IN THE CASE OF: BOARD DATE: 10 July 2012 DOCKET NUMBER: AR20110021630 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: The applicant defers his request, statement, and evidence to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests: * The results of the applicant's adverse separation board proceedings, dated November 2007, be set aside * The applicant's subsequent discharge, dated 22 October 2008, be voided * The applicant be reinstated into the U.S. Army Reserve in order to complete the time needed for full retirement * A personal appearance before the Board 2. Counsel states the allegations against the applicant were vague, unspecific, unproven, and unfactual, and overall were minor in nature. 3. Counsel provides: * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) * Unsigned memorandum for record from a senior defense counsel * DA Form 67-9 (Officer Evaluation Report (OER)) for the period 25 November 2004 through 25 September 2005 * Notification of Involuntary Separation Action Memorandum * Statement from Ms. DRC, an Area Supervisor * Statement from Major (MAJ) RH * Administrative Separation Board proceedings * DA Form 2823 (Sworn Statement), from sergeant (SGT) SAY * DA Form 2823, from MAJ JDB * Statement from Dr. H * Two memoranda from lieutenant colonel (LTC) PLM, Chief Administrative Law CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having had prior enlisted service, the applicant was appointed as a Medical Services Corps (MSC) captain (CPT) in the Army National Guard (ARNG) and executed an oath of office on 17 October 1996. 3. He served in a variety of assignments and he was honorably released from the ARNG and transferred to the 73rd Field Hospital of the USAR. He was promoted to MAJ on 6 December 2004. He served as an optometrist, part of Task Force Medical Falcon, Camp Bondsteel, Kosovo. 4. On 29 August 2005, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for: * Wrongfully and dishonorably telephone SGT SAY to engage in inappropriate conversations on divers occasions between 1 and 30 April 2005 * Wrongfully and dishonorably make comments or inquire about Ms. DRC (being pretty, being cute, her relationships) during an examination between 6 February and 12 March 2005 * Wrongfully and dishonorably attempt to lick Ms. KF's ear while hugging her on or about 28 March 2005 5. His punishment consisted of an oral reprimand and forfeiture of pay. He appealed his punishment on 29 August but (according to the DA Form 2627) his appeal was denied by the next higher commander (a general officer). 6. Counsel submits a memorandum for record, dated 5 November 2007, authored but unsigned by MAJ RNT, a Judge Advocate Senior Defense Counsel, wherein he requested the whole proceedings be set aside and contended that the evidence was insufficient to find the applicant guilty of the charged offenses beyond a reasonable doubt. 7. The disposition of this memorandum for record is unknown. It is unclear if it was submitted by the senior defense counsel or who it was submitted to, or whether action was taken. 8. During the month of September 2005, the applicant received a "Relief for Cause" OER which covered 10 months of rated time from 25 November 2004 through 25 September 2005 for his duties serving as "Optometrist" while assigned to TF Medical Falcon in Kosovo. His rater was LTC JDB, the TF Executive Officer, and his senior rater was Colonel JMF, the TF Commander. The OER shows the following entries: * Part IVa (Army Values), the rater placed an "X" in the "No" block for "Honor," "Integrity," "Respect," and "Duty" * Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in the "No" in the "Conceptual" skills and the "Building" and "Learning" Actions * In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block * In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" block and rated him as "Below Center of Mass" 9. After having been referred to the applicant, the OER was signed by the rating officials and the applicant on 27 September 2005. It was processed by the U.S. Army Human Resources Command shortly thereafter. 10. On 20 May 2007, by memorandum, the Commanding General (CG), USAR Medical Command (MEDCOM), notified the applicant that involuntary separation action was initiated against him and that he was required to show cause for retention in military service. He cited the reasons as the findings by the U.S. Army Criminal Investigation Command (CID) of several incidents of inappropriate conduct by the applicant that merited his removal from military service. Specifically: * Obsession with Ms. DRC, a linguist supervisor (offensive comments) * Inappropriate behavior with Ms. HF, an interpreter (hugged and attempted to kiss her ear) * Inappropriate behavior with SGT MA (kissed her on the neck) * Inappropriate comments to MAJ TG, Medical Chief Surgeon (called him Pxxxy Whooped) * Inappropriate behavior toward SGT SAY (fraternization) * Personal misconduct, Ms. DP, during an eye examination 11. On 5 November 2007, an administrative separation board convened at the USAR MEDCOM, Pinellas Park, FL, to consider if the applicant should be retained or removed from military service, in accordance with Army Regulation 135-175 (Separation of Officers). The separation board found by the preponderance of evidence that the applicant committed the acts of personal misconduct (inappropriate behavior) and that his conduct rose to the level of conduct unbecoming a USAR officer. The board also found his actions warranted separation and recommended his discharge with a general characterization of service. 12. On 11 March 2008, the Chief, Administrative Law, USAR MEDCOM reviewed the administrative separation board findings and recommendation and deemed it legally sufficient. 13. On 19 March 2008, the CG, USAR MEDCOM, approved the administrative separation board's findings and recommendation and recommended the applicant be discharged with a general characterization of service. 14. On 14 June 2008, the Chief, U.S. Army Reserve ordered the applicant discharged from the USAR for moral or professional dereliction of duty, specifically multiple acts of personal misconduct and conduct unbecoming an officer. He ordered his separation be characterized as general, under honorable conditions. 15. The applicant was discharged from the USAR on 22 October 2008 with a general, under honorable conditions, characterization of service. 16. The applicant and counsel elected not to petition the Army Discharge Review Board for a review of his discharge. 17. Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. Paragraph 2-11 (Moral and professional dereliction) states while not all-inclusive, existence of one of several listed or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction. Officers discharged for any of the listed reasons may be furnished an honorable or general discharge certificate, or other than honorable conditions discharge - in pertinent part, acts of personal misconduct (including, but not limited to, acts committed while in a drunken or drug-intoxicated state), special derogatory evaluation report, and/or conduct unbecoming an officer. 18. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. With respect to the personal hearing, the applicant’s request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant committed various acts of misconduct that led to acceptance of NJP and a relief for cause OER. While deployed with TF Falcon in Kosovo during the period February through June 2005, a CID investigation confirmed several incidents of inappropriate conduct. As required by the governing Army regulation, due to moral or professional dereliction, the applicant was notified that he was considered for separation action. 3. An administrative separation board subsequently convened for the purpose of determining if the applicant should be discharged. The board found the applicant committed moral or professional dereliction by committing multiple acts of personal misconduct and conduct unbecoming an officer and recommended his separation with a general discharge. The convening authority approved the findings and recommendations and the separation authority ordered him discharged. 4. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 5. Counsel essentially contends that all the allegations against the applicant were vague, unspecific, unproven, unfactual, and overall minor in nature. These are essentially the same arguments raised during the administrative separation board. That board considered the same arguments and reached the conclusion that they lacked merit. 6. The key issue here is that the applicant's actions were confirmed by CID; they were not vague, unspecific, unproven, unfactual, or minor in nature. He eroded the special trust and confidence awarded him as an officer and no longer possessed the professionalism or fidelity to be allowed to continue in the Army. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 7. Therefore, there is no reason to void his discharge or reinstate him into the U.S. Army Reserve. As such, he is not entitled to the requested relief. 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 that 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) AR20110021630 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021630 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1