IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220011051 APPLICANT REQUESTS: through counsel via voluntary remand by the U.S. District Court directing the ABCMR to reconsider the applicant's requests under: a. Army Board for Correction of Military Records (ABCMR) Docket Number AR20170001797, 27 February 2020, to void his involuntary separation board decision, 7 June 2012, and his removal from the Fiscal Year 2009 (FY09) Captain (CPT) Reserve Component (RC) Promotion List; b. ABCMR Docket Number AR20190002953, 2 June 2020, to remove the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 15 April 2010, and general officer memorandum of reprimand (GOMOR), 21 April 2010, from his Army Military Human Resources Record (AMHRR); c. ABCMR Docket Number AR20190012137, 2 March 2021, to amend the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) (Final), 29 October 2009, and all associated documents by removing his name from the "title" and/or "subject" blocks and remove the CID ROI (Final), 29 October 2009, and all associated documents from his Army records and CID databases; d. in the event the ABCMR maintains its determination after remand that the applicant's request for correction of his military records be denied, the ABCMR's resulting written decision shall provide a detailed basis for that determination; and e. issue a new written decision on the applicant's request within 6 months of this Court's order (not later than 8 May 2023). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * U.S. District Court Complaint, 15 July 2022 * U.S. District Court Agreed Order of Remand, 8 November 2022 * Certification of Record, 8 September 2022 * Administrative Record Index (undated) * Tab 1 – ABCMR Memorandum (Record of Proceedings, ABCMR Docket Number AR20170001797), 6 April 2021 * Tab 2 – ABCMR Letter to the Applicant (ABCMR Docket Number AR20170001797 Decision), 5 April 2021 * Tab 3 – ABCMR Letter to Counsel for the Applicant (ABCMR Docket Number AR202170001797), 5 April 2021 * Tab 4 – ABCMR Letter to the Applicant (ABCMR Docket Number AR20190012137 Decision), 31 March 2021 * Tab 5 – ABCMR Letter to the Applicant (ABCMR Docket Number AR20190012137 (Request for Reconsideration of ABCMR Docket Number AR20110000301 and ABCMR Docket Number AR20130000560)), 31 March 2021 * Tab 6 – ABCMR Letter to the Applicant (ABCMR Docket Number AR20190002953), 30 March 2021 * Tab 7 – ABCMR Letter (Record of Proceedings for ABCMR Docket Number AR20190002953), 30 March 2021 * Tab 8 – ABCMR Letter to Congressional Representative (ABCMR Docket Number AR20190003953), 30 March 2021 * Tab 9 – ABCMR Docket Number AR20190012137 Record of Proceedings and Board Vote, 2 March 2021 * Tab 10 – ABCMR Docket Number AR20190002953 Record of Proceedings and Board Vote, 20 June 2020 * Tab 11 – Email (ABCMR Supplemental Documents for ABCMR Docket Number AR20190003953), 25 March 2020 * Tab 12 – ABCMR Docket Number AR20170001797 Record of Proceedings and Board Vote, 27 February 2020 * Tab 13 – Letter from Counsel for the Applicant (Response to Advisory Opinion ABCMR Docket Number AR20170001797), 6 February 2020 * Tab 14 – U.S. Army Human Resources Command (HRC) Memorandum (Advisory Opinion for the Applicant, ABCMR Docket Number AR20170001797), 14 January 2020 * Tab 15 – DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552, ABCMR Docket Number AR20190012137), 13 September 2019, with enclosures – * CID Memorandum, 29 May 2018, with ROI (DA Form 4833 (Commander's Report of Disciplinary or Administrative Action)), 13 July 2010 * Supplemental Freedom of Information Act (FOIA) Disclosures (2) * DD Form 458 (Charge Sheet), 26 October 2009 * Offer to Plead Guilty, 6 April 2010 * DA Form 2627, 15 April 2010 * Department of Defense (DOD) Instruction (DODI) 5505.07 (Titling and Indexing Subjects of Criminal Investigation in the DOD), 27 January 2012 * Excerpt of Article 132 (Frauds against the United States), UCMJ (2008 Edition) * Excerpt of Article 121 (Larceny and Wrongful Appropriation), UCMJ (2008 Edition) * Excerpt of Article 133 (Conduct Unbecoming an Officer and Gentleman), UCMJ (2008 Edition) * Excerpt of Article 107 (False Official Statements), UCMJ (2008 Edition) * Letter of Support from Major (MAJ) 5 January 2010 * HRC Letter of Branch Transfer, 12 August 2004 * Email from Career Management Officer, 11 August 2004 * HRC Orders C-08-428422, 11 August 2004 * Orders and Personnel Actions (Flight Pay and Flight Status) * ABCMR Application for Request for Relief * Tab 16 – DD Form 149 (ABCMR Docket Number AR20190002953), 25 March 2019, with enclosures – * Headquarters, Fort Riley, Memorandum (Administrative Reprimand), 21 April 2010 * Letter from Master Sergeant (MSG) 17 April 2018 * DA Form 2833 (Sworn Statement) from MSG 15 April 2018 * DOD Directive 7050.6 (Military Whistleblower Protection), 23 July 2007 * Email Correspondence * Article 32(b), UCMJ, Investigation, 17 November 2009 * U.S. Strategic Command Form 915 (Action Processing Sheet), 26 December 2009 * Inspector General (IG)/Congressional Complaint, 12 February 2009 * Letter from Lieutenant Colonel (LTC) 1 March 2016 * Tab 17 – Congressional Representative Privacy Release Form (ABCMR Docket Number AR20190002953), 28 February 2019 * Tab 18 – Additional Documents Reviewed by the ABCMR (ABCMR Docket Number AR20190002953), various dates * Tab 19 – Online DD Form 149 (ABCMR Docket Number AR20170001797), 13 February 2017, with enclosures – * Memorandum from Counsel for the Applicant, 22 April 2011 * Email (Out processing – Pending), 26 May 2010 * Notice of Show Cause and Board Transcript * Tab 20 – Signed Signature Page for Online DD Form 149 (ABCMR Docket Number AR20170001797), 12 January 2017 * Tab 21 – Unsigned DD Form 149 (ABCMR Docket Number AR20170001797), 11 January 2017, with enclosures – * Letter from Colonel (COL) 2 December 2015 * 7210th Medical Support Unit Memorandum (Special Request for Minority and Branch Show Cause Board Officer for (Applicant)), 14 April 2011 * Tab 22 – Army Military Human Resource Record (AMHRR) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number: * AR20100023923 on 3 May 2011 * AR20110000301 on 22 December 2011 * AR20110002690 on 15 September 2011 * AR20110022388 on 3 July 2012 * AR20130000560 on 8 October 2013 * AR20170001797 on 27 February 2020 * AR20190002953 on 2 June 2020 * AR20190012137 on 2 March 2021 2. Bates numbering or Bates stamping is a unique numeric or alphanumeric identifier attached to individual documents or pages to make each document and page easily identifiable and retrievable. Bates numbers are applied sequentially and are affixed to the documents. For example, if XYZ company produces 25,000 pages to an opponent, it may Bates number the production a. The majority of the applicant's supporting documents are Bates numbered (000001-002409). Bates numbers can be found in the lower right hand corner of each document. Due to the large volume of documents provided and the amount of documents that are duplicated in that production, Bates numbers will be referred to throughout this record of proceedings for the convenience of the Board. b. All documents provided by the applicant as identified in his administrative record index and any reference document used but not specifically referenced by the applicant are bookmarked. 3. The applicant defers to counsel. 4. Counsel states: a. In June 2004, the applicant received a direct commission as an officer. b. In March 2007, the applicant joined the 7210th Medical Support Unit (MSU) to attend training in the aviation field. In June 2008, he received orders to attend flight school. c. In October 2007, LTC ordered the applicant to wear the awards listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty). d. In December 2008, the applicant filed a protected communication with the IG and a Congressional Inquiry alleging that LTC improperly denied his request to return to flight school because of discrimination based on his Hispanic heritage. e. In February 2009, the applicant's command initiated an investigation into his wearing of unauthorized awards. f. On 15 April 2010, the applicant accepted nonjudicial punishment in exchange for a promise that the convening authority, Brigadier General (BG) would not initiate separation proceedings against him. g. On 12 May 2010, the applicant was discharged from active duty with an honorable service characterization. h. On 18 May 2010, the applicant received an email from the Deputy Chief of the Joint Reserve Unit, First Lieutenant (1LT) indicating that his disciplinary action was incomplete. i. Later in May 2010, the applicant reported to the 7210th MSU for reserve drill. j. On 29 July 2010, the applicant was informed that the 7210th MSU was going to initiate discharge proceedings against him contrary to the agreement with BG k. The ABCMR denial of the applicant's request for reinstatement in the rank of CPT with a date of rank of 12 March 2009; removal of the 7 June 2012 involuntary separation action from his Official Military Personnel File (OMPF); and removal of the nonjudicial punishment under Article 15, UMCJ; violated the Administrative Procedure Act as arbitrary and capricious agency action, was unsupported by substantial evidence, and was not in accordance with the law and Army regulation or otherwise constituted an injustice. 5. The HRC letter, 12 August 2004, notified the applicant that he was rebranched from the Military Intelligence Branch to the Aviation Branch (000280). The letter served as his official notification in lieu of branch transfer orders. 6. Headquarters, U.S. Army Aviation Center and Fort Rucker, Orders 335-064, 30 November 2004, ordered the applicant to perform aviation service and authorized his entitlement to Aviation Career Incentive Pay (ACIP) effective 24 November 2004 (000199). 7. On 10 October 2008, the applicant submitted a memorandum to the 2008 CPT Army Promotion List (APL) Board (000689). He stated he reviewed his board file online and his authorized awards, ribbons, and badges are not reflected in his OMPF. However, they are recorded on his DD Forms 214 for the periods ending 2004 and 2007. 8. The applicant's DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 15 November 2008 through 6 March 2009 reflects he received a referred change-of- rater OER (001988-001989). His OER further reflects in: a. Part IVb.3.2 (Decision-Making), his rater marked "NO," indicating he did not effectively demonstrate this leader attribute/skill/action; b. Part Vb (Comment on Specific Aspects of the Performance), his rater commented: "…His performance declined however, for which he received verbal counseling. He used poor judgment when violating the directive to report to a power projection platform with an assigned weapon…"; and c. Part VIIc (Comment on Performance/Potential), his senior rater commented: "…A 67-9-1a [DA Form 67-9-1a (Developmental Support Form)] was not provided by the rater." 9. The Headquarters, U.S. Army Reserve (USAR) Command, memorandum ((Applicant's) ACIP and Branch Transfer Recommendation), 27 March 2009 (000198), shows the Army Reserve Aviation Training Chief stated: a. The applicant was removed from training at his request in September 2005 in order to care for his mother who was diagnosed with cancer. He left in good standing and was authorized flight pay as a flight student while in attendance at flight school. His flight pay should have been terminated upon out-processing from Fort Rucker, AL. The applicant periodically contacted him to inquire about reenrollment in flight school; however, due to limited seating availability, the applicant was not afforded a quota. b. The applicant completed the Army Medical Officer Basic Course and became ineligible to attend flight training as an Officer Basic Course initial-entry candidate.? c. He recommended the applicant's branch transfer from 15A (General Aviation) to 70A (Health Care Administrator) to allow him to continue his Army career. 10. On 26 October 2009, the following charges were preferred against the applicant (000140-000141) (note: there is no evidence of referral, dismissal of the charges, or other disposition): * violation of Article 121, UMCJ, for stealing flight incentive pay * violation of Article 133, UCMJ, for wrongfully and dishonorably, with intent to deceive, submitting a military biography with false information then known by the applicant to be false * violation of Article 134 (Wearing Unauthorized Insignia, Decoration, Badge, Ribbon, Device, or Lapel Button), UCMJ, for wrongfully and without authority wearing an insignia, decoration, badge, ribbon, device, or lapel button upon his uniform 11. The CID ROI (Final), 29 October 2009 (000095-000098), shows the applicant as the subject and states: a. An investigation determined the applicant committed the offenses of conduct unbecoming an officer, fraud, and larceny of Government funds when he falsely presented himself as a U.S. Army aviator in order to receive ACIP, which he was not entitled to receive as he did not graduate flight training. The applicant committed the offense of false official statement when he told his chain of command during an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) inquiry that he was entitled to ACIP due to having merely attended Aviation School, a statement he knew to be false. b. The estimated loss to the U.S. Government was $6,483.20. c. The offense of wearing an unauthorized insignia, decoration, badge, ribbon, device, or lapel button does not fall within the investigation purview of CID and was forwarded to the commander for action as deemed appropriate. 12. The U.S. Strategic Command memorandum (Appointment of Article 32(b), UMCJ, Investigating Officer (IO)), 17 November 2009 (000267-000268), appointed an IO to investigate the court-martial charges and specifications pertaining to the applicant. 13. The 78th Aviation Troop Command, Georgia Army National Guard, memorandum ((Applicant's) Flight Pay Recoupment), 5 January 2010 (000281-000282), from MAJ states: a. The purpose of the memorandum is to make a favorable recommendation to resolve the applicant's flight pay issue. He was the applicant's National Guard Aviation Liaison Officer when he left flight school due to a personal family emergency. The applicant left in good standing on 1 October 2005 and was recommended to return to finish flight school. The applicant spent almost 1 year in flight school before leaving. As such, he was authorized to receive flight pay from 24 November 2004 through 1 October 2005. ACIP orders do not have a termination date and therefore his flight pay erroneously continued to be paid after he left flight school. This was a routine matter that the Fort Rucker G-3 and finance offices should have coordinated during his out- processing prior to his subsequent departure from Fort Rucker, AL. b. Unfortunately, it is not uncommon for a flight student to erroneously continue to receive flight pay after being recycled in training at a later date or upon leaving flight school with the intent to return within a reasonable time to complete training. The applicant is not the first nor the last flight student to experience this type of flight pay issue. c. The applicant was not afforded a seat to return to training due to reservation shortages in 2006 and 2007. Furthermore, he was mobilized for 2 years, making it more difficult for him to return to flight school. However, he kept himself proficient in the aviation field by completing the Aeromedical Evacuations Officer Advanced Qualification Course (67J) and by enrolling in the Aviation Captains Career Course. The applicant was required to maintain a current flight physical and did so each year. d. In his opinion, the applicant honestly believed he was still authorized flight pay while he was in a waiting status to return to flight training. He based this opinion on his 3 years of experience as the National Guard/Army Reserve Liaison Officer at Fort Rucker, AL, and as an aviator. He has seen numerous cases where a flight school student is released from training prior to graduation and his/her pay is either terminated early or continues beyond the date he/she should have had permanent change of station and ACIP orders terminated. Qualified aviators can continue to receive ACIP even when not assigned to an operational flying position if they maintain a qualified and current flight physical. He believed the applicant was mistaken in his belief that he was eligible to receive flight pay if he was in a waiting status to return to training and held a qualified and current flight physical. e. He recommended that the applicant's current chain of command and finance office coordinate the repayment of the flight pay for the period of 1 October 2005 through 2 March 2009. The finance office is responsible for determining the exact amount and the repayment plan. According to his calculations based upon the duration of time and flight pay level per annual year erroneously authorized, the applicant is to repay $5,876. 14. On 10 February 2010, counsel for the applicant submitted a Defense Proffer of Testimony (000309-000311). It reflects that the applicant, if called as a witness in the Article 32, UMCJ, investigation or at trial, would testify substantially as follows (note: the proffer of testimony is written in the first-person perspective but is signed by the counsel for the applicant): a. Charge I. He is not guilty of stealing flight incentive pay. He attended flight school from November 2004 through September 2005. He left due to his mother's illness. He maintained his area of concentration (AOC) of 15A. When he left flight school, he continued to receive flight pay thereafter. He honestly believed he was entitled to receive it since he began receiving it when he was a flight student and the ACIP increased every year from the flight school starting date of November 2004. Since he was entitled to flight pay in flight school and was not a certified pilot, he was under the impression that course completion was not a prerequisite to receiving the pay. In addition, his flight pay was not stopped when he out-processed from Fort Rucker, AL. His orders did not have a termination date for the pay, leading him to believe even more that he continued to be entitled to it as he sought to reenroll in the course and complete it. (1) Furthermore, when he reported to his first active duty assignment after flight school at Fort Sam Houston, TX, he was informed by someone at the Defense Finance Accounting Service in a telephone conversation that his ACIP would increase each year from the original date of January 2004 and his ACIP orders did not have a termination date. Additionally, he maintained the 15A AOC and was managed by the Aviation Branch up until this very date. In addition, every year he was required to take an annual flight physical. Moreover, he kept in touch with his Aviation Training Chief on a regular basis and he continuously attempted to return to flight school. He even made a request through his supervisor to attend the Air Qualification Course. His supervisor signed and approved his request. He was approved to attend an Aeromedical Evacuation Officers Course and he completed it in April 2008. (2) In summary, with his 15A AOC, flight physical requirements, receipt of flight pay while in flight school, annual flight pay increases, and his career managers requesting him to attend the Aviation Captains Career courses, he truly believed he was entitled to receive flight pay. b. Charge II. He was in a Reserve status and not on active duty on 4 October 2007. He did not enter active duty until 15 November 2007. Accordingly, a court-martial would lack jurisdiction over this alleged offense. c. Charge III. Before he took his Department of the Army photograph, he sought advice from his supervisor, LTC . He informed his supervisor that he was coming up for a promotion board, and that he did not have any orders to support his awards because they were never provided to him. LTC advised him that he could use his DD Form 214 since it was an official document. Moreover, before he took his photograph, he wrote a letter to the CPTs Promotion Board and informed them that, regrettably, his awards were not reflected in his OMPF because he never received the original award certificates/orders. Evidently HRC never received them either. Accordingly, the only document he knew of to support the awards was his DD Form 214. (1) He wore the Air Assault Badge because it was recorded on his DD Form 214 and because he was attached to the 101st Airborne Division when he was in Iraq. Many Reservists in his unit at the time were wearing both the Air Assault Badge and combat patch. He erroneously assumed the Air Assault Badge was an ordinary accoutrement of being attached to the 101st Airborne Division and did not realize he was not authorized to wear that award. (2) He wore the aviator's wings (Aviator Badge) because he was branched AOC 15A. He was given the Aviator Badge while in flight school (which had the wings embossed thereon) and it was on his DD Form 214. He honestly believed that simply having the 15A AOC is what authorized the wear of the Aviator Badge. (3) He wore the ribbon representing the Bronze Star Medal and the Purple Heart because he was informed by his former unit that he was submitted for these awards after he was medically evacuated from the combat theater of operations. Given his unit's track record of losing documents and paperwork slipping through the cracks, and the fact that the Bronze Star Medal and Purple Heart later appeared on his DD Form 214, he assumed the unit had submitted him for these awards and the awards were approved, but the unit subsequently lost or had not forwarded the official certificates to him. He honestly and reasonably believed he was entitled to wear these awards. (4) He wore the ribbon representing the Joint Service Achievement Medal simply because he mistook it for the Joint Meritorious Unit Award that was recorded on his DD Form 214 (the two ribbons/awards are similar in color and name). He was simply confused about the two awards and which one he was entitled to wear. (5) Both causing and exacerbating his confusion, the unit that he deployed with lost his military records, along with those of dozens of other Soldiers from the unit at that time. He has been trying to recover his military award records for several years. d. He is not trying to make excuses but wants to provide a clear understanding of his lack of Army training background. He enlisted in the Navy on active duty from 11 June 1991 through 23 May 1993 and joined the USAR in November 1994. He never went to Army Basic Training. Then he mobilized on active duty with the Reserve in February 2003 and received a direct commission as a second lieutenant in June 2004. He never attended any formal Reserve officers' training or Officer Candidate School courses. Then he went to flight school in November 2004. Although he has been in the Armed Forces in some capacity for over 18 years, he is inexperienced in the customs, courtesies, regulations, and traditions of the service. He, unfortunately, has never been in a knowledgeable position to make an educated, well-informed decision about what to properly wear on his uniform. He simply went by what his superior advised him and what was recorded on his DD Form 214 since that was the only source document available to him to assist him in determining this issue. e. This whole ordeal (the investigation) since its inception nearly 1 year ago, has had a devastating and negative impact on him and his family. The great emotional and psychological stress and anxiety he has been under, the severe financial hardship (including attorneys' fees, falling behind in his bills, and depletion of his savings account) he has experienced, along with the shame and embarrassment of the allegations alone (which have ruined his reputation among his co-workers, colleagues, and peers) has been truly debilitating. The year of waiting and being flagged has cost him a promotion to CPT and made him ineligible for tuition assistance (he is currently pursuing a master's degree in Business Administration at Our Lady of the Lake University), training schools, and overseas deployments. He joined the USAR because he wanted to serve his country, deploy, fight terrorism, and continue his career of dedicated service to this Nation. 15. On 10 February 2010, Government counsel responded via email (RE: Proffer of testimony of (Applicant)) to the applicant's Defense Proffer of Testimony (000312- 000314). The Government counsel stated: a. The Government respectfully objects. This is not what the defense asked for at the Article 32, UMCJ, hearing. The Government agreed with the defense submitting an affidavit or sworn statement. The memorandum offered by the defense is not a sworn statement, but rather a memorandum signed by the applicant's attorney. Although the accused at an Article 32, UCMJ, hearing usually has the right to "make a statement in any form," which includes an unsworn statement, here, the applicant could have done so at the Article 32, UCMJ, hearing and chose not to. b. If the memorandum is considered, the Government would ask the following: (1) The remarks under Charge II not be considered as the applicant is not a legal expert and could not have testified that the allegations under that charge would never go to court-martial. The Government disagrees with the defense counsel's interpretation of the law and would argue that the false official statement in the form of the military biography was a continuing offense and that therefore a court-martial would have jurisdiction over it. At the very least, the issue is a legal one that should be litigated at court-martial. (2) Give the rest of the remarks their requisite weight during deliberations since they were not given under oath or subjected to cross examination. 16. On 28 February 2010, the IO completed the DD Form 457 (IO's Report) with continuation pages (000269-000277). The report shows: a. The charges against the applicant are: * violation of Article 121, UMCJ, for stealing flight incentive pay * violation of Article 133, UCMJ, for wrongfully and dishonorably, with intent to deceive, submitting a military biography with false information then known by the applicant to be false * violation of Article 134 (Wearing Unauthorized Insignia, Decoration, Badge, Ribbon, Device, or Lapel Button), UCMJ, for wrongfully and without authority wearing an insignia, decoration, badge, ribbon, device, or lapel button upon his uniform b. Discussion of the evidence. (1) Charge I. One potential issue regarding charge I is the applicant's intent. The offense requires that the applicant had a specific "intent permanently to deprive or defraud another of the use and benefit of property or permanently to appropriate the property to [his] own use or the use of any person other than the owner." While "[a]n intent to steal may be proved by circumstantial evidence," it is also true that "it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused." (a) The Court of Appeals for the Armed Forces has long recognized that Article 121, UCMJ, "requires the Government to prove beyond a reasonable doubt that an accused had a specific intent to steal. Moreover, it also has long been recognized that an honest mistake of fact as to a soldier's entitlement or authorization to take property is a defense to a charge of larceny under this codal provision." (b) According to the defense proffer of testimony, the applicant "honestly believed that [he] was entitled to receive [flight pay], since {he] began receiving it when [he] was a flight student." However, the Army Regulation 15-6 IO testified that from what he was able to gather from his interviews and supporting documentation, the applicant did display willful intent to deceive/defraud the Government. In addition, the applicant's belief was apparently formed, at least in part, by an alleged, but heretofore, undocumented conversation with an unidentified judge advocate general who allegedly said that a "Letter of Good Standing for flight school was enough to continue ACIP." However, "reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense." (c) In short, while the issue of specific intent or honest mistake will likely be key to the outcome of any further judicial proceedings regarding this charge, taking the record as a whole, reasonable grounds nevertheless exist to believe the applicant committed the offense alleged. (2) Charge II. One potential issue regarding the second charge is whether the applicant was subject to jurisdiction under the UCMJ. Pursuant to Rules for Courts- Martial 202 (Persons Subject to the Jurisdiction of Courts-Martial), UCMJ, "[c]ourts- martial may try any person when authorized to do so under the code." More specifically, "[m]embers of a reserve component in federal service on active duty, as well as those in federal service on inactive-duty training, are subject to the code. Moreover, members of a reserve component are amenable to the jurisdiction of courts' martial notwithstanding the termination of a period of such duty." (a) According to the Defense Proffer of Testimony, the applicant "was in a reserve status and not on active duty on 4 October 2007." The Army Regulation 15-6 IO further testified that he did not establish if the applicant was on active duty on 4 October 2007. (b) "The government disagrees with the Defense Counsel's interpretation of the law and would argue that the false official statement in the form of the bio was a continuing offense and that therefore a court-martial would have jurisdiction over it." (c) The Supreme Court of the United States, in a case involving a statute of limitations, has said that "the doctrine of continuing offenses should be applied in only limited circumstances since...'(t)he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.' These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." (d) While this case does not involve a statute of limitations, if it is determined that the applicant was not subject to UCMJ jurisdiction as alleged, the nature of whether this charge is a continuing offense will likely be key to the outcome of any further judicial proceedings regarding this charge. Nevertheless, even if the defense were to prevail on an initial jurisdictional defense, in view of the continuing offense theory (a question of law to be determined by the court) proffered by the Government, the record as a whole provides reasonable grounds to believe the applicant committed the offense alleged. (3) Charge III. One potential issue regarding the third charge again involves the alleged ignorance or mistake of fact on the part of the applicant. While there is evidence that the applicant was not authorized to wear aviation wings or the air assault badge, according to the defense proffer of testimony, the applicant "honestly believed that simply having the military occupational specialty of 15A (Aviation Officer) is what authorized the wear of the Aviators wings" and "honestly and reasonably believed that [he] was entitled to wear [the] awards" in question. (a) Pursuant to Rules for Courts-Martial 916(j)(1) (Ignorance or Mistake of Fact (Generally)), UMCJ, "[i]f the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. However, if the accused's knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense." (b) In short, while the reasonableness of the applicant's belief will likely be key to the outcome of any further judicial proceedings regarding this charge, the record as a whole does provide reasonable grounds to believe the applicant committed the offense alleged. 17. On 6 April 2010, the applicant submitted an Offer to Plead Guilty at a General Officer Article 15 Hearing (000143-000144). The offer to plead guilty was properly signed and dated by the applicant and his defense. The Convening Authority approved and signed the agreement on 7 April 2010. (0001239). The offer to plead guilty states: a. The applicant, the accused in the court-martial now pending, has examined the charges and specifications and the evidence against him. He has had the benefit of his defense counsel's advice. Being fully advised that he has a legal and moral right to plead not guilty to the charges and specifications against him and place the burden of proving his guilt beyond a reasonable doubt upon the United States, he offers to and knowingly agrees to: (1) plead as follows: * to Charge I and its specification – Not Guilty * to Charge II and its specification – Guilty * to Charge III and its specification – Guilty (2) enter into a written stipulation of fact correctly describing the offenses to which he is offering to plead guilty. He further agrees that this stipulation may be used during the Article 15 hearing in determining the providence of his pleas of guilty and in adjudging an appropriate sentence. If his plea is not accepted by the convening authority, this offer to stipulate is null and void. He further agrees that the convening authority may not be bound by this plea agreement if he withdraws his pleas of guilty at any time. b. In exchange for his actions, the convening authority agrees to dispose of these charges at a general officer Article 15 hearing and dismiss the court-martial charges with prejudice upon acceptance of his guilty plea at the Article 15 hearing. Upon completion of any punishment. imposed by the Article 15, the convening authority further agrees to release the applicant from active duty and permit him to return to his Reserve unit without initiating an elimination action. c. The negotiations for this offer to plead guilty are initiated by the applicant and his defense counsel. As a result of these negotiations, this offer to plead guilty was proposed and submitted by him. No person has attempted to force or coerce him in any way into offering to plead guilty. d. He understands that he may request to withdraw the plea of guilty at any time before his plea is accepted and that if he does so, this agreement is canceled. This agreement may also be canceled if: (1) he fails to plead guilty or fully comply with this offer to plead guilty, as agreed above; or (2) the stipulation of fact is modified at any time without the consent of both him and the trial counsel. e. This agreement shall not be affected by dismissal of any specifications or charges on motion of the United States. f. This writing includes all terms and conditions of this offer to plead guilty and contains all promises made to him or by him concerning his plea of guilty. No other terms or conditions exist that are not contained in this writing. 18. On 15 April 2010, the applicant accepted nonjudicial punishment (000146-000147). The DA Form 2627 reflects the following:? a. The applicant was found guilty of violation of one specification of Article 133, UCMJ, for wrongfully and dishonorably, with intent to deceive, submitting a military biography with false information then known by the applicant to be false and one specification of Article 134, UCMJ, for wrongfully and without authority wearing an insignia, decoration, badge, ribbon, device, or lapel button upon his uniform. b. The applicant's punishment consisted of a written reprimand. c. The imposing commander directed filing the DA Form 2627 in the performance folder of the applicant's OMPF. d. The applicant elected to appeal and submit additional matters. The applicant's appeal was denied. 19. The Headquarters, Fort Riley memorandum (Administrative Reprimand), 21 April 2010 (000378), reprimanded the applicant for wrongfully and dishonorably submitting a false military biography to the Joint Information Operations Warfare Center Army Reserve Chief showing he had graduated from the Military Intelligence Officer Basic Course, the Aviation Officer Basic Course, Immigration and Naturalization Federal Law Enforcement Academy, and Troy State University with a master's degree in Public Administration. At the time he submitted the biography, he knew he had not completed or received certificates or diplomas from any of those courses. Moreover, he wrongfully and without authority wore the Army Air Assault Badge, Army Aviator Badge, ribbon representing the Bronze Star Medal, ribbon representing the Joint Service Achievement Medal, and ribbon representing the Purple Heart upon his uniform during a Department of the Army photograph. The reprimand was imposed as punishment under Article 15, UCMJ. 20. On 27 April 2010, the applicant submitted a memorandum appealing his nonjudicial punishment (000619-000620) wherein he stated: a. He requests remittance of his DA Form 2627 and letter of reprimand and their placement in the restricted folder of his OMPF so he has an opportunity to overcome this incident and continue to serve in the U.S. Army. He wants to get his career back on track and continue serving. The DA Form 2627 and letter of reprimand in his OMPF will end his career progression and he will be forced out of the U.S. Army for promotion non-selection. b. He has accepted responsibility for his actions and now he wants to move forward with his career in order to continue serving his country as a commissioned officer and leader. There were several issues and potential defenses that he could have raised, but he did not want to make excuses. c. He is a good Soldier and a good leader. Due to some misguidance and negligence on his part, he failed as a leader. However, as demonstrated by his 18 years of honorable and dedicated service to the U.S. Army, including combat tours in Iraq, he can continue to faithfully serve in the U.S. Army. He wants to return and finish flight school and the Captains Career Course in order to excel. He has endured 15 months of waiting and not knowing what his future would be. He lost his security clearance, military intelligence job, and spent over $20,000 in legal fees. He has already put his family through an enormous amount of pain and suffering throughout this whole ordeal. He has learned an important life lesson: to not take anything for granted. He not only wants to continue to serve in the U.S. Army, but he also wants to redeploy down range as soon as possible to continue fighting the War on Terrorism. 21. On 12 May 2010, the applicant was released from active duty and transferred to the 7210th MSU (000822). 22. On 13 May 2010, the applicant sent an email to 1LT regarding his out-processing (001358-001359). 1LT told the applicant the flag against him would be removed before he left the Joint Information Operations Warfare Center and was released from active duty. In addition, he was told his gaining Reserve unit would have to remove the flag. On 18 May 2010, 1LT replied that the applicant's disciplinary action is not yet complete and the flag would not be removed at that time. 23. The 217th Transportation Company (Heavy Truck) memorandum (Award(s) Resubmission for (Applicant)), undated (000696), verified the applicant's military records, awards, decorations, and service medals were lost/misplaced by the 217th Transportation Company and were not recorded in the applicant's OMPF while he was a member of the unit. The commander further states: a. The applicant has been trying to recover his military records and awards since 2005. On 11 July 2005, the applicant was contacted by the former supply sergeant who informed him that his footlocker, enlisted military records, and awards could not be located. b. Since the move under a new command and control change, an inventory of all equipment and records that were left behind was conducted and all items were sent out to previous addresses on file. No items were left behind. Any items returned or not claimed were discarded. Unfortunately, the applicant's military records and awards might have been discarded. Nonetheless, the previous administrative personnel should have uploaded the records into the Interactive Personnel Electronics Record Management System or forwarded them to HRC-St. Louis. c. Since there are no records, orders, or copies of awards on file for the applicant other than the DD Forms 214, a request for resubmission of the awards will be through the use of a DA Form 638 (Recommendation for Award) through the current chain of command to replace the lost awards. d. The attachments reflect DA Forms 638 for the Bronze Star Medal covering the period 15 April 2003 through 31 July 2003 and the Army Achievement Medal covering the period 15 January 1997 through 15 July 1997. 18. On 25 March 2011, the applicant submitted a memorandum to HRC appealing his OER covering the period 15 November 2008 through 6 March 2009 (001987) wherein he stated: a. He is appealing the OER based on substantial inaccuracies in: (1) Part IVb.3.2, wherein his rater marked "NO," indicating he did not effectively demonstrate this attribute/skill/action; (2) Part Vb, wherein his rater commented: "…His performance declined however, for which he received verbal counseling. He used poor judgment when violating the directive to report to a power projection platform with an assigned weapon…"; and (3) Part VIIc, wherein his senior rater commented: "…A 67-9-1a [DA Form 67-9-1a (Developmental Support Form)] was not provided by the rater." b. He filed an IG complaint, but he never received the outcome before he was released from active duty. c. He wants the OER removed from his OMPF. 19. On 22 April 2011, counsel for the applicant rendered a rebuttal and requested an appearance before a Board of Inquiry (001453-001454) wherein he stated: a. The applicant requests abatement of the pending separation action; in the alternative, he requests consideration by a Board of Officers. b. The sole basis for the contemplated separation action is the DA Form 2627 and the accompanying administrative reprimand from April 2010. These documents are essentially based on a minor incident in an otherwise unblemished Army career of nearly 20 years. As the enclosed matters reflect, the applicant has learned from his mistakes and has not allowed this minor lapse in judgment to alter his dedication to his unit, his mission, or the Army. (1) The Government is barred from proceeding with the separation action in this case because it entered into a plea agreement with the applicant on 7 April 2010 in which the Government agreed not to involuntarily separate the applicant from the Army. The allegations which are set forth on the DA Form 2627 and which are described in the notification of involuntary separation were originally set to be disposed of by court- martial at Fort Riley, KS. During the course of pre-trial negotiations, the defense counsel exposed the weaknesses of the Government's case and, in fact, demonstrated the applicant's innocence. As a result, the Government agreed to dismiss the pending court- martial charges and to dispose of the allegations under Article 15, UCMJ. As part of the pretrial agreement, the Government further agreed not to involuntarily separate the applicant from the Army. (2) Despite the allegations, the applicant has the support and admiration of his chain of command and those with whom he has served. The extensive volume of letters of support demonstrates the unanimity with which those who know and have served with the applicant recommend his retention. (3) Other than the allegations which led to the imposition of nonjudicial punishment under Article 15, UCMJ, in April 2010, the applicant's service record has been exemplary. In addition to the letters of support, consideration should be given to the applicant's OMPF in its entirety, to include the numerous positive evaluation reports, awards, certificates, and other accolades contained therein. c. To continue proceeding with this separation action is improper and unnecessary. Based not only on the legal impropriety of proceeding with the separation action despite the Government's previously signed plea agreement, but also on the extensive volume of evidence supporting the applicant's retention, counsel requested termination of the separation action and the applicant's restoration to active duty without further delay. d. In the alternative, the applicant requests consideration by a Board of Officers. 20. The Headquarters, USAR Medical Command, verbatim findings and recommendations worksheet, 13 July 2011, and DA Form 1574 (Report of Proceedings by IO/Board of Officers), 13 July 2011 (001426-001433), show a board was convened at the USAR Medical Command to make findings and recommendations pursuant to Army Regulation 135-175 (Separation of Officers) to determine if the applicant should be retained in the USAR. By secret written ballot, all of the members concurring, the Board found by a preponderance of the evidence that the applicant: a. did commit an act of misconduct by improperly wearing the Army Air Assault Badge, Army Aviator Badge, ribbon representing the Bronze Star Medal, and ribbon representing the Purple Heart. The finding warrants the applicant's separation from military service;? b. did commit an act of misconduct by making a false official statement by submitting a military biography representing that he graduated from the Military Intelligence Officer Basic Course and earned a master's degree in Public Administration. Those representations were made with the intent to deceive. The finding warrants the applicant's separation from military service; and c. did conduct himself in a manner that is unbecoming of a USAR officer. The finding warrants the applicant's separation from military service. d. The Board recommended the applicant's discharge from the USAR due to the findings of misconduct and acts unbecoming an officer. His separation should be characterized as honorable. 21. On 15 September 2011, the Officer Special Review Board (OSRB) denied the applicant's request to remove his contested OER covering the period 15 November 2008 through 6 March 2009 for substantive inaccuracy (OSRB Docket Number AR20110006244, 15 September 2011 (001979-001999). On 26 October 2011, the OSRB President approved the unanimous vote of the OSRB to deny the applicant's appeal. a. The applicant stated: (1) There is a substantive inaccuracy in the rater's evaluation in Part IVb.3.2. (2) There is a substantive inaccuracy in the rater's evaluation in Part Vb. (3) There is a substantive inaccuracy in the senior rater's comment in Part VIIc. (4) He filed an IG complaint, but he never received the results or outcome before he was released from active duty. b. Based on the available evidence, the OSRB determined the applicant did not provide clear and convincing evidence that shows the ratings in the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. Additionally, there is no evidence in the available records and the applicant has not provided evidence showing the contested report was inaccurate or unjust. Therefore, removal of the contested OER is not recommended. 22. On 15 September 2011, the ABCMR approved the applicant's request to remove the Bronze Star Medal, Purple Heart, Basic Aviation Badge, and Air Assault Badge from his DD Forms 214 (ABCMR Docket Number AR20110002690, 15 September 2011 (000939-000953)).? a. The applicant stated he does not have published orders for the awards and desires their removal from his records. b. A review of the applicant's OMPF failed to reveal orders for award of the Bronze Star Medal, Purple Heart, Basic Aviation Badge, and Air Assault Badge. Therefore, it appears that an administrative error resulted in the entry of those awards on his DD Forms 214 at the time of his release from active duty. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommended that all Department of the Army records of the individual concerned be corrected by: * deleting the Bronze Star Medal from his DD Form 214 for the period ending 19 June 2004 * deleting the Bronze Star Medal, Purple Heart, Basic Aviation Badge, and Air Assault Badge from his DD Form 214 for the period ending 4 September 2007 23. The USAR Medical Command memorandum (Legal Review, Show Cause Board – (Applicant)), 4 October 2011 (001425), reflects the administrative board proceedings record for the applicant ordered to show cause for retention in military service was reviewed and deemed legally sufficient. The Deputy Staff Judge Advocate recommended approval of the findings and recommendations and further recommended forwarding the report of proceedings by the IO to the USAR Command with a recommendation regarding the applicant's service characterization at separation. a. The Deputy Staff Judge Advocate determined: (1) all appointments and convening documents comport with the mandates of the controlling regulations and are deemed legally sufficient; (2) no errors were noted in the report of proceedings; (3) there was sufficient credible evidence to support the board's findings; and (4) the recommendation for the service characterization as honorable was consistent with the findings. b. The Deputy Staff Judge Advocate recommended approving the report of proceedings and forwarding the report to higher headquarters with a recommendation for separation with an honorable characterization of service. 24. The USAR Medical Command memorandum (Recommendation for Separation – (Applicant)), 17 October 2011 (001424), shows a Board of Officers convened on 13 July 2011 to consider whether the applicant committed an act of misconduct in the USAR and whether he should be involuntarily separated from military service. The board substantiated an act of misconduct and recommended the applicant's discharge from the USAR and characterization of his service as honorable. The separation authority approved the board's findings and recommended approval of the board's recommendation and directed the applicant's discharge from the USAR and characterization of his service as honorable. 25. On 9 January 2012 pursuant to ABCMR Docket Number AR20110002690, 15 September 2011 (000950-000953), the applicant was issued two DD Forms 215 (Correction to DD Form 214). a. The first DD Form 215 corrected his DD Form 214 for the period ending 19 June 2004 by deleting award of the Bronze Star Medal. b. The second DD Form 215 corrected his DD Form 214 for the period ending 4 September 2007 by deleting award of the Bronze Star Medal, Purple Heart, Basic Aviation Badge, and Air Assault Badge. 26. The Secretariat for Department of the Army Selection Boards memorandum (Promotion Review Board (PRB) (Report Number RP1202-03, FY09, RC, CPT, Army National Guard of the United States, Army Reserve Active Guard Reserve, and Army Reserve Non-Active Guard Reserve, APL Competitive Categories, Promotion Selection Boards) – ACTION MEMORANDUM), 14 February 2012 (000954-000956), shows a Board of Officers convened to consider the case of an officer being referred. It further reflects: a. The board, acting under oath and having in view the special fitness of officers and the efficiency of the Army, has carefully reviewed the record of every officer submitted to it for consideration as specified in the memorandum of instruction. In the opinion of the majority of the members, the officer named on the enclosure who had adverse information furnished to the board is considered not fully and not best qualified to perform the duties or assume the responsibilities normally expected of the next higher grade to meet the needs of the Army consistent with the requirement of exemplary conduct, as noted in the written instructions furnished to the board by the Secretary of the Army. b. The board, acting under oath and having in view the special fitness of officers and the efficiency of the Army, has carefully reviewed the case of the officer submitted to it for consideration, as specified in the instructions to the board. In the opinion of the majority of the members, the applicant should be required to show cause for retention in an active status. c. The applicant's file indicates he received a referred OER covering the period 15 November 2008 through 6 March 2009 and nonjudicial punishment under Article 15, UMCJ, 23 May 2010, after the convening date of the FY09, RC, CPT, Promotion Selection Board. His performance declined, for which he received verbal counseling. He used poor judgment when violating a directive to report to a power projection platform with an assigned weapon. On or about 4 October 2007, the applicant wrongfully and dishonorably, with intent to deceive, submitted a military biography to the Joint Information Operations Warfare Center Army Reserve Chief, which document was false in that he had not graduated from the Military Intelligence Officer Basic Course, Aviation Officer Basic Course, and Immigration and Naturalization Federal Law Enforcement Academy, and had not earned a Master of Public Administration Degree from Troy State University. This is in violation of Article 133, UCMJ. d. After reviewing his overall record, a majority of the members of this board recommended the applicant's removal from the FY09, RC, CPT, Promotion Selection List. 27. The Secretary of the Army memorandum (PRB, FY09, CPT, RC, Non-Active Guard Reserve, APL, Promotion Selection Board), 17 April 2012 (000968), directed the applicant's removal from the Promotion Selection List. 28. The U.S. Army HRC memorandum (PRB Results (PRB RP 1202-03), 19 April 2012, informed the applicant that his records were referred to the PRB for reconsideration of his promotion status. The Secretary of the Army decided to remove his name form the FY09, CPT, APL, Non-Active Guard Reserve Promotion List. 29. The HRC memorandum (Involuntary Separation Board Results – (Applicant)), 7 June 2012 (000985), shows the separation authority, Major General approved the findings and recommendations made by the Field Board of Inquiry. The applicant would be issued an honorable discharge from the USAR effective 30 days from the date of the notification. In addition, the Commander, USAR Command, was dually notified (000986) (note: the available documents do not reference the specific paragraph within Army Regulation 135-175 under which the applicant was separated). 30. HRC Orders D-06-209012, 13 June 2012, discharged the applicant from the USAR effective 6 July 2012 under the provisions of Army Regulation 135-175 (001059). 31. On 5 January 2013, the applicant enlisted in the Texas Army National Guard. He achieved the rank/grade of staff sergeant/E-6. 32. On 13 December 2016, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant's request to transfer the DA Form 2627, 15 April 2010, and GOMOR, 21 April 2010, to the restricted folder of his AMHRR (DASEB Docket Number AR20160004938 (002179-002187)). a. Per DASEB Docket Number AR20160004938, the applicant stated, in effect, the following: (1) He received a DA Form 2627 and a punitive GOMOR while he was serving in the rank of 1LT in the USAR on active duty. The intended purpose has been served and their transfer is in the best interests of the Army National Guard and the U.S. Army. (2) Under preliminary disciplinary proceedings in April 2010, he admitted to the charged offenses in 2007 for submitting a false military biography, and wearing several decorations on his uniform without authorization for a 2008 Department of the Army photograph. He has accepted responsibility for his actions and did not any make excuses for his misconduct. (3) Further, he completed active service in May 2010 and was honorably released from active duty. He returned to an inactive Reserve status. In October 2011 after a USAR Show Cause Board, he was honorably discharged for the misconduct. Before the board, he again admitted to the offenses. (4) He is a member of the Texas Army National Guard and in the process of transferring to the USAR. b. After careful consideration of the facts and evidence in the case, the DASEB determined there was insufficient evidence to justify transfer of the unfavorable information to his AMHRR restricted folder. Given the seriousness of the blatant acts (no excuse for wearing unauthorized awards), the applicant had not provided sufficient evidence to show the DA Form 2627 and GOMOR have served their intended purpose and that it is in the best interest of the Army to transfer them at this time. 33. The CID letter to the U.S. Army Crime Records Center, 20 August 2019 stated a review was conducted by the Investigative Operations Section of the Law Enforcement Report (LER) to determine if the credible information standard was correctly applied when the applicant was indexed as a subject for the offenses of fraud, larceny of Government funds, false official statement, and conduct unbecoming an officer. The letter further stated: a. The applicant was indexed for the offenses of fraud, larceny of Government funds, and false official statement on 23 March 2009 (conduct unbecoming an officer was added on 29 October 2009) when an LER was dispatched following a CID supervisor's determination that the credible information standard had been met regarding a fraud investigation. This determination was made based on what the supervisor determined to be credible information when the applicant falsely presented himself as a U.S. Army aviator in order to receive ACIP, which he was not entitled to receive as he did not graduate flight training. The applicant then told his chain of command during an Army Regulation 15-6 inquiry that he was entitled to ACIP due to having merely attended the Aviation School, a statement he knew to be false. The evidence showed the applicant was aware he was receiving unauthorized ACIP because the ACIP would have stopped when he transferred to a new unit. However, it appears the applicant may have continuously showed the original orders from the Aviation School, which in turn re-initiated the ACIP. The disposition for the applicant was retained in the Army LER and annotated on a DA Form 4833, 12 April 2010, wherein the applicant received nonjudicial punishment and a letter of reprimand. b. On 6 October 2009, a legal opinion was obtained from the Office of the Staff Judge Advocate, who opined probable cause existed to believe the applicant committed the offenses of fraud, larceny of Government funds, and false official statement. c. Based upon the review, the applicant was properly indexed as a subject using the credible information standard; therefore, the request for removal should be denied. 34. The 6th Military Police Group (CID) memorandum for CID (Request for Amendment of Record – (Applicant)), 5 September 2019 (000359), states a review was completed by a special agent of the associated documents and Army Law Enforcement Reporting and Tracking System database concerning the applicant's request to amend the offenses listed within the title/subject block of the LER. In accordance with DODI 5505.07 (Titling and Indexing in Criminal Investigations), there was credible information to list the applicant within the subject block of the LER. There was no error in applying the credible information standard to the listed offenses. 35. The CID memorandum for the U.S. Army Crime Records Center from the Chief of the Polygraph Division (Request for Amendment of Record – (Applicant)), 5 September 2019 (000360), states the applicant's request for amendment of the ROI and the additional documentation were reviewed. The Chief of the Polygraph Division further states: a. Credible information did exist at the time of the initial report to warrant the applicant being titled as the subject in the referenced LER. The applicant did not provide any new, relevant information to support mistaken identity or that an error occurred in applying the credible information standard. b. A review of the investigative findings reflected in the LER and documentation submitted with the request for amendment found there was sufficient credible information to support the probable cause standard for the subsequent titling decisions. The applicant has not provided any new, relevant information that either materially impacts or contradicts the veracity of these investigative findings. The reported lack of judicial action or a subsequent conviction does not impact the credible information or probable cause standards. c. Based on the facts detailed within the investigation, there is sufficient evidence to meet the probable cause standard to support listing the applicant as a subject for the listed offenses. 36. The CID letter to counsel for the applicant, 12 September 2019 (000354-000355), responds to his request to correct information from the files of CID on behalf of the applicant. After careful review and consideration of the request, the available evidence, and in accordance with Army Regulation 195-2 (Criminal Investigation Activities), the request to correct the ROI was denied. This denial constitutes final action on behalf of the Secretary of the Army with respect to Army Regulation 195-2. 37. The HRC memorandum (Advisory Opinion for (Applicant), AR20170001797), 14 January 2020 (000062), addressed the applicant's request for reinstatement on the FY09 CPT RC Promotion List and voidance of his involuntary separation board, 7 June 2012, due to multiple failures of due process. The Officer Promotions Special Actions Supervisor stated: a. Based on a review of their records and the information provided, HRC found the applicant's request for reinstatement on the FY09 CPT RC Promotion List did not have merit. On 17 April 2012, the applicant was removed from the FY09 CPT RC Promotion Selection List by the Secretary of the Army. b. The applicant provided no concrete evidence that could be used to negate his unprofessional conduct, his referred OER, and/or his DA Form 2627. c. On numerous occasions since May 2011, the applicant petitioned the ABCMR to correct his records only to be denied each time. Title 10, U.S. Code, specifies that exemplary conduct must be displayed at all times by all Army officers, otherwise they will not be appointed to the next higher rank. Currently, documents in the applicant's military records show inconsistency in exemplary conduct making him unqualified for promotion. 38. Via a 6 February 2020 letter with enclosures (000049-000061), the applicant, through counsel, responded to the HRC advisory opinion. Counsel contends the advisory opinion provides no additional insight or detail into this case or the errors alleged by the applicant. The advisory opinion recommends the Board deny relief without providing any analysis of the evidence or argument provided by the applicant. The applicant provided the Board with extensive evidence and narrative argument supporting the application for relief. The advisory opinion is nothing more than a conclusory opinion and fails to address a single fact or issue raised by the applicant. The simple act of stating that the Army removed the applicant from the promotion list and separated him from the Army does not mean those acts were appropriate. Counsel urged the Board to disregard the erroneous recommendations made by HRC and instead grant the applicant the relief requested in his original filing. 39. Counsel enclosed two additional letters of support along with two April 2018 statements from MSG a. A 6 February 2020 letter from BG states he fully supports, recommends, and endorses the applicant's reappointment/reinstatement as a commissioned officer without reservation. He has displayed exemplary conduct as an NCO and devotion, resiliency, and commitment to continue serving the Army. The applicant exhibited competence, capability, and charisma as he executed all duties as a professional NCO. His sustainment planning and technical skills were proven in support of many training events and missions on multiple occasions. He is an exceptional, self-driven NCO with critical civilian and Army skills performing above his peers and far exceeding his NCO duties. He has completed an MBA in Healthcare management, and the Graduate Healthcare Administrative Training Program (GHATP) through the Department of Veterans Affairs. BG stated he is confident in the applicant's capabilities and what he stands to bring to the Army. He knows he will continue excelling as a commissioned officer with unlimited potential. b. A 7 February 2020 letter from LTC supports the applicant's reappointment as a commissioned officer because it is in the best interest of the USAR. The applicant was assigned to his battalion in 2019 and is currently working in support of the USAR Command. He immediately focused on work-related tasks and actionable items. His work ethic was impossible not to observe; he coordinated meetings, prepared conference rooms for the Deputy Commanding General, and was an active participant in weekly plans and huddles. Other attributes are his punctual, early arrival, feedback and back brief of what he accomplished, as well as keeping contact with his losing command to ensure the staff was tracking his efforts. His commitment and patience to do the right thing when no one is looking is exactly what the USAR needs in this generation. He has also completed additional civilian education, which shows he is well- rounded and truly prepared to be a commissioned officer. The applicant will do exceptionally well. He has already proven he is up to the task and ready to serve the USAR as an officer in a more challenging position. c. In April 2018 statements, MSG stated he has known the applicant since 2004 as an ethical and honorable commissioned officer and NCO. He submitted a sworn statement as a direct witness to the incident that occurred when the applicant received the nonjudicial punishment that led to his separation. The applicant is innocent of the allegations and should be exonerated of this injustice that destroyed his officer career. MSG personally witnesses with LTC directed the applicant to take the Department of the Army photograph, insisting the awards and badges on the DD Form 214 "must match" the Department of the Army photograph and military biographical summary. The applicant debated with LTC that he did not have orders or certificates for the awards and badges, completed the training and schools, and did not want to wear the awards and badges. The entirety of MSG statements are available for the Board's review (000057-000059). 40. On 27 February 2020, the ABCMR denied the applicant's request to void his involuntary separation board, 7 June 2012, and his removal from the FY09 CPT RC Promotion List (ABCMR Docket Number AR20170001797, 27 February 2020 (000040- 000048)). a. The applicant stated he recently discovered that this case involves multiple failures of due process, regulatory violations by the U.S. Government, and legal advice relied upon by counsel. The applicant's counsel argued that he received a DA Form 2627 and GOMOR on 12 April 2010 for events that occurred beyond the 2-year statute of limitations in October 2007. On 7 April 2010, the applicant signed an offer to plead guilty to nonjudicial punishment. The acceptance of nonjudicial punishment was a negotiated disposition. The convening authority, acting on behalf of the U.S. Army, agreed not to initiate separation proceedings. The applicant's counsel at the time advised him that the Government was barred from proceeding with a separation action as a result of the plea agreement. On 12 May 2010, the applicant was released from active duty with an honorable discharge. On 18 May 2010, the applicant received an email from the Deputy Chief of the Joint Reserve Unit indicating the disciplinary action was not complete and his flag would not be lifted. In May 2010, he reported to his unit for drill. On 29 July 2010, he was informed that his unit initiated a show-cause action. During the Show-Cause Board, COL testified that the Reserve Commander, COL verbally gave the applicant his support and acknowledged that he would adhere to the terms of the offer to plea accepted by BG b. After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation, the findings and recommendations of the advisory opinion, as well as the lack of any rebuttal of those findings and recommendations by the applicant [as discussed above, the applicant, through counsel submitted a response to the advisory via a letter, dated 6 February 2020, with enclosures], the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant's record. 41. The applicant submitted a self-authored statement and a statement from LTC both dated 24 March 2020, in support of the request to remove the DA Form 2627, untitle him from the DCII, and reinstate him on the FY09 RC Promotion List (000036-000039). The applicant states he has submitted a plethora of substantiating evidence that he did not intentionally commit these offenses. He has received continuous support and recommendations from his commanders. He has continued to display exemplary conduct as an NCO with service to his county for over 25 years. The documents in his OMPF are a continuation of prolonged "punishment." The entirety of these statements are available in the supporting documents for the Board's review. 42. On 2 June 2020, the ABCMR denied the applicant's request to remove the DA Form 2627, 15 April 2010, and GOMOR, 21 April 2010, from his AMHRR (ABCMR Docket Number AR20190002953 (000022-000034)). a. The applicant deferred to counsel. Counsel stated that although the Article 15 proceeding took place on or about 15 April 2010, the applicant only recently obtained an additional witness statement that demonstrates his innocence. The witness statement provides new evidence to contest the validity of the nonjudicial punishment at issue. The nonjudicial punishment and GOMOR were the result of an act of reprisal. b. 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 and his counsel's contentions, the applicant's military records, and regulatory guidance were carefully considered. The governing regulation allows for the transfer of DA Forms 2627 within the OMPF when they have served their intended purpose; not their removal from the OMPF. For example, transferring a DA Form 2627 from the performance folder (most visible) to the restricted folder (least visible) of the OMPF. However, regulatory guidance also states that once placed in the OMPF, a document becomes a permanent part of that file and the document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority, such as this Board. Based upon a preponderance of the evidence, the Board determined there was insufficient evidence to amend the previous Board's decision. Neither the removal of the DA Form 2627 nor the GOMOR is warranted. 43. On 2 March 2021, the ABCMR denied the applicant's request to amend the CID ROI (Final), 29 October 2009, and all associated documents by removing his name from the "title" and/or "subject" blocks and remove the CID ROI (Final), 29 October 2009, and all associated documents from his Army records and CID databases, as well as ABCMR Docket Number AR20190012137 (000010-000021)). a. The applicant stated credible information did not exist at the time of titling that he committed the offenses of fraud, larceny of Government fund, conduct unbecoming an officer, or making a false official statement. It was improper to title him for those offenses and the interests of justice, fairness, and equity require relief. b. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board considered the applicant's statement, supporting documents, record of service, frequency and nature of the misconduct, record of nonjudicial punishment, and the outcome of the Board of Inquiry. The Board also considered the review by CID and correspondence supporting the applicant's request. Based on a preponderance of the evidence, the Board determined there was insufficient evidence of mistaken identity, probable cause, or an error or injustice which would warrant granting the applicant's request to amend the CID ROI or expunge the CID ROI and all associated documents from CID databases and his Army records. 44. On 28 October 2021, the applicant was appointed as a Reserve commissioned officer in the rank of 1LT in the New Mexico Army National Guard. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. Counsel's contentions, the applicant's military records, and regulatory guidance were carefully considered. The Board determined the applicant had not demonstrated by a preponderance of evidence the existence of an error or injustice warranting the requested records corrections. a. Reinstatement in the rank and grade of CPT / O-3 with a date of rank of 12 March 2009. The Board noted that the applicant has never been promoted to CPT. Following a Promotion Review Board, to which the applicant submitted matters for consideration, he was removed from the FY09 CPT Promotion List by the Secretary of the Army. The ABCMR cannot retroactively promote him because to do so would be a violation of the appointments clause of the U.S. Further, because the Board does not find a preponderance of evidence supports granting the other requested relief, discussed below, the Board determined that referral to a Special Selection Board was not warranted. b. Removal of a 7 June 2012 involuntary separation board from his OMPF. The Board found the applicant has failed to demonstrate by a preponderance of evidence the existence of an error or injustice related to the 7 June 2012 involuntary separation board. The applicant contends he only accepted nonjudicial punishment in exchange for the Convening Authority’s promise to not initiate separation proceedings. Instead, and in violation of the agreement, he was involuntarily separated from the USAR. In the 6 April 2010 Offer to Plead Guilty at a General Officer Article 15 Hearing, the applicant offered to plead guilty to charges II and III from the court-martial charge sheet at an Article 15 hearing in exchange for the Convening Authority agreeing to dismiss the court-martial charges with prejudice and, upon completion of any punishment imposed by the Article 15, to release him from active duty and permit him to return to his Reserve unit without initiating an elimination action. The Offer to Plead Guilty was approved and signed by the Convening Authority on 7 April 2010. The Board found the government upheld its side of the agreement. The charges were disposed of via Article 15 nonjudicial punishment, and the government did not proceed with the court-martial. Nor did the government initiate involuntary elimination action under the provisions of AR 600-8-24, chapter 4. The applicant was released from active duty with an honorable discharge and allowed to return to his Reserve unit. Nothing in the offer to plead guilty reflects that the Convening Authority agreed that the USAR could or would not initiate involuntary elimination under the provisions of AR 135-175 after the applicant was released from active duty. While the Fort Riley Commanding General was free to enter into an agreement that he would not hold the applicant on active duty to direct a show cause board for elimination, that did not preclude the applicant’s Reserve unit from initiating involuntary elimination proceedings. The Board further noted the following: (1) The applicant had actual knowledge of the possibility that his Reserve unit could initiate involuntary elimination. A 29 March 2010 email from CPT Defense Counsel, to the applicant and Defense Counsel, notes that Fort Riley “will not pursue an elimination action- he will just REFRAD. Obviously his reserve unit, or HRC, could direct a show cause board for elimination, but Fort Riley does not intend to hold him on Active Duty for an elimination action” if the applicant agreed to plead guilty to the offenses at a General Officer Article 15 hearing. (2) Counsel contends the applicant effectively was subject to involuntary separation proceedings when BG acted on the Article 15. That is simply inaccurate and a mischaracterization of the nonjudicial punishment process. In accordance with Army regulations, nonjudicial punishment under Article 15 does not preclude the use of that misconduct or the nonjudicial punishment as a basis for future involuntary separation. (3) Counsel also contends there were composition issues with the FBOI membership. The FBOI transcript reflects a board composition of two AG officers and one MS officer. The Board found the FBOI composition complied with the requirements of AR 135-175, in effect at the time. The transcript further reflects defense counsel was given an opportunity to challenge the board members, and no challenges were made. c. Removal of the Article 15 nonjudicial punishment from his OMPF: The applicant makes the same arguments about the plea agreement detailed above as a reason why the Article 15 should be removed from his OMPF. Additionally, the applicant contends he thought he was authorized to wear the awards because they were reflected on his DD Form 214, and he made an honest mistake. He was under the belief his former unit put him in for the Bronze Star and Purple Heart after he was medevac’d from the theater of operations. While he did not have the original award certificates / orders, he thought that because they were reflected on his DD Form 214, they must have been processed and approved. He contends he made an honest mistake in wearing the Army Air Assault badge and Army Aviator wings based on previously being attached to the 101st Airborne and because of his MOS 15A (General Aviation). Regarding the wearing the Joint Service Achievement Ribbon, he contends he meant to wear the Joint Meritorious Unit Award but made a mistake and mixed up the ribbons. Further, the applicant contends he only wore the unauthorized awards because his supervisor, LTC ordered him to wear them for his DA photo because they were on his DD Form 214. Further, he only pleaded guilty at the Article 15 for fear of being court-martialed and the pressure and intimidation of leadership. He also submitted statements from a Master Sergeant (MSG) who witnessed the events in question. Counsel contends the adverse actions initiated against the applicant were a result of LTC personal animus towards him and retaliation for filing an IG complaint. In support of his case, the applicant submitted statements from a Master Sergeant (MSG) who witnessed the events surrounding the DA photo. The applicant also submitted a memorandum from the company commander, 217th Transportation Company, that his military records, awards, decorations, and service medals were lost or misplaced and failed to be recorded in his OMPF. The applicant requested, and the ABCMR previously granted, removal of those awards from the DD Forms 214. Regarding the inaccurate Military Biography, the applicant contends its submission was the result of an honest mistake and confusion between himself and a civilian resume writer. The draft resume he received had multiple errors. He emailed the resume builder to correct the errors, and, upon the correction, the resume builder was to fax the corrected biography to JIOWC. The applicant also reports dealing with a family emergency at the time. The matters he submitted to the PRB included a memorandum from the resume builder concurring with this version of events. (1) The Board found a preponderance of evidence does not reflect an error or injustice warranting removal of the Article 15 and associated documents. The applicant’s contentions regarding the Offer to Plead Guilty unpersuasive for the reasons discussed above. While the applicant contends he only plead guilty at the Article 15 for fear of being court-martialed and the pressure and intimidation of leadership, the Board found the greater weight of the evidence reflects that this decision was a voluntary choice by the applicant to avoid potential conviction. Nothing precluded the applicant from rejecting the agreement and demanding trial by court-martial. (2) The Board considered the applicant’s statements that these adverse actions were taken in reprisal for him filing an Inspector General complaint and the applicant and MSG statements regarding LTC. However, the Board found the greater weight of the evidence reflects the decision to prefer charges that were ultimately resolved via nonjudicial punishment was the result of impartial AR 15-6 investigation into the alleged misconduct that found he had willfully misrepresented himself in his official military photo and resume. The evidence reflects the applicant was afforded due process throughout the investigations and Article 32 hearing. d. Untitling in the DCII and removal of a 29 October 2009 CID ROI and all associated documents. In March 2009, the applicant was titled and indexed in the DCII for fraud, larceny of government funds, false official statement, and conduct unbecoming officer based on falsely presenting himself as an Army Aviator to receive ACIP to which he was not entitled because he did not graduate flight training. The applicant seeks to be untitled, and these documents removed from the CID database / Army records. At the time, titling required only credible information. In addition to credible information, the OSJA opined probable cause existed to believe the applicant committed these offenses. Congress has changed the untitling standard from credible information to probable cause and directed the Secretary of Defense establish and maintain a policy through which individuals could seek untitling based on the lack of probable cause then or now to believe the offense occurred / the individual committed the offense (NDAA FY21, section 545). The Department of Defense (DoD) was directed to establish this policy not later than 1 October 2021. The ABCMR considered the NDAA FY2021, section 545 and determined that probable cause did exist to believe the applicant committed the titled offenses. (1) The Board discussed the applicant’s intent related to the ACIP and whether there is probable cause to believe he intended to steal. The applicant and his counsel contend he did not have a specific intent to steal and made an honest mistake that he was entitled to receive flight pay. On the other hand, the IO, based on the interviews and supporting documentation, found the applicant displayed willful intent to deceive and defraud the government. Order No. 355-064, dated 30 November 2004, began the applicant’s entitlement to ACIP. A 27 March 2009 memorandum notes the applicant was removed from training at his request in September 2004 to care for his mother who was diagnosed with cancer. He left in good standing and was authorized flight pay as a flight student while in attendance at flight school. His flight pay should have been terminated upon out processing from Fort Rucker, AL. (2) The Board noted a 5 January 2010 memorandum from the applicant’s former National Guard Aviation Liaison Officer who recommended the flight pay issue be resolved favorably. He noted the applicant left flight school in October 2005 in good standing and was recommended to return to finish flight school. ACIP orders do not have a termination date and therefore his flight pay erroneously continued to be paid after he left flight school. He notes it is not uncommon for flight students to erroneously continue to receive flight pay after being recycled in training later or upon leaving flight school with the intent to return. He believed the applicant honestly believed he was still authorized flight pay while he was in a wait status to return to flight training. (3) However, the Board found this memorandum and the applicant’s statements regarding his intent to be outweighed by the other evidence of record, specifically, the IO’s finding that, at every major unit transfer, the applicant’s ACIP was automatically stopped and, each time, it was restarted with a copy of the applicant’s original 2004 ACIP orders. The Board concurred with the IO finding that it was highly unlikely that the restart action was always initiated by the receiving unit without first being initiated by the applicant. More likely each time the ACIP was stopped, the applicant submitted the original set of orders to restart it. The Board found this constituted an intentional act to defraud the government. (4) Based on a review of all the evidence of record, the Board found by a preponderance of evidence that probable cause existed then and now to believe the applicant committed the offenses for which he had been titled. As such, the Board determined the requested relief was not warranted. ? 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 members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists in the record. 2. Army Regulation 135-175 (Separation of Officers), 4 August 2011, provides policies, criteria, and procedures governing the separation of Reserve officers of the Army. a. Paragraph 2-5 (Limitations) states: (1) No officer will be considered for involuntary separation for substandard performance of duty or moral or professional dereliction because of conduct that has been the subject of judicial proceedings resulting in an acquittal based on the merits of the case or in an action having the same effect. (2) No officer will be considered for involuntary separation for substandard performance of duty or moral or professional dereliction because of conduct that has been the subject of administrative involuntary separation proceedings resulting in a final determination that the member should be retained in the service. For purposes of this paragraph, an officer will be considered to have been the subject of involuntary separation proceedings only if allegations against him have been acted on. b. Paragraph 2-7 (Discharge Authority) states Headquarters, Department of the Army, will take final action on the recommendations of Boards of Officers and resignation in lieu of involuntary separation. Area commanders will forward these cases, with the recommendations and remarks, to the Commanding General, HRC. 3. Army Regulation 600-37 (Unfavorable Information), 10 May 2018, sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensured that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensured that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 3 (Unfavorable Information in Official Personnel Files) states 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. Paragraph 3-5 (Filing of Nonpunitive Administrative Memoranda of Reprimand, Admonition, or Censure) states nonpunitive administrative letters of reprimand, admonition, or censure in official personnel files, such as 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) states 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. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 April 2014, prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File, 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 other authorized agency. 5. Army Regulation 195-2 (Criminal Investigation Activities), 15 May 2009, prescribed the responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Paragraph 4-4b stated requests to amend or unfound offenses in 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 report of investigation is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. 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. 6. DODI 5505.07 (Titling and Indexing in Criminal Investigations), 28 February 2018, establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by DOD. a. Paragraph 1.2a states DOD components authorized to conduct criminal investigations, as outlined in DODI 5505.16 (Investigations by DOD Components), will title and index subjects of criminal investigations as soon as the investigation determines there is credible information that the subject committed a criminal offense. Indexing in the Defense Central Index of Investigations (DCII) may be delayed until the conclusion of the investigation due to operational security. b. Paragraph 1.2b states victims and incidentals associated with criminal investigations can be titled and indexed. c. Paragraph 1.2c states titling and indexing are administrative procedures and will not imply any degree of guilt or innocence. d. Paragraph 1.2d states once the subject of a criminal investigation is indexed in the DCII, the information will remain in the DCII, even if the subject is found not guilty of the offense under investigation, unless there is mistaken identity, or it is later determined that no credible information existed at the time of titling and indexing. e. Paragraph 1.2e states if a subject's information requires expungement from or correction in the DCII, DOD components will remove the information as soon as possible. f. Paragraph 1.2f states judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. g. Paragraph 3.1 states a subject is titled in a criminal investigative report to ensure accuracy and efficiency of the report. A subject's information is indexed in the DCII to ensure this information is retrievable for law enforcement or security purposes in the future. h. Paragraph 3.2 states a subject who believes he/she was incorrectly indexed, as outlined in paragraph 1.2.d., may appeal to the DOD component head to obtain a review of the decision. i. Paragraph 3.3 states when reviewing the appropriateness of a titling or indexing decision, the reviewing official will only consider the investigative information at the time of the decision to determine if the decision was made in accordance with paragraph 1.2.a. j. Paragraph 3.4 states DOD components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible. 7. The National Defense Authorization Act, effective 1 January 2021, authorized appropriations for Fiscal Year 2021 for military activities of the DOD, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes. Section 545 stated: a. Policy and Process Required. 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, in accordance with subsection c, be corrected in, or expunged or otherwise removed from, the following: (1) a law enforcement or criminal investigative report of the DOD or any component of the Department; (2) an index item or entry in the DCII; and (3) any other record maintained in connection with a report described in paragraph (1), or an index item or entry described in paragraph (2), in any system of records, records database, records center, or repository maintained by or on behalf of the Department. b. Covered Persons. For purposes of this section, a covered person is any person whose name was placed or reported, or is maintained: (1) in the subject or title block of a law enforcement or criminal investigative report of the DOD (or any component of the Department); (2) as an item or entry in the DCII; or (3) in any other record maintained in connection with a report described in paragraph (1), or an index item or entry described in paragraph (2), in any system of records, records database, records center, or repository maintained by or on behalf of the Department. c. Elements. The policy and process required by subsection (a) shall include the following elements: (1) Basis for Correction or Expungement. That 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 described in paragraphs (1) through (3) of subsection (a) in the following circumstances: (a) probable cause did not or does not exist to believe 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; (b) 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; or (c) 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 subparagraphs (a) and (b). (2) Considerations. While not dispositive as to the existence of a circumstance or basis set forth in paragraph (1), the following shall be considered in the determination whether such circumstance or basis applies to a covered person for purposes of this section: (a) the extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (b) whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; and (c) the type, nature, and outcome of any action described in subparagraph (b) against the covered person. (3) Procedures. The policy and process required by subsection (a) shall include procedures as follows: (a) procedures under which a covered person may appeal a determination of the applicable component of the DOD denying, whether in whole or in part, a request for purposes of subsection (a); (b) procedures under which the applicable component of the Department will correct, expunge, or remove; take other appropriate action on, or assist a covered person in so doing, any record maintained by a person, organization, or entity outside of the Department to which such component provided, submitted, or transmitted information about the covered person, which information has or will be corrected in, or expunged or removed from, Department records pursuant to this section; (c) the timeline pursuant to which the Department, or a component of the Department, as applicable, will respond to each of the following: * a request pursuant to subsection (a) * an appeal under the procedures required by subparagraph (a) * request for assistance under the procedures required by subparagraph (b) (d) mechanisms through which the Department will keep a covered person apprised of the progress of the Department on a covered person's request or appeal as described in subparagraph (c). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011051 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1