IN THE CASE OF: BOARD DATE: 16 August 2011 DOCKET NUMBER: AR20100024171 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 that the decision made by a board of officers in his case be overturned and that he be reinstated as a Reserve commissioned officer. He requests, in the alternative, that his discharge under other than honorable conditions be upgraded to an honorable discharge. 2. The applicant states the board proceedings were tainted due to violations of regulation and Federal law. He states the characterization of his discharge is grossly disproportionate and unjust. 3. The applicant provides: * Arguments Brief for Office of Staff Judge Advocate (OSJA) Case 07-0050 * Appeal of OSJA Case 07-0050 to the ABCMR which includes an Index of Exhibits and Summation of Exhibits Relevance [sic] to Noted Issues * Orders Number 016475 * Orders 07-059-00001 * Email from an Army Reserve Career Counselor * Email from the Military Intelligence Readiness Command (MIRC) SJA * Recommendation for Board Action * Sworn Statement from his battalion commander * Sworn Statement from his company commander * Notice of failure to report to annual training * Delegation of signature authority * Developmental Counseling Form * Email between the MIRC SJA, his company commander, and himself * Letters to and from his Member of Congress * Freedom of Information Act (FOIA) requests and responses * Michigan Penal Code Excerpts * Internet Criminal History Search * Letters of Commendation and Recommendation * Officer Evaluation Report (OER) dated 28 November 2006 * Service School Academic Evaluation Report (AER) dated 24 March 2005 * Emergency Medical Technician License * University of Arizona Master of Public Administration * School transcripts CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 8 November 2004. He was honorably discharged on 31 August 2005, to accept a commission in the USAR. He was commissioned in the USAR in the rank of second lieutenant (O-1) effective 1 September 2005. He was assigned to the Military Intelligence Augmentation Detachment (MIAD) on 25 September 2006. 2. On 30 November 2006, the applicant submitted a letter to his commander requesting that he be excused from battle assembly in December 2006 due to employment conflicts, overtime, schooling, loss of income, verified medical problems or personal emergency as provided for in Army regulations. He stated that the physical location did not meet standards of Army regulations or any applicable MIAD regulation. He stated he would be able to complete training within 60 days of 16 and 17 December 2006 via the local Reserve Officers' Training Corps program at the University of Arizona. He stated that his commander failed to provide him with the initial counseling and orientation to company policy regarding his requirement for arranging training. He stated that if the request was denied, his letter was to be used as an official request for reassignment within the USAR and/or the MIAD. 3. The applicant received a Failure to Report for Annual Training notification from his commanding officer dated 19 December 2006. The notification states he failed to attend battle assembly on 15, 16, and 17 December 2006, in accordance with Annual Training Order Number 011942, dated 29 November 2006. He was told that under the provisions of Army Regulation 135-91, he was required to attend all scheduled battle assemblies and annual training periods. He was also told that unless the absences were excused, he would have accumulated 4 unexcused absences with a 1 year period and if he accumulated 9 unexcused absences within 1 year, he would become an unsatisfactory participant and be processed for separation from the Selected Reserve either by reassignment or discharge. 4. Order Number 016475 was published on 20 December 2006, revoking Annual Training Orders Number 011942. A typewritten note at the bottom of the order reads "Order # 011942, dated 29 November 2006 was revoked because SM failed to show up, therefore he missed movement, therefore he is considered absent without leave (AWOL)." 5. As a result of a review pertaining to several email dialogs between the applicant and his company commander, the applicant was issued a Letter of Reprimand (LOR) by his battalion commander on 19 December 2006. The emails are dated from 28 through 30 November 2006. The battalion commander told the applicant: a. he had flagrantly ignored the courtesies and customs of military bearing expected from an officer of the U.S. Army; b. his behavior would not be tolerated; c. his emails were very disrespectful and out of line; d. when emailing others in the military, he was to address them by their rank and name; e. military customs and courtesies are paramount in the profession of Soldier; f. he failed to address his superior officer properly and the language in his emails were disturbing, such as "I really appreciate the added stress you're giving me…I'll make sure to repay in kind….and kind of a curt message…" which is also flagrantly threatening and disrespectful;" g. what was even more disturbing is where he was quoted in his emails as saying "you failed to respond to my previous email…" and " disrespect against another Reserve officer…;" h. this is not an acceptable means to communicate with a superior officer and it is not acceptable for a subordinate officer to give ultimatums to their commanders; i. his overall actions were unacceptable and considered conduct unbecoming an officer and gentleman; j. he was an officer in the USAR and needed to start behaving as one; k. his actions brought discredit upon himself and his abilities as a commissioned officer and as a leader of troops were seriously in question; l. he was being transferred to the Individual Ready Reserve (IRR), to be noted as an unfavorable action; and m. any further behavior of this type prior to his transfer would result in swift action being taken to initiate punishment under the Uniform Code of Military Justice and/or involuntary separation from the USAR. 6. The applicant received a DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)) on 21 December 2006, as a result of the LOR he received on 19 December 2006. 7. Orders 07-059-00001 were published on 28 February 2007, discharging him from the MIAD for misconduct and assigning him to the USAR Control Group (Reinforcement) effective the same day. These orders were apparently issued in error. 8. On 8 March 2007, the applicant forwarded an email to his battalion commander stating: a. he regretted the situation between his company commander and himself; b. a formal investigation needed to be initiated because his company commander crossed the line by sending a letter to his home accusing him of a serious crime (absence without leave); c. the accusation was false, very personal, and completely illegal; d. he would not let the accusation "stand" until proper action was taken or he was convinced it was an accident; e. he had made several requests for a direct meeting only to be ignored; f. he would not be signing or attending anything until after further consulting with his legal representative; g. he was already visible in the IRR and to his understanding legal orders had been issued transferring him to the IRR until the end of his contractual agreement; h. while he (the applicant) was in a citizen status, he (the battalion commander) could mind his own business on how he chose to address anyone; i. if his commander did not like it, he could write to this congressman and request the law be changed; j. while he was in a civilian status, his commander had no business questioning how he addressed anyone; k. the battalion commander frequently made blatant political commentary while in a military capacity, directly and intentionally contradicting elected public officials, many whom are not the elected congressional majority; l. the commander's commentary was highly inappropriate during military duty; m. outside of formation both he and his battalion commander were civilians and his commander had no authority that any American citizen be subject to military customs, courtesy and law; and n. all further communication from his unit or affiliated personnel should cease. 9. On 16 April 2007, the applicant was counseled regarding his status as a member of the MIAD. He was reminded that he had received a counseling statement on 8 March 2007 informing him that his transfer to the IRR was not approved and he was expected to attend the unit battle assemblies and annual trainings. He was also told: a. he had been contacted and reminded of the battle assembly on 21 and 22 April 2007; b. his reply that 5 days notice was insufficient for him to schedule leave was unacceptable; c. he was to report to battle assembly and period of annual training unless excused by his chain of command; d. he was expected to report to battle assembly scheduled in April; and e. as a second lieutenant in the USAR he was expected to handle the situation and to complete implied tasks. 10. On 2 May 2007, Orders 07-122-00008 were published reassigning him to the MIAD for training and personnel support, effective 25 September 2006. 11. The applicant was counseled again on 31 May 2007. During counseling he was reminded that he was still assigned to the MIAD and that his travel expenses to and from battle assemblies were reimbursed. He was told that the fact he was outside of the commuting area was irrelevant. The applicant had moved from Tucson, AZ to Michigan. He was told: a. he would remain a member of the MIAD and his travel to the unit could be reimbursed; b. a request for a transfer would not be considered until after he fulfilled his obligation to the unit; c. transferring an officer who was unable or unwilling to complete his obligation would not be accomplished; d. he had been flagged from favorable actions and a transfer is a favorable action; e. the flag could be lifted once he began to perform in standard; and f. he needed to schedule a 14-day annual training and coordinate the remainder of his battle assemblies with his company commander. 12. The applicant acknowledged receipt of the counseling form on 6 June 2007, and he responded by email stating he fully intended to complete his contractual agreement and that the statements made in the counseling form inferring that he was not meeting my obligation or duty were counter-factual, full of circular logic, and generally derogatory. He stated: a. all requests for transfer and formal investigations were made prior to battle assemblies and prior to moving; b. no punitive action was taken against the personnel responsible for sending the AWOL notice to his home and no mitigating circumstances were explained regarding the unlawful notice; c. since he received no response from his unit in a timely manner, he completed his move and is now working in the State Legislature with a set schedule; d. he could meet his requirements with a local unit, a closer-commute MIAD unit, or another Reserve MI unit; e. due to derogatory conduct and statements made outside of his presence, continuing to serve or returning to his unit would be prejudicial to good order and discipline; f. he could best serve the Army in another unit; and g. when he was in an active status and during drill, his service was exemplary and upon transfer to a new unit that follows the rules, it would continue to be exemplary. 13. The applicant's OER for the period 3 August 2006 to 2 August 2007 shows his report was referred because he was rated "unsatisfactory performance, do not promote." The OER shows that during the rating period he: * attended 3 of 12 battle assemblies (September, October, and December 2006) * failed to report to duty as ordered during the rest of the rating period (December 2006 onward) * believed that between battle assemblies he did not have to adhere to proper military customs and courtesies when addressing members of his chain of command * was disrespectful on several emails to his chain of command and failed to comply with numerous direct orders * did not take an Army physical fitness test during the rating period 14. On 12 August 2007, the applicant was notified that involuntary separation action was being initiated against him due to acts of personal conduct and conduct unbecoming an officer. He was told that he failed to obey fragmentary annual training orders and showed severe disrespect for superior officers as demonstrated by his emails. He was advised of his right to be furnished copies of the records which would be submitted to the board, consult with counsel, be present at the board of officers at his own expense, be represented by appointed counsel, submit statements in his own behalf, request in writing that the board include a minority officer (if he is an minority officer), and waive his rights. 15. On 25 October 2007, the applicant contacted the SJA in response to the notification of involuntary separation action. He stated: a. Jurisdiction of the Army to apply regulation and action under the UCMJ had not been established; b. based on the question of jurisdiction and constitutional issues, and on issue of possible misconduct by superiors, he requested assistance and remedy from every available military outlet; c. all administrative procedures and requests for military remedies had been exhausted; d. his requests for meetings with his commander for Inspector General (IG) intervention were ignored until he made request for assistance from his member of congress; e. upon requesting assistance from his member of congress, the MIRC office of the IG contacted him expressing their disapproval of his communication; f. immediately after a congressional inquiry, he received notice of pending involuntary separation action; g. the MIRC IG had not informed him of any results or continued action to review this matter by their office; h. he requested review and consideration of the matter by the MIRC commander in lieu of proceedings with board action; i. his personal statement conveyed his request to be reinstated to a TPU at his appropriate rank (first lieutenant); and j. his personal statement conveyed his wish that should the board recommend separation, to consider recommendation of an honorable discharge or transfer to the IRR. 16. On 29 October 2007, the applicant received a Letter of Instruction (LOI) informing him that the attendance records for his unit show he was absent from two assemblies on 20 October 2007 and two assemblies on 21 October 2007. He was told again that he was required to attend all scheduled unit training assemblies and unless his absences were excused, he would have accrued 20 unexcused absences within a 1 year period. He was told that absences from training assemblies may be excused only for reasons of sickness, injury, emergency, or other circumstances beyond his control and if his absences were for one of those reasons, he should furnish the unit an appropriate affidavit or certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency or circumstances, requesting that it be excused. He was told that he would be notified within 10 days after receipt of his request as to whether the absence had been excused. 17. On 8 December 2007, the applicant acknowledged receipt of the LOI. In the acknowledgement he sent to his company and battalion commanders, he stated that he considered it to be harassment because they had been notified multiple times to cease contact until such time a pending investigation into the matter was resolved. He stated that attendance at formal training with the unit was inappropriate until such time as any review and investigation was completed. He stated that his company and battalion commanders were potentially named defendants in pending civil litigation of which he was a party, further making the LOI and any attendance at the unit inappropriate. He stated he was further puzzled because the "policy statement" followed regulation that he encouraged his chain of command to follow and as a result, he was accused of disrespect. He states his chain of command chose to embark on a course of vile disrespect, slander, disloyalty, and dishonesty. He went on to state the following: a. per regulation, a valid notification was sent prior to his absence informing his command of an emergency medical situation in his immediate family; b. all subsequent absences were post-formal requests to transfer and post receiving documents falsely accusing him of a crime; c. such transmission of a federal document was potentially a crime because it was on government letterhead; d. both commanding officers made personal statements against him framing them as fact when no grounding or rational evidence exists about his conduct and character; e. his command ignored requests for meetings to resolve and as such, the LOI is inappropriate; f. his command should cease contact with him until an appropriate resolution was made; and g. as of 8 December 2007, he was unaware and had received no response from his commander regard his request that they cooperate and appear as witnesses at his pending separation board and answer direct and relevant questions given to them. 18. A board of officers convened on 17 December 2007 to determine whether the applicant failed to obey fragmentary annual training orders provided to him and whether or not he showed severe disrespect towards superior officers by language used in his emails and in a letter sent by him. The applicant submitted evidence in his own behalf. The board was advised that if he was guilty of either of the alleged actions a decision needed to be made if it warranted retention or separation and if separation was decided, what type of discharge he should receive. The board found that there was sufficient evidence to support the finding that he failed to obey fragmentary annual training orders that commenced on 15 December 2006 for 3 days. The board also found that by 29 October 2007, the applicant has accumulated a total of 20 unexcused absences within a 1 year period and that he showed severe disrespect for superior officers as demonstrated in emails commencing on 28 November 2006 to his company commander. The board found that in an email dated 8 March 2007 and an LOI dated 8 December 2007, to his battalion commander, he continued to show severe disrespect to superior officers. The board recommended that he be discharged from the service with a characterization of service of under other than honorable conditions. 19. Orders 08-275-00011 were published by Headquarters, MIRC on 1 October 2008, discharging the applicant from the USAR effective the same day. Orders 08-297-00031 were published on 23 October 2008 revoking the orders that discharged him on 1 October 2008. According to email correspondence contained in his official record, the MIRC did not have the authority to discharge him. 20. The appropriate authority approved the board's recommendation for discharge on 9 October 2009. On 16 October 2009, Orders D-10-920224 were published discharging him from the USAR under other than honorable conditions, under the provisions of Army Regulation 135-175, effective 16 November 2009. 21. In the Arguments Brief of the Office of the SJA Case 07-0050 the applicant submits, he asserts: a. he was first notified of the board's decision at the end of 2008 despite a regulatory requirement to be informed immediately after the board's decision; b. he believes that denial of the report of proceedings and failure to inform him of the outcome violated multiple regulations as well as federal law; c. the board of officers did not discuss and refused to admit clear information that the orders they believed he disobeyed were clearly illegal and he had a right and duty to disobey unlawful orders; d. he had been legally transferred to the IRR and a command may not lawfully complete a transfer to the IRR and then arbitrarily revoke the transfer; e. he was never provided any valid activation or transfer orders out of the IRR nor was he provided subsequent activation orders for active duty training until the date on the activation orders had already passed; f. the assertion that he was disrespectful was invalid; g. U.S. Reservists are not subject to the UCMJ when not in an active status, hence how could it be considered disrespectful or conduct unbecoming a commissioned officer to say this at anytime to anyone; h. he formally submitted a request for transfer to a local Reserve unit within commuting distance pursuant to Army Regulation; i. he resided well over 100 miles from Phoenix at the time and Army regulations command that Reservists will drill at local units; j. he was flagged only because he requested to be transferred to another unit; k. he abruptly received a letter warning him that he was considered AWOL and missing movement because he missed one inactive training battle assembly and this constituted a felony because it was on Army letterhead; l. the board of officers refused to entertain evidence of violations of law and regulations; m. he was never offered the opportunity to review the evidence submitted to the board of officers and to demonstrate why the evidence may have supported his arguments and defense; n. his command refused to respond to his Article 138 complaint submission; o. his command refused to provide him with adequate opportunity to appear at the board hearing, which was in violation of Army regulations and in violation of due process; p. except for a few truly exceptional circumstances, the President of the United States and therefore his subordinate military representatives have no authority whatsoever to issue orders under military law to civilians q. Reservists who are off duty live in a very different cultural and legal context than active duty personnel; r. permitting the arbitrary application to inactive personnel of regulations meant clearly for the active-duty military would create clear conflicts of interest, separation of powers issues, and is not compatible with the Citizen-Soldier concept; and s. since his separation from military service, he has continued to actively serve his community by advancing his education, working, and volunteering his services. 22. In the Index of Exhibits and Summation of Exhibits Relevance to Noted Issues he submits, he provides details of the evidence he submits. 23. Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. This regulation states no person has an inherent right to continue service as an officer. The privilege of service is his only as long as he performs satisfactorily. Responsibility for leadership and example require effective performance of assigned duties and exemplary conduct at all times. The Army has no place for officers who cannot meet these requirements, and their involuntary separation is essential. In view of the rapidity with which hostilities can now occur and the attendant likelihood that an officer may be called to active duty on short notice, the same standards of efficiency and conduct apply to officers of all Reserve components. Recommendations for involuntary separation may be originated by a duly-constituted selection board, operating under official letter of instruction, in which the board may recommend individuals who should be involuntarily separated. The following rights will be afforded the officer, except in those cases provided for in paragraph 2-16g. The area commander convening the board of officers will notify the officer of his right to: a. be furnished copies of the records which will be submitted to the board, and of other pertinent and releasable documents, which may be requested; b. consult with a consulting counsel (glossary); c. present his case before a board of officers at personal expense; d. be represented at any hearing by appointed counsel for representation (glossary) military counsel of his own choice, provided such counsel is reasonably available; or civilian counsel at his own expense; e. submit statements in his own behalf; and f. waive his rights. 24. When a board recommends the involuntary separation of an officer, Headquarters, Department of the Army (Commander, U.S. Army Human Resources Command (HRC) St. Louis) will, as appropriate, approve the recommendations of the board and advise the commander concerned to take necessary action to separate the officer. The president of the board will ensure that the respondent is granted such time as is reasonably necessary to prepare and present his case. Undue delay will not be permitted and the case will be conducted as expeditiously as possible. Boards must make their recommendations according to the best of their understanding of the rules and regulations of the Army in consonance with the policies outlined in this regulation and other appropriate regulations, and guided by their conception of justice both to the Government and to the officer concerned. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been noted. His supporting evidence has been considered. 2. He has provided insufficient evidence to substantiate the contentions he has made in his appeal. 3. The evidence of record shows that the emails he sent to his company commander commencing on 28 November 2006 were disrespectful and as a result he was issued an LOR. On 30 November 2006, the applicant submitted a request to be excused from battle assembly on 15, 16 and 17 December 2006, which he contends was also a formal request for reassignment. On 21 December 2006, he was flagged as a result of receiving the LOR. 4. There is no evidence in the available record, nor has he submitted any evidence, showing that his request to be excused from battle assembly was approved. 5. Although orders were published reassigning him to the USAR Control Group (Reinforcement) on 28 February 2007, he was notified in March 2007 that his request was denied and that he was still a member of the MIAD and expected to attend training. The records show he continued to show disrespect to members in his chain of command. His records were flagged and he should not have been reassigned. Orders were published in June 2007 reassigning him to the MIAD. His contention that he never received the orders is not supported by the evidence of record. 6. His transportation to and from training was reimbursed. He has failed to provide evidence showing that any of the actions taken against him was the result of his desire to be reassigned to another unit or that the board of officers failed to comply with applicable regulations. He was told that the flag would be lifted once he started fulfilling his service obligation and although he contends that he had every intention of doing so, it does not appear that he did. 7. Additionally, unexcused absences are considered to be AWOL incidents. He has not shown error or injustice in the action taken by the board of officers that recommended he be discharged under other than honorable conditions. The fact that he disagrees is not a basis for reinstating him in the USAR or upgrading his discharge. 8. There is no evidence of any violation of the applicant's rights. He was an officer in the USAR and was subject to laws and regulations pertaining to USAR officers. He had an obligation to conduct himself as a USAR officer. 9. In view of the foregoing, the applicant's request should be denied. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20100024171 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100024171 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1