PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           29 January 2002                  
	DOCKET NUMBER:   AR2001052760

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. 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, that his Official Military Personnel File (OMPF) be corrected to show he was not discharged but rather remained on active duty; that he was afforded early retirement with corresponding back pay and allowances as if he had not been discharged in 1998; that his discharge cite retirement as the narrative reason and contain no stigmatizing entry as to separation code, reentry code or in any other respect; that he receive such decorations as he would have received had he remained on active duty; that the Defense Clearance and Investigations Index (DCII) records be amended to remove his name from the title of any adverse investigations, matter or report; that the proceedings of the Board of Inquiry (BOI) and Board of Review be expunged from his records; that the Article 15, nonjudicial punishment (NJP) under the Uniform Code of Military Justice and resulting punitive letter of reprimand (LOR) be expunged from the record; that the administrative Memorandum of Reprimand (MOR) issued on 10 July 1998 be expunged; that any and all suspension of favorable personnel actions (flags) be expunged from his records; that his Officer Evaluation Report (OER) for the period ending 30 September 1997 be expunged and a continuity OER substituted therefore, to cover the unrated periods through the date of his retirement or discharge; and that the Board grant such other relief as it determines is just and proper.

3.  The applicant states through counsel that this case involves a clear departure from settled policy with regard to the investigation of allegations of homosexual conduct that were known to be not credible.  After many evolutions, including investigations, NJP proceedings and a BOI, the Department of Defense Inspector General (DODIG) properly concluded that this case was not conducted in conformity with DOD and US Army Criminal Investigation Command (CID) policies and precedents, and that CID did not adequately conduct the investigation.  CID personnel have confirmed that the threshold information that triggered the entire chain of events was not credible and, more appallingly, was known to be without merit from the beginning.  A malicious complaint that those in a position of responsibility believed should have simply been filed as unfounded, instead led to a massive assault and untimely effect on the career of an outstanding officer.

4.  Counsel further contends that the applicant has invoked a broad range of internal Army and DOD remedies with respect to his NJP, discharge, and titling in the DCII records system.  All such efforts having been exhausted and the case is ripe for review by the Army Board for Correction of Military Records.  It is counsel’s understanding that the Deputy Assistant Secretary of the Army (DASA) for Review Boards has recused himself because of his prior role in approval of the proceedings of the Army Board of Review in the applicant’s case.

5.  The applicant’s military records show that he entered active duty as a second lieutenant from the Reserve Officers Training Corps in May 1986 as an artillery officer with prior service in the Illinois Army National Guard.  He subsequently transferred his branch of service to military intelligence with assignments with the 82nd Airborne Division, the Joint Staff and the National Security Council (White House Situation Room).  He participated in Operations Desert Shield/Storm, Uphold Democracy (Haiti) and Joint Endeavor (Bosnia).  He was promoted to the grade of major on 1 May 1997, and honorably discharged for a homosexual act on 20 November 1998, with separation pay in the amount of $35,546.31.  He completed 12 years, 5 months and 23 days of active Federal service.

6.  His awards include the Defense Meritorious Service Medal, the Joint Service Commendation Medal with 2 Oak Leaf Clusters (OLC), the Army Commendation Medal with 3 OLC, the Army Achievement Medal with 2 OLC, the Joint Meritorious Unit Award (3rd award), the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Armed Forces Service Medal, the Southwest Asia Service Medal with 2 Bronze Service Stars, the Humanitarian Service Medal, the Army Service Ribbon, the Overseas Service Ribbon with Numeral 2, the Kuwait Liberation Medal (for Kuwait and Saudi Arabia), the Presidential Service Badge, the Joint Chief of Staff Service Badge, the Senior Parachutist Badge, and the Pathfinder Badge.

7.  In July 1997, after the applicant had departed to Korea from his assignment as an operations officer in the White House Situation Room, a civilian informant (informant) using an assumed name called the White House to report a “known homosexual.”  This same “informant” later wrote several letters to the White House Military Liaison Office reporting that the applicant was a known homosexual and that he had had sex with him.  The “informant” also implied that tax dollars were being used in connection with the visit of another man (“other man”), who was also a civilian, to Korea, where the applicant was now assigned. (The “informant” and the “other man” had previously been lovers and the “informant” was angry that the “other man” had terminated their relationship in favor of the applicant.)

8.  The derogatory information regarding the applicant was referred to the Headquarters, Department of the Army (HQDA), Office of the Deputy Chief of Staff for Personnel (ODCSPER) for action.  The ODCSPER forwarded the matter to the CID with instructions that no response was required from either the White House or the ODCSPER.

9.  Apparently however, because the correspondence had originated from the White House, the CID transmitted the information to the Yongsan, Korea, CID Office with a request for investigation.  On 19 September 1997, a preliminary investigation of the allegations against the applicant was initiated.  Subsequently, the investigation was expanded to a full criminal investigation for sodomy.  In October 1997, the father of the “other man,” contacted the CID at Fort Belvoir, Virginia, to share his knowledge of the “informant” and discuss a possible motive for the letter to the White House.  The father of the “other man” contended that the “informant” had a personal vendetta against the applicant because of the applicant’s involvement with his son.

10.  In late September 1997, the Yongsan CID was informed via a Military Police Report that the applicant had been charged in an incident involving a private (PV2).  This information was incorporated into their ongoing investigation of the applicant.  In that incident, the applicant was alleged to have attempted to fraternize with the PV2 by inviting him to his hotel room to drink alcohol, and later, suggesting to the PV2 that they exercise and travel together.  Additionally, the applicant apparently asked, during his conversations with the PV2, if he had ever slept with another man.  He also inquired about the size of his (the PV2’s) penis.  The applicant rendered a sworn statement denying the allegations.

11.  On or about 30 September 1997, the applicant received a closeout OER. Although his performance was rated as exceptional by both the rater and senior rater, both commented to the effect, that because of a display of poor judgment in his off duty activities, he had no potential for long-term service in the Army.

12.  Based on preliminary investigation results provided to him by the CID that there was probable cause to believe the applicant had committed sodomy, and the information pertaining to the incident involving the PV2, the applicant’s brigade commander conducted an NJP hearing with the applicant on 14 October 1997.  The brigade commander determined that the applicant had engaged in fraternization with the PV2, communicated indecent language to the PV2, and had committed sodomy with the “informant” and the “other man.”  The brigade commander imposed an LOR as the sanction, and directed the record of the NJP proceedings be filed in the applicant’s performance fiche.

13.  On 21 October 1997, the CID issued a Final Report of Investigation (ROI) regarding the applicant.  The ROI stated that the investigation had established probable cause to believe the applicant had committed the offense of sodomy when he engaged in consensual anal and oral sexual intercourse with the “informant” and the “other man.”  

14.  In March 1998, further supplemental investigations were conducted by the CID to incorporate documents and additional interviews conducted after the Final ROI, noted above, was issued.  On 25 March 1998, another Interim ROI stated the investigation had established insufficient evidence to prove or disprove the applicant and the “informant” committed sodomy as previously reported.  The investigation had, however, established sufficient probable cause to believe that the applicant and the “other man” had committed sodomy.

15.  Apparently, filing of the NJP in the applicant’s OMPF prompted the US Total Army Personnel Command (PERSCOM) to notify the applicant he was required to show cause for retention on active duty.  At any rate, between 11 and 20 March 1998, a BOI was conducted under the provisions of Army Regulation 600-8-24, Officer Transfers and Discharges, to determine whether the applicant should be eliminated from the Army for homosexual conduct.  The complete BOI transcript is not available to the Board.  The available pages, provided by the applicant, reveal that the “other man” admitted he lived with the applicant, and the applicant knew he was a homosexual.  The “other man” said he and the applicant were merely friends.  The “other man” also claimed that the applicant had a girlfriend named Michelle.

16.  During the BOI, the applicant testified at length that Michelle was his girlfriend and introduced a photograph of her into evidence.  However, the applicant lied under oath.  Michelle was not his girlfriend.  The real identity of the woman in the photograph was, in fact, someone else.

17.  The applicant’s counsel explains in his brief that, “an uncontrolled flood of improper” and “intrusive” questions, such as whether the applicant visited gay chat rooms and gay bars, drove the applicant to the point of “desperation,” where he “falsely stated a particular woman friend was his girlfriend.”  The next day, the applicant’s counsel stipulated before the BOI that the woman was not the person claimed by the applicant.  For his perjury, he was given an administrative MOR, which was filed in his OMPF.

18.  The BOI found that the applicant: (a) had not engaged in a homosexual act with the “informant;” (b) had engaged in a homosexual act with the “other man;” (c) had not made a statement to the PV2 that demonstrated a propensity to engage in homosexual acts; but had communicated indecent language to the PV2 and; (d) had attempted to fraternize with the PV2.  The board recommended the applicant be discharged with a general discharge.

19.  During the BOI, a CID agent, who had participated in the investigation of the applicant and was outside of the hearing room, was overheard by the board to remark that he would tell the applicant to his face that he was a “fag.”  The board called the agent to the stand and he admitted to having made the remark.  

20.  On 18 July 1998, the applicant rebutted the MOR he had received for perjury.  He denied being a homosexual and engaging in homosexual acts.  He complained that the questions during the BOI violated the DOD Policy on Homosexuality because they were overtly intrusive.  The applicant stated that the trial counsel concentrated on the issue of “Michelle” with questions such as whether they were engaged and if he had given her a ring.  The applicant explained that during the BOI, he had unveiled the fictitious “Michelle” as a minor part of his defense, but the questions of the trial counsel and BOI members turned “Michelle” into a major issue.  Fearing the case would be lost if he did not produce more tangible evidence of “Michelle” the applicant resorted to a picture of another woman and testified under oath that she was the fictitious “Michelle.”  The applicant objected to the trial counsel’s and the Government’s scanning of the photograph of “Michelle” and transmitting it to law enforcement authorities to ascertain her real identity.  The applicant also complained of the trial counsel’s questions whether he had sex with other women and denied any impropriety.

21.  On April 17, 1998, the CID issued a Final Supplemental ROI stating the investigation established that the “other man” had committed the offense of False Official Statement, and that the applicant had committed the offense of sodomy when he engaged in consensual anal and oral intercourse with the “other man.” The investigation also established that there was insufficient evidence to prove or disprove the applicant and the “informant” had committed the offense of sodomy.

22.  On 1 October 1998, the Army Board of Review for Eliminations reviewed the BOI as required by Army regulations.  That board concurred with the finding of the BOI that the applicant should be eliminated for misconduct and homosexual conduct but recommended that he be honorably discharged (rather than receive a general discharge as recommended by the BOI).  The recommendation for an honorable discharge was approved by the DASA and the applicant was discharged on 20 November 1998.  His DD Form 214 reflects the narrative reason for separation as homosexual acts.

23.  On 17 December 1998, after the applicant’s separation, the CID issued a Second Final Supplemental ROI stating that the investigation did not establish sufficient evidence to prove or disprove that the applicant committed the offense of sodomy as alleged.  The investigation had established probable cause to believe that the “other man” committed the offense of making a false statement.

24.  On 8 March 1999, the applicant alleged in a request to the DODIG to reopen the CID investigations that CID personnel did not comply with DOD and CID policy and failed to follow proper procedures during investigations into allegations that he had engaged in homosexual acts.  He also alleged that a CID special agent who conducted part of the investigation engaged in improper conduct by referring to him as a “fag.”

25.  The DODIG evaluated both the initiation and execution of the CID investigations and found that the CID did not conduct a thorough preliminary investigation, or initiate the full criminal investigation in accordance with DOD or their own (CID) policies and procedures; that the CID did not adequately conduct the investigation; and that a CID special agent who conducted a portion of the investigation did refer to the applicant as a “fag.”  The DODIG recommended that the CID take action to ensure its investigative personnel were trained in its policies and procedures for conducting investigations into adult private consensual sexual misconduct, and that the CID reconsider the titling and indexing of the applicant for the allegation of sodomy in view of the inadequacy of its determination of credible information in the case.

26.  On 13 December 2000, the commander of the CID replied to the DODIG that the CID concurred with the recommendations concerning additional training for investigative personnel on policies and procedures for investigations of adult private sexual misconduct and had reconsidered the titling decision regarding the applicant.  The CID also indicated that the agent who had referred to the applicant in a derogatory manner had been disciplined.  The CID declined, however, to change the titling decisions regarding the applicant on the basis that removal from the DCII can only occur in cases of mistaken identity or where credible information did not support the titling decision.  Based on the information available, which showed that the applicant’s commander had requested an investigation into alleged sodomy and fraud, the credible information standard concerning the sodomy allegation had been met and the applicant was placed in the title block for that offense.

27.  On 20 March 2001, in response to a request from the applicant for expungement of his name from the files of the Federal Bureau of Investigation (FBI), National Crime Information Center (NCIC), the CID replied that the entry of his name in the NCIC was inconsistent with DOD policy and the FBI was asked to remove it.  The CID also advised him that the entry of his name in the DCII was appropriate and would not be removed.

28.  DOD Instruction (DODI) 5505.7, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, contains CID’s authority and criteria for titling decisions.  Titling ensures investigators can retrieve information in a ROI of suspected criminal activity at some future time for law enforcement and security purposes.  The criteria for titling are a determination that credible information exists that a person: (a) may have committed a criminal offense; or, (b) is otherwise made the object of a criminal investigation.

29.  The same DODI provides, generally, that once the subject of an investigation has been indexed (when the titling decision has been entered into the records system) the name shall not be removed (from the title block).  Names of subjects shall only be removed in the case of mistaken identity.  That a person is subsequently found not to have committed the offense under investigation and/or the offense did not occur are not sufficient bases for removal.

30.  CID Regulation 195-1, Criminal Investigation Operations Procedures, provides, in pertinent part, that CID field elements shall not initiate a criminal investigation into adult private consensual sexual misconduct where such misconduct is the only offense involved.  Allegations of adult private consensual sexual misconduct shall normally be referred to the commander of the service member concerned for investigation and disposition.  Absent a request from an appropriate commander, CID field elements shall not initiate a ROI without the approval of the Commanding General or Deputy Commanding General, CID.

31.  Army Regulation 600-37, Unfavorable Information, pertinently provides that reprimands properly filed in the OMPF are presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

32.  Black’s Law Dictionary provides that the preponderance of evidence standard is that standard of proof in which the evidence “is of greater weight or more convincing than the evidence offered in opposition to it;” and the evidence “as a whole shows the fact sought to be proved is more probable than not.”

CONCLUSIONS:

1.  The applicant’s counsel concentrates his request for relief on the problems with the CID’s investigations and concludes that complete relief is warranted.  Conversely, scrutiny of the evidence in light of the CID findings, the DODIG’s investigation of the CID, and the lack of a full record of the BOI suggest that total denial of relief is equally unwarranted.

2.  After examination of all of the available evidence, it is fair to conclude that the DASA’s approval of the applicant’s separation for homosexual acts warrants reexamination since it was based, in part, on the CID’s conclusions, which were changed after the applicant’s discharge.  Prior to the applicant’s discharge, the CID concluded there was probable cause to believe the applicant engaged in sodomy.  However, after the applicant’s discharge, the CID opined it could not determine whether the evidence proved or disproved allegations of the applicant’s homosexuality and sodomy.  Nonetheless, the probable cause required to sustain the CID’s criminal determinations does not apply to the administrative findings of the BOI, the applicant’s chain of command’s censures or the action taken by the DASA in finalizing his discharge.  Thus, the evidence adduced at the BOI is sufficient to sustain the determination that the applicant engaged in homosexual behavior.

3.  The CID ROI, which was published after the DASA’s decision, warrants a reexamination of that decision.  In the absence of the complete texts of the BOI, it cannot be determined to what extent the ROI of the applicant’s homosexual acts may have influenced the BOI.  Therefore, the fairest course of action would be for the Board to decline to affirm the discharge based on homosexual misconduct.  Accordingly, the NJP, BOI findings and the DASA’s determination of homosexuality warrant correction by removing the references to sodomy.  References to the applicant’s sodomy with the “informant” and the “other man” should also be redacted from the brigade commander’s LOR, but leaving the discussion about the PV2 intact.

4.  Despite the improprieties with the CID investigations and the redactions noted above, not all of the applicant’s misconduct is obliterated.  The evidence showing the applicant’s comments and approaches to the PV2 still exist.  Therefore, the LOR issued to the applicant appears to have been properly filed in his OMPF.  In accordance with regulations, after material is filed in the OMPF, the burden of proof rests with the individual concerned to show that the document should be altered or removed from his file.  Nothing in the applicant’s contentions or that of his counsel establishes by clear and convincing evidence that he is innocent in this matter.  The record reveals the applicant’s poor judgment allowed him to become involved in a tawdry triangle and left no doubt that he was intent on lying to escape sanction.  The final 1998 CID ROI revealed that the “other man” had been involved in a homosexual relationship with the “informant,” who was jealous that the applicant stole the “other man” away to Korea.  Further, the record reveals the applicant lived with the “other man,” a homosexual who moved from the States to Korea to live with the applicant.  The “other man” admitted to sexual relations with the applicant before retracting the claim.  The “other man” then swore under oath that the applicant had a girlfriend named “Michelle.”  The applicant also committed perjury by swearing under oath that she was his girlfriend, replete with picture identification.

5.  The foregoing background gives no reason to doubt the validity of the determination by the applicant’s brigade commander to reprimand him for having made improper and sexually suggestive comments to a PV2.  This single serious incident is prejudicial to good order and discipline because it materially erodes the confidence of enlisted soldiers in officers.  It therefore, warranted filing in the applicant’s OMPF.  That filing, alone, could result in the applicant’s separation from the Army.  However, that misconduct is not all.

6.  There still exists the stigma of his perjury.  The applicant contends that the unrelenting questions about his personal life drove him to lie under oath.  When he appeared before the BOI, he knew the inquiry was about deeply personal and intrusive issues, such as whether he engaged in oral and anal sexual relations with other men, and solicited a male enlisted soldier for sex.  He had already been through a battery of CID questions, and had allegations about his sex life sent to the White House.  Thus, it is unconvincing that questions such as whether the applicant entered a gay chat room or frequented gay bars would be so upsetting to him that he felt forced to lie to prove his innocence.  Even if he was upset, it is no excuse for perjury.

7.  In the final analysis, it appears that the applicant believed that he had a better chance of preserving his career if he introduced an evidentiary wrinkle by showing that he had a girlfriend.  The applicant and the “other man” conspired to create a fictitious tale, and both presented false testimony.  The applicant intended to deceive and mislead the BOI when he committed perjury before an official military inquiry.  His conduct reflects that he is unfit to serve as a soldier or leader in the military, an organization in which trust and honesty are paramount.  Based on this incident alone, the applicant’s separation for misconduct would be all but a certainty.  When his misconduct regarding the PV2 is combined with his perjury, his chances of being retained in the service would have to be considered less than nil.

8.  In view of the foregoing, the Board finds the decision made by the CID to title the applicant under the DCII appropriate under the circumstances and there is no basis to amend or order a change in that matter.

9.  Insofar as his OER (ending 30 September 1997) is concerned, the report appears to be administratively correct and to have been prepared by the proper rating officials.  Thus, the Board sees no reason to expunge it from the applicant’s OMPF.

10.  Similarly, the “flags” or suspension of personnel actions were reasonable and appropriate in light of the allegations about the applicant and the sustained misconduct as shown in the memoranda of reprimand.

11.  Finally, while law enforcement authorities may lack probable cause to believe a soldier committed a crime, a BOI may consider the same evidence and be appropriately satisfied that the preponderance of the evidence establishes the soldier committed the offense.  From the limited portions of the BOI that were available in this case, it can be concluded that the preponderance of the evidence suggests that the applicant probably committed homosexual acts and the Board would be justified in denying all relief on that basis.  However, in light of the CID’s changes in its conclusion after the DASA‘s decision, and the fact that it would be fair to expunge certain portions of the BOI, NJP and reprimands that contain references to sodomy resulting from the CID’s investigations, the Board feels compelled to reassess the entire case file.  In the absence of the full BOI, the Board believes that partial relief by changing the reason for discharge to Secretarial Authority and redacting all references to sodomy would be appropriate.  Such relief is not premised on error, for even if there were error, it is harmless.  Rather, relief in this case is granted based on the Board’s equitable discretion.

12.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

	a.  redacting from the NJP of 14 October 1997, all references to the commission of sodomy;

	b.  redacting from the LOR of 19 November 1997, all reference to the commission of sodomy;

	c.  redacting from the BOI all matters regarding a homosexual relationship between the applicant and the “other man;”

d.  transfering to the restricted fiche the Transcript of Hearing of the Army Board of Review for Eliminations dated 1 October 1998;

	e.  transferring to the restricted fiche the DASA’s separation order of 14 October 1998 and the PERSCOM separation message of 20 October 1998; and

	f.  removing homosexual act from the narrative reason for separation on DD Form 214 and replacing it with Secretarial Authority.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___MHM   ___AAO_  ____KAH  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___________Arthur A. Omartian_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001052760	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020129	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  102.08		
2.   107.00		
3.   111.00		
4.   126.04		
5.   134.01		
6.   136.06