IN THE CASE OF:	  

		BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130015446 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of all records related to and arising out of the U.S. Army Criminal Investigation Command's (CID's) substantiation of allegations of abusive sexual contact and drunk on duty, to include:

	a.  CID's Report of Inquiry into the alleged sexual assault of a Department of the Army (DA) civilian (February 2013); and 

	b.  the following from his Official Military Personnel File (now known as the Army Military Human Resource Record (AMHRR)):

* DA Form 2627 (Record of Proceedings under Article 15 (Uniform Code of Military Justice (UCMJ)), dated 14 March 2013 
* Relief from Command, dated 14 March 2013
* DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 16 April 2012 through 28 March 2013

2.  The applicant states that at an Article 15 (nonjudicial punishment (NJP)) hearing on 28 March 2013, presided over by Africa Command (AFRICOM) Commander, General (GEN) CH, despite overwhelming evidence to the contrary, he was found to have committed a sexual assault on a DA civilian employee subordinate in his command, hereinafter referred to as Ms. A, on 22 July 2012, while serving as Commander of the Combined Joint Task Force-Horn of Africa (CJTF-HoA).  Specifically, he was found to have inappropriately touched her leg in an automobile while returning from a host nation engagement where he admittedly consumed alcohol.  However, GEN CH's finding was made despite the two other personnel in the vehicle, a Naval Criminal Investigative Service (NCIS) agent and an enlisted Military Police (MP), both submitting sworn statements that they witnessed no such assault.  Moreover, the finding was based entirely and solely upon Ms. A's CID interview – that is, neither Ms. A nor any other witness testified in person against him at the Article 15 hearing.  GEN CH's adverse Article 15 hearing resulted in his relief from command and a relief-for-cause OER.  On 6 May 2013, the Secretary of Defense (SECDEF) denied his appeal amidst a political and media firestorm on sexual assaults in the military, to include the perceived inappropriate adjudications by commanders on sexual assault cases.  As a result of the SECDEF's denial of his appeal, he decided to retire, which the Secretary of the Army approved at the grade of brigadier general, effective 1 September 2013.

	a.  He states he was commissioned in 1982 as an infantry officer after graduating from the U.S. Military Academy.  During his 31-plus years of active duty he deployed 5 times totaling 42 months in support of the nation.  His assignments included the 82nd Airborne Division, 3d Infantry Division (Mechanized), 20th Infantry Regiment, V Corps, 2nd Brigade Combat Team of the 1st Armored Division, and as the Deputy Commanding General, U.S. Division Center, Baghdad, Iraq.  His military education includes the U.S. Army Command and General Staff College, the Naval War College, and also the Airborne, Ranger, Pathfinder, Jumpmaster, Bradley Infantry Fighting Vehicle and Joint Firepower Control schools.

	b.  He bases his petition upon the overwhelming evidence showing that in fact no assault occurred and the failure to receive an unbiased and independent review of his case by both GEN CH and the SECDEF.  Moreover, although he admitted to being intoxicated while on duty, on 22 July 2012, he is seeking removal of all adverse actions from his record arising out of the 22 July 2012 incident as the alleged sexual assault was the impetus for the adverse actions.

3.  The applicant provides a self-authored statement and a list of the documents he submits in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Documents related to criminal investigations are maintained by the CID.  There is no evidence the applicant exhausted his administrative remedies by requesting an amendment or removal of any records pertaining to the investigation of him conducted by CID.  He may exhaust his administrative remedies by submitting a request to the Director, U.S. Army Crime Records Center, U.S. Army Criminal Investigation Command, 6010 6th Street, Fort Belvoir, VA 22060-5585.  This administrative remedy must be exhausted prior to consideration of this portion of his case by this Board.  Therefore, this portion of his request will not be discussed further.

2.  The applicant was serving in the rank of major general at time of the adverse actions.  He retired for length of service on 31 August 2013.
 
3.  He provides a CID Report of Investigation, dated 15 February 2013, that states a preliminary investigation determined on 14 February 2013 that Headquarters, CID received a Department of Defense Inspector General (DODIG) hotline complaint that, on 17 January 2013, Ms. A reported to DODIG (via the internet) that she was sexually assaulted by the applicant.  Ms. A reported that on the evening of 22 July 2012 she attended a private social event with the applicant where alcohol was consumed during the course of the evening.  Ms. A stated that during the ride back to Camp Lemonnier (Camp L) after the event ended, the applicant rubbed her hands and thighs with his hands and then tried to force his hand between her legs.  She further reported that during the social event the applicant consumed at least six glasses of wine from the host which was in violation of the alcohol policies for U.S. military personnel in Djibouti (limit two drinks per day in accordance with General Order 1).  The applicant was not indexed at the time pending the formal interview of Ms. A, the applicant, and completion of any additional leads.

4.  On 19 February 2013, Ms. A provided a sworn statement.  She stated while at an event/party primarily for the purpose of relationship-building for the senior participants, the applicant consumed a minimum of six glasses of wine and became intoxicated to the point where his voice was slurred, he swayed when he stood, and he walked unsteadily.  On the ride back to Camp L, Djibouti, she sat in the back seat with the applicant while Staff Sergeant (SSG) JS and Special Agent (SA) CA, NCIS agent (the applicant's personal security officer (PSO)), rode in the front passenger seat.

	a.  During the drive the applicant began to touch her hand and rubbed her leg.  Her legs were crossed and he started to put his hand between her legs.  She grabbed his hand and held it on the seat to try to prevent him from putting his hand deeper between her legs.  He responded by smiling at her and saying "cat got your tongue?"  She was appalled about what he was doing to her and did not know what to say.  The applicant was very forceful in trying to put his hand between her legs.  His hand got to her inner thigh but not to her vaginal area, as her legs were crossed.  She stated she did not tell him to stop because she was embarrassed for him and did not want to call SSG JS's and SA CA's attention to what he was doing.  When asked if the applicant consumed any food at the party, and if so specifically what food, she stated they had omelets and finger foods.  They each ate the equivalent of a full meal as the host was very generous about providing them food as well as drinks.

	b.  She further stated the applicant was the commander and she reported directly to him.  Although she wanted to leave immediately after the assault, she did not do so because she would have felt that she had failed in her professional responsibilities by curtailing her assignment.  She stated that after the assault the incident had preoccupied her a lot.  She also had the fear that if she made this report or otherwise acknowledged the incident to him that he would try to undermine her.  He was a very aggressive person and although she was not in fear of her personal safety, she was in fear of him trying to discredit her professionally.  She stated she had told the chaplain (Colonel L) about the incident.

5.  A CID Report of Investigation – 2nd Status, dated 22 February 2013, shows on 19 February 2013, Ms. A was interviewed by CID and corroborated the details of the sexual assault as previously reported to the DODIG.

	a.  On 20 February 2013, Specialist (SPC) BB was interviewed and detailed that he was the driver during the incident reported by Ms. A.  SPC BB related he did not see the sexual assault; however, he did hear the applicant make the statement, "cat got your tongue?"  The report further states, on 20 February 2013, that office interviewed numerous personnel assigned to the applicant's personal security detail (PSD), who confirmed Ms. A's statement of the applicant's level of intoxication and his receipt of several bottles of wine as previously reported.  

	b.  Based on the aforementioned information, the battalion operations officer determined there was credible information that the applicant committed the offense of abusive sexual contact.  Captain AMO, Staff Judge Advocate, CID, was briefed on the investigation and concurred that the credible information standard had been met.  All violations of General Order 1 and other officer misconduct by the applicant would be referred to the action commander for action deemed appropriate.

6.  The applicant provides additional sworn statements related to the alleged sexual assault incident taken from members of his PSD on 22 July 2012 as well as from other individuals.  These statements were primarily question and answer entries.  When asked what he specifically remembered people saying about the applicant's PSD mission on 22 July 2012, one Soldier stated the driver of the applicant's vehicle said when he was taking a right hand turn he caught a glimpse of the applicant exaggerating the force and kind of throwing himself on Ms. A. 
7.  A DA Form 2627 shows on 18 March 2013, the applicant accepted NJP for:

* being found drunk while assigned to duty as the Commanding General, CJTF-HoA, on 22 July 2012
* engaging in sexual contact with Ms. A, a DA civil servant by placing his hand between her upper thighs, causing bodily harm to her
 
8.  The commander imposing the NJP directed the DA Form 2627 be filed in the performance portion of his AMHRR.  The applicant elected to appeal the NJP and submit additional matters on his behalf.

9.  The applicant provides a memorandum, subject:  Matters in Defense of Article 15 Proceedings, dated 26 March 2013.  He stated he fully appreciated the seriousness of the allegations and he accepted responsibility for his shortcomings.  He believed, however, that the government's supporting evidence presented an inaccurate image of his conduct and the command climate that he maintained at CJTF-HoA.  The government's supporting evidence was inaccurate, inconsistent, and incomplete, all of which undermined the credibility of the charged offenses.

	a.  He admitted that he became intoxicated on the evening of 22 July 2012 while attending a social event hosted by Mr. M, a local businessman.  He explains how his predecessor had encouraged him to meet Mr. M to sustain the command's ongoing relationship with him.

	b.  He states the host was very insistent in serving alcohol to his guests, persistently topping off everyone's glasses with champagne before any of them had finished their glasses.  He added that he was likely dehydrated from working out and had an empty stomach.  He added that though he did become intoxicated on the evening in question, that was the only evening during his command that he was in such a state.

	c.  He strongly denied that he wrongfully engaged in sexual contact with Ms. A in the back seat of his vehicle.  He stated after a brief conversation with her he fell asleep on the ride back to camp.  The two individuals in the front seat of the vehicle fail to substantiate Ms. A's allegations.  In fact, SA CA was very specific in his statement regarding this allegation, stating "at no time did I hear any protests, cries, or any sign of distress on the part of Ms. A and I did not hear or see any type of rapid movement or form of struggle."

	d.  The applicant listed several issues for consideration by the NJP issuing authority, including Ms. A's "coherent" state, her contention that he was "very forceful and strong," her lack of seeking assistance from the individuals in the front seat, her later feeling "awkward" around him, and numerous other considerations.

	e.  He also strongly denied any allegation that, other than 22 July 2012, he was incapacitated due to alcohol while in command at CJTF-HoA.  He provided a list of statements in support of his contention.

	f.  He requested that great consideration be given to the sworn statements from past and current (at the time) members of CJTF-HoA provided in enclosures to his memorandum.

	g.  In summary he described how he had honorably and faithfully served his country for over 31 years including numerous times in harm's way.  He did not believe that justice would be served by allowing an isolated indiscretion on 22 July 2012 to remove him from command and jeopardize his ability to continue leading Soldiers.

	h.  He provided Executive Summaries in the form of bullets derived primarily from sworn statements in rebuttal to the charges against him and the alleged "poor command environment."  These statements indicate he was very professional and that he fostered a very positive command environment.  These statements also strived to discredit Ms. A's testimony alleging his inappropriate sexual contact.

	i.  He provides sworn statements from several individuals at CJTF-HoA including Lieutenant (LT)/O3 JAG (Aide-de-Camp to the applicant), Captain/O6 STK (Chief of Staff), Colonel BMR (Director of Intelligence), Sergeant Major GS (Senior Enlisted Leader), Ms. RJT (self-employed consultant), Captain/O6 JJH (Executive Assistant to the applicant), Captain/O6 NHM (Chief of Staff), Chief Warrant Officer Two JTS (PSO), and LT/O3 JC (Aide-de-Camp to applicant).  These statements attested to his positive leadership.  These statements also portrayed that no witnesses had seen him intoxicated (other than on 22 July 2012) and they had never seen him engage in any sexual contact with Ms. A. 
  
10.  On 28 March 2013, GEN CH relieved the applicant from command of 
CJTF-HoA.  The reason given was that he had lost confidence in the applicant's ability to command due to misconduct. 

11.  On 29 March 2013, GEN CH reprimanded the applicant for assaulting a DA civilian and for being drunk on duty in Djibouti.  GEN CH stated that at the time of the applicant's misconduct he was the Commander, CJTF-HoA and, as such, his actions violated the special trust and confidence that had been placed in him as a general officer and as a commander.  His misconduct undermined his ability to lead a unit engaged in critical operations in East Africa.

	a.  He could have avoided inebriation by exercising self-discipline in his consumption of proffered alcoholic beverages, recognizing his essential role at this event as a representative of the United States.

	b.  His inappropriate touching of a civilian employee in his command was beyond the bounds of propriety and his actions constituted an assault.

	c.  The reprimand was imposed as punishment under Article 15, UCMJ.  The memorandum of reprimand was being filed in his AMHRR as an associated document with the Report of Proceedings.   

12.  The applicant was given a relief-for-cause OER for the period 16 April 2012 through 28 March 2013.  GEN CH was both his rater and senior rater.  The applicant did not sign the OER in Part II (Authentication) on the copy he provides.  This report shows in:

	a.  Part IId, that this OER was a referred report.  There is no indication in this block whether the applicant provided any comments.

	b.  Part IVa (Performance Evaluation – Professionalism), (Army Values, Honor):  "NO" is checked indicating he did not adhere to the Army's publicly declared code of values.

	c.  Part IVb (Performance Evaluation – Professionalism), (Leader Attributes/ Skills/Actions):  "NO" is checked for the attributes of emotional, conceptual, and decision-making.

	d.  Part V (Performance and Potential Evaluation), shows "Unsatisfactory Performance, Do Not Promote."  It contains the rater comment that the applicant should not be promoted.

	e.  Part VII (Senior Rater), shows "Do Not Promote."  It contains the senior rater comment that the applicant was not recommended for any further assignment.

13.  On 17 April 2013, the applicant provided his written response/rebuttal to the above OER.  He stated that he did not agree with the entries in regard to:

* values of honor, respect, and duty
* attributes of emotional, conceptual, and decision-making
* physical versus mental leader attributes
* performance
* assignment

14.  On 1 April 2013, he appealed his Article 15 finding of guilty and the punishment imposed to the SECDEF.  He strongly denied that he engaged in wrongful sexual contact with Ms. A on 22 July 2012.  He requested that in addition to the memorandum and attachments he submitted to GEN CH on 26 March 2013, the SECDEF consider the following: 

	a.  He believed that, though not willful, due to GEN CH's close professional relationship to Ms. A, GEN CH was predisposed to believe her rather than impartially review the evidence.  Ms. A had worked for GEN CH since he assumed command on 9 March 2011.  He states that witnesses asserted Ms. A was intoxicated when departing back to Camp L, evidence that contradicts her own statement that she was not intoxicated and in "work mode" the entire evening.  He further stated these two witnesses did not see or hear any signs of wrongdoing.  He further states how his 26 March 2013 memorandum to GEN CH provides 13 separate facts that undermine Ms. A's credibility and raised reasonable doubt to the Article 120 allegations.  These facts highlighted numerous inconsistencies with respect to her opinion of him and behavior toward him after the alleged assault.

	b.  He requested suspension of the $6,925 in forfeitures that was not previously suspended by GEN CH on 28 March 2013.  He further stated that should his appeal be denied, he could be facing an almost certain grade determination board which could very well reduce his retirement to the grade of BG/O7.

	c.  He stated he shared the SECDEF's commitment to preventing sexual assault and responding appropriately to such allegations.  He added that the evidence in support of Ms. A's allegation did not survive rigorous scrutiny.  The government had failed to prove this charge beyond a reasonable doubt as Ms. A's allegation was not corroborated, her credibility was suspect as two witnesses alleged that she was intoxicated in the vehicle, and her behavior and interaction with him after the alleged assault was entirely inconsistent with someone who claimed to be "shaken" and traumatized.

15.  On 6 May 2013, after consideration of all matters presented in the applicant's appeal of the above NJP, the SECDEF denied his appeal. 

16.  On 17 July 2013, SA CA provided a memorandum addressed to the applicant's counsel (LTC L).  He described how he served as the PSA for the applicant on 22 July 2012.  He stated that following the event, and after the applicant and Ms. A were secure in the limo, he took his position in the front passenger seat, and directed the PSD to proceed back to Camp L.  He maintained 100 percent visability of the road ahead and at no time during the transit did he look into the back seat.  Both the applicant and Ms. A appeared to be intoxicated upon entering the vehicle.  He observed the applicant and Ms. A experience difficulty walking to the limo.  The odor of alcohol was strong inside the vehicle and the applicant's speech was slurred.  He did not recall Ms. A saying much, if anything.  He did recall the applicant uttering the phrase "What's the matter, cat got your tongue?" and then laughing.  At no time did he hear any protest, cries, or any sign of distress on the part of Ms. A and he did not hear or see any type of rapid movement or form of struggle.  He was completely shocked when he learned of the allegations made by Ms. A.  They traveled together many more times after that night and he never observed any hostility or any other kind of adverse interaction between the applicant and Ms. A.

17.  The applicant provides a chronology of events from 2 February 2013 to 26 May 2013 depicting elevated political and media attention regarding sexual assault in the military.  The applicant provides an extensive amount of printouts related to these events.

18.  The applicant provides additional argument in his statement to the Board.

	a.  Although the government was required to prove this allegation beyond a reasonable doubt, its evidence simply does not withstand the required scrutiny.  He asks that the Board carefully review his NJP (Article 15) matters, which consist of his 26 March 2013 memorandum to GEN CH and its 16 enclosures, as well as his 1 April 2013 memorandum to the SECDEF in support of his appeal, both of which highlight the many shortcomings in the government's evidence.  In essence, the complaining witness made an allegation that was neither substantiated nor corroborated by any evidence or witness, yet the reviewing officer found that he was guilty of the accusation.  This was not only inherently unfair, but inconsistent with the requirement that the allegation be proved beyond a reasonable doubt.

	b.  Although the government has relied completely on Ms. A's CID statement to prove the sexual assault allegation, the witnesses' statements overwhelmingly discredit her testimony and undermine the government's case.  Most importantly, this is not a case of "he said - she said."  Two witnesses with law enforcement backgrounds, SA CA (an NCIS agent) and SPC BB (an MP), were in the vehicle during the alleged incident and did not witness a sexual assault.  Although Ms. A alleged that he was "forceful and strong" while trying to touch her, and that she pushed his hand away several times, SA CA and SPC BB's statements show that the car ride back to lodging was wholly uneventful.  There was also no visual or audio obstruction in the vehicle that would have prevented SA CA and SPC BB from seeing or hearing any kind of struggle between Ms. A and him.  He requests that the Board carefully review SA CA's recent statement, from 17 July 2013, in which he reiterates that he did not witness a sexual assault of Ms. A, and his "complete shock" to learn of these allegations months later.  As a first-hand witness to the events of 22 July 2012 and an experienced and unbiased NCIS agent, great weight should be given to SA CA's statement.

	c.  Ms. A's CID statement is further contradicted by SA CA and SSG JS, both of whom witnessed that Ms. A was intoxicated when departing back to Camp L on 22 July 2012.  Their first-hand observation contradicts her own statement that she was not intoxicated and in "work mode" the entire evening.  This contradiction by two unbiased witnesses impeaches the accuracy, credibility, and reliability of her statement.

	d.  Ms. A's counterintuitive behavior subsequent to the alleged assault raises additional doubt as to the veracity of her complaint, undermining her credibility.  Of note:

		(1) Ms. A never exhibited any signs of distress on 22 July 2012, and never sought the assistance of SA CA or SPC BB, two trained law enforcement personnel, either during or after the alleged assault.  Ms. A remained with 
CJTF-HoA as his subordinate after the alleged assault and chose not to report the incident until 17 January 2013, several months after her departure from 
CJTF-HoA.

		2) Ms. A's statement also falsely alleges that he was hostile towards her after 22 July 2012, yet numerous witnesses from the CJTF-HoA staff, all of whom witnessed the interaction between Ms. A and him, describe their interactions as professional, with no change after 22 July 2012.  Without exception, witness statements provided by senior female and male leaders on his immediate staff, with frequent on and off duty interaction with him and Ms. A, all confirmed that he maintained a professional, courteous, and collegial relationship with her.  Not a single government or defendant witness stated that he was hostile towards Ms. A.  As SA CA and LT Guzman state, she continued to travel with him and other members of his personal staff throughout Africa after 22 July 2012, often dining with him and LT Guzman for at least 1-2 hours, displaying no change in her demeanor or behavior towards him.

		3) Ms. A told CID that she was withdrawn after 22 July 2012 and that she felt "awkward" around him, yet other members of the CJTF-HoA staff noticed no such change in her demeanor or behavior.  In fact, when departing CJTF-HoA in September 2012, she expressed a positive opinion of the command and praised him specifically.

		4) Ms. A continued to maintain a warm but professional relationship with him and the CJTF-HoA staff months after her departure from CJTF-HoA on 21 September 2012.  On her own initiative, Ms. A sent him a humorous email on 2 October 2012, attaching a Pentagon phrase guide that poked fun at the language used by staff within the Pentagon.  When he saw her at the Pentagon on 23 October 2012, they had a "professional" and "jovial" greeting, as described by a witness who was there, and she gave him a belated gift - a tee shirt with the inscription, "I love the State Department."  Furthermore, in December 2012, she returned to CJTF-HoA to run a 15-kilometer race with members of the staff.

	e.  Due process requires adjudicators to render independent and unbiased decisions on alleged wrongdoings, carefully scrutinizing the evidence while disregarding external pressures or expectations to reach a desired result.  He did not receive the required due process during the Article 15 process as both GEN CH, the adjudicator of the Article 15, and the SECDEF, the Article 15 appellate authority, did not provide an independent and unbiased review of the evidence against him.  Although he greatly respects GEN CH, he regrettably believes that GEN CH did not impartially adjudicate the Article 120 allegation.

		1) Ms. A worked directly for GEN CH from 9 March 2011, the date of his assumption of command, until his change of command in April 2013.  [Note:  This contradicts Ms. A's statement that she reported directly to the applicant as recounted in 4b above.]  GEN CH's lengthy and close professional relationship with Ms. A predisposed him to believe her, rather than impartially review the evidence.  As evidence of this predisposition, please consider the relative quickness of the investigation (from 15 February 2013 to 14 March 2013) and that GEN CH served him with the Article 15 charges on 14 March 2013, the same day that SA CA provided a statement in which he denied witnessing any form of assault on Ms. A.  Also, please consider that GEN CH did not call Ms. A as a witness at the Article 15 hearing, even though she was located where the hearing was held.  That is, GEN CH chose to place his trust solely in the written statement of a witness, and did not seek to question her in person during the hearing in an effort to assess her credibility, even though Ms. A's statement was untruthful and not corroborated by any witnesses.  This approach, at a minimum, shows a lack of a full and fair consideration of his case.  He does not allege that this bias was willful, but instead a natural consequence of his close working relationship with the complaining witness and the undue influence from Congress, DOD leadership, and the media, as discussed below.
 
		2) GEN CH adjudicated his case amidst a well-publicized Congressional uproar regarding the adjudication of military sexual assault cases in general, and specifically the alleged failure of adjudicators (military convening authorities) to hold alleged sexual assault "offenders" accountable.  Although Congress had previously been skeptical of the military's response to sexual assaults, Congress became outright hostile towards the DOD's efforts after 26 February 2013, when Lieutenant General (LTG) CF disapproved the sexual assault conviction of Lieutenant Colonel (LTC) JW pursuant to his lawful exercise of post-trial authority.  As the attached news articles and chronology demonstrate, LTG CF's disapproval of a sexual assault-related court-martial conviction set off a widely publicized firestorm of controversy within the media and Congress, as some members of Congress accused LTG CF of engaging in cronyism.  Several members of Congress petitioned SECDEF for intervention, while Sen. McCaskill called for Air Force leadership to consider removing LTG CF from command.  On 7 March 2013, one week before he received an Article 15 from GEN CH, the SECDEF requested a review of LTG CF's military justice related action, an extraordinary step.  On 13 March 2013, the day before his initial Article 15 hearing from GEN CH, Senator Gillibrand convened a high profile subcommittee hearing on sexual assaults in the military, in which LTG CF's action became the subject of much hostility from Congressional committee members, as some openly advocated for the adjudication of sexual assault cases to be taken out of the chain of command.  The controversy generated by LTG CF's action was certainly known by GEN CH, as both were assigned to Germany, and both had access to the numerous Stars and Stripes articles published on this issue, not to mention Office of the Secretary of Defense's Early Bird, which posted many more articles.

		3)  At the time of the adjudication of the alleged charges by GEN CH, on 28 March 2013, the scrutiny by Congress and DOD on the decisions by convening authorities in sexual assault-related cases had intensified to such a degree that GEN CH could not have provided him with a truly independent and unbiased review of his case without regard to the influence exerted throughout Congress and the media.  If not actual bias, there is certainly perceived bias based on the atmospherics surrounding his case.  GEN CH's inability, or at least perceived inability, to remain a neutral and detached adjudicator tainted the findings with respect to the sexual assault allegation.

	f.  He regrettably contends that the SECDEF did not provide an unbiased and impartial review of his Article 15 appeal.

		1) As the attached news articles and chronology indicate, the scrutiny and hostility by both Congress and the media toward the military's response to sexual assaults that intensified in March 2013 after LTG CF's disapproval of a sexual assault-related conviction only increased during the period in which the SECDEF reviewed his Article 15 appeal in April and May 2013.  Significant events include:

		a) the SECDEF directing the DOD Office of Counsel, on 8 April 2013, to draft legislation that would eliminate a convening authority's discretion to overturn court-martial convictions, a direct response to LTG CF's disapproval of a sexual assault conviction in the LTC W court-martial;

		 b) the media's publication, on 10 April 2013, of LTG CF's reasoning to the Secretary of the Air Force of his decision in the LTC W court-martial, which sparked additional Congressional criticism;

		c) the 5 May 2013 arrest of LTC JK, program chief for the Air Force's sexual assault response program, for sexual battery on the eve of Congressional hearings on sexual assault, sparking widespread media and Congressional outrage over the military's response to sexual assaults;

		d) the SECDEF's 6 May 2013 phone call to Secretary of the Air Force to express his "outrage and disgust" over the alleged sexual battery by LTC K;

		e) the same day as the SECDEF's call to the Secretary of the Air Force, 6 May 2013, the SECDEF denied his Article 15 appeal;

		f) DOD's 7 May 2013 release of its Annual Report on Sexual Assault, which drew sharp criticism from Congress, the media, and President Obama for the reported increase in sexual assaults;

		g) President Obama's 7 May 2013 comments on sexual assault, stating that he had ordered the SECDEF to "step up our game exponentially" with respect to sexual assault;

		h) Senator McCaskill blocked the nomination of and therefore promotion of Air Force LTG H, reported on 7 May 2013, because of her decision to disapprove a sexual assault-related conviction;

		i) the SECDEF's 7 May 2013 news briefing addressing sexual assaults, stating that "all of our leaders at every level in this institution will be held accountable for preventing and responding to sexual assault;

		 j) the 9 May 2013 White House meeting between President Obama's advisor and two dozen lawmakers to discuss changes to the UCMJ, which would take sexual assault cases out of the chain of command; and

		k) a 16 May 2013 White House meeting between President Obama, the SECDEF, Service chiefs and secretaries, in which President Obama described military leadership as "angry" and "ashamed," and directed the SECDEF to "leave no stone unturned" in efforts to improve the response to sexual assaults.

		2) Moreover, he believes the blocking of LTG H's nomination illustrates that Congress will continue to second-guess convening authority decisions in sexual assault cases which are perceived to be favorable to the accused, threatening the independence of leaders adjudicating these cases, to include the SECDEF.  There is virtually no chance that the SECDEF, as a political appointee recently confirmed by Congress, aware of Congressional efforts to hold leaders accountable for their decision-making in sexual assault-related cases, and ordered by President Obama to improve sexual assault response, would review his appeal independently and without regard to the tremendous influence exerted by Congress, the media, and President Obama.  At a minimum, there is certainly a perception of bias by the SECDEF.  Significantly, there is no evidence that the SECDEF obtained a legal review prior to deciding his appeal, which further supports the argument that the SECDEF did not thoroughly examine the evidence in his case, but reached a results-oriented decision that would demonstrate his commitment to hold those merely accused of sexual assaults accountable, regardless of the evidence.  A favorable decision on his appeal would have certainly undermined the SECDEF's credibility with Congress and the President regarding his commitment to hold those accused of sexual assaults accountable, resulting in more demands from Congress and the media to take sexual assault adjudications outside the chain of command.  In summary, despite all the credible evidence in his favor, the government's lack of evidence (including the fact that not a single live witness testified against him), there was simply no chance, given the current "environment," that the SECDEF would have taken favorable action on his appeal.

	g.  Recent court decisions by military judges, as discussed in attached documents, illustrate that the rhetoric from our political and DOD leadership on sexual assault cases inappropriately influenced the judicial process in sexual assault cases.  These decisions reflect the judiciary's very real concern that the pressure exerted by political and DOD leadership towards convening authorities in cases involving sexual assault will result in the inability of an accused to receive a fair adjudication.  On 6 August 2013, the SECDEF issued a memorandum which addressed his concerns for maintaining the integrity of the military justice system.  Simply put, this memorandum amounts to an implied acknowledgement of the existing improper influence, which the SECDEF was subjected to 6 May 2013 when he took action on his appeal.

	h.  Due process requires that each allegation of sexual assault be reviewed individually on its own merits, and that the supporting evidence survive rigorous scrutiny to ensure its reliability.  In this case, Ms. A's allegation against him does not survive any standard of scrutiny, as it is wholly unsupported by two first-hand witnesses, both of whom are law enforcement trained.  Moreover, Ms. A's behavior and continuous interaction with him after the alleged assault is entirely inconsistent with someone who has been "shaken" and traumatized," as she claimed to CID months after the alleged assault took place.  Ms. A's allegations against him are entirely inconsistent with the government's own evidence and completely contrary to how he has served his nation for more than 31 years, to include his service as commander at CJTF-HoA.  These unsupported allegations have caused him extreme prejudice, resulting in adverse personnel actions (NJP, relief from command, a relief-for-cause OER) and damage to his reputation, which caused him to decide to retire earlier than what would have been in his best professional and personal interests.  He respectfully requests that the Board provide him with the independent and unbiased review that he has yet to receive.

19.  Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice.

	a.  Chapter 3 provides that NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  NJP is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.

	b.  NJP is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct.

	c.  A commander’s decision on whether to file a record of NJP in the performance section of a Soldier’s AMHRR is as important as the decision on whether to impose NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, and total service.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.
The filing should be recorded on the present DA Form 2627 in block 11.

	d.  Table 3-2 states records of NJP may be removed from military personnel files when:

* the commander who imposed the punishment, successor in command, or superior authority wholly sets aside the punishment on the basis that evidence exists which demonstrates that the punishment resulted in a "clear injustice"
* evidence exists which demonstrates error or injustice to a degree justifying removal

20.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army’s Evaluation Reporting System.  This includes DA Form 67-9.  
	a.  This regulation states rating officials have the responsibility to prepare evaluation reports that are forthright, accurate, and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army’s mission.  With due regard for the rated Soldier’s current rank or grade, experience, and military schooling, evaluations will cover failures as well as achievements.  Rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated Soldier for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be honest and discriminating in their evaluations so Army leaders, Headquarters, Department of the Army (HQDA) selection boards, and career managers can make intelligent decisions.

	b.  For a referred DA Form 67-9, Part IId only, senior raters will ensure the rated officer is provided an opportunity to provide individual comments before authentication and departure of the rated individual and before the report is sent to the HQDA.

	c.  For referred OERs, the rated officer is responsible for acknowledging the senior rater’s referral of the OER, signing the completed evaluation report, and providing comments regarding the report by the reasonable suspense date set by the senior rater.

	d.  When an officer is officially relieved of duties and a "Relief for Cause" OER is subsequently prepared, these evaluation reports require referral to the rated officer. 
21.  Army Regulation 623-3 also provides guidance regarding redress programs, including appeals. 

	a.  Paragraph 4-2 states an OER may have administrative errors or may not accurately record the rated Soldier’s potential or the manner in which he or she performed his or her duties.  The Redress Program protects the Army’s interests and ensures fairness to the evaluated officer.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. 

	b.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the properly designated rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.

	c.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

22.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  This regulation describes what forms and documents are to be filed in the AMHRR and where they are to be filed.  Table B-1 of this regulation specifies that a DA Form 67-9 will be filed in the performance section of the AMHRR.

23.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to:

* authorize placement of unfavorable information about Army members in individual official personnel files
* ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files
* ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files

24.  Army Regulation 600-37 states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the sexual assault allegation was not proven and the adverse actions taken against him for this alleged offense were not free of bias and political pressure were carefully considered.  However, the evidence of record does not support his request for removal of the DA Form 2627, relief from command, and relief-for-cause OER.

2.  He accepted NJP for being intoxicated and for engaging in inappropriate sexual contact with a DA civilian.  He admits he was intoxicated on the evening of 22 July 2012 but denies he engaged in sexual contact with Ms. A.  The CID investigation found there was credible information that the applicant did commit the offense of abusive sexual contact.  A CID Staff Judge Advocate concurred that the credible information standard had been met and that all violations of General Order 1 and other officer misconduct by the applicant would be referred to the action commander for action deemed appropriate.

3.  The applicant's fundamental argument is that the evidence did not support a finding of guilt in the Article 15 proceedings.  This is essentially a disagreement with the Article 15 imposing authority's view that the evidence supported the action.  The applicant has failed to show that the Article 15 imposing authority's action was wrong or was somehow an abuse of his discretion.  

4.  He provides media articles reflecting a heightened level of political and media attention related to sexual assault cases in the military at the time the adverse actions were taken against him.  In part, these articles appear to reflect increased pressure on military leaders to find Soldiers guilty of charges of sexual assault.  The mere timing of the Article 15 in the midst of efforts in Congress and media statements by senior officials concerning sexual assaults in the military does not automatically translate into impermissible command influence.  The applicant has failed to show the Article 15 imposing authority acted improperly based upon political pressure or unlawful command influence.

5.  He has failed to show the evidence used to support issuance of the DA Form 2627, his relief from command, and the relief-for-cause OER was untrue or unjust, in whole or in part, thereby warranting removal from the AMHRR.  The NJP imposed was in compliance with applicable laws, regulations, and policies.  The punishment imposed does not appear to be unjust or disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The DA Forms 2627 are filed in accordance with the applicable Army regulation.  Removal of the DA Forms 2627 would be justified if it were to be determined NJP should never have been imposed, which is not the case.

6.  Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  To remove a document requires evidence of a clear and convincing nature that the document is untrue or unjust.  In this case, there is a lack of clear and convincing evidence that the reprimand issued in conjunction with the NJP was untrue or unjust.

7.  In view of the facts of this case and notwithstanding the applicant’s claims to the contrary, it appears the evaluations contained on the contested OER represent the considered opinions and objective judgment of the rating official.  The relief-for-cause OER was referred to the applicant for comments and he responded in written form.

8.  As a result, it is concluded that the contested OER was processed and accepted for filing in the AMHRR in accordance with applicable regulations.  There is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and to remove the contested report from the applicant's record.

9.  In view of the foregoing and in the absence of substantive evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected.  The applicant did not provide evidence that establishes that the presumption of regularity should not be applied to the documents under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  As a result, there is insufficient evidence to grant him the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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



      _______ _   _X____   ___
               CHAIRPERSON
      
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.


ABCMR Record of Proceedings (cont)                                         AR20130015446



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015446



20


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1