IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016490 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016490 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016490 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: a. Full reinstatement into the Army at pay grade O-4 (major) effective 2 July 2012. b. Full back pay and active duty benefits from 2 July 2012 to the present. c. Removal from his Official Military Personnel Record (OPMF) of the referred officer evaluation report (OER) for the period 9 July 2008 to 29 May 2009. d. Removal from his OMPF all documents and entries directly or indirectly related to his Board of Inquiry held 25 January 2012 and the Army Board of Review for Elimination (ABRE) held 31 May 2012. e. In the alternative, on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 July 2012, change block 25 (Separation Authority) to show “AR 600-8-24, para 2-7,” block 26 (Separation Code) to show “MBK,” block 28 (Narrative Reason for Separation) to show “Completion of Required Active Service,” and pay him involuntary separation pay. 2. The applicant defers statements to his counsel. 3. The applicant defers to evidence provided by his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the same as the applicant. 2. Counsel states that the applicant was unjustly discharged from the Army by reason of unacceptable conduct, Army Regulation (AR) 600-8-24, paragraph 4-2b, with a characterization of service as honorable. The counsel contends in effect: a. The applicant was unjustly issued a referred OER on 29 May 2009 in violation of law (law not specified) in that the OER contained unproven derogatory information contrary to AR 623-3, paragraph 3-19. The referred OER unjustly prejudiced the applicant from promotion and retention in the Army. b. The applicant should have been processed for failure to be selected for promotion based on the U.S. Army Human Resources Command (HRC) directive issued on 19 March 2012 and not for misconduct based on the 8 June 2012 decision by the Deputy Assistant Secretary of the Army as a result of the applicant’s processing for involuntary separation initiated by HRC. c. The applicant was improperly processed for separation due to misconduct. The 25 January 2012 19th Expeditionary Sustainment Command (ESC) Board of Inquiry unjustly found that the applicant committed misconduct. On 9 April 2009, the applicant was subjected to a Commander's Inquiry by his lieutenant colonel (LTC) commanding officer. The Rules for Courts-Martial (RCM), rule 303, states that "Upon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court-martial, the immediate commander shall make or cause to make a preliminary inquiry into the charges or suspected offenses.” A person who is an accuser, as defined by Uniform Code of Military Justice (UCMJ), article 1(9), is disqualified from convening a general or special court-martial in that case, per RCM, rule 504(c)(1). Therefore, when the immediate commander is a general or special court-martial convening authority, the preliminary inquiry should be conducted by another officer of the command. d. On 24 March 2009, the LTC commanding officer ordered that the applicant be taken to Anchor Hospital in Atlanta, Georgia, for allegations of making comments about suicide and injuring others, which were unfounded and used to damage the applicant's reputation. He was found not to be suicidal and that there was no justification to be hospitalized. Despite being found physically and mentally fit for duty, the commanding officer referred the applicant for another psychological evaluation on 30 March 2009. In her referral, the commanding officer cited numerous undocumented incidents as bases for the referral, including unsubstantiated reports of vehicle accidents and getting a trailer stuck while towing it. Subsequent to these two psychological evaluations, the commanding officer conducted her own Commander's Inquiry on the applicant’s conduct. This is highly improper, as she accused the applicant of violating orders that she personally issued, and then assumed the position as a neutral party as an investigating officer. The commander stated that the applicant was not obeying a direct order because he was coming in to work early, staying late, and not taking a day off because he was trying to catch up on work. In order to be guilty of UCMJ, Article 92 (Failure to Obey Other Lawful Order), the following elements must be met: (1) That a member of the armed forces issued a certain lawful order; (2) That the accused had knowledge of the order; (3) That the accused had a duty to obey the order; and (4) That the accused failed to obey the order. e. The applicant had a duty to show up at work and do his job; the commander issued an order contrary to the applicant’s military obligation. Therefore, the order was not lawful, and the applicant had no obligation or duty to obey it. In her report, the commander alleged the applicant violated the UCMJ, article 92, yet did not discipline him under Article 15, UCMJ. Her erroneous inquiry directly led to a subsequent Show Cause Board of Inquiry, which ultimately led to the applicant being separated from the Army for substandard performance under AR 600-8-24, paragraph 4-2a, and acts of misconduct and moral or professional dereliction under AR 600-8-24, paragraph 4-2b. Additionally, had the applicant's behavior been actual misconduct, then the commander would have taken action to discipline the applicant. In this case, the commander acted in violation of the Manual for Courts-Martial (MCM) and made baseless accusations in a personal vendetta against the applicant to ruin his career. f. The Commander's Inquiry of 9 April 2009 should be completely eliminated from the applicant's records, as it was conducted in violation of RCM rule 303. Any subsequent findings resulting from this initial investigation should be removed from the applicant's OMPF as well. The 19th ESC Board of Inquiry unjustly concluded that the applicant committed misconduct. They made this finding despite a complete lack of evidence, and unjustly and erroneously found misconduct. There was no investigation submitted, nor any documented misconduct. The only evidence submitted was anecdotal at best, far in the past. In fact, in gross error, the Board of Inquiry obviously failed to consider the most recent OERs of 18 May 2011, 14 October 2011, and 2 July 2012, which highly recommended retention and promotion. The Board of Inquiry lacked sufficient evidence for a finding of misconduct and is a violation of law. 3. Counsel provides: a. DD Form 214 dated 2 July 2012 b. Army Achievement Medal Certificate – 3 January 2002 to 2 January 2003 c. Army Commendation Medal Certificate – 12 April 2005 to 1 February 2007 d. Certificate of Honorable Discharge from the New York Army National Guard (NYARNG), 31 January 2007 e. Army Commendation Medal Certificate – 1 February 2007 to 1 August 2008 f. Referral for Mental Health Evaluation, 30 March 2009 g. Memorandum for Record - Commander's Inquiry, 9 April 2009 h. Referred Officer Evaluation Report (OER) – 9 July 2008 to 29 May 2009 i. Joint Service Commendation Medal Certificate – 20 June 2009 to 15 June 2010 j. U. S. Army Human Resources Command memorandum, 19 March 2012, subject: Mandatory Separation k. U. S. Army Human Resources Command message, 11 June 2012, subject: Revocation of Mandatory Separation l. 19th ESC Board of Inquiry summarized transcript of board proceedings, 25 January 2012 m. Character Witness Memorandum, 25 August 2009, subject: [Applicant’s] Job Performance n. Officer Evaluation Reports from 12 April 2005 to 2 July 2012 o. Army Discharge Review Board (ADRB) Decision, Docket Number AR20140007318, 22 June 2015 p. A list of the applicant’s military awards and decorations q. A list of the units and activities to which the applicant was assigned. r. A chronology of the applicant’s service related to the issues of this application CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was commissioned a second lieutenant in the U. S. Army Reserve (USAR) through the Reserve Officers' Training Corps (ROTC) on 18 May 2001. He was immediately ordered to active duty for 3 years. He attended and successfully completed the Feld Artillery Basic Officer Course and Airborne training in 2001. Following his initial training, his officer record brief shows the following: a. 1 May 2002 for 9 months – Company Fire Support Officer, Headquarters and Headquarters Battery (HHB), 1st Battalion, 15th Field Artillery, Camp Casey, Korea. Promoted to first lieutenant (1LT) on 2 December 2012. His officer evaluation reports (OER) show outstanding performance, best qualified, center of mass. b. 2 January 2003 for 16 months - Battalion Liaison Officer, 1st Battalion, 10th Field Artillery, Fort Benning, Georgia. He was deployed to Kuwait and Iraq from 24 February 2003 to 17 July 2003. His OERs show outstanding performance, best qualified, center of mass. c. 17 May 2004 – released from active duty and transferred to the Individual Ready Reserve (IRR). During his first three years of service, he was awarded an Army Commendation Medal, Army Achievement Medal, Korean Defense Service Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Armed Forces Expeditionary Medal, Presidential Unit Citation, National Defense Service Medal, Army Service Medal, and Parachutist Badge. d. 19 August 2004 – transferred from the USAR to the ARNG and appointed a 1LT in the NYARNG in field artillery. He was assigned as an assistant operations officer in the 27th Rear Area Operations Center (RAOC). e. 12 April 2005 – ordered to full-time duty for a period of 3 years with the NYARNG as an Active Guard/Reserve (AGR) member of HHB, 1st Battalion, 258th Field Artillery, Jamaica, New York, to serve as the S1/Assistant S3. On 25 May 2005, he was promoted to the rank of CPT. f. 25 July 2005 to 9 December 2005 – successfully completed the Finance Captain’s Career Course at Fort Jackson, South Carolina. He returned to AGR duty at the 258th Field Artillery. On 24 August 2006, he was branch transferred to the Finance branch. g. 31 January 2007 – honorably discharged from the NYARNG and the ARNG and transferred to the IRR. During his service with the NYARNG, he received one OER showing outstanding performance and best qualified. The applicant received an Army Commendation Medal for his service with the 258th Field Artillery from 12 April 2005 to 1 February 2007. h. 1 February 2007 – ordered to active duty as a budget analyst at Headquarters, Third U. S. Army (later U. S. Army Central (USARCENT)), Fort McPherson, Georgia. He was deployed to Kuwait with USARCENT from 8 February 2008 to 7 July 2008. For this period of service he received two OERs showing outstanding performance and best qualified. The applicant received an Army Commendation Medal for his service during this period. i. 21 July 2008 – assigned to Headquarters, 6th ROTC Brigade, Georgia State University, Atlanta, Georgia, as an Assistant Professor of Military Science with duties as qualify control officer for areas of training, administration, and logistics; coordinating and supervising overall training; coordinator for cadet professional development training; coordinate and supervise budget and logistical support; and primary instructor of the Military Science II classes. 3. Between 22 January 2009 and 9 April 2009, the applicant was given five written performance counseling statements by his battalion commander, the Professor of Military Science (PMS), Georgia State University, ROTC. The applicant signed the counseling statements but chose not to provide any written statements in response. He was counseled for: a. Inappropriate language and treatment of cadets on a field training exercise. b. Verbally assaulting six cadets witnessed by another ROTC cadre CPT. c. Reasons for his removal from instructing cadets due to his behavior and attitude toward cadets. d. Stating that he knew how to hook a trailer to a van and tow it when it was found later that he had no experience with pulling a trailer. His actions resulted in getting the trailer stuck, which then had to be extricated by university maintenance personnel, ROTC non-commissioned officers (NCO), and several cadets. e. Consistently showing a lack of maturity and being closed-minded to mentoring from his commander and from other experienced cadre officers and NCOs. f. Disobeying direct vocal orders from the commander not to drive government vehicles. g. Disobeying a direct vocal order to report to the commander when arriving at or departing from the ROTC building. h. Unsatisfactory performance as a commissioned officer. i. Being removed from a potential promotion list. j. Required to have no contact with cadets. k. Required to work in his office. l. Could be subjected to UCMJ if he fails to obey the above orders. m. Notifying him that he would be deployed to Iraq and upon return would be reassigned to another command. 4. On 24 March 2009, the applicant was taken to Anchor Hospital (AH), Atlanta, Georgia, because of his comments to ROTC cadre and NCOs about not feeling well mentally, comments about suicide, and about injuring others. During the interview with the hospital mental health counselor, the applicant admitted he joked about suicide, but he was not suicidal. The counselor found that the applicant had a friend who had committed suicide within the past year, but found no reason to hospitalize the applicant since he stated he was not suicidal. The counselor recommended the applicant have outpatient counseling to deal with the loss of his friend. The counselor also recommended that if the applicant continued to make comments about suicide or talked about injuring others, he was to be immediately taken to the emergency room for another evaluation. 5. On 30 March 2009, the applicant was referred by his commander for a mental health evaluation. The applicant was informed in writing that the bases for the referral were comments he had made about suicide, need for mental health counseling, disobeying orders, disregard for government property, foul language, intimidating cadets, and his conduct unbecoming an officer. The referral told the applicant why he was being referred and what his rights were. The applicant signed that he received the referral. On 2 April 2009, the clinical psychologist (PhD) from Lawrence Joel Army Health Clinic (LJAHC) at Fort McPherson, Georgia, conducted a mental health evaluation of the applicant. On 6 April 2009, the clinical psychologist published his findings in a memorandum to the commander of the Georgia State University ROTC department. The psychologist determined that: a. Marital and financial stress and personal habit management contributed to the applicant’s reduced threshold for emotional and behavioral outbursts. b. The most obvious contributing factor to the applicant’s inappropriate conduct in the workplace was accumulated stress from marriage combined with his addiction to watching sports on television at the expense of getting proper sleep on a regular basis. c. The applicant was reasonably healthy and somewhat cocky, defensive, and immature. d. The applicant was diagnosed with lack of adequate sleep and with traits of personality disorder, not otherwise specified. e. The applicant was not dangerous to himself or to others. f. The applicant met retention standards for continued military service. g. The applicant should receive mental health counseling and it was advised that the applicant should not interact with cadets until he developed the necessary interpersonal skills. h. The memorandum header contained the following note: This report contains sensitive information. Circulation should be limited to the fewest “need to know” individuals. Information contained herein will not be further disclosed without the individual’s consent (Privacy Act of 1974). This report must not be placed in an individual’s personnel file (available to administrative staff) unless in a sealed envelope labeled, “To Unit Commander and First Sergeant only." 6. On 9 April 2009, the commander published a memorandum for record entitled Commander’s Inquiry concerning the applicant. The memorandum’s stated purpose was to review the circumstances of the conduct of the applicant. The inquiry included a sequence of events from fall 2008 to 9 April 2009 concerning the applicant’s misconduct, sworn statements from witnesses to the various events, counseling statements signed by the applicant, the mental health referral, and the mental evaluations from AH and LJAHC. 7. The commander summarized her findings that the applicant’s overall behavior was troubling for a senior CPT. He addressed cadets with foul language contrary to the her directives. He challenged the decisions of his superiors. When informed that a decision was final, he would pout and stomp out of her office. He continually attempted to undermine her decisions with subordinates. Officers and NCOs tried to assist the applicant but the applicant chose not to listen even when it might endanger a situation. The applicant’s behavior became increasingly erratic, disruptive, and intolerable. The applicant could not be trusted to appropriately handle situations which involved cadets. Based on his mental health evaluations, the applicant met retention standards and was mentally able to be held accountable for his actions. The applicant was found in violation of UCMJ, article 92, failure to obey orders and regulations. The commander recommended the issuance of a General Officer Memorandum of Reprimand (GOMOR). The commanding general directed the issuance of a brigade commander’s letter of reprimand which was filed in the applicant’s local personnel records. 8. On 29 May 2009, the applicant was issued a referred OER. a. The rater, his battalion commander, checked all character elements as “Yes” except the following: (1) “No” for respect: promotes dignity, consideration, fairness, and equal opportunity. (2) “No” for interpersonal: shows skill with people – coaching, teaching, counseling, motivating, and empowering. (3) “No” for conceptual: demonstrates sound judgement, critical/creative thinking, moral reasoning. (4) “No” for communicating: displays good oral, written, and listening skills for individuals and groups. (5) “No” for learning: seeks self-improvement and organizational growth; envisioning, adapting, and leading change. b. For performance and potential evaluation, the rater checked “unsatisfactory performance, do not promote” and stated that the applicant should not be allowed to command. c. The senior rater marked “Do Not Promote” and stated that the applicant’s decisions were not commensurate with Army Values or of an officer in the grade of CPT. d. The applicant signed the referred report and declined to submit any comments in rebuttal or extenuation to be filed with the report. 9. The applicant was deployed to Iraq from 20 June 2009 to 20 June 2010 where he served first as End Use Monitoring (EUM) Team Chief for Iraqi Security Assistance Mission, Multi-National Security Transition Command-Iraq, and secondly as a budget officer in the J8 forward staff section of the United States Forces – Iraq. He received two OERs showing second box checks for satisfactory performance with recommendation to promote and indicating he was fully qualified. There was no box check for potential compared with officers senior rated in same grade. He received a Joint Service Commendation Medal for this service. 10. On 1 September 2010, the applicant was reassigned to the 501st Special Troops Battalion, Korea, as commander of a Financial Management Detachment. In this position, he received two OERs through 14 October 2011, both showing outstanding performance, must promote, and best qualified. 11. On 12 October 2011, the applicant was issued a memorandum stating that he had been identified by the FY2011 Major (MAJ) Promotion Selection Board to show cause for retention on active duty under the provisions of AR 600-8-24, paragraph 4.2a and b, because of misconduct, moral or professional dereliction, substandard performance, and conduct unbecoming an officer. On 25 January 2012, the 19th ESC, Korea, conducted a Board of Inquiry. The Board consisted of a colonel (COL), two LTC, and a legal advisor. The applicant was present with military counsel. The board interviewed the commander of the ROTC battalion on the events that occurred in the Georgia State University ROTC battalion. The board also interviewed two NCOs and one CPT from the 176th Finance Management Company in Korea who spoke in the applicant’s favor. 12. The Board of Inquiry unanimously determined that the applicant committed misconduct and his misconduct was unbecoming an officer. They found that the applicant: a. Disobeyed a lawful order by continuing to use inappropriate language after being ordered by his commander in writing not to do so. b. Operated a government vehicle after being ordered in writing not to do so. c. Committed what was tantamount to a hit and run vehicle accident before being ordered by his commander to report the accident. d. Demonstrated lack of respect for authority and for consequences of making decision that jeopardized government property and Solder safety. e. Despite his last two acceptable officer evaluations, exhibited an inconsistent ability to maintain the desired standards of performance for his grade and branch. f. Warranted separation from the Army for committing misconduct and conduct unbecoming an officer. The board unanimously recommended a general discharge. 13. On 30 January 2012, the applicant addressed a memorandum to the Commanding General, 19th ESC, requesting reconsideration of the board’s decision. He provided three letters of recommendation for his retention from work associates in the 19th ESC; a government civilian employee (GS-14), a MAJ, and a budget analyst. He contended legal error by the board by considering a locally filed letter of reprimand from the ROTC command and by considering his mental health evaluation from the clinical psychologist (PhD) from LJAHC. 14. On 1 February 2012, the 19th ESC Staff Judge Advocate (SJA), an LTC, reviewed the Board of Inquiry proceedings and the applicant’s contention of legal error. The fact that a letter of reprimand was issued by his ROTC command was discussed during the board proceedings, but the actual text of the reprimand was not provided to the board. The subject matter of documents from the applicant’s local files, including counseling statements, were also discussed. The reprimand and local documents were relevant to the requirements of the Board of Inquiry. The subject matter of the applicant’s mental health evaluation was also relevant to the Board of Inquiry and was also used and referred to by the applicant and his counsel during argument. Neither the applicant nor his attorney objected to these documents during the Board of Inquiry proceedings. Chapter 3, AR 340-21 (The Army Privacy Program), allows disclosure of records to officers and employees of the Department of Defense (DoD) who have a need for the record in the performance of their duties. The applicant, his counsel, and the board members all had a need for these records in the performance of their duties, which was to consider the misconduct of the applicant and all the related facts and underlying reasons for that misconduct. Accordingly, the SJA found no legal error in the board considering these documents or their subject matter. The HRC General Officer Show Cause Authority reviewed the Board of Inquiry recommendation and determined the applicant should be discharged with an HD. 15. On 1 February 2012, based on the findings of the 19th ESC Board of Inquiry, the acting commander of the 19th ESC recommended by memorandum to the Commander, U. S. Army Human Resources Command (HRC), Fort Knox, Kentucky, that the applicant be discharged with an honorable discharge. On 24 April 2012, that recommendation was forwarded to the ABRE. 16. On 31 May 2012, the ABRE, consisting of three COLs and a legal advisor, reviewed the applicant’s record, including all his officer evaluations and awards, and reviewed the findings and recommendations of the 19th ESC Board of Inquiry. The ABRE determined that the Government had established by a preponderance of the evidence that the applicant did commit misconduct and his misconduct was unbecoming an officer as outlined in his referred OER and the Commander's Inquiry memorandum dated 9 April 2009. They further determined that despite his last two acceptable evaluations, the applicant had exhibited an inconsistent ability to maintain the desired standards of performance for his grade and branch. The ABRE recommended that the applicant be eliminated from the Army with a general (under honorable conditions) characterization of service. The legal advisory did not find any legal error. 17. On 8 June 2012, the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) reviewed the evidence, findings, and recommendations of the 19th ESC Board of Inquiry and the ABRE. The DASA (RB) determined that the applicant would be eliminated from the Army based on both misconduct and moral or professional dereliction under AR 600-8-24, paragraph 4-2b (unacceptable conduct), and substandard performance of duty under AR 600-8-24, paragraph 4-2a, with an honorable characterization of service. This determination was communicated to the Commander, HRC, who issued separation orders accordingly. 18. During the applicant’s processing for discharge under AR 600-8-24, paragraph 4-2a and b, initiated by HRC on 12 October 2011, which included the Show Cause Board of Inquiry and the ABRE, HRC incorrectly issued a message dated 19 March 2012 directing the applicant’s separation under AR 600-8-24, paragraph 5-9d and g, for failure for selection for promotion to MAJ. Upon the issue of the 8 June 2012 DASA (RB) decision that the applicant should be separated under AR 600-8-24, paragraph 4-2a and b, HRC issued an 11 June 2012 revocation of the erroneous 19 March 2012 separation directive under AR 600-8-24, paragraph 5-9d and g. 19. On 2 July 2012, the applicant was honorably discharged under AR 600-8-24, paragraph 4-2b, by reason of unacceptable conduct with the requisite separation code of JNC. 20. On 14 April 2014, the applicant applied to the Army Discharge Review Board (ADRB) contending that his discharge was unjust and improper and that his reason and authority for discharge should be changed to completion of required active service with commensurate separation code. The ADRB reviewed the applicant’s military record to include all of the forgoing items listed above in this Record of Proceedings. The ADRB consisted of four COLs and one MAJ. After careful consideration and deliberation, the ADRB determined the applicant was properly and equitably discharged and denied his request for change of his discharge reason or separation code. The applicant was also informed that his requests for reinstatement in the Army as a MAJ with back pay and allowances and removal of documents from his military record were not within the jurisdiction of the ADRB. REFERENCES: 1. The MCM, RCM 303 (Preliminary Inquiry into Reported Offenses), states that upon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court-martial, the immediate commander shall make or cause to be made a preliminary inquiry into the charges or suspected offenses. However, if the accuser is the Soldier’s commander and the commander has general or special court-martial convening authority, the investigation will be conducted by another officer of the command. The Office of the Staff Judge Advocate, U. S. Army Cadet Command, provided information that ROTC battalion commanders do not have general or special court-martial convening authority. 2. MCM RCM 306 provides the rules for disposition of offenses. Each commander has discretion to dispose of offenses by members accused or suspected of committing an offense triable by court-martial. A commander may take or initiate administrative actions to include corrective measures such as counseling, admonition, reprimand, exhortation, disapproval, criticism, censure, reproach, rebuke, extra-military instruction, or the administrative withholding of privileges, or any combination of the above. A commander may consider issuing an Article 15, non-judicial punishment. A commander may dismiss any or all of the charges, forward any or all of them to another commander for disposition, or refer any or all of them to a court-martial which the commander is empowered to convene, or forward them to a to a superior or subordinate authority for disposition. 3. The MCM states that Article 92, UCMJ, states in pertinent part that any Soldier wh,o having knowledge of any lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order, or is derelict in the performance of his duties, is in violation of this article. The MCM, paragraph 14c(2)(c), states that as long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused. In United States v. McLaughlin, 14 M.J. 908, 1981, it was established that an order is a communication delivered orally or in writing which tells the Service person receiving the order what to do or what not to do. Such an order is a legal and lawful order. A commander has the legal authority to designate the place duty for service members under his or her command. 4. AR 623-3 (Evaluation Reporting System), 10 August 2007, paragraph 3-34, states in pertinent part that OERs will be referred when there are “No” marks in Leader Attributes/Skills/Actions, when the rater marks the performance evaluation as “Unsatisfactory Performance, Do Not Promote,” and/or the senior rater marks potential evaluation as “Do Not Promote.” Paragraph 3-35 states that the referred OER will be provided to the rated Soldier who may comment if they believe that the rating or remarks are incorrect. The rated Soldier’s comments will be filed with the OER. The rated Soldier’s comments do not constitute an appeal. Appeals are processed separately as outlined in chapter 6 of AR 623-3. Likewise, the rated Soldier’s comments do not constitute a request for a Commander’s Inquiry. Such a request will be submitted separately as outlined in chapter 6. 5. AR 340-21 (The Army Privacy Act), chapter 3, states that a Soldier’s documents may be disclosed without consent of the Soldier when disclosure is made to officers and DoD employees who have a need for the record or information in the performance of their duties. 6. AR 600-8-104 (Military Personnel Information Management /Records), table 2-1, authorizes filing in the Soldier’s OMPF case files for approved separations including elimination board proceedings and administrative discharge actions. 7. AR 600-8-24 (Officer Transfers and Discharges), paragraph 4-24, states in pertinent part that elimination action will be initiated when the officer exhibits (4-24a) substandard performance of duty due to failure to exercise necessary leadership or command expected of an officer of their grade, failure to properly perform assignments commensurate with an officer’s grade and experience; or (4-24b) has exhibited acts of personal misconduct, or moral or professional dereliction, or conduct unbecoming an officer. 8. Department of Defense Financial Management Regulation (DoDFMR) 7000.14R (Financial Management Regulation), Chapter 35, Section 3503 (Separation Pay (Nondisability)), states in pertinent part that separation pay is applicable to Regular Army officers involuntarily separated with an honorable discharge by reason of Title 10, U. S Code: section 580 for twice failing selection for promotion, or section 1165 for separation during the first three probationary years. DISCUSSION: 1. The applicant’s counsel contends that the applicant’s referred OER was based on unproven derogatory information. The applicant’s rater, who was his commander, conducted a Commander’s Inquiry in accordance with RCM 303 to record and document the applicant’s performance and conduct. The Commander’s Inquiry included sworn statement documentation from a MAJ, a CPT, and three ROTC cadets who all had personal knowledge of the applicant’s misconduct. The inquiry also included five counseling statements countersigned by the applicant. The counseling statements document the applicant’s substandard performance and misconduct and verify that he acknowledged the counseling statements. The inquiry also included two mental health evaluations documenting the applicant’s mental health and performance. Therefore, the referred OER was based on proven and documented misconduct. 2. The referred OER was provided to the applicant for comments that might counter the rater and senior rater’s evaluations of unsatisfactory performance, do not promote, and negative leader attributes/skills/actions. The applicant by his signature and check mark chose not to provide any information or evidence that might call the referred evaluation into question. The applicant did not request an OER commander’s inquiry in accordance with AR 623-5, which would have been conducted above the rater and senior rater’s chain of command, to prove that the evaluation contained untrue or inaccurate statements. The applicant also did not appeal the referred OER in accordance with AR 623-5. The referred OER was just, proper, legal, and founded on documented derogatory information which was not challenged by the applicant. 3. The applicant’s counsel contends that the Commander’s Inquiry was illegal because the applicant’s commander conducted the inquiry and she was in part an accuser of the misconduct, violating RCM 303 which prohibits commanders with general or special court-martial authority from conducting a Commander’s Inquiry. The Office of the Staff Judge Advocate, U. S. Army Cadet Command, confirmed that commanders of ROTC battalions do not have general or special court-martial convening authority, so the Commander’s Inquiry was not in violation of RCM 303. The commander properly conducted the Commander’s Inquiry in accordance with law and regulation. 4. RCM 303 states that upon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court-martial, the immediate commander shall make or cause to be made a preliminary inquiry into the charges or suspected offenses. The applicant’s commander complied with this rule, so the Commander’s Inquiry was legal and proper. There was no injustice or impropriety in the Commander’s Inquiry. 5. The applicant’s counsel contends that the commander failed to take appropriate action as result of the Commander’s Inquiry findings that the applicant violated Article 92, failure to obey orders or regulation. The record shows that the commander forwarded the Commander’s Inquiry to the commanding general recommending that the applicant receive a GOMOR. The commanding general directed the issuance of a brigade commander’s letter of reprimand which was issued and filed in the applicant’s local personnel records. RCM 306 states that the applicant’s commander had the discretion to dispose of violations by a variety of means to include counseling, admonition, reprimand, exhortation, disapproval, criticism, censure, reproach, rebuke, extra-military instruction, the administrative withholding of privileges, or any combination of the above; issuing an Article 15; dismissing the charges, or referring them a court-martial convening authority. The commander legally and justly employed counseling, admonition, reprimand, exhortation, disapproval, criticism, censure, reproach, rebuke, and administrative withholding of privileges. 6. The applicant’s counsel contends that the commander illegally ordered the applicant to take a day off in violation of the applicant’s duty to be present for duty. Commanders have the authority to designate the place and manner of duty for their subordinates. In front of an NCO witness, the commander vocally ordered the applicant to “take Monday off.” This was a direct order that his place of duty was not to be in the unit work areas and that his manner of duty was to be “off” duty. The applicant directly violated this order by being in his office on the Monday in question. In accordance with MCM, paragraph 14c(2)(c), and United States v. McLaughlin, 14 M.J. 908, 1981, an order is a communication delivered orally or in writing which tells the service person receiving the order what to do or what not to do. Such an order is a legal and lawful order. The legal review by the 19th ESC Board of Inquiry and the ABRE also found the commander's orders legal and lawful. 7. The applicant’s counsel contends that the applicant’s mental health evaluations should not be filed in his OMPF and should be removed. He also contends that their consideration by the Commander’s Inquiry and the 19th ESC Board of Inquiry was improper. The Army Privacy Act program permits access to and use of documents by officers and DoD civilians needed in the performance of their duties. These documents were germane to the applicant’s conduct considered by the Commander’s Inquiry, the 19th ESC Board of Inquiry, and the ABRE, and therefore, their use is not a violation of law or regulation. Further, both the applicant and his counsel referred to these documents in the 19th ESC Board of Inquiry and did not object to their introduction or use during those proceedings. As such, they became a legal part of the elimination record of proceedings case file. The OMPF filling regulation authorizes filing of the elimination case file in the Soldier’s OMPF. The Commander’s Inquiry, the referred OER, the 19th ESC Board of Inquiry, the ABRE, and the DASA (RB) decision are all properly part of the applicant’s elimination case file and are authorized for filing in the applicant’s OMPF. There is no basis for the removal of any of these documents from the OMPF. It is also noted that the applicant did not submit any comments to rebut his referred OER, nor did he request a commander’s inquiry on the referred OER, nor did he appeal the referred OER. 8. The applicant’s counsel contends that the applicant should have been separated in accordance with an HRC message dated 19 March 2012 under AR 600-8-24, paragraph 5-9, for twice non-selection for promotion instead of AR 600-8-24, paragraphs 4-2. The record shows that HRC initiated the show cause for retention processing on 12 October 2011 which was not completed until the DASA (RB) made the final decision on 8 June 2012. The HRC found that the 19 March 2012 message was issued erroneously and rescinded it on 11 June 2012. The DASA (RB) found that the evidence and determinations of the 25 January 2012 19th ESC Board of Inquiry and the 31 May 2012 ABRE properly and justly supported that applicant’s elimination from the Army based on his misconduct, moral or professional dereliction, and substandard performance of duty for which his other performance evaluations, awards, and service did not compensate. The DASA (RB) properly and justly directed that the applicant be discharged for misconduct, and moral or professional dereliction under AR 600-8-24, paragraph 4-2b; and substandard performance of duty under AR 600-8-24, paragraph 4-2a; with an honorable discharge. 9. The Commander’s Inquiry included sworn statements by a MAJ, a CPT, and three ROTC cadets. The Commander’s Inquiry was reviewed by a general officer who directed issue of a letter of reprimand. The applicant’s referred OER was senior rated by a Department of the Army civilian deputy brigade commander senior to the applicant's commander. The applicant’s records were reviewed by a promotion board at HRC. The applicant’s records were reviewed for elimination by three COLs, one LTC, and an SJA LTC in the 19th ESC Board of Inquiry. The HRC General Officer Show Cause Authority reviewed the Board of Inquiry recommendation and concurred that the applicant should be discharged with an HD. The applicant’s records were reviewed by three COLs and an attorney legal advisor in the ABRE. The DASA (RB) reviewed the applicant’s records. The applicant’s discharge was reviewed by four COLs and one MAJ in the ADRB. In total, the applicant’s records and elimination process were reviewed by a DASA, two general officers, ten COLs (not counting those on the promotion selection board), one LTC, one SJA LTC, one MAJ, and one attorney legal advisor. All found the applicant’s discharge for misconduct, moral or professional dereliction, and substandard performance of duty to be just, proper, and legal. 10. In accordance with DoDFMR 7000.14R, the applicant as a Regular Army officer is not eligible for involuntary separation pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016490 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2