PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 September 2001
	DOCKET NUMBER:   AR2000044295

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

	Mr. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, through counsel, correction of his records to set aside his discharge under other than honorable conditions from the U.S. Army Reserve (USAR), correction of his records to show retirement with an honorable discharge and removal of all references to the proceedings of a board of officers conducted on or about 27 April 1997 from his records.

3.  The applicant states all of his contentions through counsel.  Counsel for the applicant contends in a six page continuation of the DD Form 149 (Application for Correction of Military Records) with five enclosures, dated 28 June 2000, that, in effect, the applicant did not receive proper notification of a hearing before a board of officers convened on 27 April 1997 to determine whether or not he should be retained or separated from the USAR.

4.  Counsel initially set forth facts relevant to the application.  He stated that the applicant was notified on or about 3 March 1995 of his eligibility for retired pay at age 60 and counsel provided a copy of this notification (commonly referred to as a “20-year letter”).  On or about 12 September 1996 Headquarters, U.S. Army Reserve Command (USARC) appointed a board of officers to determine whether or not the applicant had committed misconduct and should be discharged from the USAR.  Counsel contends that about the same time as the board of officers was appointed, the applicant who was then a civilian employee was transferred in his civilian employment to Fort McCoy, Wisconsin.  Counsel continues that the board of officers was convened on 27 April 1997 in Independence, Missouri, to determine whether or not he should retained or separated from the USAR and the applicant “did not attend, reason for absence unknown, according to the Board report.”  Counsel then stated that the “hearing took one hour and six minutes and resulted in a finding of misconduct and a recommendation for separation from the U.S. Army Reserve with an Other Than Honorable characterization of discharge.” 

5.  Counsel then contends that the applicant “was provided no notice of the Board and was never contacted by anyone from the United States Army Reserve concerning the Board.”  Counsel then cited, in part, a review of the proceedings of the board of officers by a Staff Judge Advocate (SJA) contained in AFRC-JA [Office of the Staff Judge Advocate of the U.S. Army Reserve Command] Memorandum, dated 14 January 1998:

	“2.  In reviewing the elimination packet, it was noted that the only memorandum purporting to notify the respondent [who is also the applicant in this case] of the time and place of the separation board was dated the same date the board was held.  AR [Army Regulation] 135-175, 2-24a, requires the recorder notify the respondent in writing of the time and place of the board not less than 10 days prior to the date of the board. Because the respondent was not at the board and the respondent’s counsel, Captain [name omitted, but hereafter identified as CPT(P) V. W. K., Jr.] had not objected to the notification procedures of the board, I contacted [CPT(P) V. W. K., Jr.] to determine if adequate steps had been taken to notify the respondent.  [CPT(P) V. W. K., Jr.] advised that he mailed notices of the time and place of the board to three available addresses he had for the respondent.  He also contacted counsel representing the respondent in the civilian proceedings stemming from the underlying misconduct that was the basis for the board and advised him of the time and place of the board.

	3.  Based on the available information, it appears that reasonable steps were taken to notify the respondent of the time and place of the board.  Furthermore, respondent’s counsel’s failure to object to the notification procedures used by the Government may be treated under these circumstances as a waiver of any defect (AR 15-6, para. 2-3c4).”

6.  The applicant’s counsel then points out that on 1 October 1998 orders were issued discharging the applicant from the USAR with an effective date of 2 November 1998 and that he was “issued an Other Than Honorable characterization of discharge.”

7.  Counsel then stated his arguments.  First he contended that the proceedings in this case were “void because [the applicant] was denied due process as set forth in Army Regulation 135-175.  Counsel then states that the “evidence is uncontroverted that [the applicant] did not attend the hearing convened to strip him of already vested retirement benefits.”  Counsel argues that according to the Board the applicant was absent for unknown reasons; however, counsel asserts that the evidence clearly shows the applicant did not attend the hearing because he was never provided notice required by Army Regulation 135-175 and “had no actual notice of the Board prior to its inception.”

8.  Counsel then cites Army Regulation 135-175 in that this regulation requires the “Recorder-the Government’s representative at the Board notify the respondent in writing of the time and place of the board of officers will be convened.  This notice will be given not less than 10 days prior to the date the board is to convene.”  Counsel then argues that the Board report clearly indicates that the required notice was not provided by the recorder to the applicant.  Counsel further points out that the “Legal Advisor” clearly stated that the only written memorandum “purporting to notify the respondent of the time and place of the separation board was dated the same date the board was held.”  Counsel concludes that, as a simple matter of due process set forth in regulation, the applicant was not provided the notice which was required and would have enabled him to appear for a hearing in Missouri at a time he was employed by the Army at Fort McCoy, Wisconsin.  

9.  Counsel also argues that, “before a Board of Officers can meet, the Respondent in such a case must be advised of his rights at the Board.  The Respondent must be provided copies of the records which will be submitted to the board, consult with counsel, present his case before the Board at his own expense, be represented at the hearing by counsel, and to submit statements in his own behalf.  Before any waiver of these rights is effective the Respondent must be notified of his rights and must be afforded not less than 15 days to consult with counsel prior to waiving any of these rights.  If the respondent elects to waive any of these rights, the waiver must be in writing, personally executed by the Respondent and witnessed by a Judge Advocate” per AR 135-175, paragraph 2-19a.

10.  Counsel then asserts that the evidence is uncontroverted that the applicant was not informed of his rights and did not personally execute any waiver of the above rights prior to the hearing permitting the board to proceed in his absence.  Counsel contends that the SJA who reviewed the case “erred in asserting that the Respondent’s counsel’s failure to object resulted in waiver of the Respondent’s rights.  Counsel states that the governing regulation does not provide for waiver of any of these rights including appearance, by counsel.”  Counsel further points out the regulation requires that the respondent personally execute the waiver and that such a waiver be witnessed by a Judge Advocate; therefore, the board of officers acted contrary to law and regulation by proceeding in the applicant’s absence with the required waivers.

11.  Counsel also contends that, before the board of officers was permitted to convene, the “Area Commander was required to notify [the applicant] in writing of the basis for the proposed separation” and must notify a Respondent who is retirement eligible “that he may elect to transfer to the Retired Reserve in lieu of having his case referred to a Board of Officers and requiring such election be made in writing.”  Counsel continues that the “Notification Letter and written elections must be made a board exhibit” and that in the absence of the Area Commander’s notification and acknowledgement by the Respondent the Board record must include as an exhibit a “copy of the notification and either a post office receipt confirming delivery or the returned unopened envelope showing mail was refused, unclaimed or not delivered” per AR 135-175, paragraph 2-17g.

13.  Counsel asserts that pursuant to Army Regulation 135-175, paragraph 2-3d, the applicant was entitled to terminate the administrative proceedings and transfer to the Retired Reserve in lieu of administrative separation.  Counsel cited this paragraph in part:

	“An officer with 20 or more years of qualifying federal service for retired pay…who is being considered for involuntary separation will be given the opportunity to elect transfer to the Retired Reserve in lieu of involuntary separation.”
14.  Counsel then argues that had the applicant “received proper and timely notification of the involuntary separation proceeding, as required by regulation, then he would have requested transfer to the Retired Reserve in lieu of the involuntary separation as was his right.

15.  In concluding his continuation of the DD Form 149, counsel states:  “Accordingly, in the absence of timely and effective notice in accordance with the governing regulation-which sets forth the minimum requirements for sue (sic) process in these circumstances-[the applicant] could not lawfully have been separated from the U.S. Army Reserve.  Therefore, [the applicant] respectfully requests herein that the Board grant him the following relief:  

	(1)  Correct his military record to set aside the discharge from the U.S. Army Reserve with an Under Other Than Honorable characterization of discharge;

	(2)  Remove from [the applicant’s] military record all references to the Board of Officers conducted in his absence and without proper notice to [the applicant] on or about 27 April 1997.”

16.  Submitted with the continuation of the DD Form 149, counsel provided at enclosure 1 a copy of the U.S. Army Reserve Personnel Center Memorandum; subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 3 March 1995; at enclosure 2 a copy of a 14 January 1998 legal review with a copy of the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) in the case of the applicant; at enclosure 3 a copy of a Standard Form 50B (Notification of Personnel Action) with an effective date of 1 September 1996; at enclosure 4 a declaration, authored by the applicant and dated 30 June 2000; and at enclosure 5 a copy of Headquarters, U.S. Army Reserve Command Orders 98-274-008, dated 1 October 1998.

17.  By letter, dated 31 July 2000, the applicant’s counsel submitted additional information for consideration by the Army Board for Correction of Military Records (ABCMR).  Attached to counsel’s letter was a copy of 8th JAG [Judge Advocate General] Detachment Memorandum, dated 27 April 1997, wherein the recorder for the board of officers notified the applicant at addresses in Belleville, Illinois, and Sparta, Wisconsin, and his civilian counsel at Belleville, Illinois, that the board of officers would convene on 27 April 1997 at 0900 hours in the USAR Center, 11101 Independence Avenue, Independence, Missouri, to consider the applicant’s case.  This memorandum advised that the applicant’s counsel was CPT(P) V. W. K., Jr.  The recorder advised that he also intended to call an official of the St Clair County Sheriff’s Department to testify.  Counsel contends that this memorandum proves that “the Recorder did not ensure that [the applicant] was provided notice of the date, place and time of the Board, as required by the governing Army Regulation, 10 days prior to the Board.”  Counsel asserts that this “document, which was not found among the records contained in [the applicant’s] OMPF [official military personnel file], indicates that he was not provided the requisite notice –10 days—required by the governing regulation; that the Recorder did not provide the Notice; and, that even if [the applicant] had somehow been provided the notice, which it is clear that he was not, he could not possibly have received it in time to attend a hearing that was scheduled to start at 0800 the same date that the Notice was prepared.”

18.  The applicant’s military records show that he entered active duty in an enlisted status in September 1968 and completed training as a rotary wing aviator and was appointed as a Reserve warrant officer on 8 September 1969.  He served in Vietnam as an aviator from October 1969 to April 1971.  Upon his separation from active duty in March 1972, the applicant entered the USAR where he has served as an instructor pilot and as a Department of the Army civilian in the military technician program.  He was advanced to Chief Warrant Officer Two (CW2) effective 4 March 1972, to CW3 effective 22 April 1980, and to CW4 effective 21 April 1986.  The applicant was called to active duty in support of Operation Desert Storm from 9 February 1991 to 8 June 1991 and subsequently returned to his USAR unit located at Scott Air Force Base, Illinois.

19.  Based on voluntary statements by the applicant’s daughter and the applicant, dated 12 January 1995, it was determined that applicant was divorced from his wife and had obtained custody of their three children, two boys and a girl.  The applicant admitted that he was in the family bathroom with his daughter [age 6 at the time] when he started getting sexual thoughts.  He put vaseline on his daughter’s hands and then had her stroke his penis.  In his statement, he admitted that he repeated this same act a week later and that his daughter “was only 6 years old and [he] felt really bad for doing that.”  The applicant further described how he forced his daughter to sleep with him under the same blanket and how he made the entire family sleep on the living room floor.  He admitted to routinely fondling her.  He admitted, “for the last year every time I have had sexual contact with Rebecca, she pleads with me to stop.  Sometimes I tell her not to tell.”  The applicant also stated that, after “Michael Jackson was accused of having sex with a young boy, that he would take his hand and put it down the back of his youngest son’s pants like he was going to touch him sexually.”  However, the applicant stated that “it was just a game” and he “really did not want to have sex with his [son].”

20.  Records indicate that in January 1995, the applicant’s daughter, who was now 10 years old, told a classmate about the applicant’s sexual abuse and they reported the situation to a school counselor. This report led to the intervention of social workers, immediate removal of the children from the home, and a police investigation.  As a result, criminal complaints were sworn on 13 January 1995, in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, charging that the applicant committed the offense of “AGGRAVATED CRIMINAL SEXUAL ABUSE” [Illinois Statute 5, section 12-16(c)(1)] in that he committed an act of sexual conduct between 1 January 1990 and 1 June 1990 with his daughter who was under the age of 13 years at the time (a class 2 felony).  A second criminal complaint was sworn out against the applicant for a second count of “AGGRAVATED CRIMINAL SEXUAL ABUSE” in that he committed an act of sexual conduct between 1 January 1992 and 1 August 1992 with his daughter who was under the age of 13 years at the time (a class 2 felony).

21.  Warrants for Arrest were issued in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, for arrest of the applicant on the charges of “AGGRAVATED CRIMINAL SEXUAL ABUSE – (2 COUNTS).”

22.  The United States Army Criminal Investigation Command (CID) completed a Report of Investigation, dated 19 April 1995, which stated in part:

	“Investigative Summary:  Investigation by the St Clair County Sheriff’s Department (SCCSD)…established probable cause to believe [the applicant] committed the offense of Aggravated Sexual Abuse when he fondled the breasts of his 10-year-old natural daughter, [name omitted], and forced her to masturbate him on several occasions between the above listed dates.”

23.  The CID Report of Investigation contains a 12 January 1995 written statement which the applicant made voluntarily to an official of the St Clair County Sheriff’s Department after he was warned of his Miranda rights.  In this written statement, the applicant admits that he sexually abused his daughter for several years.

24.  The CID Report of Investigation was forwarded to the applicant’s commanding officer.  The commanding officer (a USAR major) of the 7th Battalion, 158th Aviation Regiment, reviewed the Report of Investigation.  By memorandum, dated 5 may 1995, the unit commander recommended initiation of elimination proceedings against the applicant under the provisions of Army Regulation 135-175, Chapter 2, paragraph 2-2.  The unit commander further stated that his recommendation was based on “consultation with Judge Advocate General personnel and based on the voluntary confession of [the applicant] regarding the aggravated sexual abuse of his daughter over an approximately five year period.”

25.  By memorandum, dated 11 May 1995, the colonel in command of the 146th Aviation Group concurred with the recommendation of the unit commander and recommended to the Commanding General of the 102d Army Reserve Command (ARCOM) that this case be processed expeditiously.

26.  In a 6 May 1995 memorandum, the Major General in command of the 102d ARCOM advised the Commanding General of the U.S. Army Reserve Command (USARC) of the charges against the applicant and that he was a civilian technician.  The Commanding General of the 102d ARCOM also noted that the applicant admitted fondling his daughter and that no trial date had been set.  The 102d ARCOM commander recommended that the applicant be processed for separation under the provisions of Army Regulation 135-175, paragraph 2-12 f, Moral or Professional Dereliction, Acts of Personal Misconduct, and issued a Discharge Certificate Under Other Than Honorable Conditions.

27.  The applicant’s Official Military Personnel File (OMPF) contains a copy of USARC Memorandum, dated 1 August 1995, which notified the applicant at his home address (151 Fieldstone Drive, Belleville, Illinois 62221) of the action to involuntarily separate him.  Specifically this memorandum notified the applicant that “involuntary separation action has been initiated against you under the provisions of paragraph 2-12(f) moral or professional dereliction, acts of personal misconduct, for sexually assaulting your daughter.”

28.  This memorandum required the applicant to acknowledge receipt of the memorandum in writing through consulting counsel (hereafter identified as Captain N.S.).  Paragraph 2 of the memorandum also directed the applicant to elect one of the following options and indicate his election on enclosure 1 to the 1 August 1995 USARC memorandum:  

	“a.  Resignation in lieu of involuntary separation (also sign and date enclosure 2).

	b.  Request transfer to the Retired Reserve, if eligible.

	c.  Request case be acted upon by a board of officers.”

29.  Paragraph 4 of USARC Memorandum, dated 1 August 1995, also advised the applicant of his rights to receive the records being furnished to the board of officers, consultation with counsel, presentation of his case, time for preparation of his case, representation at the hearing by appointed counsel, military counsel or civilian counsel at his own expense, submission of statements in his behalf, waiver of the above rights as witnessed by consulting counsel, and withdrawal of such a waiver prior to presentation of his case to the board of officers. 

30.  Paragraph 6 of USARC Memorandum, dated 1 August 1995, also advised the applicant:  ”Refusal to accept or respond to this notification will result in board action proceeding in your absence.”  Copies of this notification were furnished to the Commanding General of the 102d ARCOM and the applicant’s appointed consulting counsel (Captain N. S.).  There is no evidence that the applicant complied with these instructions.
31.  USARC Memorandum, dated 20 February 1996, appointed a board of officers pursuant to Army Regulation 135-175 and Army Regulation 15-6 to consider the applicant’s case.  By Headquarters, 102d ARCOM Memorandum, dated 11 March 1996, the recorder for the Board of Officers (a USAR lieutenant colonel of the Judge Advocate General’s Corps hereafter identified as LTC R. A. S.) announced that the board of officers considering the applicant’s case would convene on 20 April 1996 at 0830 [8:30 AM] at Room 205, 4301 Goodfellow Boulevard in St. Louis, Missouri.  Copies of this announcement were furnished to the board members, the applicant and his counsel (Captain N. S.).  There is no evidence that this board convened as announced.

32.  By Headquarters 102d ARCOM Memorandum, dated 22 April 1996, the recorder for the board of officers (LTC R. A. S.) recommended to the USARC that “all actions concerning the involuntary separation of [the applicant] be delayed pending the outcome of the civilian felony charges pending against [the applicant] in Belleville, Illinois.”  In summary, she advised that if the applicant were retained by the board of officers first and later convicted by the civil court, then the USAR might not be able to again pursue separation of the applicant based on civil conviction since the same underlying facts would be involved.  She concluded with the recommendation that “all proceedings against the [the applicant] be delayed until completion of the state felony proceedings.  Then, involuntary separation may be based on a civilian conviction.  In the meantime, [he] must be reassigned since he belongs to a unit about to deactivate.”

33. The recorder also stated in paragraph 6 of her 22 April 1996 memorandum:  

	“6.  [The applicant] originally refused to accept service by certified mail.  He then refused service by an employee of the 102d ARCOM.  I served him by sending him a letter in an envelope without a return address.  He apparently found such an envelope to be non-threatening since he opened it and contacted his military defense counsel, Captain N. S.  Therefore, [the applicant] should not be able to complain to his congressman about failure of service.”

34.  By USARC Memorandum, dated 16 April 1996, a USAR captain of the Judge Advocate General’s Corps (hereafter identified as CPT C. P.) was added to the 20 February 1996 appointment memorandum as the applicant’s assistant defense counsel.  

35.  By memorandum, dated 26 April 1996 and signed in his own hand, the applicant requested assignment of new defense counsel to replace Captain N. S. The applicant stated in his memorandum:  

	“1.  I am requesting that CPT N. S. be replaced because during our 14 March 1996 telephone conversation, I reached the conclusion that CPT N. S. was more interested in having me transfer to the Retired Reserve than he was in assisting me in defending the allegations.  (That was my primary reason for not contacting Captain N. S. again after our 14 March 1996 telephone conversation.  I want a military defense counsel who will help defend me against the allegations because not only is my military career at stake, but also my civilian employment.

	2.  I am also requesting that CPT C. P. not be assigned as my lead military counsel due to the fact that CPT C. P. has not defended any soldiers facing involuntary separation boards.  I believe that I should be entitled to a military defense counsel who has been lead counsel on at least one or two involuntary separation boards.”

36.  By letter, dated 26 April 1996, the applicant’s civilian attorney (hereafter identified as S. G. G.) forwarded a copy of the applicant’s request for new counsel to the USARC.  She also requested copies of the orders detailing CPT C. P. to the board of officers and detailing LTC W. R. P. as recorder.

37.  USARC Memorandum, dated 12 September 1996, appointed a new board of officers pursuant to Army Regulation 135-175 and Army Regulation 15-6 to consider the applicant’s case.  

38.  USARC Memorandum, dated 12 November 1996, amended the 12 September 1996 appointment order by assigning the applicant a new counsel, a USAR major of the Judge Advocate General’s Corps hereafter identified as MAJ J. M. T.

39.  By letter, dated 18 November 1996, the applicant’s civilian attorney (S. G. G.) notified the United States Army Reserve Command that she “was no longer representing [the applicant] in the pending Involuntary Separation Board matter.”

40.  By 8th JAG Detachment Memorandum, dated 13 February 1997, the new recorder for the board of officers (a USAR major of the Judge advocate General’s Corps hereafter identified as MAJ D. E. S.) notified the applicant at addresses in Belleville, Illinois, and Sparta, Wisconsin, and his new civilian counsel (hereafter identified as B. T., Esquire) at Belleville, Illinois, that the board of officers would convene on 22 March 1997 at 0900 hours in the USAR Center, 11101 Independence Avenue, Independence, Missouri, to consider the applicant’s case. This memorandum advised that the applicant’s counsel was MAJ J. M. T.  However, a subsequent series of memoranda show that the applicant’s counsel, MAJ J. M. T., had to remove himself as the applicant’s defense counsel because he and the recorder were members of the same civilian law firm.

41.  USARC Memorandum, dated 4 March 1997, amended the previous orders to replace the applicant’s counsel with a USAR captain of the Judge Advocate General’s Corps, CPT(P) V. W. K., Jr., and designated him as “Respondant.”

42.  By 8th JAG Detachment Memorandum, dated 27 March 1997, the applicant’s counsel (CPT(P) V. W. K., Jr.) wrote to the applicant at addresses in Belleville, Illinois, and Sparta, Wisconsin, and his civilian counsel (B. T., Esquire) at Belleville, Illinois, that he was the new military defense counsel and solicited the applicant’s assistance in preparing his defense before the board of officers.  The file copy of this memorandum shows the handwritten annotation that all the notification memoranda were sent by registered and/or certified mail.  Paragraph 3 of this memorandum stated:  “I have been directed to notify the recorder after two weeks have passed from the date of this letter; at such time, a date for your board will be set.  If you fail to contact me, the date will be set without consideration of your schedule.”  There is no evidence in the available records that the applicant responded to the request from his counsel.

43.  By 8th JAG Detachment Memorandum, dated 27 April 1997, the recorder for the board of officers wrote to the applicant at addresses in Belleville, Illinois, and Sparta, Wisconsin, and his civilian counsel at Belleville, Illinois, that the board of officers would convene on 27 April 1997 at 0900 hours in the USAR Center, 11101 Independence Avenue, Independence, Missouri, to consider the applicant’s case.  This memorandum advised that the applicant’s counsel was CPT(P) V. W. K., Jr.  The recorder advised that he also intended to call an official of the St Clair County Sheriff’s Department to testify.

44.  The DA Form 1574 shows that the board of officers convened on 27 April 1997 at 0800 hours at 11101 Independence Avenue in Independence, Missouri, with a president of the board and three board members, the recorder, counsel for the respondent, a legal advisor and a court reporter present.  The DA Form 1574 shows that the applicant was not present.  

45.  A Memorandum for Record shows that the counsel for the applicant made a motion at the 27 April 1997 board of officers that the president of the board of officers be removed for cause “due to his extensive involvement in locating the respondent and exparte contacts with counsel.”  In this case counsel specifically stated that the president of the board of officers contacted him during the week of 10 March 1997 and among other subjects directed the defense counsel “to thoroughly document attempts to contact the respondent and prepare to hold the board in absentia.  Defense counsel also stated that the president of the board of officers also contacted him during the week of 21 April 1997 and “inquired into what attempts had been made to contact the respondent and asked what kind of a defense could be presented with the respondent unavailable.”

46.  A Memorandum for Record also shows the defense counsel also made a motion to exclude the testimonial evidence of an official from St Clair County Sheriff’s Department on the basis that he did not have personal knowledge of the alleged misconduct of the applicant.

47.  A Memorandum for Record shows defense counsel also made a motion to exclude the U.S. Army Criminal Investigation Command Report of Investigation because the agent is not present without  reasonable explanation why and there is no certification of the purported report.

48.  A summarized transcript of the proceedings shows that counsel for the applicant challenged all members of the board of officers for cause, but only one member, a Chief Warrant Officer Five, was excused.  After opening statements, the recorder offered the U.S. Army Criminal Investigation Command Report of Investigation into evidence.  Counsel for the applicant raised an objection which was overruled and the report was entered into evidence.  

49.  Then, the recorder offered into evidence a DD Form 1172 (Application for Uniformed Services Identification Card/DEERS Enrollment) for the applicant’s daughter, a 5 May 1995 memorandum from the applicant’s unit commander, a 26 July 1993 (sic 1995) memorandum from the applicant’s regimental commander and a 6 May 1995 memorandum from the Commanding General of the 102d ARCOM which were all admitted into evidence without objection.  

50.  After the Government rested its case, counsel for the respondent presented no evidence and rested its case.  Then the recorder made a closing statement and the counsel for the respondent offered defense exhibits and several award narratives from the applicant’s Military Personnel Records Jacket which were entered into evidence without objection.  Counsel for the respondent then made a closing statement which was followed by a rebuttal statement from the recorder.  The record was reopened and the applicant’s military personnel file was offered as an exhibit.  These records were admitted as evidence without objection.  At this point the board was closed.

51.  After due deliberations by the members of the board and secret written ballot, the following findings were rendered:  

	“In the board proceeding concerning [applicant’s rank and name omitted], the board has carefully considered the evidence before it and finds:

	That [applicant’s rank and name omitted] is undesirable for further military service because of act of personal misconduct.

	In view of these findings, the board recommends that [applicant’s name omitted] be discharged from the service for reasons of personal misconduct.  Furthermore, the board recommends that he be discharged under other than honorable conditions and that he should not be retained in the IRR [Individual Ready Reserve] as a mobilization asset to fill his total military obligation, which has already obviously transpired.”

52.  Records show the appointing authority reviewed the proceedings of the board of officers, approved them, and directed the applicant be discharged with a characterization of service of “Other Than Honorable”.  The appointing authority then forwarded the proceeding to the USARC.

53.  At Headquarters, USARC, the elimination action underwent legal review.  The Staff Judge Advocate (SJA) opined that “the proceedings are legally sufficient and the CG [Commanding General] may take action on the board’s findings and recommendations.”  The SJA also addressed the matter of notification of the applicant of the time and place of the hearing.  The SJA noted that the letter purporting to notify the applicant of the proceeding was dated the same day as the hearing and Army Regulation 135-175, paragraph 2-24a requires the recorder to notify the respondent in writing of the time and place of the board not less than 10 days prior to the date of the board.  Because the applicant was not present and his counsel did not object to the notification procedures, the SJA contacted counsel for the respondent to determine if adequate steps had been taken to notify him.  Counsel for the respondent advised the SJA that he had “mailed notices of the time and place of the board to three available addresses he had for the respondent” and “also contacted the counsel representing the respondent in the civilian proceedings stemming from the underlying misconduct that was the basis for the board and advised him of the time and place of the board.”  Based on these facts, the SJA concluded:  “it appears that reasonable steps were taken to notify the respondent of the time and place of the board.  Furthermore, respondent’s counsel’s failure to object to the notification procedures used by the government may be treated under these circumstances as a waiver of any defect (AR 15-6, para. 2-3c4)) [sic para 2-3c(4))].”

54.  The Commanding General of the USARC ratified the appointment order for the board of officers under the provisions of paragraph 2.3.2 of Army Regulation 
15-6, approved forwarding the action to the United States Army Reserve Personnel Command (AR-PERSCOM) with a recommendation that the applicant be discharged Under Other Than Honorable Conditions.

55.  The discharge action was forwarded to the Commander of the AR-PERSCOM.  The SJA of the AR-PERSCOM reviewed and concurred in the action.  The Commanding Officer of the AR-PERSCOM approved the findings and recommendations of the board of officers that the applicant be discharged and so notified the applicant by letter, dated 16 September 1998.
56.  The applicant was discharged from the USAR under other than honorable conditions effective 2 November 1998 based on Headquarters, USARC Orders 98-274-008, dated 1 October 1998.

57.  The applicant’s counsel provided a copy of U. S. Army Reserve Personnel Center (now known as AR-PERSCOM) Memorandum, SUBJECT:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This memorandum is dated “03 MAR 95” [3 March 1995] and is addressed to the applicant at 151 Fieldstone Drive Belleville, Illinois 62221.

58.  The applicant’s counsel also provided a copy of a Standard Form 50B (Notification of Personnel Action).  This document shows that the applicant was reassigned from his Department of the Army civilian position as a helicopter flight instructor in the 102d ARCOM to a supervisory aircraft pilot position in the 244th Aviation Brigade (Aviation Support Facility McCoy at Fort McCoy, Wisconsin) effective 1 September 1996.

59. The applicant’s counsel also submitted a “Declaration” by the applicant which is cited as follows:

	I, [applicant’s name] provide the following Declaration relating to my discovery that I had been discharged from the United States Army Reserve.  This Declaration is provided pursuant to 28 U.S.C. 1746 [Title 28, United States Code, Section 1746] in support of my Application for Correction of Military Record.

	I first learned that I had been discharged from the U.S. Army Reserve on or about October 1999.  I learned this information as a result of a civilian employment action taken by my employer, the 244th Aviation Brigade to terminate my employment as a Military Technician on the ground that I had been discharged from the U.S. Army Reserve.  

	I transferred from the 102nd Army Reserve Command, to the 244th Aviation Brigade on or about 1 September 1996.  I forwarded my mailing address (ASF McCoy) to my former reserve unit because I still had several administrative matters pending with the 102nd Reserve Command.  Notwithstanding that I had kept my former command apprized of my then-current mailing address, I was never advised that involuntary separation from the United States Army Reserve.  I was never advised that involuntary separation was contemplated, nor was I advised that could elect to transfer to the retired reserve at my election.  Had I been so informed, I would have elected to transfer to the Retired Reserve.

	Further, I was never contacted by CPT(P) V. W. K., Jr. nor anyone else in the Army regarding the pendency of involuntary separation proceedings or the Board of Inquiry.  I received no notification at any time of the date or place of the Board of Officers; I was not provided with notification of my rights at such a Board, nor was I provided the opportunity to elect, or to waive any of my rights.  Had I been so notified, I would have elected to exercise my right to present matters to the Board, to attend the Board, to be represented by civilian counsel at my own expense, to submit statements in my own behalf and to present other evidence on the merits of the allegations against me.  Importantly, however, had I been provided of my right to elect transfer to the Retired Reserve, I would have exercised that right.  

	Importantly, I have read that CPT(P) V. W. K., Jr. allegedly made some efforts to locate me.  I do not believe he could have done so.  My former-Reserve unit was well aware of my mailing address and my Army civilian employment.  Had my former unit been contacted, I could have been reached easily.  Further, CPT(P) V. W. K., Jr., if he tried to reach me through my original counsel for the pending criminal charges, could not but have determined that that attorney no longer represented me.  I had discharged that attorney prior to the Board of Officers and retained new counsel for the criminal charges.  Had CPT(P) V. W. K., Jr. actually spoken to my former attorney, he would have learned that my first attorney had been discharged as my counsel and that I had retained new counsel.

	Finally, I reiterate that I was never provided any notice of the proposed separation by the Area Commander or by the Recorder of my Board of Officers.  I would have attended the Board had I been notified of it; although had I been properly advised of my rights, I would have elected transfer to the Retired Reserve.

	I declare under the penalty of perjury that the foregoing is true and accurate.  Executed on 30 June 2000.”

60.  Army Regulation 135-175 (Separation of Officers) provides policy and procedures governing separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days.

61.  Paragraph 2-15 of Army Regulation 135-175 specifies when involuntary separation of an officer is appropriate and states:  “No person has an inherent right to continue service as an officer.  The privilege of service is his only as long as he performs satisfactorily.  Responsibility for leadership and example require effective performance of assigned duties and exemplary conduct at all times.  The Army has no place for officers who cannot meet these requirements, and their involuntary separation is essential.”

62.  Paragraph 2-12(f) of Army Regulation 135-175 provides for the separation of an officer of the USAR for moral or professional dereliction.  The regulation states:  “While not all inclusive, existence of one of the following or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction.  Officers discharged for any of the following reasons may be furnished an Honorable or General Discharge Certificate, or Other Than Honorable Conditions Discharge:  

	a.  Discreditable, intentional failure to meet personal financial obligations.

	b.  Mismanagement of personal affairs to the discredit of the service.

	c.  Mismanagement of personal affairs detrimentally affecting the performance of duty of the officer concerned. 

	d.  Intentional omission or misstatement of facts in official statements or records for the purpose of misrepresentation.

	e.  (Rescinded.)

	f.  Acts of personal misconduct (including, but not limited to, acts committed while in a drunken or intoxicated state).

	g.  Homosexuality.

	h.  (Rescinded.)

	i.  Intentional neglect or failure to” perform assigned duties, participate satisfactorily in training or comply with applicable directives.

63.  Paragraph 2-16 of Army Regulation 135-175 specifies that a commander, among others, may make a recommendation for involuntary separation of an officer.  The recommendation will clearly state the reasons for involuntary separation and will be supported by all documentary evidence and physical evidence which can reasonably be included.   

64.  Paragraph 2-17 of Army Regulation 135-175 specifies initial actions by an area commander upon receipt of a recommendation for involuntary separation.  This paragraph requires notification of the officer to show cause for retention and the reason for such action.  The area commander must also advise the officer that he may elect to submit a resignation in lieu of involuntary separation; or if eligible, elect transfer to the Retired Reserve; or elect to have his case heard by a board of officers.  Finally, the officer must be advised to acknowledge receipt of the notice of involuntary separation action and indicate his election of one of the options cited above within 15 days of receipt of the notice.

65.  Paragraph 2-17e(4) states:  “When determined necessary by the notifying command, notification will be sent to member by certified mail, return receipt requested.”

66.  Paragraph 2-17g of Army Regulation 135-175 states that if the officer refuses to accept or respond to the notification required by subparagraph e, above, the area commander will take necessary steps to appoint a board of officers, as prescribed in this regulation and in Army Regulation 15-6.  A copy of the notification and either a post office receipt confirming delivery or the returned unopened envelope showing mail was refused, unclaimed or not delivered will become part of the board exhibits.  This board may proceed in the officer’s absence without according the privileges listed in paragraph 2-19, except that counsel will be appointed to represent him in his absence.

67.  Paragraph 2-19 of Army Regulation 135-175 specifies the rights to be afforded to the officer, except in those cases provided for in paragraph 2-17g,  and requires the area commander convening the board of officers to notify the officer of his right to—

	(1)  Be furnished copies of the records which will be submitted to the board, and of other pertinent and releasable documents which may be requested.

	(2)  Consult with a consulting counsel.

	(3)  Present his case before a board of officers at personal expense.
	(4)  Be represented at any hearing by appointed counsel for representation, military counsel of his own choice, provided such counsel is reasonably available; or civilian counsel at his own expense.

	(5)  Submit statements in his own behalf.

	(6)  With exception of (1) and (2) above, waive the above rights in writing.

	(7)  Withdraw his waiver of his rights listed in (3), (4) and (5) above any time prior to the date the convening authority directs that his case be presented before a board of officers.  If he elects to waive his rights, the officer will personally sign a waiver.

68.  Paragraph 2-10 of Army Regulation 135-175 lists the actions by the area commander on the recommendations of the board of officers.  If the area commander finds a substantial defect in a case in which involuntary separation has been recommended, the area commander:  

	 a.  Will return the case to the board for compliance with this regulation where the board failed to make findings and recommendations.

	b.  Will return the case to the board for correction when there is an apparent error or omission in the record which can be corrected without reconsideration of the findings and recommendations.

	c.  May close the case favorably to the respondent or convene a new board in those cases where the board committed an error that materially prejudiced a substantial right of the officer.

69.  Paragraph 2-20.1 of Army Regulation 135-175 provides that, when a board recommends involuntary separation of an officer,  the Commander of 
AR-PERSCOM will:

	(1)  Approve the recommendations of the board and advise the commander concerned to take the necessary action to separate the officer.

	(2)  Disapprove the recommendation of the board, close the case, notify the officer, and the headquarters that recommended the involuntary separation.

70.  Section IV of Army Regulation 135-175 provides guidance on conduct of boards of officers.  Paragraph 2-24 discusses the duties of the recorder and states in pertinent part that the recorder will notify the respondent in writing of the time and place the board of officers will be convened.  This provision states:  “This notice will be given not less than 10 days prior to the date the board is to convene.”

71.  Army Regulation 15-6 (Procedure for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  However, this regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.  This regulation also states that, even when not made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case its provisions are not mandatory.

72.  Paragraph 2.3.b (Legal review) of Army Regulation 15-6 states:  ”Other directives that authorize investigations or boards may require the appointing authority to refer the report of proceedings to the servicing Judge Advocate (JA) for legal review.  The appointing authority will also seek legal review of all cases involving serious or complex matters, such as where the incident being investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in adverse administrative action (see para 1-8), or will be relied upon in actions by higher headquarters.  The JA’s review will determine—

	(1)  Whether the proceedings comply with legal requirements.

	(2)  What effects any errors would have.

	(3)  Whether sufficient evidence supports the findings of the investigation or board or those substituted or added by the appointing authority (see para 3-9b).

	(4)  Whether the recommendations are consistent with the findings.

73.  Paragraph 2.3.c (Effect of errors) of Army Regulation 15-6 states:  “Generally procedural errors or irregularities in an investigation or board do not invalidate the proceeding or any action based on it.

	(1)  Harmless errors.  Harmless errors are defects in the procedures or proceedings that do not have a material adverse effect on an individual’s substantial rights.  If the appointing authority notes a harmless error, he or she may still take final action on the investigation.

	(2)  Appointing errors.  Where an investigation is convened or directed by an official without the authority to do so (se para 2-1a), the proceedings are a nullity, unless an official with the authority to appoint such an investigation or board subsequently ratifies the appointment.  Where a formal board is convened by an official authorized to convene an informal investigation or board but not authorized to convene formal investigations, any action not requiring formal investigation may be taken consistent with paragraph 1-8 and this paragraph. 

	(3)  Substantial errors.

	(a)  Substantial errors are those that have a material adverse effect on an individual's substantial rights.  Examples are the failure to meet requirements as to composition of the board or denial of a respondent's right to counsel. 

	(b)  When such errors can be corrected without substantial prejudice to the individual concerned, the appointing authority may return the case to the same investigating officer or board for corrective action. Individuals or respondents who are affected by such a return should be notified of the error, of the proposed correction, and of their rights to comment on both. 

	(c)  If the error cannot be corrected, or cannot be corrected without substantial prejudice to the individual concerned, the appointing authority may not use the affected part of that investigation or board as the basis for adverse action against that person. However, evidence considered by the investigation or board may be used in connection with any action under the UCMJ, Civilian Personnel Regulations, AR 600-37, or any other directive that contains its own procedural safeguards. 

	(d)  In case of an error that cannot be corrected otherwise, the appointing authority may set aside all findings and recommendations and refer the entire case to a new investigating officer or board composed entirely of new voting members. Alternatively, the appointing authority may take action on findings and recommendations not affected by the error, set aside the affected findings and recommendations, and refer the affected portion of the case to a new investigating officer or board. In either case, the new investigating officer or board may be furnished any evidence properly considered by the previous one. The new investigating officer or board may also consider additional evidence. If the directive under which a board is appointed provides that the appointing authority may not take less favorable action than the board recommends, the appointing authority's action is limited by the original recommendations even though the case subsequently is referred to a new board which recommends less favorable action. 

	(4)  Failure to object. 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 legal advisor or the president of the board at the appropriate point in the proceedings.  Accordingly, errors described in (3) above may be treated as harmless if the respondent fails to point them out.”

74.  Paragraph 3.4 of Army Regulation 15-6 discusses decisions regarding board proceedings and states that a board composed of more than one member arrives at findings and recommendations as provided in section II of this chapter.  A formal board decides challenges by a respondent as provided in paragraph 5-7.  The investigating officer or president decides administrative matters, such as time of sessions, uniform, and recess.  The legal advisor or, if none, the investigating officer or president decides evidentiary and procedural matters, such as motions, acceptance of evidence, and continuances.  The legal advisor's decisions are final.  Unless a voting member objects to the president's decision on an evidentiary or procedural matter at the time of the decision, it too is final.  If there is such an objection, a vote will be taken in closed session, and the president's decision may be reversed by a majority vote of the voting members present. 

75.  Paragraph 3.6.a of Army Regulation 15-6 states that proceedings under this regulation are administrative, not judicial.  Therefore, an investigating officer or board of officers is not bound by the rules of evidence for trials by courts-martial or for court proceedings generally.  Accordingly, subject only to the provisions of c below, anything that, in the minds of reasonable persons, is relevant and material to an issue may be accepted as evidence.  For example, medical records, counseling statements, police reports, and other records may be considered regardless of whether the preparer of the record is available to give a statement or testify in person.  All evidence will be given such weight as circumstances warrant. (See para 3-4 as to who decides whether to accept evidence.) 

76.  Paragraph 5.3 of Army Regulation 15-6 discusses the duties of the recorder. In pertinent part the regulation states:  “The recorder will, at a reasonable time in advance of the first session of the board concerning a respondent (including a respondent designated during the proceedings), provide that respondent a copy of all unclassified documents in the case file and a letter of notification. In the absence of special circumstances or a different period established by the directive authorizing the board, a "reasonable time" is 5 working days. The letter of notification will include the following information: 

	a.  The date, hour, and place of the session and the appropriate military uniform, if applicable. 
	b.  The matter to be investigated, including specific allegations, in sufficient detail to enable the respondent to prepare. 

	c.  The respondent's rights with regard to counsel. (See para 5-6.) 

	d.  The name and address of each witness expected to be called. 

	e.  The respondent's rights to be present, present evidence, and call witnesses. (See para 5-8a.) 

	f.  (Only if the board involves classified matters.) The respondent and counsel may examine relevant classified materials on request and, if necessary, the recorder will assist in arranging clearance or access. (See AR 604-5.)”

77.  Paragraph 5.7 of Army Regulation 15-6 discuses the right of the respondent to make challenges and states:

	a.  A respondent is entitled to have the matter at issue decided by a board composed of impartial members.  A respondent may challenge for cause the legal advisor and any voting member of the board who does not meet that standard. Lack of impartiality is the only basis on which a challenge for cause may be made at the board proceedings. Any other matter affecting the qualification of a board member may be brought to the attention of the appointing authority. (See para 3-2.) 

	b.  A challenge should be made as soon as the respondent or counsel is aware that grounds exist; failure to do so normally will constitute a waiver. If possible, all challenges and grounds should be communicated to the appointing authority before the board convenes. When the board convenes, the respondent or counsel may question members of the board to determine whether to make a challenge. Such questions must relate directly to the issue of impartiality. Discretion should be used, however, to avoid revealing prejudicial matters to other members of the board; if a challenge is made after the board convenes, only the name of the challenged member will be indicated in open session, not the reason for believing the member is not impartial. 

	c.  The appointing authority decides any challenge to a board of officers composed of a single member and may decide other challenges made before the board convenes. Otherwise, a challenge is decided by the legal advisor or, if none or if the legal advisor is challenged, by the president. If there is no legal advisor and the president is challenged, that challenge is decided by the next senior voting member. 

	d.  Challenges for lack of impartiality not decided by the appointing authority will be heard and decided at a session of the board attended by the legal advisor, the president or the next senior member who will decide the challenge, the member challenged, the respondent and his or her counsel, and the recorder. The respondent or counsel making the challenge may question the challenged member and present any other evidence to support the challenge. The recorder also may present evidence on the issue. The member who is to decide the challenge may question the challenged member and any other witness and may direct the recorder to present additional evidence. If more than one member is challenged at a time, each challenge will be decided independently, in descending order of the challenged members' ranks. 
78.  Paragraph 5.8 of Army Regulation 15-6 describes the rights of respondents and states:  

	a.  Except for good cause shown in the report of proceedings, a respondent is entitled to be present, with counsel, at all open sessions of the board that deal with any matter concerning the respondent. The respondent may—

	(1) Examine and object to the introduction of real and documentary evidence, including written statements. 

	(2) Object to the testimony of witnesses and cross-examine witnesses other than the respondent's own. 

	(3) Call witnesses and otherwise introduce evidence. 

	(4) Testify as a witness; however, no adverse inference may be drawn from the exercise of the privilege against self-incrimination. (See para 3-6c(5).) 

79.  Paragraph 5.10 of Army Regulation 15-6 provides that upon approval or other action on the report of proceedings by the appointing authority, the respondent or counsel will be provided a copy of the report, including all exhibits and enclosures that pertain to the respondent.  Portions of the report, exhibits, and enclosures may be withheld from a respondent only as required by security classification or for other good cause determined by the appointing authority and explained to the respondent in writing. 

80.  Section 12731 of Chapter 1223, Title 10, United States Code states age and service requirements for retired pay for non-regular service.  Section 12731(a) states:  “Except as provided in subsection (c), a person is entitled, upon application, to retired pay if the person-

	(1) is at least 60 years of age;

	(2) has performed at least 20 years of service computed under section 12732 of this title;

	(3) performed the eight years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve; and 

	(4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.”

81.  Chapter 1411 of Title 10, United States Code, provides additional provisions relating to involuntary separation.  Section 14902(a) governs separation for substandard performance of duty and section 14902(b) provides for separation for misconduct and certain other reasons.  Section 14903 governs boards of inquiry.  Section 14905 under this chapter governs retirement or discharge of an officer considered for removal.  

82.  Section 14903 of Title 10 United States Code states that the Secretary of the military department concerned shall convene a board of inquiry to review the case of any officer required to show cause for retention in active status under section 14902 of this title.  After review of the recommendations of a board of inquiry, the Secretary concerned may remove the officer from an active status or determine the case be closed.  This provision of law also states that, if a board recommends retention of an officer required to show cause under section 14902(a) and the Secretary concerned determines the case be closed, then that officer may not be required to again show cause for a period of one year from the date of that determination.  An officer showing cause under section 14902(b) who is retained and whose case is closed by the Secretary concerned may be required to again show cause for retention at any time.

83.  Section 14905(a) of Title 10 United States Code states that any time during proceedings under this chapter with respect to removal of an officer, the Secretary of the military department concerned may grant a request by the officer:  (1) for voluntary retirement if the officer is qualified retirement;  (2) for transfer to the Retired Reserve if the officer has completed the years of service required for eligibility for retired pay under chapter 1223 of this title and is otherwise eligible for transfer to the Retired Reserve; and (3) for discharge in accordance with subsection (b)(3).

84.  Section 14905 (b) of Chapter 1411 of Title 10, United States Code, provides that an officer removed from an active status under section 14903 of this title shall:  (1) if eligible for voluntary retirement under any provision of law on the date of such removal, be retired in the grade and with retired pay for which he would be eligible if retired under that provision;  (2) if eligible for transfer to the Retired Reserve and has completed the years of service required for retired pay under chapter 1223 of this title, be transferred to the Retired Reserve; and (3) if ineligible for retirement or transfer to the Retired Reserve under paragraph (1) or (2) on the date of such removal (A) be honorably discharged in the grade then held, in the case of an officer whose case was brought under subsection (a) of section 14902 of this title; or (B) be discharged in the grade then held, in the case of an officer whose case was brought under subsection (b) of section 14902 of this title.

85.  Army Regulation 135-180 states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve Component soldier within 1 year after they complete 20 years of qualifying service for retirement.  This letter will be issued by the Chief, National Guard Bureau for ARNG soldiers, and the Commander, Army Reserve Personnel Command (AR-PERSCOM) for USAR soldiers.  The letter, once issued, may not be withdrawn or revoked.  Upon receipt of this letter, the soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.

86.  Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, formerly under Title 10, United States Code, chapter 67, sections 1331 to 1337 which have now been transferred to sections 12731 to 12738 under chapter 1223 of Title 10.  Paragraph 2-11 of this regulation covers computation of retired pay and paragraph 2-11c requires that each retirement applicant’s record will be screened to determine the highest grade held during his or her military service.  Subparagraph 2-11c(3) states that service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Army’s Ad Hoc Review Board for final determination of the soldier’s retirement grade, if during the mandatory review of the soldier’s records, it is determined that either of the following exist:  (a) Revision to a lower grade was expressly for prejudice or cause due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or (b) There is information in the soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

87.  Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB)) governs the actions and composition of the AGDRB established by General Order Number 16, dated 16 July 1985.  The regulation states that this board determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.

88.  Paragraph 7 of Army Regulation 15-80 covers “unsatisfactory service” and states that service in a grade will not be considered to have been satisfactory when:  

	a.  The highest grade or rank was a result of a terminal leave promotion; 

	b.  Reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment pursuant to Article 15, Uniform code of Military Justice (UCMJ) or the result of the sentence of a court-martial;  

	c.  There is sufficient unfavorable information to establish that the soldier’s service in the grade in question was not satisfactory.  One specific act of misconduct may form the basis for a determination that the overall service in that grade was not satisfactory, regardless of the period of time served in grade.  However, service retirement in lieu of or as a result of elimination action will not by itself, preclude retirement in the highest grade.

CONCLUSIONS:

1.  This Board considered the contention by the applicant and his counsel that “the discharge proceedings in this case were void because [the applicant] was denied due process as set forth in Army Regulation 135-175” and reviewed the arguments by the applicant and his counsel in support of this contention, specifically that:  

	a.  the recorder did not notify the applicant 10 days in advance in writing of the time and place of the board officers would be convened;

	b.  “before a Board of Officers can meet, the Respondent in such a case must be advised of his rights at the Board” [board of officers] to include his rights to receive copies of the records to be submitted to the board; to consult with counsel, to present his case before the board of officers at his own expense, to be represented at the hearing by counsel, to submit statements in his own behalf and finally to be afforded 15 days to consult with counsel prior to waiving any of these rights in writing;

	c.  there is no written acknowledgement of the area commander’s notification of the separation action and before the board of officers may proceed in the absence of area commander’s notification and the respondent’s acknowledgement, the record of the board of officers must include a copy of the notification and a post office receipt or unopened envelope showing the mail was refused, unclaimed or not delivered;

	d.  the area commander did not notify the applicant of the pendency of the of the board proceedings and did not notify the applicant, as required by regulation, that he was entitled to elect transfer to the Retired Reserve in lieu of involuntary separation;

	e.  had the applicant received proper and timely notification of the involuntary separation proceeding, then he would have requested transfer to the Retired Reserve in lieu of the involuntary separation as was his right; and 
	f.  in the absence of timely and effective notice, the applicant could not lawfully have been separated from the U.S. Army Reserve.

2.  This Board also reviewed the available and incomplete records of the proceedings of the board of officers convened on 27 April 1997 to consider the applicant’s case, the applicant’s service records, the regulations governing the proceedings of the board of officers, and the procedural process resulting in the separation of the applicant from the USAR.

3.  This Board noted that USARC Memorandum, dated 1 August 1995, notified the applicant at his home address in Belleville, Illinois, of the initiation of involuntary separation action.  Specifically this memorandum notified the applicant of the reasons for the separation action, directed him to elect one of three options (one of which was transfer to the Retired Reserve), advised him of his rights and required him to acknowledge this notice through his consulting counsel (Captain N. S.).  

4.  This Board noted that paragraph 4 of the USARC Memorandum, dated 1 August 1995, also advised the applicant of his right to receive the records being furnished to the board of officers, consultation with counsel, presentation of his case, sufficient time for preparation of his case, representation at the hearing by appointed counsel, military counsel or civilian counsel at his own expense, submission of statements in his own behalf, waiver of the above rights as witnessed by consulting counsel, and withdrawal of such a waiver prior to presentation of his case to the board of officers. 

5.  This Board noted that paragraph 6 of the USARC Memorandum, dated 1 August 1995, also advised the applicant:  ”Refusal to accept or respond to this notification will result in board action proceeding in your absence.”

6.  This Board noted that the CID Report and records of the St Clair County Sheriff’s Department show the address of the applicant was 151 Fieldstone Drive, Belleville, Illinois 62221 at the time the USARC Memorandum, dated 1 August 1995, was prepared.  It is also noted that this same address was used by the applicant until he was transferred to Fort McCoy, Wisconsin, in September 1996.  It is also noted that as of 13 February 1997, all notices and other correspondence pertaining to the board of officers was addressed to the applicant’s Illinois address and to Post Office Box 738, Sparta, Wisconsin, 54656-00738 which is the same address currently used by the applicant on the DD Form 149 he submitted to the ABCMR.

7.  This Board also noted paragraph 6 of the 22 April 1996 memorandum prepared by the recorder (LTC R. A. S.) which stated:  “6.  [The applicant] originally refused to accept service by certified mail.  He then refused service by an employee of the 102d ARCOM.  I served him by sending him a letter in an envelope without a return address.  He apparently found such an envelope to be non-threatening since he opened it and contacted his military defense counsel, Captain N. S.  Therefore, [the applicant] should not be able to complain to his congressman about failure of service.”

8.  This Board noted the applicant’s 26 April 1996 memorandum, signed in his own hand, wherein he requested assignment of new defense counsel to replace Captain N. S.  Further, the Board noted that in this memorandum the applicant stated:  “I am requesting that CPT N. S. be replaced because during our 14 March 1996 telephone conversation, I reached the conclusion that CPT N. S. was more interested in having me transfer to the Retired Reserve than he was in assisting me in defending the allegations.  (That was my primary reason for not contacting Captain N. S. again after our 14 March 1996 telephone conversation.) I want a military defense counsel who will help defend me against the allegations because not only is my military career at stake, but also my civilian employment.” Further, this Board noted that  by letter, dated 26 April 1996, the applicant’s civilian attorney (S. G. G.), at the time, forwarded a copy of the applicant’s request for new counsel to the USARC and that she also requested copies of the orders detailing CPT C. P. to the board of officers and a copy of the orders detailing LTC W. R. P. as recorder for the board.

9.  This Board noted the Standard Form 50B (Notification of Personnel Action) which shows that the applicant was reassigned to a supervisory aircraft pilot position in the 244th Aviation Brigade (Aviation Support Facility McCoy at Fort McCoy, Wisconsin) effective 1 September 1996.

10.  This Board noted that by letter, dated 18 November 1996, the applicant’s civilian attorney (S. G. G.), notified the United States Army Reserve Command that she “was no longer representing [the applicant] in the pending Involuntary Separation Board matter.”

11.  This Board noted that 8th JAG Detachment Memorandum, dated 13 February 1997 notified the applicant at his Belleville, Illinois and Sparta, Wisconsin, addresses and the applicant’s new civilian counsel (B. T., Esquire) at 2027 W. Main Belleville, Illinois 62223 of the board of officers scheduled for 22 March 1997, that MAJ J. M. T. was his military counsel and of the applicant’s rights as respondent.  Further, this Board noted the 5 March 1997 memorandum by MAJ J. M. T. stating that the applicant had thusfar “refrained from communicating” with his appointed defense counsel.

12.  This Board noted that USARC Memorandum, dated 4 March 1997, amended the previous appointment orders, dated 12 November 1996, to replace the applicant’s counsel (MAJ J. M. T.)  with a USAR captain in the Judge Advocate General’s Corps, CPT(P) V. W. K., Jr., and designated him as “Respondant.”

13.  This Board noted that 8th JAG Detachment Memorandum, dated 27 March 1997, wherein the applicant’s counsel, (CPT(P) V. W. K., Jr.) notified the applicant at addresses in Belleville, Illinois, and Sparta, Wisconsin, and his civilian counsel (B. T., Esquire) at Belleville, Illinois, that he was the applicant’s new military defense counsel and solicited the applicant’s assistance in preparing his defense to be presented before the board of officers.  This Board also noted the annotation on the memorandum by counsel that these notices had been sent by certified mail and that paragraph 3 of this memorandum stated :  “I have been directed to notify the recorder after two weeks have passed from the date of this letter; at such time, a date for your board will be set.  If you fail to contact me, the date will be set without consideration of your schedule.” 

14.  This Board noted 8th JAG Detachment Memorandum, dated 27 April 1997, wherein the recorder for the board of officers notified the applicant at addresses in Belleville, Illinois, and Sparta, Wisconsin, and his civilian counsel (B. T., Esquire) at Belleville, Illinois, that the board of officers would convene on 27 April 1997 at 0900 hours in the USAR Center, 11101 Independence Avenue, Independence, Missouri, to consider the applicant’s case.  This memorandum advised that the applicant’s counsel was CPT(P) V. W. K., Jr.  The recorder advised that he also intended to call an official of the St Clair County Sheriff’s Department to testify.

15.  This Board reviewed the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) with attachments and noted that the board was properly constituted and that the recorder, counsel for the respondent, the legal advisor and the court reporter were present.  The Board also noted that after challenges were made, evidence was presented and closing statements and rebuttal were made that the board of officers in closed session and by secret written ballot found the applicant was undesirable for further service because of acts of personal misconduct.  As a result the board of officers recommended that the applicant be discharged by reasons of personal misconduct, that he be issued an Under Than Honorable Discharge Certificate, and that he not be retained in the Individual Ready Reserve as a mobilization asset.

16.  The Board noted that the recorder and the board of officers properly authenticated report of proceedings and the appointing authority approved the findings and recommendations of the board.  Further, the appointing authority forwarded the proceedings to the Commanding General of the USARC. 

17.  This Board noted that the applicant’s administrative separation action underwent legal review by the USARC SJA who found the proceedings legally sufficient and the Commanding General of the USARC may take action on the findings and recommendations of the board of officers.  This Board also noted the USARC SJA inquired into the matter of notification of the applicant and determined that reasonable steps were taken to notify the applicant and his counsel of the time and place of the board of officers.  Specifically, the USARC SJA noted that the applicant’s counsel had mailed notices to the applicant’s addresses at Belleville, Illinois, and Sparta, Wisconsin, and the applicant’s counsel (B. T., Esquire) at Belleville, Illinois, and had contacted the applicant’s civilian counsel regarding this hearing.  The SJA also found that “respondent’s counsel’s failure to object to the notification procedures used by the government may be treated under these circumstances as a waiver of any defect (AR 15-6, para 2-3c4)).”  The Commanding General of the USARC ratified the appointment of the board of officers and approved the memorandum forwarding the separation action to the commander of AR-PERSCOM with a recommendation that the applicant be discharged under other than honorable conditions.

18.  This Board noted that, at AR-PERSCOM, the separation action underwent legal review by the AR-PERSCOM SJA who concurred in the separation action.  On 16 September 1998, the Commanding Officer of AR-PERSCOM approved the findings and the recommendations of the board of officers and directed that the applicant be separated from the USAR.  The Commanding Officer of 
AR-PERSCOM also notified the applicant in a letter, dated 16 September 1998, of approval of the findings and recommendations of the board of officers and his separation from the USAR. 

19.  Based on the foregoing, this Board made the following determinations in the applicant’s case:

	a.  By the applicant’s own admission, he committed acts of sexual abuse between 1 January 1990 and 1 June 1990 and between 1 January 1992 and 1 August 1992, against his daughter who was under the age of 13 years at the time and these acts properly resulted in the initiation of action to separate the applicant from the Army Reserve.

	b.  USARC Memorandum, dated 1 August 1995, provided proper notification of the separation action contemplated in the applicant’s case, proper notification of the requirement to acknowledge receipt of the notification, proper statement of options available to the applicant, proper notification of the applicant’s rights, proper notification of waiver requirements, designation of CPT N. S. as consulting counsel and representing counsel, and proper notification that refusal to accept notification would result in the board action proceeding in his absence as required by Paragraph 2-19 of Army Regulation 135-175.

	c.  Contrary to the contention of the applicant and his counsel that the applicant did not receive the area commander’s notification of the separation action, this Board determined that the applicant was served notice of this action.  The 22 April 1996 memorandum prepared by the recorder (LTC R----- A. S-------) attests to this fact.  Further, the applicant admitted in his own memorandum that he wanted to replace CPT N. S. as his military counsel because he was more interested in transferring the applicant to the Retired Reserve (one of the specific options in the USARC Memorandum) than he was in mounting a defense against the allegations. 

	d.  Contrary to the contention of the applicant and his counsel that the area commander failed to provide a proper notification of the initiation of the separation action against the applicant, the Board found that USARC Memorandum, dated 1 August 1995, did provide proper notification of the separation action contemplated in the applicant’s case, proper notification of the requirement to acknowledge receipt of the notification, proper statement of options available to the applicant, proper notification of the applicant’s rights, proper notification of waiver requirements, designation of CPT N. S. as consulting counsel and representing counsel, and proper notification that refusal to accept notification would result in the board action proceeding in his absence as required by Paragraph 2-19 of Army Regulation 135-175.

	e.  Further, this Board noted the applicant’s inference in his “Declaration” (second paragraph) that he never received any notification “from the Area Commander or any one else“ because his mailing address changed.  However, evidence of record shows the applicant did not transfer until “on or about 1 September 1996” and the recorder’s 22 April 1996 memorandum noted that service of the area commander’s notification occurred well before the applicant’s transfer in September 1996 and that other notifications were sent to the applicant’s address in Belleville, Illinois, prior to his transfer to Fort McCoy, Wisconsin.  Therefore, it is clear to this Board that the addresses for the applicant and his counsels were known and correctly used throughout the period 1995 to 1997 and that the applicant intentionally did not respond to repeated notifications, including those of his own military defense counsel, at the addresses listed for him and for his civilian defense counsels. 

	f.  This Board also noted the applicant’s contention in his “Declaration” (fourth paragraph) that “if CPT(P) V. W. K., Jr.  tried to reach me through my original counsel for the pending criminal charges”, then he would have determined “that attorney no longer represented me.”  Evidence of record clearly shows the applicant’s civilian attorney (S. G. G.) notified the USARC that she was no longer representing [the applicant] in the pending Involuntary Separation Board matter in her letter dated 18 November 1996.  This Board also noted the applicant’s counsel (CPT(P) V. W. K., Jr.) determined the name and address of the applicant’s new attorney and notified him in writing of information regarding the involuntary separation action.  Therefore, the applicant’s argument that CPT(P) V. W. K., Jr. did not contact him or his counsel because he had obtained new counsel is specious.

	g.  This Board found the contentions of the applicant and his counsel that the applicant would have elected transfer to the Retired Reserve if he had been properly notified of this option is without merit.  Evidence shows the applicant was properly notified of this option and, at that time, he rejected transfer to the Retired Reserve.  The applicant’s 26 April 1996 memorandum, signed in his own hand, attests to the fact that, at that time, the applicant was aware of and rejected the option of transfer to the Retired Reserve.  Therefore, this Board rejects the argument that the applicant should now be allowed to transfer to the Retired Reserve because he was not properly made aware of this option.

	h.  Based on current law, the applicant, in this specific case, would be entitled to receive non-regular retired pay at age 60 in spite of his separation under other than honorable conditions.

20.  This Board considered in detail the contentions of the applicant and his counsel that the applicant was denied “due process as set forth in Army Regulation 135-175” because he was not notified of and did not attend the hearing before the board of officers convened on 27 April 1997.

	a.  This Board found no evidence of a letter or memorandum notifying the applicant in writing 10 days prior to the convening of the board of officers hearing his case on 27 April 1997.  

	b.  The Board also noted that regulation requires that a copy of the notification and either a post office receipt confirming delivery or the returned unopened envelope showing mail was refused, unclaimed or not delivered to be part of the board exhibits.  There is no evidence of such receipts or returned envelopes in the records of the board of officers.  

	c.  Notwithstanding the legal review which stated that proper notification of the hearing date was made or the absence of notification may be treated as a waiver of defect, this Board determined the absence of mail receipts as specified in Paragraph 2-17 of Army Regulation 135-175 and the absence of other proof of notification indicated that the applicant may not have been afforded his right to be present during the proceedings of the board of officers hearing his case.  

	d.  While the absence of mail receipts or other proof of notification is a procedural irregularity, this Board found the result of this procedural error to be a “substantial error” within the definition stated in Paragraph 2.3.c (Effect of errors) of Army Regulation 15-6 since the applicant was not present at the hearing and since the board of officers recommended discharge under other than honorable conditions which the convening and discharge authorities ultimately approved.  

	e.  Therefore, this Board also determined that the proceedings of the board of officers and any action based on these proceedings must be invalidated.
21.  In view of the foregoing and in view of the applicant’s and his counsel’s contention that he would have executed his option to transfer to the Retired Reserve at the time in question and now wants to execute that option, this Board has also determined that in lieu of convening another board of officers to rehear the case, that the applicant will be transferred to the Retired Reserve effective 2 November 1998.  

22.  Further, this Board has determined that in view of the applicant’s acts of misconduct, an Army Grade Determination Review Board (AGDRB) should consider his case to determine the highest grade which he satisfactorily held in conjunction with his assignment to the Retired Reserve.  The retroactive transfer of applicant to the Retired Reserve per his request as determined appropriate by this Board is not an exemption to the Secretary of the Army’s directive that a mandatory AGDRB is to determine whether persons such as the applicant should be reduced in grade or rank in light of alleged misconduct, as set forth in paragraph 2-11c(3) of Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service).  Therefore, because further mandatory processing of this case is required under the Grade Determination process, which may or may not result in a reduction in grade, it is inappropriate for the Board to finalize applicant’s retirement rank or grade pending AGDRB action.  Thus, to avoid any possible confusion regarding his final retirement rank or grade, the Board rules only that the applicant entered the Retired Reserve as a CW4 but his final retirement grade or rank is undetermined.

23.  Further, the Board considered the request by the applicant and his counsel to remove from his records all references to the proceedings of a board of officers conducted on 27 April 1997.  In view of this Board’s determination that the proceedings of the board of officers and any action based on those proceedings must be invalidated, then it is appropriate to remove all references to the proceedings of the board of officers from the applicant’s records.

24.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by voiding Headquarters, USARC Orders 98-274-008, dated 1 October 1998 and the discharge under other than honorable conditions now held by the individual concerned; 

	b.  by showing that he was transferred to the Retired Reserve with an honorable discharge effective 2 November 1998;

	c.  by showing on the orders effecting his transfer to the Retired Reserve that his grade at the time of his transfer to the Retired Reserve was Chief Warrant Officer Four/pay grade W-4 subject to final determination by an AGDRB;

	d.  by removing from his records all references to the proceedings of a board of officers conducted on 27 April 1997.

2.  That upon completion of the actions specified in paragraph 1 a through d, above, the records of the individual concerned, the ABCMR Proceedings in this case and the Report of Investigation by the U.S. Army Criminal Investigation Command be forwarded to the Director of Military Review Boards for consideration by an AGDRB to determine the highest grade satisfactorily held by him.  Further, that the individual concerned is hereby notified of the initiation of the Grade Determination process and he has thirty (30) days in which to submit matters on his behalf as set forth in the letter accompanying these Proceedings.

3.  That upon determination by the AGDRB of the highest grade satisfactorily held by the individual concerned, the orders affecting his transfer to the Retired Reserve be amended to show the decision of the AGDRB in regards to the highest grade satisfactorily held by the individual concerned.

4.  That these Proceedings be placed on a restricted microfiche and made a permanent part of the official military personnel records of the individual concerned.

5.  That all paper records of the Proceedings of this Board and all other related documents be returned to the Director of the ABCMR (ATTN: Team 12) for permanent filing.

BOARD VOTE:  

___JL___  __KAH__  __MHM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Ms. Joann Langston__
		        CHAIRPERSON

INDEX

CASE ID	AR2000044295	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010918	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19981102	
DISCHARGE AUTHORITY	AR 135-175 	
DISCHARGE REASON	Moral or Professional Dereliction	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	144.0134.0000	
2.		
3.		
4.		
5.		
6.