MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 July 2003      
	DOCKET NUMBER:   AR2002075732

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy L Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O'Shaughnessy		Member	

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

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

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that his basic active service date (BASD) and pay entry basic date (PEBD) be adjusted to reflect the graduation date of the West Point United States Military Academy (USMA) Class of 1983.  He also requests that his diploma from the Academy be reprinted to match the dates and verbiage of the Class of 1983 and a repayment of the legal fees he expended, if appropriate.

APPLICANT STATES:  That the USMA Superintendent's decision to dismiss him from the Academy was based on the conduct board officer's findings that he had 3 first class boards and 160 demerits which resulted in his exceeding (by a large margin) his 6-month allowable total.  He never saw the Superintendent's 8 April 1983 letter, even though it was addressed to him, until recently.  The fact is, he had 2 first class boards, not 3, in his 4 years at the Academy.  Either through gross error or a collusive act on the part of his Regimental Tactical Officer, a very late 3d board that awarded him 80 demerits was placed in his file on 2 October 1982.  That event never happened, he never received a third board, nor was he punished.  There is no record of this fictitious offense in his records at West Point.

The applicant states that he received two first class boards while at West Point.  In both cases, the board officers admitted that the findings of the board did not warrant the level of board severity.  In the case of the second board, the board officer tried to have it dropped altogether.  He [the board officer] was instructed by the Regimental Tactical Officer to challenge the wording and award the minimum demerits allowed so it still carried the weight of a first class board.  The first board carried a punishment of 50 demerits; the second (and last board) carried a 25-demerit punishment.  The second board caused him to exceed his 6-month allowable total by less than 5 demerits.  Exceeding the 6-month total was what prompted the conduct board, yet 5 demerits was a far cry from warranting dismissal.

At no time did the conduct board officer [15 through 21 January 1983 board] mention that he was passing judgment on an 80-demerit, first class board for an offense dated 2 October 1982.  Yet this error was slipped into the letter that went to the Superintendent and led to his dismissal.  The lack of counseling from his tactical officer chain of command for the specific findings of the conduct board ensured he would never find out about the error.  He only discovered the error recently when his finance officer discovered that his PEBD had never been adjusted to include his enlisted service.

The applicant states that he incurred $10,000 in legal fees between 1983 to 1984; he was ordered to active duty in an enlisted status and offered his West Point diploma only if he completed Officer Candidate School (OCS); he was taken out of the 1983 West Point yearbook; his PEBD is 2 months behind his West Point classmates and his BASD reflects the date on his orders assigning him to OCS; and his West Point diploma reflects his OCS graduation and makes no mention of commission.

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

He entered West Point in 1979.

In April 1981, a recommendation was made to investigate allegations that the applicant (and one other cadet) committed acts of ungentlemanly conduct and harassment of female cadets, persisting, over an extended period of time, in the harassment of female cadets through the use of abusive, vulgar, and degrading language in their presence and when addressing them.  

A hearing was held in May 1981 to investigate allegations that the applicant (and the other cadet) violated paragraph 8.07 and 8.11, Regulations, USMA, by irregular conduct in harassment of female cadets through the use of abusive, vulgar, and degrading language and by acting in a manner unbecoming a gentleman, officer, and a member of the Corps of Cadets; that they violated paragraph 8.09, Regulations, USMA, in combination with each other or in joint action with other unknown cadets for the purpose of expressing disapprobation of female members of the Corps of Cadets; and that they violated paragraph 8.12, Regulations, USMA, by unauthorized treatment by such cadets of female cadets of an abusive, insulting, or humiliating nature.

The investigating board found, by substantial evidence, that the applicant violated paragraph 8.07 of Regulations, USMA, by acting in a manner unbecoming a gentleman and officer and a member of the Corps of Cadets.  It was not found, by substantial evidence, that the applicant violated paragraph 8.07 by irregular conduct in harassment of female cadets through the use of abusive, vulgar, and degrading language.  It was not found, by substantial evidence, that the applicant violated paragraphs 8.08, 8.11, or 8.12 of Regulations, USMA.  It was not found that any acts were committed in an attempt to harass female cadets.  It appeared to the investigating officer (IO) that the acts were done either for laughs or out of a lack of sensitivity for female cadets who overheard what they were saying or doing.  

The IO opined that separation or suspension of the applicant and the other cadet would be counterproductive.  Their actions appeared to be more of immaturity than of malicious intent.  As a result of the investigation, they seemed to understand the effect that a male cadet's insensitivity had on females. The IO recommended the applicant be given 50 demerits, 8 disciplinary tours, and one month's restriction.

In forwarding the action to the Superintendent, the Staff Judge Advocate noted the authorized sanctions could be separation from the Academy or disciplinary action under paragraph 8.03, Regulations, USMA; admonition, reprimand, restriction to limits, deprivation of privileges, reduction in or withdrawal of cadet officer or noncommissioned officer rank, demerits, punishment tours, fatigue punishments, loss of leave, and suspension from the Academy.

In a 16 June 1981 memorandum to the Superintendent, the Commandant of Cadets informed the Superintendent that he had remanded the case to investigation under Regulations, USMA, rather than Regulations, U. S. Corps of Cadets because preliminary statements indicated the offenses of the applicant and the other cadet were of a nature that could warrant suspension or separation.  He noted that while the acts were reprehensible, lesser punishment should be imposed.  He suggested the Superintendent also consider imposing a suspended separation or suspension along with demerits and punishment tours.  

On 23 June 1981, the Superintendent approved the findings of the IO but disapproved his recommendation.  He imposed the following punishment on both cadets:  50 demerits, 80 disciplinary tours, one month restriction, an oral reprimand, and suspension from the Academy for one year, (that portion relating to suspension was suspended until 1 January 1982 pending their future exemplary conduct).  The applicant was notified of this punishment by letter dated 23 June 1981.

Apparently, on or about 15 August 1982 an incident occurred whereby the applicant received 25 demerits for displaying poor judgment.  There is no documentation in the USMA archives pertaining to this incident.

Apparently, on or about 2 October 1982, an incident occurred whereby the applicant received 80 demerits for violation of reservation limits and probationary privileges.  There is no documentation in the USMA archives pertaining to this incident.

Apparently, a hearing was held on 17 January 1983 wherein the applicant was found deficient in conduct for receiving 160 demerits, 85 demerits in excess of the 6-month allowance of 75 demerits.  There is no documentation in the USMA archives pertaining to this hearing.

By letter dated 8 April 1983, the Superintendent informed the applicant that,       as a result of a hearing by an IO on 17 January 1983, he was found deficient      in conduct for receiving 160 demerits for the period 1 June 1982 through           30 November 1982.  This was 85 demerits in excess of the 6-month allowance of 75 demerits.  The Superintendent informed the applicant that he approved the finding but modified it to cover the 6-month period from 1 May 1982 through       31 October 1982 during which the applicant's 6-month demerit allowance was   78 demerits.  The Superintendent also informed the applicant that he approved the IO's finding that he was deficient in conduct for receiving three disciplinary awards that resulted in individual awards of at least 25 demerits each.  The applicant was informed that the Superintendent intended to recommend he be separated from the Academy, transferred to the U. S. Army Reserve (USAR) as an E-4 for 3 years, and ordered to active duty for 2 years.

By first endorsement dated 22 July 1983, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved the recommendation to separate the applicant for conduct deficiency, to transfer him to the USAR for 3 years, and to order him to active duty for 2 years with an initial grade of E-4.

The applicant was assigned to the USAR effective 22 July 1983 on Headquarters, U. S. Military Academy Orders 166-1, paragraph 1 dated               7 September 1983.  The additional instructions in the orders noted he was         on authorized leave of absence without pay and allowances from 19 May to        1 August 1983.  In paragraph 2, he was ordered to active duty with a reporting date of 12 September 1983.  

Orders 166-1 were revoked by Headquarters, U. S. Military Academy Orders 169-9 dated 12 September 1983.  

The applicant was relieved from active duty and assigned to the USAR effective 22 July 1983 on Headquarters, U. S. Military Academy Orders 173-2 dated       16 September 1983.  The additional instructions in the orders noted he was on authorized leave of absence with pay and allowances in accordance with paragraph 5a(1)(a), Army Regulation 612-205.

An untitled document, dated "as of 10 April 1984," indicates the basis for determining the applicant was deficient in conduct was his exceeding the            6-month demerit allowance for the period 1 May 1982 through 31 October 1982 by receiving 160 demerits, 82 demerits in excess of the 78 demerits allowed,       and receiving 3 disciplinary awards of at least 25 demerits.  Significant demerit awards (25 or more demerits) were:  23 June 1981, 50 demerits for conduct unbecoming; 15 August 1982, 25 demerits for displaying poor judgment (inviting himself to be a guest of parents of another cadet for the sole purpose of circumventing regulations concerning drinking on post); and 2 October 1982,     80 demerits for violating reservation limits and probationary privileges; i.e., departed post on pass without approval.  

The untitled document further indicated the investigation was conducted            17 through 21 January 1983; that the case was forwarded to Headquarters, Department of the Army on or about 26 April 1983; that the applicant had defense counsel; and that there were other interested parties (illegible).  It also indicated that the applicant's order to active duty was being held in abeyance; that his date of separation from the Academy and transfer to the U. S. Army Reserve was 16 September 1983; and that his call to active duty was deferred on or about 23 September 1983.

By letter dated 30 December 1983, the Assistant Deputy Chief of Staff for Personnel, Headquarters, Department of the Army, notified the Superintendent that the Secretary of the Army directed that cadets in their first class year who were carried to graduation but did not graduate for reasons that related to disciplinary matters (i.e., deficiency in conduct) would be given the opportunity to enter OCS.  Upon successful completion of OCS, they would be given a Reserve commission and awarded their West Point diploma.  

The applicant elected to attend OCS as an enlisted member of the USAR on active duty with a report date to Fort Benning, GA of 16 January 1984.  

The applicant was ordered to proceed on permanent change of station with temporary duty at the U. S. Army Infantry School Accessions, Fort Benning, GA to attend OCS with a will proceed date of 19 January 1984 on Headquarters,     U. S. Military Academy Orders 9-11 dated 16 January 1984.  

Orders 9-11 pertaining to the applicant were rescinded on Headquarters, U. S. Military Academy Orders 43-2 dated 5 March 1984.

The applicant was ordered to active duty in the rank of Specialist Four and assigned to the USMA Cadet Detachment, West Point, NY with a reporting date of 22 January 1984 on Headquarters, U. S. Military Academy Orders 43-4 dated 5 March 1984.

The applicant was ordered to proceed on permanent change of station with temporary duty pending further orders to the 51st Company, 5th Student Battalion, Fort Benning, GA to attend OCS with will proceed date of 19 January 1984 on Headquarters, U. S. Military Academy Orders 43-6 dated 5 March 1984. 

By letter dated 25 April 1984, the Assistant Deputy Chief of Staff for Personnel, Headquarters, Department of the Army, informed the Superintendent that it was anticipated the applicant would successfully complete OCS and be graduated on 27 April 1984.  Contingent on his successful completion of OCS and acceptance of an appointment as a second lieutenant in the U. S. Army Reserve with an active duty commitment of 5 consecutive years, he would be deemed proficient in conduct for the purpose of satisfying the requirements for graduation and conferring a degree from the USMA.  It was requested the action be expeditiously considered by the Academic Board.

On or about 25 April 1984, the Academic Board carried a motion to award the applicant a diploma prescribing the degree of Bachelor of Science, prepared     "in the same style as is normally used for graduating cadets who are not commissioned in the Regular Army."  The diploma would bear the date of             27 April 1984.  The diploma is not available.

The applicant received a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 22 January 1984 through 26 April 1984.  Item 12d of his DD Form 214 noted that he had completed 4 years and 11 days of prior active service.  Item 18 of his DD Form 214 noted that item 12d consisted of service as a USMA Cadet from 2 July 1979 to 12 July 1982 and was not creditable for commissioned service.

On 27 April 1984, the applicant was commissioned a second lieutenant in the      U. S. Army Reserve and has been on continuous active duty since.  He currently holds the rank of Lieutenant Colonel in the Regular Army.  His Officer Record Brief shows his BASD as 13 July 1983.  The Officer Record Brief does not list the PEBD.  The Defense Finance and Accounting Service stated that their records show his PEBD is 13 July 1983.

Army Regulation 612-205 (Appointment and Separation of Service Academy Attendees), effective 15 June 1983, contains procedures for processing and strength accounting of individuals appointed as cadets at the USMA.  There is no paragraph 5a(1)(a).  Paragraph 7a(1)(a) states that cadets separated for reasons other than physical disability will be authorized leave of absence without pay and allowances pending completion of the separation.  Instructions relating to his or her future enlisted status will be issued by his or her parent Service

The Department of Defense Financial Management Regulation, Volume 7A, Table 38-1, Rule 4 states that when a cadet is dismissed from the Academy by other than court-martial action before graduation, then pay and allowances will be stopped on the date of dismissal.

Army Regulation 15-185 (Army Board for Correction of Military Records), states that the Army may not pay attorney's fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records.

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  There is insufficient evidence to show the applicant was not afforded due process at his January 1983 wherein he was found deficient in conduct for receiving 160 demerits, 85 demerits in excess of the 6-month allowance of 75 demerits.  There is no documentation in the USMA archives pertaining to this hearing.

3.  The Board acknowledges that that is no documentation in the USMA archives pertaining to the October 1982 incident; however, neither is there documentation in the USMA archives pertaining to the August 1982 incident and the applicant does not dispute that the August 1982 incident occurred.  Therefore, the failure to find documentation on the October 1982 incident in USMA files is not proof that the incident did not occur.

4.  The Board acknowledges that the IO in the hearing of the first incident may not have believed the incident warranted a severe punishment; however, the Board presumes that the Superintendent considered all the circumstances of the incident and determined that his more severe imposed punishment, which included a suspended suspension from the Academy, was merited.

5.  The Board presumes that the Superintendent considered all the circumstances of the second incident and again determined that his imposed punishment, which included 25 demerits, was merited.

6.  The untitled 10 April 1984 document indicated the applicant had counsel during the January 1983 hearing.  The applicant indicates he incurred legal fees between 1983 and 1984 and the Board therefore presumes he had counsel during his separation proceedings.  In the absence of evidence to the contrary, the Board presumes that counsel should have seen or should have asked for the [8 April 1983] letter from the Superintendent informing the applicant he approved the findings that the applicant was deficient in conduct for receiving three disciplinary awards.

7.  The applicant provides no evidence to show that he did not receive the October 1982 disciplinary award or that, if he had not received it, that he would not have been recommended for separation from the Academy.  He was allowed only 75 demerits for a 6-month period; he exceeded that allowance; he was subject to separation.

8.  Although Headquarters, U. S. Military Academy Orders 173-2 dated             16 September 1983 indicated the applicant was on authorized leave of absence with pay and allowances in accordance with paragraph 5a(1)(a), Army Regulation 612-205, it appears that this may have been in error.  The citation (paragraph 5a(1)(a)) in the orders was incorrect.  Both the correct citation (paragraph 7a(1)(a)) and the Department of Defense Financial Management Regulation state that when a cadet is dismissed from the Academy by other than court-martial action before graduation, then pay and allowances will be stopped on the date of dismissal.

9.  The Board notes that the applicant's Officer Record Brief shows his BASD as 13 July 1983.  This appears to be in error.  There is no other evidence of record to show the applicant entered active duty earlier than on or about 16 January 1984 (when one order indicated he was to proceed to OCS).  However, the Board will not take any action to change his BASD to a possible later date.  

10.  The Defense Finance and Accounting Service indicated that their records show the applicant's PEBD is 13 July 1983.  The Board cannot determine from the available records if this is his correct PEBD (the evidence of record shows he was assigned to the USAR effective 22 July 1983); however, the Board will not take any action to change his PEBD to a possible later date and he provides no evidence to show it should be an earlier date.

11.  The Army is prohibited from paying an applicant's legal fees.

12.  The applicant does not provide a copy of his West Point diploma and so the Board cannot make a determination whether it was prepared correctly or not.

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

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

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __wtm___  __teo___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002075732	
SUFFIX		
RECON		
DATE BOARDED	20030729	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.