RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 January 2008 DOCKET NUMBER: AR20070008270 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. Ms. Catherine C. Mitrano Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. James E. Vick Chairperson Mr. Thomas M. Ray Member Mr. Jeffrey C. Redmann Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his earlier request to expunge the Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) from his records, to upgrade his discharge to honorable, and to award him a favorable separation code. 2. The applicant states he has submitted new photographs, emails, and newspaper articles that were not previously considered by the Board. 3. The applicant states the Article 15 was fundamentally unfair. The Article 15 hearing was held on 16 July 2002, when his civilian defense counsel was on vacation in Europe. Army Regulation 27-10 allows the accused to present witnesses at an Article 15 hearing. His retained civilian counsel was out of the country and he did not have the opportunity to call or present any witnesses. They did not have the opportunity to execute their defense. This denial of his right to call witnesses resulted in undue command influence. Major General (MG) D___ took a little over 5 minutes to review his (the applicant’s) documentation in that time. That is why civilian counsel and he were relying on witnesses to be present. That would have allowed them to ask questions and cross-examine. Since his counsel was out of the country, no witnesses were called and justice was not served. 4. The applicant states he was never inside the Tabb Branch of the Yorktown Library. The additional evidence he provides will show that the police had the entire library area surrounded. No one was allowed to enter the library except escorted by the police as a group. No one was allowed to leave the library until the meeting was finished. Upon conclusion of the meeting, the attendees were escorted from the library as a group. Exhibits 3 and 4 (news photographs) show the State police surrounding the library: Protestors, onlookers, etc., were not allowed to cross this police line or barricades after the event started; and attendees of the meeting were escorted, as a group, from the library by the police. The authenticity of the photographs can be verified by calling the news agency listed on the back of the photographs. 5. The applicant states he provides an email from former Newport News, VA Police Department lieutenant James M___, wherein Mr. M___ verifies the Board’s statement, in paragraph 3 of the Discussion and Conclusions section of his previous case, that, “At this point Lieutenant [police officer’s name] lost visual contact with [the applicant] and could not verify if [the applicant] did in fact enter the library.” That was because he did not enter the library, nor did he cross the police line or barricaded area. Exhibit 6 is a newspaper article that states that about 40 people attended the meeting by being escorted by going through a metal detector. Furthermore, this article states that the attendees were escorted to their vehicles as a group. Paragraph 3 of MG D___’s order states, “The announced local meeting (emphasis in the original)… of the “World Church of the Creator” at the Tabb Branch of the Yorktown library, or any other location later announced, is hereby placed “off-limits” to all military personnel….” The applicant states he did not violate this order because he was not inside the Yorktown library nor did he participate, or ever participate, in any meeting of an extremist nature. 6. The applicant states that, furthermore, MG D___’s order stated that commanders would remind Soldiers of his lawful order. As previously stated, they were never properly notified of the specifics of the event. That lack of communication is evident given the number of people in his Officer Basic Course (OBC) who did not know anything about the meeting. That lack of communication should have been a mitigating factor for any punishment imposed. 7. The applicant states that the Criminal Investigation Command (CID) investigation is hearsay and therefore inherently unreliable. It is not direct evidence. However, the CID investigation is correct when it states that he never actually entered the library. The Army has provided no evidence to show that he was actually in the library. 8. Concerning the charge that he defrauded the Government out of $258.00, the applicant states again that he was denied the right to counsel and therefore did not have the opportunity to cross-examine the investigating officer (IO) on his report or to call any witnesses. The Article 15 charged that he allegedly defrauded the government of $1,456.15. The IO’s report stated the amount was $258.00. A clear procedural error occurred because MG D___ did not follow the IO’s report. And, there are clear errors in the IO’s report. 9. The applicant states that the IO determined that Ms. B___ stated he paid $674.00 in rent, not $800.00. However, exhibit 10 clearly shows that he paid $752.00 to the apartment complex. Exhibit 11 is the clearest example of the discrepancy between the IO’s report, information from the apartment complex, and the amount of money he actually spent. It was not clear to him when his pet rent was due. Further, he had a washer and dryer in the apartment as well as a natural gas addendum. He really did not know how much his rent was per month. Based upon the evidence, neither did the management of his apartment complex. In addition, “intent” is a necessary element of the charge of “defraud.” There is no evidence that it was his intent to steal $258.00 from the government. Since his attorney was not present at the hearing, he cannot determine if MG D___ actually knew about the intent requirement or was even aware of the huge discrepancy between the Article 15 and the IO’s report. 10. The applicant states that he would not have sued the apartment complex if there were no accounting errors. The apartment complex would not have asked him to sign a release if it did not believe it had committed accounting errors. 11. Concerning his request for transfer to the U. S. Army Reserve, the applicant states that he never surrendered his commission as an officer. He submitted his resignation from the Active Component of the Army. 12. The applicant provides the 16 exhibits listed in his application and identified on the “LIST OF EXHIBITS.” CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050011992 on 31 May 2006. 2. The applicant was commissioned a second lieutenant (2LT) out of the Reserve Officers’ Training Corps (ROTC) program on 30 May 1998. He was given an educational delay to attend law school, but was later placed on academic probation apparently due to a reading comprehension disorder. In April 2001, he applied for the U. S. Judge Advocate General’s Corps, but was not selected. He entered extended active duty on 25 January 2002 to attend the Transportation OBC with follow-on assignment to Germany. While attending OBC, he studied, sat for, and passed the bar examination for the District of Columbia. 3. On 15 April 2002, MG D___, the Commanding General, U. S. Army Transportation Center and Fort Eustis, VA, issued a memorandum for Fort Eustis military and civilian personnel, subject: Extremist Organizations. The memorandum stated in part, “The announced local meeting of the ‘World Church of the Creator’ at the Tabb branch of the Yorktown library, or any other location later announced is hereby placed ‘off-limits’ to all military personnel assigned or attached for command and control to Forts Eustis and Fort Story.” It also stated in part, “NLT (not later than) the suspense above, commanders will inform all military personnel, both soldier and civilian, of this ‘off-limits’ status. Commanders will remind soldiers this is a lawful order.” 4. The applicant provided several letters of support from fellow OBC students. 5. A letter of support from 2LT B___ stated that, on two successive Friday physical training formations, the First Sergeant (1SG) asked if anyone in Company G was living at the Mulberry Inn. She informed the students that there was going to be a white supremacist group staying or holding a rally at the Mulberry Inn and asked that they keep a safe distance away from that area. 6. A letter of support from 2LT M___ stated he recalled that the 1SG put out on two occasions not to go near the Mulberry Inn on the weekend of 4 and 5 May 2002. Members of a white supremacist group were known to be staying at the Mulberry Inn and the students were to stay safely away from there. She did not mention where or when exactly the meeting/gathering would occur. 7. A letter of support from 2LT S___ stated that two weeks before the extremist group’s meeting the 1SG stated that there might be a gathering of an extremist group at the Mulberry Inn on 4 May and stated that Soldiers were to stay away from the Mulberry Inn during that time period. He stated the 1SG used her own words and did not read from a written order, nor did she refer to any source of written documentation. He stated their company commander and their tactical officer never emphasized or repeated the 1SG’s remarks to the class. 8. A letter of support from 2LT K___ stated that the 1SG put out information three times at morning physical training formation that the extremists would be in town and were staying at the Mulberry Inn. She told the students to stay away from the hotel and not to associate with any known members of the organization. 9. A letter of support from 2LT T___ stated that on about four occasions the 1SG made statements concerning an upcoming extremist event in the Hampton/Newport News area. She informed them of the event located at a particular hotel, which location he did not recall. The 1SG stated they should stay away from the mentioned hotel. During every statement, the 1SG made it clear that the idea of visiting the area of involvement was not suggested although he could not recall that she ever stated that it was a direct order to avoid any contact with the event. 10. A letter of support from 2LT D___ stated that one morning before physical training the 1SG said that there would be an extremist group rally downtown at the Mulberry Inn or in the vicinity of the Inn. She reminded them that there was a policy letter that prohibited them from actively participating with the group and the bottom line was to stay away from that area. 11. A letter of support from 2LT M___ stated that in April 2002 the 1SG informed the company of an extremist rally to be held at the Holiday Inn (sic) in Newport News over the weekend. She put out a standing order that no Soldier was to attend or go anywhere near the scheduled rally. He stated it was clear to the company that this was off limits to all Soldiers. In addition to the 1SG’s standing order, the class was later briefed by the tactical officer not to go anywhere near the Holiday Inn where the rally was to be held. 12. A letter of support from 2LT J___ stated that he recalled the 1SG “warning us not to attend any functions that would be considered extremists groups at the hotel over the weekend.” He also stated that he did not remember any memorandums or anything in writing in reference to that. 13. On 21 May 2002, a Federal Bureau of Investigation (FBI) special agent notified CID that the applicant was identified as attending a meeting at the Tabb Library held by the World Church of The Creator, a white supremacist extremist group. The CID preliminary investigation report noted that Lieutenant M___ of the Newport News Police Department was working a check point across from the main entrance to the Tabb Library when he came into contact with the applicant. The applicant exited from his car, approached the checkpoint, spoke with the York County deputies, identifying himself as a lieutenant in the Army, and presented a military identification card to the deputies. He also stated he was in the area checking on “his people,” referring to Army personnel under his supervision. He asked the deputies if the event was open to the public and they indicated yes, at which time the applicant entered the library property and proceeded towards the library itself. At that point, Lieutenant M___ lost visual contact with the applicant and could not verify if he did in fact enter the library. 14. The CID preliminary investigation report went on to note that the applicant had been previously encountered by the Newport News Police officers prior to the York County event. He was interviewed while at the Mulberry Inn. The applicant was approached by Officer H___ after the applicant began asking hotel staff about the York County event. He presented his military identification card to Officer H___ and stated he was a lawyer for the Army, but was working outside his specialty as a logistics officer. The FBI special agent, the task force officer, and a CID agent interviewed management at the apartment complex where the applicant lived, where they learned about the applicant’s possible involvement in actions to defraud the government. 15. In his previous application, the applicant provided a sketch of the area surrounding the Tabb Library. The sketch indicates that the police line surrounded the library at least on three sides (the rear of the building is not indicated in the sketch). The entry to the library was 75 yards from the police line. 16. The applicant provided copies of three money orders, showing he paid Woodbridge Pointe Apartments the amount of $752.00 on 4 March 2002, the amount of $722.00 on 3 April 2002, and the amount of $730.00 on 2 May 2002. 17. The applicant provided a statement from Woodbridge Pointe Apartments indicating his rent was $800.00 and a total payment of $800.00 was received by the Assistant Manager, Tia B___, on 25 March 2002. The Assistant Manager later provided a statement wherein she stated the applicant came in once and had her sign a paper saying he paid an “x” amount of dollars. She did not remember the exact amount, but it was more than he actually paid. She questioned him about it, but she signed the paper anyway. 18. The applicant provided a travel voucher, dated 5 April 2002, requesting reimbursement of expenses. On the voucher, he indicated he paid apartment rent in the amount of $800.00 on 28 March 2002. 19. The applicant provided a Resident Transaction History that indicated his rent was $674.00; however, he did not provide a copy of his lease agreement. 20. The applicant graduated from the Transportation OBC on 29 May 2002. 21. On 19 June 2002, MG D___ informed the applicant that he was considering whether the applicant should be punished under Article 15, Uniform Code of Military Justice, for: (1) on or about 4 May 2002, violating a lawful general regulation, to wit: Army Regulation 600-20, by wrongfully participating in an extremist organization activity by attending a meeting at the Tabb Branch of the Yorktown, VA library held by an extremist organization known as the “World Church of the Creator”; (2) on or about 4 May 2002, violating a lawful general order, to wit, a memorandum signed by MG D___, dated 15 April 2002, by participating in an extremist organization activity by attending a meeting at the Tabb Branch of the Yorktown, VA library held by an extremist organization known as the “World Church of the Creator”; (3) on or about 4 February 2002, by preparing a request for a travel advance for presentation for approval or payment, make a claim against the United States in the amount of $1,095.00 for rent, which claim was false and fraudulent in the amount of $557.67 in that he claimed a higher amount for rent for the period 24 January through 22 February 2002 than he was actually obligated to pay and was then known by him to be false and fraudulent; (4) on or about 19 February 2002, by preparing a travel voucher for presentation for approval or payment, make a claim against the United States in the amount of $924.00 for rent, which claim was false and fraudulent in the amount of $242.24 in that he claimed a higher amount for rent for the period 24 January through 28 February 2002 than he was actually obligated to pay and was then known by him to be false and fraudulent; (5) on or about 26 March 2002, by preparing a travel voucher for presentation for approval or payment, make a claim against the United States in the amount of $800.00 for rent for the month of March 2002, which claim was false and fraudulent in the amount of $126.00 in that he claimed a higher amount for rent for the month of March 2002 than he was actually obligated to pay and was then known by him to be false and fraudulent; (6) on or about 5 April 2002, by preparing a travel voucher for presentation for approval or payment, make a claim against the United States in the amount of $800.00 for rent for the month of April 2002, which claim was false and fraudulent in the amount of $126.00 in that he claimed a higher amount for rent for the month of April 2002 than he was actually obligated to pay and was then known by him to be false and fraudulent; (7) on or about 29 April 2002, by preparing a travel voucher for presentation for approval or payment, make a claim against the United States in the amount of $730.00 for rent for the month of May 2002, which claim was false and fraudulent in the amount of $56.00 in that he claimed a higher amount for rent for the month of May 2002 than he was actually obligated to pay and was then known by him to be false and fraudulent; (8) on or about 3 June 2002, by preparing a travel voucher for presentation for approval or payment, make a claim against the United States in the amount of $750.00 for rent for the month of May 2002, which claim was false and fraudulent in the amount of $750.00 in that he had already claimed rent for the month of May 2002 in a previous travel voucher, dated 29 April 2002, and was then known by him to be false and fraudulent; (9) on or about 19 February 2002, for the purpose of obtaining the approval, allowance, and payment of a claim against the United States in the amount of $924.00, did make and use a certain writing, to wit: a receipt from “Woodbridge Pointe Apartments,” for payment of rent for the period 24 January 2002 through 28 February 2002 which said writing, as he then knew, contained a statement that he paid rent in the amount of $924.00, which statement was false and fraudulent in that he paid only $681.76 for rent for the period 24 January 2002 through 28 February 2002, and was then known by him to be false and fraudulent; (10) on or about 26 March 2002, for the purpose of obtaining the approval, allowance, and payment of a claim against the United States in the amount of $800.00, did make and use a certain writing, to wit: a receipt from “Woodbridge Pointe Apartments,” for payment of rent for March 2002 which said writing, as he then knew, contained a statement that he paid rent in the amount of $800.00, which statement was false and fraudulent in that he paid only $674.00 for rent for the month of March 2002, and was then known by him to be false and fraudulent; (11) on or about 5 April 2002, for the purpose of obtaining the approval, allowance, and payment of a claim against the United States in the amount of $800.00, did make and use a certain writing, to wit: a receipt from “Woodbridge Pointe Apartments,” for payment of rent for March 2002 which said writing, as he then knew, contained a statement that he paid rent in the amount of $800.00, which statement was false and fraudulent in that he paid only $674.00 for rent for the month of March 2002, and was then known by him to be false and fraudulent; (12) on or about 24 January 2002, wrongfully and dishonorably enter into a lease agreement with the Woodbridge Pointe Apartments for a term of six months when, at the time of signing the lease, he knew he would not be occupying the apartment for the entire six months in that he had orders assigning him to Germany with a report date of 29 June 2002; (13) on or about 15 February 2002, wrongfully and dishonorably enter into a lease agreement with the Woodbridge Ponte Apartments for a term of six months when, at the time of signing the lease, he knew he would not be occupying the apartment for the entire six months in that he had orders assigning him to Germany with a report date of 29 June 2002; and (14) being indebted to Woodbridge Pointe Apartments, in the sum of $350.00 for a deposit for having a dog in his apartment, which amount became due and payable on or about 15 February 2002, did, from 15 February 2002 to 14 June 2002, dishonorably fail to pay said debt. 22. MG D___ informed the applicant he could ordinarily have an open hearing. He could request a person to speak on his behalf. He could present witnesses or other evidence to show why he should not be punished at all or why punishment should be very light. MG D___ would consider everything the applicant presented before deciding whether he would impose punishment or the type and amount of punishment he would impose. If he did not want MG D___ to dispose of the report of misconduct under Article 15, he had the right to demand trial by court-martial instead. MG D___ informed the applicant he had 48 hours to decide what he wanted to do. 23. On 24 June 2002, the applicant indicated that he did not demand trial by court-martial, he requested the hearing be closed, he requested a person to speak in his behalf, and he indicated that matters in defense, mitigation, and/or extenuation would be presented in person. 24. On 16 July 2002, MG D___ imposed a punishment upon the applicant of a forfeiture of $1,208.00 per month for 2 months and a reprimand. The applicant was advised of his right to appeal within 5 calendar days. On 24 July 2002, the applicant appealed. On 14 August 2002, Lieutenant General S___ denied his appeal. 25. On an unknown date, action was initiated to eliminate the applicant from the Army. On 15 October 2002, the applicant submitted a voluntary resignation from active duty in lieu of an officer board. He waived any right to appear before a board of officers conditioned upon receiving a characterization of service no less favorable than general under honorable conditions. Prior to submitting his request for resignation he was fully advised and counseled in the matter by civilian counsel and a member of the Judge Advocate General’s Corps. He indicated that he fully understood the implication of that voluntary action. 26. The Department of the Army Ad Hoc Review Board reviewed the applicant’s resignation in lieu of elimination based on misconduct, moral or professional dereliction. On 22 November 2002, the Deputy Assistant Secretary (Army Review Boards) accepted his resignation and directed he be separated with a general under honorable conditions discharge. 27. On 23 December 2002, the applicant was discharged, with a general under honorable conditions discharge, under the provisions of Army Regulation 600-8-24, paragraph 4-2B and paragraph 4-24A(1) for unacceptable conduct and with separation code “BNC” (resignation due to unacceptable conduct). 28. On 30 December 2002, the applicant signed a release indicating he discharged the apartment complex management from all manner of actions, causes of action, suits, etc. 29. On 9 August 2004, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 30. The applicant provided an email, dated 13 May 2007, from James M___, formerly of the Newport News, VA Police Department. Mr. M___ informed the applicant that “as far as I can remember I did not see you in the library. However, as I remember it, all military personnel were not allowed into the general area considering the nature of the activity.” He could not speak about the perimeter of the library. He did not remember any details of his encounter with the applicant. 31. The applicant provided a portion of a newspaper article wherein he highlighted portions of the article: “…and placing huge concrete barriers on the road and in the library parking lot”; “Mounted police were part of the escort which led folks from the meting (sic) to their cars”; and “When the speeches were over, the group filed out and past (sic) about 60 protestors. There was a shouting match, but the police-escorted supremacists left unmolested….” He provided another news article wherein he highlighted the captions to two photographs: “…150 police officers kept order inside, outside …of the Tabb Library on Saturday” and “Police officers stand guard while World Church of the Creator leader Matt H___ speaks to a sparse crowd at the Tabb Library.” 32. Army Regulation 190-24 (Armed Forces Disciplinary Control Boards and Off-Installation liaison and Operations) defines “off-limits” as the designation for any vehicle, conveyance, place, structure, building, or area where Service personnel are prohibited to use, ride, visit, or enter during the period of the off-limits declaration until existent conditions which adversely affect the health, safety, and welfare of Service personnel are eliminated or corrected. 33. Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice. It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial. The authority to impose nonjudicial punishment charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner. The commander of the alleged offender must ensure that the matter is investigated promptly and adequately. The investigation should cover whether an offense was committed, whether the Soldier was involved, and the character and military record of the Soldier. The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, that the commander reasonably believes to be relevant to the offense. 34. Army Regulation 27-10 states an offender has no right to legal counsel at nonjudicial proceedings. The Soldier may retain civilian counsel to act as the Soldier’s spokesperson at no cost to the Government. However, the commander need not grant a delay for the appearance of any spokesperson, to include civilian counsel so retained. Because the proceedings are not adversarial in nature, neither the Soldier not spokesperson (including any attorney present on behalf of the Soldier) may examine or cross-examine witnesses, unless permitted by the imposing commander. The Soldier’s request for witnesses in defense, extenuation, or mitigation will be restricted to those witnesses reasonably available as determined by the imposing commander. Reasonably available witnesses will ordinarily include only personnel at the installation concerned and others whose attendance will not unnecessarily delay the proceedings. 35. Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, states in pertinent part that by “reasonable doubt” is intended not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt. Proof beyond a reasonable doubt means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. If, on the whole evidence, (the jury or military judge as fact finder) is satisfied beyond a reasonable doubt of the truth of each and every element, then (the jury or military judge as fact finder) should find the accused guilty. 36. The Manual for Courts-Martial United States, Part II (Rules for Courts-Martial), Rule 104 (Unlawful command influence), paragraph (a)(1) states no convening authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings. Paragraph (a)(2) states no person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority’s judicial acts. 37. Army Regulation 600-8-24 (Officer Transfers and Discharges) states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or can not maintain those standards will be separated. Paragraph 4-1a of the version in effect at the time stated elimination action could be initiated when the officer was involved in misconduct, moral or professional dereliction, or it was in the interests of national security. 38. Army Regulation 600-8-24, paragraph 4-24 of the version in effect at the time, stated an officer identified for elimination could elect one of the following options: (1) submit a resignation in lieu of elimination; (2) request discharge in lieu of elimination (Regular Army only); or (3) apply for retirement in lieu of elimination if otherwise eligible. If an officer elected to submit a resignation in lieu of elimination, the memorandum format in figure 4-5 would be followed. The subject of the memorandum in figure 4-5 was “Discharge in lieu of Elimination Proceedings.” This format did not provide for a voluntary resignation from active duty in lieu of elimination. 39. Army Regulation 600-8-24, paragraph 1-21 of the version in effect at the time, stated the character of service would be predicated on the officer’s behavior and performance while a member of the Army. Characterization would normally be based on a pattern of behavior and duty performance rather than an isolated incident. However, there were circumstances in which conduct reflected by a single incident could provide the basis of characterization of service. An officer would normally receive an Under Honorable Conditions characterization of service when the officer’s military record was satisfactory but not sufficiently meritorious to warrant an Honorable discharge. 40. Army Regulation 600-8-24, paragraph 1-20 of the version in effect at the time, stated acceptance of the resignation or the discharge of an officer in a Regular Army or Reserve status, unless otherwise specified in this regulation, would result in appropriate action being taken to terminate any warrant or temporary commission he or she might be holding simultaneously. DISCUSSION AND CONCLUSIONS: 1. The applicant accepted the Article 15 on 24 June 2002. It cannot be determined at this point in time why it took MG D___ until 16 July 2002 to hold the hearing; however, it is recognized that general officers travel extensively and he may not have been available for that period of time. 2. Nevertheless, the delay gave the applicant that much more time to prepare for the Article 15 hearing. It is not creditable to believe that the applicant and his civilian counsel were not aware as of 24 June 2002 that his counsel would be in Europe for the month of July. It is true that Army Regulation 27-10 allows the accused to present witnesses at an Article 15 hearing. However, the applicant has provided no evidence to show that he or his counsel were prevented from providing a witness list to the imposing authority before counsel left for Europe. In any case, neither the Soldier nor his counsel could have examined or cross-examined any witnesses, unless permitted by MG D___. Since the applicant and his counsel could have talked to any identified witnesses before counsel left for Europe, there is insufficient evidence to show the applicant had no opportunity to execute his defense even in the absence of his civilian counsel. 3. The applicant contended that the denial of his right to call witnesses resulted in undue command influence. It appears he misunderstands the definition of unlawful command influence. There is no evidence to show that any commander senior to MG D___ attempted to influence him with regard to the applicant’s Article 15. 4. The applicant contended that MG D___ took a little over 5 minutes to review his (the applicant’s) documentation. The applicant provided no evidence to show that MG D___ had not thoroughly reviewed the applicant’s case prior to 16 July 2002. Also, again, neither the applicant nor his counsel would have had the right to examine or cross-examine any witnesses. 5. The applicant contended the additional evidence he provided would show that the police had the entire library area surrounded. This contention appears to be valid. However, he also contended that no one was allowed to enter the library except escorted by the police as a group. As evidence, he provided an email from Lieutenant M___, who five years after the event could only recall that he could not remember seeing the applicant in the library. It may be true that the extremist group was escorted into the library as a group. However, contemporary evidence (i.e., the CID preliminary investigation report) indicated that the event was open to the public and that the applicant crossed the police line to enter the library property and proceeded towards the library itself. 6. There is no evidence to show that the applicant recrossed the police lines to depart from the library property. Circumstantial evidence would tend to show that the applicant went into the library, even if he may not have gone into the room where the extremist group was meeting, and departed the library after the extremist group departed and the area returned to normalcy. 7. In addition, MG D___’s written order explicitly used the term “off-limits” in reference to the World Church of the Creator meeting. Therefore, not only the library itself, but a reasonable amount of the area immediately surrounding this location was covered by his order. 8. It is not credible to believe that the applicant, a lawyer (albeit one who had just recently passed the bar exam), would have so narrowly understood MG D___’s announcement that the meeting of the extremist group was off-limits to mean that it was confined solely to the meeting room itself. This is especially not credible in light of the fact he provided numerous letters to show his OBC class had been warned to stay away from the area where members of the extremist group were staying. Most of the letters indicated that the individuals specifically heard the Mulberry Inn mentioned. However, 2LT D___ stated the 1SG said that there would be an extremist group rally at the Mulberry Inn or in the vicinity of the Inn and reminded them that there was a policy letter that prohibited them from actively participating with the group and the bottom line was to stay away from that area. 2LT T___ stated that on about four occasions the 1SG made statements about an upcoming extremist event in the Hampton/Newport News area and made it clear that the idea of visiting the area of involvement was not suggested. 9. Furthermore, the applicant provided a statement from 2LT M___, who stated that in April 2002 the 1SG informed the company of an extremist rally to be held at the Holiday Inn (sic) in Newport News over the weekend and put out a standing order that no Soldier was to attempt, or go anywhere near, the scheduled rally. 2LT M___ also stated it was clear to the company that this was off limits to all Soldiers. 10. It is not credible to believe that the applicant, a lawyer, knowing from the letters of support he himself provided that the students in his OBC class understood different versions of the information the 1SG was providing, would not have requested clarification of the information, especially since it appears he intended to put himself in a situation where it could be construed that he did attend the extremist meeting. 11. The applicant contended that the CID investigation is hearsay and therefore inherently unreliable because it is not direct evidence. However, the imposing commander in an Article 15 proceeding is not bound by the formal rules of evidence before courts-martial and may consider any matter he reasonably believes to be relevant to the offense. Rather, the imposing commander may consider any relevant matter, provided he or she informs the accused of the information against him relating to the offenses alleged and allows the accused to examine any evidence the commander has examined that the commander intends to rely upon in deciding whether the accused is guilty and how much punishment to give. 12. Accordingly, MG D___ properly considered the CID investigation report as evidence. Since the applicant does not complain he was denied the opportunity to review the CID report before or at his Article 15 haring, it is presumed that he did so. 13. The applicant contended that the IO’s report stated the amount of which he “defrauded” the government was $258.00, but the Article 15 charged that he allegedly defrauded the government of $1,456.15. He stated that a clear procedural error occurred because MG D ___ did not follow the IO’s report and that there are clear errors in the IO’s report. 14. The IO’s report is not available and the applicant did not provide a copy of the report. In the absence of evidence to the contrary, it is presumed that MG D___ relied upon sufficient evidence, possibly reports in addition to the IO’s report, to justify the amounts listed in the Article 15. 15. The applicant contended that the IO determined that Ms. B___ stated he paid $674.00 in rent, not $800.00; however, exhibit 10 clearly showed that he paid $752.00 to the apartment complex. Whether or not there is a discrepancy in the amount he defrauded the government, this statement alone raises the question as to why, if he only paid $752.00 to the apartment complex, did he submit a claim for reimbursement claiming he paid $800.00 in rent. The applicant provides insufficient evidence to show that it was not his “intent” to defraud the government. In addition, in the absence of evidence to the contrary, it is presumed that MG D___ was advised by his Staff Judge Advocate or trial counsel prior to deciding to impose the punishment. 16. The applicant contended that he would not have sued the apartment complex if there were no accounting errors and that the apartment complex would not have asked him to sign a release if it did not believe it committed accounting errors. As to these contentions, it cannot be determined what was in the minds of the applicant and the apartment complex personnel. It is recognized that American society is highly, and sometimes frivolously, litigious. 17. The applicant contended that he never surrendered his commission as an officer and that he submitted his resignation from the Active Component of the Army. 18. Prior to submitting his voluntary resignation in lieu of an officer board, the applicant indicated that he was fully advised and counseled in the matter by civilian counsel and military counsel. It is presumed that he was accurately counseled regarding the guidance in paragraph 4-24 of Army Regulation 600-8-24 (i.e., that he should follow the memorandum format in figure 4-5). Whether intentionally or not, he did not follow that format. However, he had indicated in his request for resignation that he fully understood the implication of his request. That is, acceptance of his resignation would result in appropriate action being taken to terminate his commission. 19. Based upon the above, there is insufficient evidence that would warrant upgrading the applicant’s discharge, changing his separation code, or expunging the Article 15 proceedings from his records. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __jev___ __tmr___ __jcr___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050011992, dated 31 May 2006. ___James E. Vick______ CHAIRPERSON INDEX CASE ID AR20070008270 SUFFIX RECON DATE BOARDED 20080122 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Ms. Mitrano ISSUES 1. 110.00 2. 126.04 3. 4. 5. 6.