much. It also suggests, like she did with the other female Soldier, the applicant's spouse would have confronted her about it when she gained access to his phone on 4 May 2021. The applicant's spouse did neither. (5) The IO provides no credible evidence suggesting where and when this alleged extramarital affair occurred. As the IO verified, there is no work relationship between them as stated in three sworn statements. Also, as included in statements from her husband and mother, she goes to physical training, goes to work, and comes home. All her free time is spent with her family or studying at home. (6) Finally, the IO took her concern about "rank structure" entirely out of context. She wanted to make clear to the applicant's spouse that she could not get involved in her divorce. She tried repeatedly to extract herself from the situation. While the applicant did visit her house on a few occasions to drop off and pick up his furniture, this falls short of the standard in Army Regulation 600-20, paragraph 4-14. The only way the IO could establish that her interaction with the applicant created a clearly predictable perception of undue familiarity was by relying on misconstrued text messages, an alleged late-night confession disputed between a divorcing couple, and lewd texts that he received from another black female Soldier stationed thousands of miles away. She cannot more clearly state that she had no sexual relationship with the applicant and no personal relationship. 19. In his letter to ARBA, 15 March 2022, he states the IO concluded that he was living at SGT house, which would support the establishment of a personal relationship between the two of them and being involved in an extramarital affair. He will present four significant pieces of evidence to disprove this conclusion. (Note: This is the applicant's first communication with ARBA, there was no DD Form 149 attached to his letter, and no clear request for a records correction.) 20. The DA Form 4856 (Developmental Counseling Form), 7 April 2022, shows the flag against SGT was removed on 14 April 2022, as she received a locally filed GOMOR. 21. The Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum memorandum from the commanding general (Filing Determination of GOMOR – SGT 10 April 2022, states that having reviewed the 18 October 2021 GOMOR, supporting documents, rebuttal matters as applicable, and filing recommendations of the applicant's chain of command, he directed filing the GOMOR in SGT local personnel file. 22. His DA Form 67-10-1 (Company Grade Plate OER), covering the period 27 April 2021 through 26 April 2022 shows in: a. Part II (Authentication), this is a referred report and the applicant elected to attach comments; however, his comments are not in evidence for review. There is no signature from the applicant; b. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), his rater rated his overall performance as "CAPABLE"; c. Part IVc(1) (Character), his rater commented, in part: "During this rating period, [Applicant] had a lapse of judgement in his character that is not in line with the Army Values";? d. Part VI (Senior Rater), his senior rater rated his potential as " QUALIFIED" and commented: "Rated Soldier is unavailable for signature. [Applicant] is driven and determined, but unfortunately, he had an inappropriate relationship with a junior NCO. [Applicant] has not yet mastered the knowledge, skills and behavior that it would take to become a Captain." 23. The ARBA letter, 17 May 2022, notified the applicant of receipt of his communications to the Army Board for Correction of Military Records. However, ARBA was not able to process his request without a signed and completed DD Form 149. He was instructed to complete and sign the enclosed DD Form 149, clearly stating the issue he wants the Board to consider and why the Board should take such action. 24. The HRC message (Probationary Officer Elimination Case), 7 June 2022, states the Deputy Assistant Secretary of the Army (Review Boards) determined the applicant will be eliminated from the U.S. Army and will be discharged with a general (under honorable conditions) characterization of service. 25. Headquarters, U.S. Army Garrison, Fort Drum, Orders 164-1026, 13 June 2022, reassigned him to the U.S. Army Transition Point for transition processing with a discharge date of 27 June 2022. 26. He was discharged on 27 June 2022. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12c (Net Active Service This Period) – 3 years and 19 days * item 12d (Total Prior Active Service) – 4 months and 21 days * item 24 (Character of Service) – Under Honorable Conditions (General) * item 25 (Separation Authority) – Army Regulation 600-8-24 * item 26 (Separation Code) – JNC (Misconduct, Moral or Professional Dereliction) * item 28 (Narrative Reason for Separation) – Unacceptable Conduct 27. He provided SGT rebuttal to her GOMOR and the commanding general's local filing decision, and statements from SGT husband and mother for consideration in determining whether to grant relief on the basis of equity, injustice, or clemency grounds in accordance with Under Secretary of Defense for Personnel and Readiness guidance. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 a formal AR 15-6 substantiated a finding that the applicant and SGT engaged in an inappropriate relationship between December 2020 and May 2021 in violation of AR 600-20. The CG reprimanded him for engaging in a prohibited relationship with an NCO that created the actual perception of undue familiarity between an officer and an enlisted Soldier. The applicant acknowledged receipt, submitted a rebuttal wherein he took responsibility or his actions. The imposing CH considered the rebuttal and ordered the GOMOR filed in the applicant’s AMHRR. The Board found no error or injustice in this filing determination. b. Regulatory guidance provides that once a reprimand is filed in the AMHRR, the reprimand and associated documents are permanent unless removed by the appropriate authority. Furthermore, once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal. The Board agreed the criteria allowing for the removal of the GOMOR from his AMHRR was not met. c. The evidence of record further shows the applicant received a referred OER following his misconduct. the GOMOR, together with a referred OER trigered a show cause board that recommended his discharge. He was discharged on 27 June 2022 with an under honorable conditions (general) character of service, due to “Misconduct, Moral or Professional Dereliction.” Again, the Board found no error or injustice. d. The applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. .? 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 considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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 Investigating Officers and Boards of Officers) 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 600-20 (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 Military Equal Opportunity Program, the Army Harassment Prevention and Response Program, and the Army Sexual Harassment/Assault Response and Prevention Program. a. Paragraph 4-4 (Soldier Conduct) states ensuring the proper conduct of Soldiers is a function of command. Commanders and leaders in the Army, whether on or off duty or in a leave status, will ensure all Soldiers present a neat, military appearance and take appropriate action consistent with Army regulations in any case where a Soldier's conduct violates good order and military discipline. b. Paragraph 4-14 (Relationships between Soldiers of Different Grades) states the provisions of this paragraph apply to both relationships between Soldiers in the Regular Army and U.S. Army Reserve. 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 an NCO and a junior enlisted Soldier. All relationships between Soldiers of different grades 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 rank 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 4-14c states certain types of personal relationships between officers and enlisted Soldiers or 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 NCOs and junior enlisted Soldiers. d. Paragraph 4-14f states commanders should seek to prevent inappropriate or unprofessional relationships through proper training and personal leadership. Commanders have a wide range of responses available should inappropriate relationships occur. These responses may include counseling, reprimand, order to cease, reassignment, or adverse action. Potential adverse action may include official reprimand, adverse evaluation report(s), nonjudicial punishment, separation, bar to continued service, promotion denial, demotions, and courts-martial. Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair. 4. The Manual for Courts-Martial, United States, states these rules govern the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities. These rules may be known and cited as the Rules for Courts-Martial. Article 134 (Extramarital Sexual Conduct) consists of three elements: a. that the accused wrongfully engaged in extramarital conduct; b. that, at the time, the accused knew that the accused or the other person was married to someone else; and c. that, under the circumstances, the conduct of the accused was either to the prejudice of good order and discipline in the Armed Forces, was of a nature to bring discredit upon the Armed Forces, or was to the prejudice of good order and discipline in the Armed Forces and of a nature to bring discredit upon the Armed Forces. 5. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). c. Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. Soldiers must have received at least one evaluation (other than academic) since imposition. d. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. e. Paragraph 7-3c (Filing Authority to Redress Actions) states an officer who directed the filing in the AMHRR of an administrative memorandum of reprimand, admonition, or censure, 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. 6. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or another authorized agency. 7. Army Regulation 600-8-24 (Officer Transfer and Discharge) prescribes the officer transfer from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, and policies to support officer transfers and discharges. a. Paragraph 1-23 (Types of Administrative and Judicial Discharge/Characterization of Service) states when an officer's tour of active duty is terminated due to discharge, release from active duty, or resignation, the period of service will be characterized as honorable, general (under honorable conditions), under other than honorable, dishonorable, or dismissal depending on the circumstances. The characterization of service will be predicated on the officer's behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service. (1) Honorable characterization of service. An officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct for an officer. (2) General (under Honorable Conditions) Characterization of Service. An officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Chapter 4 (Eliminations) prescribes the rules and steps for eliminating officers for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security. c. Paragraph 4-2 (Reasons for Elimination) states, while not all-inclusive, elimination action may be or will be initiated when one of the following or similar conditions exist: substandard performance of duty; misconduct, moral or professional dereliction, or in the interests of national security; and derogatory information. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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. Article 134 (Extramarital Sexual Conduct)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) AR20220008788 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1