MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 April 2000                  
	DOCKET NUMBER:   AR1999029185

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his reduction from pay grade E-7 to E-6 be revoked, that it be shown that he was retired in pay grade E-7,  and that he be given the back pay this correction would necessitate.  He also requests that the orders terminating his special duty (recruiter) pay be revoked and that he be given the back pay that correction would necessitate.

APPLICANT STATES:  Through counsel, that the only reason the applicant’s command convened a reduction board on him was because the reduction ordered as a result of the approved recommendation of an elimination board was determined to be illegal by the National Guard Bureau (NGB) and, therefore, had to be revoked.  His command wanted to vindicate itself by convening the reduction board.  Counsel continues that the applicant was unable to properly defend himself at the reduction board since he was unable to testify in his own behalf on one of the two days of the hearing because of his mental illness; that the reduction board continued its deliberations even when counsel informed them that the applicant was pending medical retirement; that the reduction board constituted double jeopardy because he was reduced for the same alleged infractions that formed the basis of his elimination board; that the applicant’s elimination board, which led to the subsequent reduction board, was improperly convened because the applicant was not given any sort of lesser administrative disciplinary measures prior to initiation of elimination action, as required by regulation, even though this was the first infraction committed by the applicant and he was a model soldier for his entire career; that the suspension of the applicant’s proficiency pay was an unjust prejudgment since formal charges had not yet been preferred against the applicant; that the Army Grade Determination Review Board (AGDRB) did not give the applicant the opportunity to rebut the allegations [pertaining to his reduction]; and that the applicant was innocent of the charges that were the basis of his reduction.  

EVIDENCE OF RECORD:  The applicant's military records show:

On 18 August 1994 the applicant, a Guardsman serving on Full Time Training Duty (FTTD) (the non-federal equivalent of active duty), had his proficiency pay terminated.  The reason for the termination is not a matter of record.

On 14 October 1994 the applicant was given a letter of reprimand for the drinking of alcoholic beverages by him and others on armory property; for allowing and participating in underage drinking of alcoholic beverages on armory premises; for brandishing a loaded weapon while under the influence of alcohol; for allowing underage females to spend the night in the armory; for participating in the improper execution of an armory rental contract without it being executed by the unit commander; for improperly authorizing the use of government vehicles by civilians; for soliciting unit personnel to recruit females for the purpose of providing sexual favors; for sexually harassing female personnel; for viewing cartoons of individuals engaged in sexual activities while in the armory; for assault with a deadly weapon; for allowing through neglect the destruction of Government property; and for the violations of various orders and regulations in the commission of the offenses cited.

On 25 November 1994 the applicant was notified that he had been designated as the respondent in a board of officers being convened to determine whether he should be separated from the ARNG concurrent with his status as a reserve of the Army; to determine his characterization of service including the possibility of a discharge under other than honorable conditions, if separation was recommended; to determine whether he should be separated from the Active Guard and Reserve (AGR) program (in the applicant’s case, Full Time Training Duty, or FTTD, which is the state funded equivalent of active duty); and whether he should be reduced in grade to pay grade E-1.

On 24 November 1994 a board of officers was convened which found that the applicant brandished unloaded weapons while under the influence of alcohol and pointed a weapon at a soldier, which constituted reckless endangerment; that the applicant allowed the presence of under-age females overnight creating an environment where sexual activities could occur and participating in events which involved minors drinking alcohol and allowing these events to continue without his intervening and halting the activity, which constituted contributing to the delinquency of a minor; that the applicant was a party to and participated in the unauthorized and improper execution of an armory rental contract without its being approved by and properly executed by the unit commander; that the applicant sexually harassed female personnel, both adult and under age at the armory; and the applicant knew of and participated in the viewing of cartoons portraying individuals engaged in sexual activities at the armory.  The elimination board recommended that the applicant be retained in the AGR program, the ARNG and the USAR, but that he be reduced two grades and be assigned to a position outside of recruiting and retention for a minimum of two years.

That recommendation was approved and the applicant was reduced from pay grade E-7 to pay grade E-5 effective 27 July 1995.

On 4 November 1995 the NGB, in response to an appeal of the reduction action filed by the applicant’s counsel, directed the applicant’s command to revoke his reduction order and give him the difference in pay that revocation would necessitate.  That directive was based on the fact that an administrative elimination board is not empowered to recommend a soldier’s reduction in grade.

On 12 December 1995 the applicant was notified that he was being considered for a reduction in grade based on the acts of misconduct he was found to have committed by his elimination board.  On 9 February 1996 the reduction board was convened, found that the applicant had committed the infractions in question, and recommended his reduction from pay grade E-7 to E-6.
An appeal of those findings and recommendation was then submitted by the applicant’s counsel, an appeal which consisted of the same contentions as he presented to this Board.  In a legal review of that appeal the State Judge Advocate (SJA) stated that while the applicant did not report for the second day of the reduction board hearing, he was ably represented in the proceedings by both the military counsel who had represented him in his elimination board hearing, and by a civilian counsel.  The SJA also dismissed the applicant’s counsel’s claim that the applicant should not have been reduced because he had been determined medically disqualified and was pending medical retirement, opining that there was no legal prohibition to reduce a soldier who is pending a medical retirement.  The SJA also stated that the reduction board did not constitute double jeopardy as the only double jeopardy provision of an elimination board is that if a soldier is exonerated by a board, the same allegations cannot be used as the basis of a subsequent elimination board.  The Adjutant General approved the reduction board’s findings and recommendation and the applicant was reduced from pay grade E-7 to E-6 effective 19 June 1996.

On 11 September 1996 the applicant was considered by a formal PEB which determined that he was physically unfit due to major depressive disorder, recurrent, and panic disorder without agoraphobia.  The PEB determined that his unfitting condition was 30 percent disabling and recommended that he be placed on the Temporary Disability Retired List (TDRL).  That recommendation was approved and the applicant was discharged from the ARNG and as a reserve of the Army on 22 December 1996 and placed on the TDRL the following day.

On 6 January 1997 the AGDRB convened and determined that because of the misconduct committed by the applicant while he was serving in pay grade E-7, the highest grade he successfully held for retirement purposes was pay 
grade E-6.

Army Regulation 601-1 provides the guidance on the assignment and utilization of recruiters.  Paragraph 5-6, unsuitable recruiters, states in pertinent part that recruiters who fail to meet or maintain acceptable standards of conduct, to include involvement in unfavorable incidents or commission of acts which adversely reflect on the Army and the recruiter and which violate civil law or UCMJ, may be relieved from recruiting duties.

Army Regulation 140-158, chapter 7, Reductions and Restorations, states that “Generally, procedural errors or irregularities in a board do not invalidate the proceedings or any action of the convening authority based on it.”

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

Army Regulation 15-80, Army Grade determination Review Board, paragraph 11, states that “The individual whose case is being considered is not entitled to appear before the AGDRB.  The AGDRB may consider any evidence relevant to the grade determination regardless of whether the information is part of the soldier’s Official Military Personnel File (OMPF).  When information to be considered is not part of the OMPF, however, the AGDRB will advise the soldier of the information and provide a reasonable opportunity for comment or rebuttal by the soldier.  Such notice and opportunity for response is not required where it is clear that the soldier has been given the opportunity previously with regard to the same information.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s counsel has raised numerous issues which will be addressed individually by this Board, as follows:

a.  The reduction board was convened strictly because the prior reduction was determined to be “illegal” is not accepted in the manner presented.  It is evident it was the command’s intent to reduce the applicant in grade for his misconduct.  When it was discovered that the elimination board did not have that jurisdiction, convening a reduction board would be the obvious next step.

b.  The fact that the applicant was undergoing a medical board has no bearing on either elimination or reduction actions.  A soldier is not immune from punitive actions while undergoing disability processing.  To the contrary, disability processing is normally suspended if a soldier is under consideration for a discharge under other than honorable conditions.

c.  This Board agrees with the SJA that the fact that the applicant did not appear at the second day of his reduction board did not constitute a material error which would be grounds to dismiss the proceedings.  The applicant was being represented by two legal counsels in his absence.  Likewise this Board agrees with the SJA that the reduction board did not constitute double jeopardy.  Reduction and elimination are two separate issues.  For example, a Regular Army soldier may be processed for elimination and given an under other than honorable conditions discharge for the same offense(s) for which he or she was found guilty of by a court martial, but the sentence did not include a punitive discharge.

d.  Counsel’s contention that the applicant’s elimination board was flawed because the applicant was not given any sort of lesser (disciplinary) administrative measures (progressive punishment is implied) is not germane to this case.  The issue is the reduction board.  However, this Board would have considered the nature of the applicant’s infractions to be of the severity to warrant waiving any lesser administrative punishment consideration if the issue was germane to the request.

e.  Counsel’s contention that termination of the applicant’s proficiency pay was an unjust prejudgment since formal charges had not been preferred is not accepted by this Board.  A command cannot have a recruiter out in the community as an ambassador of the command after such grievous allegations have been made against the soldier.  As it stands, many of the allegations were substantiated in both the applicant’s elimination board and his reduction board, which supports the command’s decision to remove him from recruiting duties.  

f.  Counsel’s contention that that the Grade Determination Board did not give the applicant the opportunity to rebut the allegations pertaining to his reduction is true, but such rebuttal is not required of documentation which is part of the OMPF.

g.  Lastly, counsel has not supported his contention that the applicant was innocent of the charges by any substantial evidence.

2.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_wtm____  __rwa___  ___mvt  _  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029185	
	HOWLAND, ROBERT T	
RECON	YYYYMMDD	
DATE BOARDED	20000420	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	133.01	
2.		
3.		
4.		
5.		
6.