IN THE CASE OF: 
 
  BOARD DATE: 12 September 2023 
 
  DOCKET NUMBER: AR20230002837 
 
 
APPLICANT REQUESTS: 
 
• removal of all derogatory material from his Army Military Human Resource Record (AMHRR) 

• an upgrade of his discharge from under other than honorable conditions to honorable 

• amendment of his type of separation from "Discharge" to "Retirement" 

• amendment of his separation program designator code from "JKQ" (Misconduct (Serious Offense)) to "JFF" (Secretarial Authority) 

• amendment of his reentry eligibility (RE) code from "RE-3" (not fully qualified) to "RE-1" (qualified) 

• amendment of his narrative reason for separation from "Misconduct (Serious Offense)" to "Secretarial Authority" 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 

• Application Audit Trail, undated 

• Counsel's Letter, 11 November 2021 

• Legal Brief in Support of Discharge Upgrade, 9 February 2021 

• Timeline of Events, undated 

• Chronology List, December 2010 through February 2013 

• Knoxville Recruiting Company Memorandum (Report of Investigation, (Applicant)), 29 December 2010 

• Headquarters, U.S. Army 3d Recruiting Brigade, Memorandum (Setting Aside of Article 15, Uniform Code of Military Justice (UCMJ), and Full Restoration – Applicant), 31 May 2012 

• U.S. Army Recruiting Command (USAREC) Form 958 (Incident Information Report), 27 March 2013 

• Summary of Board Proceedings, 18 April 2014 


  
• U.S. Army Trial Defense Service (TDS) Memorandum (Enlisted Administrative Separation Review for (Applicant)), 21 May 2014, with enclosures – 


 
• (Applicant) – Administrative Separation Board; Points of Concern, unsigned and undated 

• Self-authored Letter – Additional Points of Concern, undated 


 
• City Circuit Court Trial Order, 24 July 2014 (partial) 

• Email ((Applicant) Board), 26 May 2016 

• Summary of Board Proceedings, 16 June 2016 

• Email (Reply: (Applicant), Testimony for Separation Board), 24 January 2017 

• TDS Memorandum (Request for Reconsideration Due to New Evidence under Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers), Paragraph 2-9 (Request for Reconsideration)), 1 February 2017 

• Headquarters, USAREC, Memorandum (Order to Reconvene Administrative Separation Proceedings for (Applicant)), 24 February 2017 

• TDS Memorandum (Evidentiary Challenge for (Applicant's) Administrative Separation Board under Army Regulation 15-6, Paragraph 3-7d(9) (Bad Faith Unlawful Searches)), 12 April 2017 

• Email ((Applicant) Board – Military Rules of Evidence (MRE) 412 (Sex Offense Cases: The Victim's Sexual Behavior or Predisposition) Notice), 13 April 2017 

• Email ((Applicant) – 4th Amendment (Search and Seizure) Challenge with Enclosures), 13 April 2017 


 
• TDS Memorandum (Notice of Intent to Introduce Evidence of an Alleged Victim's Sexual Behavior or Predisposition for (Applicant's) Administrative Separation Board under Army Regulation 15-6, Paragraph 3-7d(3) (Investigations Related to Sex Offenses Cases)), 13 April 2017 

• Enclosure 1 – Sworn Statement (Captain (CPT) M____ R____), 21 August 2014 

• Enclosure 2 – Extract of Summarized Testimony, undated 

• Enclosure 3 – Extract of Memorandum (Forensic Examination Final Report), undated 

• Enclosure 4 – DA Form 2823 (Sworn Statement) (Applicant), 12 April 2017 


 
• Email (Reply: (Applicant's) Administrative Separation Board, Evidentiary Challenge), 13 April 2017 

• Headquarters, 1st Recruiting Brigade, Memorandum (Government Response to Respondent's Notice of Intent to Introduce Evidence of an Alleged Victim's Sexual Behavior or Predisposition at the Administrative Separation Board of (Applicant)), 14 April 2017 


• Email (Reply: (Applicant) Separation Board, Defense Witness List), 14 April 2017, with enclosure – TDS Memorandum (Witness and Evidence List for Applicant Administrative Separation Board), 14 April 2017 

• Email ((Applicant's) Administrative Separation Board – Evidentiary Challenge; MRE 412 Motion), 18 April 2017 

• Email (Reply: AMHRR Error), 21 April 2017 

• TDS Memorandum (Legal Deficiencies from Administrative Separation Board for (Applicant) and Request to Suspend Separation in Accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) or for a New Administrative Separation Board for Master Sergeant M____), 24 April 2017 

• Headquarters, USAREC, Letter, 21 December 2017 

• Standard Form 180 (Request Pertaining to Military Records), 29 March 2020 

• Post-Appeal Remedies, undated 


 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 
 
2.  The applicant states his discharge was unfair at the time and is unfair now. He states his discharge is procedurally defective. He defers further argument to counsel. 
 
3.  Counsel states the applicant became aware of the existence of errors in his discharge after he was separated from the Army. 
 
 a.  The applicant alleges he was falsely accused of sexual abuse by his adult stepdaughter, Ms. A____ T____. The stepdaughter had a long history of conflict with the applicant's wife and her mother. Much of her bias was associated with the sale of a home, where his adult stepdaughter had a personal interest in the outcome of the home. He avers this conflict drove her to attack the applicant and bring false allegations. He states this animosity led to a series of false allegations. These allegations were investigated by the State of Virginia and the applicant was found "not guilty" at trial. (Note: The supporting documents reference the applicant's stepdaughter as Ms. A____ T____ or Ms. A____ B____; they are the same person. For clarity, all references to the applicant's stepdaughter will be shown as Ms. T____.) 
 
 b.  The applicant provided a timeline along with a narrative statement in an effort to explain the history of these events. The command initiated three administrative separation boards, to include the final board, which administered the discharge under other than honorable conditions. He alleges unauthorized evidence related to his "not guilty" verdict was used at that board and he was subsequently erroneously discharged.
 c.  He believes there is a procedural defect in this case. The U.S. Constitution requires three fundamental rights for those who face accusations and trial. They are afforded the right of due process, the right against being tried twice for the same crime, and the forever continuing right of innocence after a finding of "not guilty" by a jury. These rights are encoded in the Army regulations and can be found in both Army Regulation 27-10 (Military Justice) and Army Regulation 635-200. The reason the Army chooses to enshrine these legal concepts in the rights of a Soldier is because these are the rights afforded to all citizens under the U.S. Constitution. He claims that once a citizen has been tried for a crime and found "not guilty," he is considered to be "not guilty" of those offenses and they cannot be used against him at other proceedings. A judgment by a jury of our peers of "not guilty" is the most powerful judgment in our system and that is upheld by the U.S. Constitution. 
 
 d.  In this case, the applicant was accused by his adult stepdaughter in 2010. As the investigative process was taking place, an administrative separation board was initiated in December 2014. Subsequently, in February 2015 the State of Virginia tried the applicant for the underlying offenses and he was found "not guilty" at a trial in Virginia. The decision resulted in a dismissal of the elimination by Headquarters, Department of the Army (HQDA). He claims there is a determination that the charges that he was found not guilty for cannot result in a separation. He alleges USAREC reinitiated the separation board and, contrary to the HQDA opinion, used unauthorized evidence in contradiction to the U.S. Constitution and Army regulations. The applicant states this evidence was direct testimony related to the trial in Virginia and believes the command illegally used this evidence as both character evidence and to retry the applicant. 
 
 e.  The request for administrative separation can be initiated by the command or the service member. In this case, he claims USAREC was not allowed to retry the applicant for the underlying offenses after a finding of "not guilty." He believes they were also not authorized to administratively separate the applicant without authorization from HQDA, which had already determined that the separation action should be dismissed. 
 
 f.  He states the command was not authorized to administratively separate the applicant as the fundamental reason for misconduct was substantially deficient. The applicant believes the command took an active interest in the Commonwealth of Virginia's case and when they did not get the results they wanted, they contravened the Army regulations and the U.S. Constitution to reinstitute an unauthorized separation. He avers that the command was guilty of undue command influence because the decision to separate the applicant was being forced on the lower-level commanders, who acted outside of the regulatory guidance. 
 
 g.  The applicant states the use of the Waynesboro Police evidence was highly inflammatory and should not have been allowed by the board. Detective K____ V____, as seen in her testimony at the board in the summarized transcript, exclusively talks 
about the Waynesboro investigation and repeatedly talks about the process of the trial and her negative thoughts on the outcome. He alleges this is inappropriate evidence at the board. The jury's determination of "not guilty" is a sacrosanct verdict on the proceedings. It is a historical American practice to not question the verdict of a jury unless overturned by a Court of Appeals. The applicant claims Detective V____ inappropriately placed her opinion over the judgment of the jury in the presence of the board. He believes the legal advisor, pursuant to Army Regulation 27-10, had an obligation to keep the evidence out of the separation hearing and the trial counsel should have objected. 
 
 h.  Ms. C____ B____ and others also testified as to their thoughts on the trial and the "not guilty" verdict. He claims all this evidence was inappropriate and had a direct impact on the outcome of the case. He states it is easy to argue that at the very least, without this evidence, there would not have been a discharge under other than honorable conditions. He believes this type of evidence is what pushed the case over the edge. 
 
 i.  Finally, CPT R____, the applicant's commander and a witness before the board, was the subject of an Inspector General (IG) complaint filed by the applicant. The applicant believes CPT R____'s testimony was heavily biased by this allegation. He was also biased because throughout this case he took sides with Ms. T____. He believes CPT R___ used his influence and command influence to directly affect the outcome of this case. He states CPT R____ lied at the board hearing due to his biases, and undue command influence resulted in direct collaboration in this case. The applicant believes that when the Waynesboro Police did not get what they wanted through trial, the military command was highly motivated to achieve their desired result regardless of the fairness of their means. 
 
4.  The Knoxville Recruiting Company memorandum (Report of Investigation, (Applicant)), 29 December 2010, states an investigation was conducted pursuant to articles of the UCMJ and the memorandum of appointment. An anonymous caller contacted the applicant's company commander and made numerous allegations against the applicant. 
 
 a.  The scope of the investigation provides answers to the following issues: 
 
  (1)  Did the applicant receive a driving under the influence/driving while intoxicated offense since arriving at the Knoxville Recruiting Company? Does the applicant have a valid and legible driver's license? 
 
  (2)  Did the applicant ever take a Government laptop home with the intent to sell? 
 
  (3)  Did the applicant ever give a Government computer to anyone with the intent of having them sell the equipment? 
 
  (4)  Is the applicant being accused of molestation of anyone in his family? 
 
  (5)  Has the applicant ever been stopped for speeding in the Government-owned vehicle and taken to the police station for having a revoked driver's license? 
 
 b.  No evidence was found to substantiate allegations made against the applicant. 
 
5.  The USAREC Form 958, 27 March 2013, shows the applicant as the subject and his stepdaughter, Ms. T____, as the alleged victim. The form further shows: 
 
 a.  The applicant is under investigation by the U.S. Army Criminal Investigation Command (CID) for sodomy, carnal knowledge, indecent exposure, forcible fondling, and rape of the alleged victim. 
 
 b.  The offenses occurred during numerous different times throughout the period of January 1994 to December 2000. 
 
 c.  The offenses occurred at Waynesboro, VA; Killeen, TX; and Fort Campbell, KY. 
 
 d.  The alleged victim reported the applicant for the offenses to the Waynesboro Police Department. 
 
6.  The Headquarters, USAREC, memorandum (General Officer Memorandum of Reprimand (GOMOR)), 23 August 2013, states the applicant was reprimanded for sexually abusing his stepdaughter, Ms. T____, who was 7 years old in 1994 between the years of 1994 and 2001. He performed oral sex on Ms. T____, forced Ms. T____ to perform oral sex on him, digitally penetrated Ms. T____, and sexually assaulted Ms. T____ by having sexual intercourse with her. Additionally, he masturbated in front of Ms. T____. Lastly, on 24 April 2009, he received a GOMOR for his role in an altercation for which he was charged with being drunk and disorderly. This misconduct stems from allegations that he was inappropriately touching female patrons at a Holiday Inn bar in Mansfield, OH. The applicant acknowledged receipt of the GOMOR and elected to submit matters in defense. 
 
7.  The TDS memorandum for the USAREC Commander (Request for Reconsideration of 11 October 2013 Extension Request and Response to GOMOR and all Army Activities (ALARACT) Message 147/2013 Rebuttals; in Regard to: Applicant), 1 November 2013, states: 
 
 a.  The applicant unequivocally denies the allegations against him. He has never sexually assaulted, endangered, or otherwise displayed inappropriate behavior toward the complaining witness or any other minor at any point in his life. 
 
 b.  The allegations against the applicant are despicable acts that should not be taken lightly. That being said, due process, in this case and all others, should also be taken seriously. The applicant specifically requests that the commander consider his burden of believing the allegations by a preponderance of the evidence prior to filing the GOMOR. Do not confuse the seriousness of the allegations with any actual guilt in this case. In reviewing the file, consider the applicant's good character, his willingness to assist the investigation, the delay in reporting by the complaining witness, and the inability of the Government to provide any evidence that corroborates the complaining witness's claims as factors supporting the defense's case. 
 
 c.  The applicant is a 40-year-old who has served with honor for nearly 18 years. He has made some minor mistakes along the way, but on the whole, he has done the right thing, even when no one was looking. Since the GOMOR and ALARACT response processes do not generally afford the same level of due process as would be found at a board, the applicant respectfully requests consideration of his Official Military Personnel File (OMPF) outside of the 3-year period he has faced these accusations as a basis to determine his character and credibility. 
 
 d.  The applicant also requests consideration of the incomprehensible 9-year delay in reporting these allegations by the complaining witness. Congress had previously determined that a delay of this magnitude disallows prosecution of an accused at court-martial. The bar may be because of the inability of a defendant to answer an allegation from so many years ago or because the accusation itself is suspect. Although this bar and rationale pertains to courts-martial and not the administrative processes seen in this case, the general principles of due process and credibility still apply and should factor into the deliberations. 
 
 e.  As stated in the GOMOR at issue, the applicant received a GOMOR for his role in an altercation for which he was charged with being drunk and disorderly. However, this 2009 GOMOR was filed locally and the applicant was not convicted of any crime. The applicant received a favorable outcome in large part because of the sworn statements of three neutral witnesses who maintained the applicant was the victim of an attack with a beer bottle to the face and not the aggressor, and that he was not acting inappropriately toward fellow patrons as initially alleged. 
 
 f.  Including the 2009 GOMOR in the current GOMOR is tantamount to double jeopardy. These allegations have already been levied, deliberated, and concluded. There is no just reason to reintroduce them into the current GOMOR, especially 
considering the outcome. As such, the applicant requests redaction of this portion of the GOMOR. 
 
 g.  The applicant is prepared to fully answer all allegations at the administrative separation board because it is the most imminent threat to his professional livelihood at this time. In the meantime, he requests deference in the due process of all administrative actions against him. The applicant respectfully requests a fair opportunity to plead his case at the administrative separation board prior to the filing or completion of these parallel administrative actions. In the alternative, he requests dismissal of both administrative actions because the Government has failed to meet its burden of proof. Finally, if the commander has determined that these parallel actions must proceed, the applicant requests locally filing the GOMOR so it can be rescinded if the administrative separation board returns a finding of "not guilty." 
 
8.  A review of the applicant's AMHRR did not yield a GOMOR issued on 24 April 2009. (Note: Counsel states it was locally filed). 
 
9.  The Headquarters, USAREC, memorandum from the commanding general (Filing Determination on Reprimand), 21 November 2013, directed permanently placing the GOMOR in the applicant's AMHRR. 
 
10.  The summary of board proceedings for the administrative separation board on  17-18 April 2014 provides the summarized testimony of Detective V____ of the Waynesboro Police Department. 
 
 a.  Under direct examination, Detective V____'s summarized testimony states the victim reported the incident to the Waynesboro Police Department in December 2010 and the case was forwarded to her. She first made contact with Ms. T____ on 22 December 2010. There were about eight reports generated with information from Ms. T____. She can only confirm that she received the written complaint from Ms. T____ stating the applicant was her perpetrator, but could not go into any other details. Ms. T____ turned over two recordings of conversations. 
 
 b.  Under direct examination, Detective V____ stated she dealt with a lot of sexual assault cases and has to regularly assess the credibility of witnesses. During the assessments, she listens to their statements and notes if there are any contradicting statements. She also checks for corroborating statements and she found the witness to be credible in this case. She has worked on these types of cases since 2005 and she has had about eight different types of training, such as child abuse, child neglect, and child assault. She also attended child abuse seminars and conferences conducted by different law enforcement agencies and other organizations throughout the country. Per her training, it is not unusual for a victim of sexual assault to be victimized again by 
another person. Also, some victims of rape or sexual abuse may never tell anyone and some remain silent for years. 
 
 c.  Under cross examination, Detective V____ stated she has been a detective since 2005 with the Waynesboro Police Department and an investigator since 1995. Prior to that, she was performing private security for another company. She started out as a patrol officer and also worked as a desk officer. She did not go to any special school to become an investigator, but she has taken all different types of training throughout her career. The department has six investigators; they do not have a Special Victims Unit. They all handle other cases as well. She tries to corroborate victims' statements when she gets a case. In this case, she spoke to Ms. T____'s mother and noted what she said in the file. She did not talk to Mr. E____ T____, Ms. M____ S____, or Mr. R____ F____. Ms. T____ told her that her sister had been assaulted as well. 
 
 d.  In response to questions by the board, Detective V____ stated she spoke to Ms. T____ via email, over the phone, and face-to-face. Ms. T____ did not show any signs of deception. She has no doubt that Ms. T____ is being truthful. 
 
11.  The TDS memorandum (Enlisted Administrative Separation Review for (Applicant)), 21 May 2014, requested reopening the administrative separation hearing against the applicant and allowing him to continue serving in the U.S. Army on the basis of noncompliance with Army Regulation 635-200, lack of ripeness, and fundamental fairness. The objections with the board process that materially impacted the board's recommendation are as follows: 
 
 a.  Detective V____, a witness for the recorder, testified that Ms. T____, the complaining witness, "turned over [all] two recordings" of conversations she had involving the applicant to the detective's office in the course of her investigation. This is false. Ms. T____ had four recordings, but only turned over two. This conduct is objectionable under discovery grounds and demonstrates the inability of the applicant to properly defend himself against charges of which the complaining witness was able to manipulate what evidence she wanted to release. 
 
 b.  The introduction of the illegally obtained recordings of the applicant is objectionable under competence grounds. Not only did the procurement of the alleged phone calls violate criminal code, but they were also not authenticated and therefore cannot be seen as competent evidence. Despite their flaws, the recordings were given undue weight, as they were used by the recorder to circumvent production of the complaining witness for sworn testimony at the hearing. Additionally, beyond the wire taps, the investigation documents were admitted into evidence despite a failure of the Government to even attempt to authenticate them. 
 
 c.  Portions of Detective V____'s testimony were wrongfully introduced and considered, and therefore should be stricken from the record; specifically, the recorder relied upon Detective V____ to provide testimony regarding the truthfulness of Ms. T____'s accusations. Using Detective V____ as a human lie detector, even though she is simply a police officer with no formal or professional training in that capacity, is impermissible and should not be allowed. 
 
 d.  Detective V____ was called as a witness to give sworn testimony, but refused to answer questions under cross examination, stating she was not authorized to speak on the case while it was still pending in her jurisdiction. It is not permissible for the Government to call a witness who will only provide testimony she deems is admissible. 
 
 e.  Detective V____ was offered as an expert in the area of child abuse and child sex offenses, however, it is clear she had no specialized training or experience to be qualified as such. This error led to the board giving undue weight to her testimony. 
 
 f.  LTC C____, a witness for the recorder, testified inaccurately as well. LTC C____'s testimony on the whole should be stricken. 
 
  (1)  LTC C____ did not meet with the applicant and the applicant's spouse on at least four different occasions. The applicant has only met with LTC C____ on two brief occasions. 
 
  (2)  LTC C____ speculated that the applicant was interfering with the Family Advocacy Program, despite having no personal knowledge of that accusation. 
 
  (3)  LTC C____ testified that the applicant should be separated with an under other than honorable conditions characterization of service because he has done little as a professional since the allegations. This is an unfair and inaccurate summation of the applicant's professional approach to the job since he has been on notice of these allegations. LTC C____'s inaccurate foundation and statements are so great in number, his testimony should stricken on the whole for lack of competence. 
 
  (4)  LTC C____ also relied on reports from whom he believed was a unit psychologist in providing his character testimony of the applicant. However, LTC C____'s understanding of the report was inaccurate. First, the evaluation was performed by a nurse, not by a psychologist. Second, LTC C____ is not trained as a medical professional and therefore cannot rightfully interpret and testify to medical records for the board. 
 
 g.  The applicant's mental health evaluation was not properly conducted in accordance with Army Regulation 635-200 in that a non-sanctioned medical 
professional, namely a nurse, performed the examination. The board should not have convened because there was no proper mental health evaluation. 
 
 h.  The applicant was not given the opportunity to confront his accuser. 
 
 i.  There were no live witnesses who could be cross-examined by the applicant in this case. Instead, the Government relied on hearsay documents that could not face questioning, such as sworn statements. 
 
 j.  The recorder offered inadmissible proffers and testimony to the board that were irrelevant and ultimately deemed inadmissible. Nonetheless, the frequency in which he improperly "rang the bell" tainted the proceedings materially. 
 
 k.  Key witnesses were forced to testify as late as 0200 hours. Their ability to coherently testify, as well as the ability of the board to feasibly consider their testimony properly was materially diminished by the fatigue of all parties involved. 
 
 l.  Against the applicant's objection, this administrative hearing convened prior to the criminal court case. This severely impacted the ability of both the recorder and applicant to develop their case. As such, this hearing was not ripe for determination. Evidence that will be provided at the applicant's criminal case could not be presented at the administrative separation hearing because it could not be used to properly cross-examine the complaining witness, who was not present. 
 
12.  The City Circuit Court Trial Order, 24 July 2014, shows the applicant stood trial for one felony count of animate object sexual penetration and one felony count of forcible sodomy, both to which he pleaded "not guilty." Both offenses occurred between 1 May 1994 and 30 September 1994. After hearing all the evidence, the instructions of the Court, and counsel's argument, the jurors deliberated to consider their verdicts. The jurors subsequently returned "not guilty" verdicts for both counts. The applicant was acquitted of the charges. 
 
13.  The TDS memorandum (Enlisted Administrative Separation Review for (Applicant)), 12 August 2014, requests the applicant's retention in the U.S. Army or reopening the administrative separation hearing and ultimately allowing him to continue serving in the U.S. Army. 
 
 a.  On 18 April 2014, an enlisted separation board appointed by USAREC, Fort Knox, KY, recommended the applicant's discharge from the service and issuance of an under other than honorable conditions characterization of service. These recommendations were based on the findings that: 
 
  (1)  The applicant committed a serious offense, to wit: carnal knowledge with Ms. T____, a person under 12 years of age, on divers occasions between on or about 1 January 1994 and on or about 31 December 2000 in violation of Article 120, UCMJ. 
 
  (2)  The applicant committed a serious offense, to wit: indecent acts upon Ms. T____, a person under 16 years of age, by fondling her and performing oral sex with her with the intent to gratify his sexual desires, on divers occasions between on or about 1 January 1994 and on or about 31 December 2000 in violation of Article 134, UCMJ. 
 
 b.  The trial of the Commonwealth of Virginia vs. the applicant was held on 21 July 2014. The applicant was indicted on two felony counts identical to the allegations presented in the enlisted separation board proceedings: 
 
  (1)  animate object sexual penetration and 
 
  (2)  forcible sodomy. 
 
 c.  After hearing all the evidence, the instructions from the Court, and counsel's argument, the jurors were sent to the jury room to consider their verdicts. They subsequently returned a verdict of "not guilty" for both charges. 
 
 d.  Two key witnesses testified during these court proceedings that did not testify during the administrative hearing, Ms. [Redacted], the alleged victim, and the applicant, the accused. At the administrative hearing, Ms. [Redacted]'s accusations were elicited through hearsay, leaving the applicant without the opportunity to confront his accuser, and the applicant did not testify under the advisement of counsel because of the pending criminal trial in Virginia. However, both Ms. [Redacted] and the applicant testified under oath on 21 July 2014. Their testimony was crucial to the jury's decision of "not guilty." 
 
 e.  The applicant deserves reconvening his administrative separation hearing based on the enclosed matters. Counsel and the applicant are confident that if the board had the above evidence, their findings and recommendation would have been different. 
 
 f.  The applicant requests reconsideration of the decision to separation him from the U.S. Army under other than honorable conditions or reopen the administrative hearing, ultimately giving him the opportunity to continue to serve. 
 
14.  The Headquarters, USAREC, memorandum from the commanding general (Separation under Army Regulation 635-200, Chapter 14, Paragraph 14-12c), 7 August 2014, recommended the applicant's separation for commission of a serious offense and issuance of a Discharge Certificate under Other Than Honorable Conditions.  
15.  An extract of the Forensic Examination Final Report, date unknown, states the examination of the laptop disclosed conclusive evidence to link the "[redacted]" user profile to the applicant. The laptop was used to conduct searches for and view varying types of Internet-based adult pornography with sub-genres, including bestiality, incest, and homosexuality. No images of or search for child pornography were revealed during the course of the examination. 
 
16.  The Headquarters, U.S. Army Recruiting Battalion Albany, memorandum from the battalion commander (Request Exception to Policy to Administratively Separate (Applicant) Despite Civilian Acquittal), 10 February 2015, requests approval of an exception to policy to administratively separate the applicant pursuant to the findings of the administrative separation board. 
 
 a.  First, the administrative separation board was initiated, conducted, and approved by the USAREC Commanding General prior to the applicant's trial in civilian court. 
 
 b.  Second, the administrative separation board determined by a preponderance of the evidence that the applicant engaged in misconduct more extensive than was the subject of the civilian trial. 
 
 c.  Finally, the board determined by the preponderance of the presented evidence that the nature of this aforementioned misconduct was so egregious that it warrants the applicant's discharge under other than honorable conditions. It further shows: 
 
 d.  Given the timeline of events, the board was conducted and approved by the Commanding General, USAREC, prior to the applicant's acquittal in civilian court. The applicant was notified of the intent for separation action on 31 October 2013. The case was referred to an administrative separation board on 6 January 2014. The board convened on 17-18 April 2014. The USAREC Commanding General approved the separation board proceedings on 24 June 2014. The civilian trial conducted in Virginia occurred on 21 July 2014. 
 
 e.  As previously stated, the basis for the applicant's separation was more extensive than the civilian trial. The applicant's civilian trial determined there was "no proof beyond a reasonable doubt" that he sexually assaulted his stepdaughter, Ms. T____, between May and 30 September 1994. This administrative separation proceedings covered a much greater period of time ranging from 1 January 1994 to 31 December 2000 and in locations other than Virginia, including at or near Fort Campbell, KY, and Fort Hood, TX. 
 
 f.  Given the extremely serious nature of these acts, the board determined that a preponderance of the evidence supported a finding that the applicant sexually assaulted his stepdaughter. In an audio recording provided to the separation board by the Government as evidence, the applicant apologized and claimed to mistake Ms. T____ 
for her mother when she was in the bed with them. This key piece of evidence was not admissible in the criminal trial; however, it was admitted during the separation proceedings. 
 
 g.  On 13 February 2015, the USAREC Commanding General recommended approval of the request for an exception to policy to separate the applicant and forwarded his recommendation to the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs. 
 
17.  On 9 October 2015, the applicant was seen for a mental status evaluation pursuant to an administrative separation. The DA Form 3822 (Report of Mental Status Evaluation) shows in: 
 
 a.  Section V (Diagnoses), his psychiatric conditions include unspecified depressive disorder and unspecified anxiety disorder; 
 
 b.  Section VIII (Additional Comments), the applicant tested positive on his screenings for post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). He was referred for a comprehensive mild TBI evaluation. (Note: No comprehensive mild TBI evaluation is available for review); 
 
 c.  Remarks, the applicant was screened for PTSD and TBI in current session. The applicant screened positive for PTSD and TBI. A further evaluation was provided by a doctoral-level provider and found the applicant's PTSD symptoms were not related to trauma, but rather the legal process. The applicant reported his TBI symptoms were related to a motor vehicle accident in Iraq in March 2006. The applicant was evaluated and cleared by the hospital provider to continue convoy operations. PTSD was previously ruled out in 2007. The applicant's stressors related to the legal case are expected to subside after the proceedings are complete. The applicant meets retention requirements and does not warrant disposition through medical channels or medical administrative actions. The applicant is cleared for duty from a behavioral health perspective and therefore cleared for any administrative action the command deems necessary. 
 
 d.  The behavioral health provider signature(s) block does not provide the duty position or educational degree of the behavioral health provider who signed the DA Form 3822. 
 
18.  The Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum from the assistant secretary (Involuntary Separation of (Applicant) under Army Regulation 635-200, Paragraph 14-12c), 13 December 2015, disapproved the request for an exception to Army Regulation 635-200. 
 
 a.  In accordance with Army Regulation 635-200, a substantial defect in the proceedings was found. Therefore, the Assistant Secretary set aside the findings and recommendations, and directed referral of the case to a new administrative board for rehearing. 
 
 b.  His decision was based on the findings of the separation board, which include alleged misconduct that occurred prior to the applicant's initial enlistment in 1996. The new separation board will consider only misconduct that allegedly occurred while the applicant was enlisted in the Army. 
 
 c.  Because the alleged misconduct that was the subject of the judicial proceedings that resulted in the applicant's acquittal occurred prior to the applicant's initial enlistment in 1996, Army Regulation 635-200 does not restrict the ability of the new separation board to consider allegations of similar misconduct that allegedly occurred while the applicant was enlisted in the Army. 
 
19.  The U.S. Army Recruiting Company Hartford memorandum from the company commander (Separation under Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense, (Applicant)), 18 March 2016, notified the applicant that he was initiating action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. 
 
 a.  The reasons for his proposed action were: 
 
  (1)  On divers occasions at or near Killeen, TX, between on or about 1 January 1997 and 31 December 1997, the applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires in violation of Article 134, UCMJ. 
 
  (2)  On divers occasions at or near Killeen, TX, between on or about 1 January 1998 and 31 December 1998, the applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and. performing oral sex with her with Intent to gratify his sexual desires in violation of Article 134, UCMJ. 
 
  (3)  On divers occasions at or near Fort Campbell, KY, between on or about 1 January 2000 and 31 December 2000, the applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires in violation of Article 134, UCMJ. 
 
  (4)  On divers occasions at or near Rockwood, TN, between or about 1 January 2013 and 1 April 2013, the applicant contacted Ms. T____ in attempt to cause her to discontinue pursuance of a criminal complaint against him and/or solicited her not to testify in any criminal proceedings arising from her complaint that he penetrated her 
labia majora with part of his body for sexual gratification against her will on or about 1 May 1994 to 30 September 1994 in violation of Article 134, UCMJ. 
 
  (5)  On or about 31 March 2013 at or near West Point, NY, the applicant made a false official statement to CID agents M____ S. S____ and M____ J. B____ wherein he denied ever having any sexual contact of any nature with Ms. T____, in that the applicant previously confessed to Ms. T____ that he had sexual contact with her as a child but claimed to have believed her to be her mother in violation of Article 107, UCMJ. 
 
  (6)  On divers occasions at or near Watervliet, NY, between on or about 1 May 2014 and 21 August 2014, the applicant viewed pornography at his place of duty during business hours in violation of Article 92, UCMJ, and USAREC Regulation 600-25 (Prohibited and Regulated Activities), paragraph 2-4(b). 
 
 b.  The company commander recommended characterization of the applicant's service as under other than honorable conditions. 
 
 c.  The applicant acknowledged receipt of the notification of intent to initiate separation action on 18 March 2016. 
 
20.  The U.S. Army Recruiting Company Hartford memorandum (Election of Rights Regarding Separation under Army Regulation 635-200, Chapter (should read Paragraph) 14-12c), Commission of a Serious Offense, (Applicant)), 31 March 2016, shows the applicant was advised by consulting counsel of the basis for the contemplated action to separation him for commission of a serious offense under Army Regulation 635-200, paragraph 14-12c, and its effects; of the rights available to him; and of the effect of any action taken by him in waiving his rights. It further shows: 
 
 a.  He requested consideration of his case by an administrative separation board. 
 
 b.  He requested a personal appearance before an administrative separation board. 
 
 c.  Statements on his own behalf were not submitted. 
 
 d.  He requested consulting counsel and representation by military counsel and/or civilian counsel at no expense to the Government. 
 
 e.  He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He further understood that as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  
 f.  He had not filed an unrestricted report of sexual assault within 24 months of initiation of the separation action. 
 
 g.  He did not believe that he suffered from PTSD or TBI as a result of deployment overseas in support of a contingency operation during the previous 24 months. 
 
21.  The Headquarters, USAREC, memorandum (Referral of Respondent), 5 May 2016, shows the applicant was designated as a respondent before the board. The board would consider whether the applicant should be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense. If the board finds the respondent committed a serious offense, the board will consider whether the applicant should be discharged from the U.S. Army. In accordance with Army Regulation 635-200, chapter 3, the board may recommend an honorable discharge, a general discharge under honorable conditions, or a discharge under other than honorable conditions. 
 
22.  The USAREC memorandum (Notice to Appear Before a Board of Officers), 17 May 2016, shows the applicant was given notice that a Board of Officers would hold a hearing on 15 June 2016 under the provisions of Army Regulation 15-6 and Army Regulation 635-200. The board will determine whether the applicant should be discharged in accordance with Army Regulation 635-200, chapter 14, paragraph  14-12c, before the expiration of his term of service. 
 
 a.  The board will consider the following offenses: 
 
  (1)  On divers occasions at or near Killeen, TX, between on or about 1 January 1997 and 31 December 1997, the applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires in violation of Article 134, UCMJ. 
 
  (2)  On divers occasions at or near Killeen, TX, between on or about 1 January 1998 and 31 December 1998, the applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and. performing oral sex with her with Intent to gratify his sexual desires in violation of Article 134, UCMJ. 
 
  (3)  On divers occasions at or near Fort Campbell, KY, between on or about 1 January 2000 and 31 December 2000, the applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires in violation of Article 134, UCMJ. 
 
  (4)  On divers occasions at or near Rockwood, TN, between or about 1 January 2013 and 1 April 2013, the applicant contacted Ms. T____ in attempt to cause her to discontinue pursuance of a criminal complaint against him and/or solicited her to not 
testify in any criminal proceedings arising from her complaint that he penetrated her labia majora with part of his body for sexual gratification against her will on or about 1 May 1994 to 30 September 1994 in violation of Article 134, UCMJ. 
 
  (5)  On or about 31 March 2013 at or near West Point, NY, the applicant made a false official statement to CID agents M____ S. S____ and M____ J. B____ wherein he denied ever having any sexual contact of any nature with Ms. T____, in that he previously confessed to Ms. T____ that he had sexual contact with her as a child but claimed to have believed her to be her mother in violation of Article 107, UCMJ. 
 
  (6)  On divers occasions at or near Watervliet, NY, between on or about 1 May 2014 and 21 August 2014, the applicant viewed pornography at his place of duty during business hours in violation of Article 92, UCMJ, and USAREC Regulation 600-25, paragraph 2-4(b). 
 
 b.  On 17 May 2016, the applicant acknowledged receipt of the notice to appear before the administrative separation board scheduled on 15 June 2016. 
 
23.  The DA Form 1574-2 (Report of Proceedings by Board of Officers), 16 June 2016, and the verbatim findings and recommendations provide the administrative separation board proceedings pertaining to the applicant. 
 
 a.  Findings. 
 
  (1)  The applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Killeen, TX, on divers occasions between on or about 1 January 1997 and 31 December 1997 in violation of Article 134, UMCJ. He warrants separation for this offense. 
 
  (2)  The applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Killeen, TX, on divers occasions between on or about 1 January 1998 and 31 December 1998 in violation of Article 134, UMCJ. He warrants separation for this offense. 
 
  (3)  The applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Fort Campbell, KY, between on or about 1 January 2000 and 31 December 2000 in violation of Article 134, UMCJ. He warrants separation for this offense. 
 
  (4)  The applicant did not contact Ms. T____ between or about 1 January 2013 and 1 April 2013 in attempt to cause her to discontinue pursuance of a criminal complaint against him and/or solicited her to not testify in any criminal proceedings arising from her complaint that he sexually penetrated her labia majora with parts of his body for sexual gratification against her will, at or near Rockwood, TN, on divers occasions between on or about 1 May 1994 to 30 September 1994 in violation of Article 134, UCMJ. He does not warrant separation for this offense. 
 
  (5)  The applicant made a false official statement to CID agents M____ S. S____ and M____ J. B____ on or about 31 March 2013 at or near West Point, NY, wherein he denied ever having any sexual contact of any nature with Ms. T____, in that he previously confessed to Ms. T____ that he had sexual contact with her as a child but claimed to have believed her to be her mother in violation of Article 107, UCMJ. He warrants separation for this offense. 
 
  (6)  The applicant viewed pornography at his place of duty during business hours on divers occasions at or near Watervliet NY, between on or about 1 May 2014 and 21 August 2014 in violation of Article 92, UCMJ, and USAREC Regulation 600-25, paragraph 2-4(b). He warrants separation for this offense. 
 
  (7)  The applicant does not have potential for rehabilitation for further military service. 
 
 b.  In view of the above findings, the board recommended the applicant's discharge from the service and issuance of a discharge under other than honorable conditions. 
 
24.  The email from Mr. T____ W____ ((Applicant), Testimony for Separation Board), 24 January 2017, states: 
 
 a.  He spoke to both counsels before court and advised them that he was traveling for a family vacation on the date of the administrative separation board proceeding, but would monitor his cell phone on the road. He did not receive a telephone call. He does not know and is speculating as to why he was not called. 
 
 b.  He would have said that this was a "he said/she said" case and the jury rejected Ms. T____'s testimony as unbelievable. She produced recordings that were edited. She produced them at the last minute to avoid the Court's discovery, and she appeared manipulative on these tapes that were obviously made in a predatory attempt to prosecute the applicant. In fact, the tapes, which seem at first blush to support her, do not support her. He played them on her cross examination and in his defense. The prosecution did not play them in his case. There was another witness who stated the applicant admitted abusing her, but the substance of the admission was not clear and his credibility was hurt when it came out that he and the alleged victim had a motive to 
fabricate the charges to obtain a piece of real estate that was subject to being inherited by the applicant's wife. Additionally, he had school records that proved the alleged victim was living and attending school in Tennessee during the time frame she testified that she was abused by the applicant. She let the applicant have access to her child and otherwise acted in a manner inconsistent with her being afraid of the applicant until they had a falling out. Her allegations simply were unbelievable by the end of the trial. 
 
 c.  The applicant has copies of the supporting documentation, and the court clerk's office has the exhibits. He returned the file to the applicant some time ago. He is a little hazy on some of these facts as he no longer has the file, but these highlights are what made the jury and the prosecutor feel the allegations could have really been trumped up by her. 
 
25.  The TDS memorandum (Request for Reconsideration Due to New Evidence under Army Regulation 15-6, Paragraph 2-9), 1 February 2017, shows the applicant requested that the USAREC Commanding General reconsider the findings and recommendations from his administrative separation board dated 18 July 2016. There is new evidence that was not considered by the board and this evidence would have been extremely helpful to his case. 
 
 a.  The applicant requested that his former lawyer, Mr. W____, testify on his behalf at his administrative separation board. Mr. W____ defended him at his criminal trial in the Waynesboro, VA, Court. If he had testified, he would have explained to the board that he was found "not guilty" of the same misconduct that is now the basis for his separation. 
 
 b.  Mr. W____ did not testify at his separation board because of a conflict with a pre-planned family vacation. His military defense counsel at the time explained this to him and stated that Mr. W____ would be unable to testify. After the board concluded, Mr. W____ told him that he was available to testify by telephone, but he never received a call. 
 
 c.  Further, the board was not made aware of Ms. T____'s previous false sexual assault allegations against another man. In his civilian trial, Mr. W____ was able to pierce the "rape shield statute" and present this evidence to the jury. This was devastating to Ms. T____'s credibility and played a huge role in his acquittal. 
 
 d.  His former military defense counsel sought to obtain a sworn statement from CPT R____, but it was never produced for his use. This sworn statement contained a statement from CPT R____ that was contradictory to his sworn testimony at his civilian trial. This prior inconsistent statement is relevant to his credibility and it should have been provided to his lawyer at his request. 
 
 e.  If he – a senior noncommissioned officer with a traumatic deployment to Iraq, with combat action and having been medically evacuated due to an improvised explosive device incident from which he suffered a TBI – is going to be administratively separated and denied the pension and benefits that he has earned, then his separation board needs to hear all of the evidence in the case. 
 
26.  The Headquarters, USAREC, memorandum from the commanding general (Order to Reconvene Administrative Separation Proceedings for (Applicant)), 24 February 2017, states an administrative separation board was held on 15 June 2016 where evidence was heard on which the board based a recommendation on whether the applicant should be separated or retained in the U.S. Army. The decision at the time was to separate the applicant with a discharge under other than honorable conditions. 
 
 a.  The applicant requested reconsideration due to new evidence. The applicant stated he had requested to have his former civilian lawyer, Mr. W____, testify on his behalf. The applicant stated his military defense attorney explained that Mr. W____ was unable to testify. The applicant later learned that Mr. W____ would have testified telephonically and is now requesting that the board members take into consideration the testimony Mr. W____ will provide. 
 
 b.  The matters submitted by the applicant have been reviewed and he directed reconvening the administrative separation board to consider the testimony of Mr. W____. After consideration of the new evidence and the evidence currently in the record, new findings and recommendations as to the disposition of this case will be provided. 
 
27.  The U.S. Army 1st Recruiting Brigade memorandum (Order to Reconvene Administrative Separation Board Proceedings), 15 March 2017, states that under the provisions of Army Regulation 15-6 and the convening authority memorandum, 24 February 2017, the administrative separation board will reconvene to consider new evidence and the testimony of Mr. W____. Based on the additional information gathered, the board will determine whether the applicant should be discharged in accordance with Army Regulation 635-200, chapter 14, paragraph 14-12c, before the expiration of his term of service for the offenses specified in the USAREC memorandum (Notice to Appear Before a Board of Officers), 17 May 2016. 
 
28.  The TDS memorandum from counsel (Evidentiary Challenge for (Applicant's) Administrative Separation Board under Army Regulation 15-6, Paragraph 3-7d(9)), 12 April 2017, challenged the introduction and use of any and all evidence derived from the applicant's personal laptop that was illegally seized by CPT R____ on 20 August 2014. The 4th Amendment violation prohibits the board from accepting or considering evidence obtained as a result of the violation. Neither CPT R____ nor any member of 
the Armed Forces acting in his or her official capacity had the requisite probable cause to seize the applicant's privately owned computer. 
 
29.  The TDS memorandum (Notice of Intent to Introduce Evidence of an Alleged Victim's Sexual Behavior or Predisposition for (Applicant's) Administrative Separation Board under Army Regulation 15-6, Paragraph 3-7d(3)), 13 April 2017, notified the legal advisor, recorder, and Ms. T____ of the intent to introduce evidence of Ms. T____'s sexual predisposition and behavior. This evidence falls under MRE 412 because it is constitutionally required to impeach the credibility of Ms. T____. Army Regulation 15-6 states evidence of an alleged victim's sexual behavior or predisposition is admissible if it falls under the exception to MRE 412. 
 
 a.  The applicant seeks to offer evidence that Ms. T____ has made a false allegation of sexual assault in the past. Specifically, when Ms. T____ was in high school, she accused a classmate of raping her at a party. Ms. T____ reported this to Mr. R____ F____, whom she was dating at the time and later married. Ms. T____ subsequently recanted her false allegation and the person whom she had accused was never prosecuted. This issue has already been litigated in the Circuit Court of Waynesboro County, VA, and was found to be admissible under that jurisdiction's law. Mr. W____ will testify in detail about this issue. 
 
 b.  The evidence is relevant because it undermines Ms. T____'s credibility. 
 
 c.  The evidence is material because it goes directly to the crux of this separation board: whether Ms. T____ was sexually assaulted as a child by the applicant. 
 
 d.  The evidence survives the requisite balancing test. The probative value of Ms. T____'s poor credibility is extremely high. The defense does not seek to elicit any details of Ms. T____'s sex life beyond those that are required to demonstrate that she has been dishonest and made a false allegation in the past. 
 
30.  The Headquarters, 1st Recruiting Brigade, memorandum (Government Response to Respondent's Notice of Intent to Introduce Evidence of an Alleged Victim's Sexual Behavior or Predisposition at the Administrative Separation Board of (Applicant)), 14 April 2017, shows the Government acknowledged the applicant's notice of intent to introduce MRE 412 evidence and objects to its consideration at the subject proceedings for three reasons: 
 
 a.  The "facts" alleged by counsel for the applicant have been mischaracterized, thus affecting their relevance, materiality, and probative value. 
 
 b.  The "constitutionally required" exception cannot apply to an administrative hearing.  
 c.  The notice is insufficient as it was not served on the alleged victim, the alleged victim's guardian, or counsel. It was served on the alleged victim's spouse. 
 
31.  The DA Form 1574-2, 19 April 2017, describes the administrative separation board proceedings pertaining to the applicant. 
 
 a.  Findings. 
 
  (1)  The applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Killeen, TX, on divers occasions between on or about 1 January 1997 and 31 December 1997 in violation of Article 134, UCMJ. 
 
  (2)  The applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Killeen, TX, between on or about 1 January 1998 and 31 December 1998 in violation of Article 134, UCMJ. 
 
  (3)  The applicant committed indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Fort Campbell, KY, between on or about 1 January 1998 and 31 December 1998 in violation of Article 134, UCMJ. 
 
  (4)  The applicant did not contact Ms. T____ on or about 1 May 1994 to 30 September 1994 in attempt to cause her to discontinue pursuance of a criminal complaint against him and/or solicited her to not testify in any criminal proceedings arising from her complaint that he sexually penetrated her labia majora with part of his body for sexual gratification against her will on divers occasions at or near Rockwood, TN, between on or about 1 January 2013 and 1 April 2013 in violation of Article 134, UCMJ. 
 
  (5)  The applicant made a false official statement to CID agents M____ S. S____ and M____ J. B____, on or about 31 March 2013, at or near West Point, NY, wherein he denied ever having any sexual contact of any nature with Ms. T____ in violation of Article 107, UCMJ. 
 
  (6)  The applicant viewed pornography at his place of duty during business hours at or near Vernon, CT, on divers occasions between on or about 1 May 2014 and 21 August 2014 in violation of Article 92, UCMJ and USAREC Regulation 600-25, paragraph 2-4(b). 
 
  (7)  The applicant warrants separation for committing indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex 
with her with intent to gratify his sexual desires at or near Killeen, TX, on divers occasions between on or about 1 January 1997 and 31 December 1997 in violation of Article 134, UCMJ. 
 
  (8)  The applicant warrants separation for committing indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Killeen, TX, on divers occasions between on or about 1 January 1998 and 31 December 1998 in violation of Article 134, UCMJ. 
 
  (9)  The applicant warrants separation for committing indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires at or near Fort Campbell, KY, between on or about 1 January 2000 and 31 December 2000 in violation of Article 134, UCMJ. 
 
  (10)  The applicant does not warrant separation for contacting Ms. T____ on or about 1 May 1994 to 30 September 1994 in attempt to cause her to discontinue pursuance of a criminal complaint against him and/or solicited her to not testify in any criminal proceedings arising from her complaint that he sexually penetrated her labia majora with part of his body for sexual gratification against her will at or near Rockwood, TN, on divers occasions between on or about 1 January 2013 and 1 April 2013 in violation of Article 134, UCMJ. 
 
  (11)  The applicant warrants separation for making a false official statement to CID agents M____ S. S____ and M____ J. B____ on or about 31 March 2013 at or near West Point, NY, wherein he denied ever having any sexual contact of any nature with Ms. T____ in violation of Article 107, UCMJ. 
 
  (12)  The applicant warrants separation for viewing pornography at his place of duty during business hours at or near Vernon, CT, on divers occasions between on or about 1 May 2014 and 21 August 2014 in violation of Article 92, UCMJ, and USAREC Regulation 600-25, paragraph 2-4(b). 
 
  (13)  The applicant does not have the potential for rehabilitation for further military service. 
 
 b.  Recommendations: 
 
  (1)  the applicant's discharge from the service; 
 
  (2)  issuance of a discharge under other than honorable conditions; and 
 
  (3)  no suspension of the applicant's separation.  
 c.  On 28 July 2017, the commanding general deemed the applicant's separation was not appropriate for action by him; however, a copy of the investigation was being furnished to HQDA for appropriate action. 
 
32.  The TDS memorandum (Legal Deficiencies from Administrative Separation Board for (Applicant) and Request to Suspend Separation in Accordance with Army Regulation 635-200 or for a New Administrative Separation Board), 24 April 2017, states the purpose of the memorandum is to briefly detail several deficiencies in the administrative separation board proceedings for the applicant, which reconvened on 19 April 2017 to hear new evidence, and to request either disapproval of the findings and recommendations, thereby allowing the applicant to retire, or approval of a new administrative separation board proceeding with new board members. 
 
 a.  The defense made a legal objection to the board considering any and all evidence derived from the applicant's laptop because it was illegally seized by CPT R____ in violation of the applicant's 4th Amendment rights under the U.S. Constitution. The board's legal advisor erroneously overruled the defense's objection. 
 
 b.  The defense made a request to present evidence that the alleged victim in the case had made a previous false sexual assault allegation in the past pursuant to Army Regulation 15-6, paragraph 3-7d(3). The board's legal advisor erroneously denied the defense's request. 
 
 c.  After the presentation of evidence on 19 April 2017, the board closed for deliberations. During these deliberations, the board sought guidance from the legal advisor on three problems with the basis of separation. Two of the issues constituted legal error: incorrect location of misconduct and removing "on divers occasions." 
 
 d.  The evidence presented to the board from both June 2016 and April 2017 is simply insufficient to substantiate the allegations against the applicant. 
 
 e.  The board heard evidence in the form of various recorded conversations between Ms. T____ and the applicant. Ms. T____ made the recording to make her fraudulent allegations against the applicant appear more credible, which is libelous and a violation of North Dakota law. 
 
33.  The memorandum from the Administrative Law attorney (Legal Review – Administrative Separation, (Applicant)), 27 July 2017, states he conducted a legal review of the applicant's administrative separation and found it to be legally sufficient. 
 
 a.  References. 
 
• Army Regulation 15-6, 1 April 2016 

• Army Regulation 635-200, 6 September 2011 

• Headquarters, USAREC, memorandum (Order to Reconvene Administrative Separation Proceedings for (Applicant)), 24 February 2017 

• TDS memorandum (Legal Deficiencies from Administrative Separation Board for (Applicant) and Request to Suspend Separation in Accordance with Army Regulation 635-200 or for a New Administrative Separation Board), 24 April 2017 


 
 b.  Background. 
 
  (1)  The USAREC Commanding General appointed the board on·3 September 2015. The applicant was referred to the board for hearing on 5 May 2016. The board initially convened on 15 June 2016. It initially recommended the applicant's discharge under other than honorable conditions. On 24 February 2017 after consideration of the applicant's request for reconsideration, the board was ordered to reconvene to consider the testimony of the applicant's former civilian defense attorney, Mr. W____. The USAREC Commanding General specifically instructed that: "After consideration of [Mr. W____'s testimony]…and the evidence currently in the record, I direct that you provide new findings and recommendations as to the disposition of this case." 
 
  (2)  The board reconvened on 19 April 2017. Following consideration of Mr. W____'s testimony, they made the following findings concerning the applicant's conduct: 
 
  (a)  The applicant did commit indecent acts upon Ms. T____, a female under 16 years of age, by fondling her and performing oral sex with her with intent to gratify his sexual desires during the following three time periods: 
 
• at or near Killeen, TX, on divers occasions between on or about 1 January 1997 and 31 December 1997 in violation of Article 134, UCMJ 

• at or near Killeen, TX, between on or about 1 January 1998 and 31 December 1998 in violation of Article 134, UCMJ 

• at or near Fort Campbell, KY, between on or about 1 January 2000 and 31 December 2000 in violation of Article 134, UCMJ 


 
  (b)  The applicant did make a false official statement to CID agents M____ S. S____ and M____ J. B____ on or about 31 March 2013 at or near West Point, NY, wherein he denied ever having any sexual contact of any nature with Ms. T____, in violation of Article 107, UCMJ. 
 
  (c)  The applicant did view pornography at his place of duty during business hours on divers occasions at or near Vernon, CT, between on or about 1 May 2014 and 
21 August 2014 in violation of Article 92, UCMJ, and USAREC Regulation 600-25, paragraph 2-4(b). 
 
  (3)  The board found that each of the above instances of misconduct warranted the applicant's separation and that the applicant did not have the potential for rehabilitation for further military service. The board recommended the applicant's discharge and receipt of an under other than honorable conditions service characterization. The board did not recommend suspension of the separation. 
 
  (4)  On 24 April 2017, counsel for the applicant submitted a memorandum (Legal Deficiencies from Administrative Separation Board for (Applicant) and Request to Suspend Separation in Accordance with Army Regulation 635-200 or for a New Administrative Separation Board) wherein he asserted the following legal errors: 
 
  (a)  The defense made a legal objection to the board considering all evidence derived from the applicant's laptop because it was illegally seized by CPT R____ in violation of the applicant's 4th Amendment rights under the U.S. Constitution. The board's legal advisor erroneously overruled the defense's objection. 
 
  (b)  The defense made a request pursuant to Army Regulation 15-6, paragraph 3-7d(3), to present MRE 412 evidence that the alleged victim in this case had made a previous false sexual assault allegation in the past. The board's legal advisor erroneously denied the defense's request. 
 
  (c)  The applicant's unit failed to notify him of exactly why he was being separated and it caused an unjust result. The Government alleged that the applicant viewed pornography at his place of duty at or near Watervliet, NY. During deliberations, the legal advisor authorized the board to simply to adjust the basis of separation by replacing 'Watervliet, New York," with "Hartford, Connecticut." The board unilaterally changing the basis of separation without giving the applicant an opportunity to be notified and prepare his defense is unjust. 
 
  (d)  The evidence presented to the board in both June 2016 and April 2017 is simply insufficient to substantiate the allegations against the applicant. Ms. T____'s credibility is extremely poor and her testimony cannot reasonably support her serious accusations. She has made numerous inconsistent statements over the course of this investigation. This similarly undercuts the false official statement allegations. 
 
  (e)  The board heard evidence in the form of various recorded conversations between Ms. T____ and the applicant. Ms. T____ recorded the applicant in violation of Title 18, U.S. Code, section 2511 (Prohibitions), which is applicable in this case because the recording is done for a criminal or tortious purpose. Ms. T____ made the recording to make her fraudulent allegations against the applicant appear more credible, 
which is a libelous violation of North Dakota law. Ms. T____ was located there when recording. It is fundamentally unfair for a board to consider illegally obtained evidence against a respondent and this board should not have been allowed to use this evidence against the applicant. 
 
 c.  Analysis. 
 
  (1)  While Army Regulation 15-6, paragraph 3-7, states: "Proceedings under this regulation are administrative, not judicial...IOs [investigating officers] and boards are not bound by the rules of evidence for courts-martial or court proceedings generally." Army Regulation 15-6 then goes on to adopt specific portions of the MRE. 
 
  (a)  Paragraph 3-7d(1), mandates that "Evidence must be relevant. 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' (See MRE 401 (Definition of "relevant evidence"…)." 
 
  (b)  Paragraph 3-7d(1) goes beyond requiring mere relevancy, "'Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' (See MRE 403 (Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time)…)." 
 
  (2)  Ultimately, the limited scope of Headquarters, USAREC, memorandum, 24 February 2017, addresses all of the applicant's objections. The USAREC memorandum did not reopen the board proceeding for admission of further evidence beyond the statement of the applicant's former civilian lawyer, Mr. W____. The applicant was not granted a "new" board or a "second bite at the apple" as an opportunity to re-litigate admissibility of previously submitted evidence. The USAREC memorandum grants an opportunity to present "new" evidence from Mr. W____ in a limited fashion. 
 
  (3)  Army Regulation 15-6, paragraph 3-14f, states: "In a board, if the respondent or counsel makes an objection during the proceedings, the objection and supporting reasons will be noted in the report of proceedings." 
 
  (a)  Paragraph 3-20, states: "Generally, procedural errors or irregularities in an investigation or board, which do not have a material adverse effect on an individual's substantial rights, do not invalidate the proceeding, or any action based on it. Harmless errors are defects in the procedures or proceedings that do not have a material adverse effect on an individual's substantial rights. A harmless error does not prevent the approval authority from taking final action on the investigation or board."  
  (b)  Paragraph 3-20d explains: "No error is substantial within the meaning of this paragraph if there is a failure to object or otherwise bring the error to the attention of the IO, legal advisor, or board president, prior to the board adjourning. Accordingly, errors in board proceedings described in subparagraph c, above, [substantial or prejudicial errors] may be treated as harmless if the respondent or respondent's counsel fails to object." In accordance with paragraph 3-20d, the applicant has waived his objections to all the previously admitted evidence at the adjournment of the initial board on 16 June 2016. 
 
 d.  Despite the administrative nature of the separation board and the harmless nature of the alleged errors, the applicant's untimely evidentiary objections are addressed below. 
 
  (1)  The applicant's laptop was seized in violation of the applicant's 4th Amendment rights under the U.S. Constitution. 
 
  (a)  Army Regulation 15-6, paragraph 3-7d(9), states: "If members of the Armed Forces acting in their official capacity (such as military police acting in furtherance of their official duties) violate an individual's 4th Amendment right against unreasonable searches and seizures, the IO or board may not accept or consider evidence obtained as a result of that violation. Such evidence is acceptable only if the legal advisor reasonably determines that the evidence would inevitably have been discovered. In all other cases, the IO or board may accept or consider relevant evidence obtained as a result of any search or inspection, even if it has been or would be ruled inadmissible in a judicial criminal proceeding." 
 
  (b)  It is clear that the seizure of the applicant's computer did not violate his rights under the 4th Amendment. CPT R____ seized the computer from a common area of the company headquarters. He then safeguarded it until proper search authorization had been obtained. There is no evidence CPT R____ accessed any material on the personal computer until after a search authorization had been obtained from the military magistrate. 
 
  (c)  The applicant did not have a reasonable expectation of privacy in the space behind the ceiling tile or in a drawer within the conference room of the company headquarters. United States v. Muniz, 23 M.J. 201, specifically states: "[W]e note that the credenza, like any other item of government property within the command, was subject at a moment's notice to a thorough inspection. United States v. Middleton, 10 M.J. 123 (C.M.A. 1981). That omnipresent fact of military life, coupled with the indisputable government ownership and the ordinarily nonpersonal nature of military offices, could have left the applicant with only the most minimal expectation – or hope – of privacy in the drawer vis-a-vis his commander." 
 
  (d)  Muniz failed to allow a reasonable expectation of privacy for a service member's individual office. It is therefore incomprehensible that the applicant would have a reasonable expectation of privacy in a conference room open to anyone in the company headquarters. The applicant did have a reasonable expectation of privacy in the information in his laptop, but that information was not accessed until authorization to search it had been obtained. 
 
  (2)  MRE 412 evidence of the alleged victim's previous false sexual assault allegation was erroneously denied. 
 
  (a)  Army Regulation 15-6, paragraph 3-7d(3), states: ''With limited exceptions, evidence of an alleged victim's sexual behavior or sexual predisposition is not relevant (see MRE 412, section IV, part Ill, Manual for Courts-Martial). Therefore, evidence of an alleged victim's sexual behavior or sexual predisposition will not be considered, unless the legal advisor determines that one of the exceptions in MRE 412 applies. A party desiring to enter such evidence during board proceedings shall provide written notice to the legal advisor, the opposing party, and the alleged victim or the alleged victim's guardian or counsel. Such notice shall describe the evidence and state the purpose for which it is offered. A person may not attempt to enter such evidence until the legal advisor has informed the board president and the parties of the determination regarding admissibility. The board president is encouraged to set deadlines for the receipt of such notice to avoid delays in the proceedings." 
 
  (b)  The Headquarters, USAREC, memorandum, 24 February 2017, paragraph 3, states: "I have reviewed the matters submitted by [Applicant] and direct that you re-convene this Administrative Separation Board to consider the testimony of Mr. W____. After consideration of the new evidence and the evidence currently in the record, I direct that you provide new findings and recommendations as to the disposition of this case." This specifically limited the scope of potential witness testimony exclusively to Mr. W____. 
 
  (c)  In an email, 24 January 2017, counsel for the applicant summarized his potential testimony as follows: "I would have said that this was a he said/she said case and the jury rejected her testimony as unbelievable. She produced recordings that were edited. She produced them at the last minute to avoid the Court's discover[y], and she appeared manipulative on these tapes that were obviously made in a predatory attempt to prosecute [Applicant]. In fact, the tapes, which seem at first blush to support her, do not support her. I played them on her cross-examination and in my defense. The prosecution did not play them in his case in chief. There was another witness who stated that [Applicant] admitted abusing her, but the substance of the admission was not clear and his credibility was hurt when it came out that he and the alleged victim had a motive to fabricate the charges to obtain a piece of real estate that was subject to being inherited by [Applicant's] wife. Additionally, I had school records that proved the alleged 
victim was living and attend school in Tennessee during the time frame she testified that she was abused by [Applicant]. She let [Applicant] have access to her child and otherwise acted in a manner inconsistent with her being afraid of [Applicant] until they had a falling out. Her allegations simply were unbelievable by the end of the trial." There does not appear to be any potential evidence restricted by MRE 412 in this description. There was no proffer of other evidence restricted by MRE 412 from Mr. W____, and he did not testify concerning any evidence potentially restricted by MRE 412. 
 
  (d)  The applicant's MRE 412 notice alleges that Ms. T____ "accused a classmate of raping her at a party. [Ms. T____]…reported this to Mr. R____ F____, whom she was dating...and later married. [Ms. T____]...subsequently recanted her false allegation, and the person whom she had accused was never prosecuted." The recorder interviewed Mr. F____ on 30 April 2017. He advised: "[Ms. T____]…did say she was raped at a high school party. She did refer to having "blacked-out" prior to being raped. However, she never accused any specific individual of raping her. She never knew who did it. Furthermore, she never 'recanted.' She simply moved on from the incident, knowing she would never know who did it.'' 
 
  (e)  Mr. F____ testified during the board proceedings on 15 June 2016. His testimony omits any mention of Ms. T____ reporting a rape during high school. This alleged inconsistency or previous false sexual assault allegation does not appear to be relevant or even accurately described by the counsel for the applicant in his MRE 412 notice. It is clearly outside the scope of Headquarters, USAREC, memorandum, 24 February 2017. Mr. W____'s testimony provided significant evidence attempting to undercut Ms. T____'s credibility. This alleged inconsistency or previous false sexual assault allegation provides little or no probative value. By citing MRE 412, counsel for the applicant attempts to turn this rule's rape shield into an offensive weapon for the applicant. 
 
  (3)  The inaccurate Government allegation that the applicant viewed pornography at his place of duty at or near Watervliet, NY, failed to give him notice of the basis for his separation and caused an unjust result. The applicant had appropriate notice that his actions in the Hartford Recruiting Company Headquarters was the basis for the alleged violation of USAREC Regulation 600-25, paragraph 2-4(b). The Albany Recruiting Battalion is located at Watervliet Arsenal, Watervliet, NY. It does appear that, at all relevant times, the applicant was assigned to this battalion with its headquarters located at Watervliet Arsenal. That counsel for the applicant lacks familiarity with the geographic footprint of the Albany Recruiting Battalion does not affect the applicant's full notice of this portion of the basis of his separation. 
 
  (4)  Ms. T____'s testimony is not credible and cannot reasonably support her serious accusations. The evidence is simply insufficient to substantiate the allegations against the applicant. Army Regulation 15-6, paragraph 7-10, states: "After all the 
evidence has been received (and any arguments heard), the board members will consider the evidence carefully in light of any instructions from the appointing authority." Paragraph 7-11 states: "A board arrives at its findings and recommendations by voting. All voting members present must vote. After thoroughly considering and discussing all the evidence, the board will propose and vote on findings of fact. The board will next propose and vote on recommendations. If additional findings are necessary to support a proposed recommendation, the board will vote on such findings before voting on the related recommendation...a majority vote of the voting members present determines questions before the board." Ms. T____'s credibility is ultimately a matter for the individuals best positioned to evaluate her testimony. This argument by counsel for the applicant attempts to substitute his advocacy for the discretion of the board. 
 
  (5)  The recorded conversations between Ms. T____ and the applicant were in violation of 18 U.S. Code, section 2511 (Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited), and it is fundamentally unfair for the board to consider this illegally obtained evidence. 
 
  (a)  Army Regulation 15-6, paragraphs 3-7d(11) and (12), state: "(11)  Recordings. IOs must consult with legal advisors when in receipt of recorded conversations, as use depends on the statutes and policies in effect at the locations where the recording occurred. (12)  Electronic communications. IOs must consult with legal advisors to ensure evidence of electronic communications does not violate the Electronic Communications Privacy Act ([Title] 18, U.S. Code, section 2510 (Definitions), et seq.) or fraud and related activity in connection with computers ([Title] 18, U.S. Code, section 1030 (Fraud and Related Activity in Connection with Computers))." 
 
  (b)  Though respondent's counsel failed to cite the specific statute in TDS memorandum (Legal Deficiencies from Administrative Separation Board for (Applicant) and Request to Suspend Separation in Accordance with Army Regulation 635-200 or for a New Administrative Separation Board), 24 April 2017, presumably he refers to North Dakota Century Code, section 12.1-15-02 (Interception of Wire or Oral Communications – Eavesdropping). It states a person is guilty of a class C felony if he intentionally intercepts any wire or oral communication by use of any electronic, mechanical, or other device; or intentionally discloses to any other person or intentionally uses the contents of any wire or oral communication, knowing that the information was obtained through the interception of a wire or oral communication. 
 
  (c)  Under North Dakota Century Code, section 12.1-15-02, a person is guilty of a class A misdemeanor if he secretly loiters about any building with intent to overhear discourse or conversation therein and to repeat or publish the same with intent to vex, annoy, or injure others. 
 
  (d)  Under North Dakota Century Code, section 12.1-15-02, it is a defense to a prosecution under that: 
 
• the actor was authorized by law to intercept, disclose, or use, as the case may be, the wire or oral communication 

• the actor was a person acting under color of law to intercept a wire or oral communication, and he was a party to the communication or one of the parties to the communication had given prior consent to such interception 

• the actor was a party to the communication or one of the parties to the communication had given prior consent to such interception, and such communication was not intercepted for the purpose of committing a crime or other unlawful harm 


 
  (e)  It takes a foundational assumption that Ms. T____'s accusations are false to conclude a slanderous purpose under North Dakota law. This is not reasonably present. There are insufficient facts to require exclusion of the North Dakota phone recordings under Title 18, U.S. Code, section 2511. Truth remains a defense to slander, and the argument from counsel for the applicant is an imaginative example of circular reasoning. 
 
 e.  Sufficient evidence supports the findings of the board. The recommendations are consistent with the findings. The USAREC Commanding General may take the following actions: 
 
  (1)  set aside any specific finding or recommendation of the board; 
 
  (2)  set aside some or Mr. W____ all the findings and recommendations of the board; 
 
  (3)  recommend separation with an under other than honorable conditions characterization; 
 
  (4)  recommend separation with a general under honorable conditions characterization; 
 
  (5)  recommend separation with an honorable characterization; 
 
  (6)  recommend suspension of the separation; or 
 
  (7)  order the applicant's retention. 
 
 f.  Conclusion. The above board proceeding were legally sufficient. There were no substantial errors. The proceedings complied with applicable legal requirements. 
 
34.  The Headquarters, USAREC, memorandum (Administrative Separation under the Provisions of Army Regulation 635-200, Chapter (should read Paragraph) 14-12c, Commission of a Serious Offense – (Applicant)), 28 July 2017, shows the applicant's commanding general forwarded his administrative separation board and medical evaluation board. He reviewed the applicant's medical evaluation board and did not find that the applicant's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation. In addition, he did not find that other circumstances of the applicant's case warranted disability processing instead of further processing for administrative separation. He recommended the applicant's separation under the provisions of Army Regulation  635-200, chapter 14, paragraph 14-12c, for commission of a serious offense and receipt of an under than honorable conditions service characterization. 
 
35.  The Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum (Involuntary Separation of (Applicant), Pursuant to Army Regulation 635-200, Paragraph 14-12c), 20 November 2017, states the Assistant Secretary of the Army (Manpower and Reserve Affairs) considered the applicant's separation packet. After careful consideration of all matters, he directed the applicant's separation from the Army pursuant to Army Regulation 635-200, paragraph 14-12c, and characterization of his service as under other than honorable conditions. He further determined that prior to the applicant's separation, his commander must ensure he received a separation history and physical examination that meets all of the requirements of Department of Defense Instruction 6040.46 (The Separation History and Physical Examination for the Department of Defense Separation Health Assessment Program), paragraph 3.4 (Timing of Separation History and Physical Examination). 
 
36.  On 11 December 2017, the applicant was involuntarily separated from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 21 years and 9 months of active service. It also shows in: 
 
• item 24 (Character of Service) – Under Other Than Honorable Conditions 

• item 25 (Separation Authority) – Army Regulation 635-200, paragraph 14-12c 

• item 26 (Separation Code) – JKQ 

• item 27 (Reentry Code) – 3 

• item 28 (Narrative Reason for Separation) – Misconduct (Serious Offense) 


 
37.  The USAREC Office of the IG letter, 21 December 2017, responded to the applicant's complaint concerning alleged misconduct of CPT R____. 
 
 a.  The allegation that CPT R____ failed to treat him with dignity and respect by ordering him to place his nose against a wall while he took photographs of him in 
violation of Army Regulation 600-20 (Army Command Policy), paragraph 4-19 (Treatment of Persons), was not substantiated. 
 
 b.  The allegation that CPT R____ abused his authority by requiring him to perform labor at his private residence in violation of Department of Defense Directive 5500.07R (Joint Ethics Regulation), was substantiated. 
 
BOARD DISCUSSION: 
 
1.  The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 
 
2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation.  
 
 a.  The evidence shows an administrative separation board was appointed by HQ, U.S. Army Recruiting Command on 9 October 2013 and convened on 17 April 2014. On 21 July 2014, the applicant was found ‘not guilty’ of two felonies, animate object sexual penetration and forcible sodomy in a Virginia criminal case after trial by jury. Counsel for applicant submitted objections to the administrative separation proceedings.  
 
 b.  On 10 February 2015, the U.S. Army Recruiting Battalion Albany submitted a request for exception to policy to proceed with administrative separation. The request listed three specific reasons for the request: (1) the administrative separation board was initiated, conducted, and approved by the USAREC CG prior to the applicant’s trial in civilian court; (2) the administrative separation board determined that the applicant by a preponderance of the evidence, engaged in misconduct more extensive than was the subject of the civilian trial; (3) the nature of this misconduct, by a preponderance of the evidence, is so egregious that it warrants an other than honorable conditions discharge. 
 
 c.  On 15 December 2015, the ASA M&RA disapproved the request for an exception to policy to the provisions of AR 635-200, para. 1-17b(1). The ASA M&RA found a substantial defect in the proceedings and set aside the findings and recommendations and directed the case referred to a new administrative board for a rehearing. The decision was based on the findings of the separation board including alleged misconduct that occurred prior to the applicant’s initial enlistment in 1996. The new separation board was directed to consider only misconduct that allegedly occurred while applicant was enlisted in the Army. The ASA M&RA specifically stated that: “Because 
the alleged misconduct that was the subject of the judicial proceedings that resulted in the applicant’s acquittal occurred prior to his initial enlistment in 1996, AR 635-200, para. 1-17b(1) does not restrict the ability of the new separation board to consider allegations of similar misconduct that allegedly occurred while the applicant was enlisted in the Army.” 
 
 d.  HQ, USAREC appointed a subsequent administrative separation board on 3 September 2015, and it convened on 15 June 2016. All alleged misconduct noticed in the new administrative separation board occurred after applicant enlisted in the Army in 2016. This is consistent with the ASA M&RA directive. The administrative board, after hearing considerable testimony recommended separation of applicant with an under other than honorable conditions characterization of service. On 28 July 2016, the USAREC CG recommended separation of applicant for commission of a serious offense. The applicant submitted a request for reconsideration on 24 February 2017. The administrative board was ordered to reconvene, limited to consider the testimony of his former civilian defense attorney. 
 
 e.  The administrative separation board reconvened on 19 April 2017 and made the following findings: the applicant committed indecent acts upon a female under 16 during three time periods spanning between 1 January 1997 and 31 December 2000, he made a false official statement, and viewed pornography at his place of duty in 2014. The administrative board found that the misconduct warranted separation and recommended discharge with an under other than honorable conditions discharge. On 20 November 2017 the ASA M&RA directed separation of applicant with an under other than honorable conditions discharge. 
 
 f.  The Board carefully considered all the evidence and determined there was no error or injustice warranting relief. The evidence does not appear to merit relief in this case in the form removal of all derogatory material in his record. Nor does it support a narrative reason change to retirement.  The substantive and procedural defects of applicant’s first two administrative separation boards were overcome in his third and final administrative board in April 2017. The final administrative separation board was on notice only to consider events occurring after applicant enlisted in the Army and were limited with their scope of consideration. The GOSCA tailored the dates and events in the final elimination board and overcame the issues outlined in the ASA M&RA memo. 
 
 g.  Additionally, a legal review completed after the final administrative separation board addresses legal issues previously raised and found (1) sufficient evidence supports the findings of the board; (2) the recommendations are consistent with the findings; (3) there were no substantial errors; (4) the proceedings complied with applicable legal requirements. No evidence raised in the application presently before the Board appears to contradict those findings. 
 
 h.  Nevertheless, while the Board denied any relief regarding the applicant’s specific issue sof retirement and removal of derogatoyr information from his MAHRR, the Board agreed and determined that the applicant can still raiuse the specific issue of charcaterziation of service and associated Separatin/RE Codes with the Army Discharge Review Board since his discharge is still within 15 years 
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  9/12/2023

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 
 
 
  
REFERENCES: 
 
1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 
 
2.  Army Regulation 600-37 (Unfavorable Information), 10 May 2018 and currently in effect, sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. Unfavorable information will not be filed in the AMHRR unless the recipient has been given the opportunity to review the documentation that serves as the basis for the proposed filing and a reasonable amount of time to make a written statement in response. 
 
3.  Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 April 2014 and currently in effect, prescribes the policies and operating tasks for the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. It provides that once properly filed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by the ABCMR or other authorized agency. 
 
4.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 19 December 2016, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 
 
 a.  Paragraph 1-13 (Reduction in Grade) stated when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600-8-19 (Enlisted Promotions and Reductions). 
 
 b.  Paragraph 1-32 (Separation and Medical Examinations) stated: 
 
  (1)  Commanders will ensure that Soldiers initiated for separation under this regulation who are required to obtain a physical examination per Title 10, U.S. Code, section 1145 (Health benefits), obtain such. Physical examinations and mental health evaluations will comply with Army Regulation 40-501 (Standards of Medical Fitness) and other policy guidance issued by the Surgeon General and U.S. Army Medical Command.  
  (2)  In addition to medical examinations, mental status evaluations conducted by a psychologist, or master-level licensed clinical social worker, are required for Soldiers being processed for separation under chapters 13 or 14. The mental status evaluation will be documented in the Soldier's medical records on a Standard Form 600 (Health Record – Chronological Record of Medical Care). 
 
  (3)  Detailed information about the reasons for considering a Soldier for separation will be provided to attending medical personnel to permit thorough understanding of the contemplated action. 
 
 c.  Paragraph 3-7a (Honorable Discharge) stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 
 
 d.  Paragraph 3-7b (General Discharge) stated a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 e.  Paragraph 3-7c (Under Other Than Honorable Conditions Discharge) stated a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. 
 
 f.  Paragraph 14-12c (Commission of a Serious Offense) stated Soldiers are subject to action per this section for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is or would be authorized for the same or a closely related offense under the Manual for Courts-Martial. 
 
5.  Army Regulation 635-8 (Separation Processing and Documents), 10 February 2014, prescribed policy and procedural guidance relating to transition management. It establishes standardized policy for preparation of the DD Form 214. The DD Form 214 provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. 
 
 a.  The specific instructions for item 24 (Character of Service) stated the correct entry is vital since it affects the Soldier's eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. 
 
 b.  The specific instructions for item 26 (Separation Code) stated to obtain the correct entry from Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) which provides the corresponding SPD code for the regulatory authority and reason for separation. 
 
 c.  The specific instructions for item 27 (RE Code) stated Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) determines reentry eligibility and provides regulatory guidance on reentry codes. 
 
 d.  The specific instructions for item 28 (Narrative Reason for Separation) stated this entry is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1. 
 
6.  Army Regulation 635-5-1 (Separation Program Designator Codes), 15 May 2006 and currently in effect, prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214. Table 2-3 (SPD Codes Applicant to Enlisted Personnel) shows the narrative reason for SPD code "JKQ" is for misconduct (serious offense) under the provisions of Army Regulation 635-200, paragraph 14-12c. 
 
7.  Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program), 31 August 2016 and currently in effect, prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 2-1 (U.S. Army RE Codes) states: 
 
 a.  RE-1 applies to a person completing his or her term of active service who is considered qualified to reenter the U.S. Army. The person is qualified for enlistment if all other criteria are met. 
 
 b.  RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. The person is ineligible unless a wavier is granted. 
 
8.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, 
injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 
 
//NOTHING FOLLOWS//