IN THE CASE OF: BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150016744 BOARD VOTE: ____x____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150016744 BOARD DETERMINATION/RECOMMENDATION: 1. 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20140002707, dated 8 October 2014. 2. With regard to his new issues, the Board further determined the evidence presented is insufficient to warrant a recommendation for relief. As a result, the Board recommends denial of so much of the application that pertains to: a. reinstatement of his Student Loan Repayment Program incentive ($20,000.00), b. retroactive award of the Soldier's Medal, c. issuance of a DD Form 214 showing his deployment to Iraq, and d. correction of his reentry eligibility code to show he is fully qualified to reenter service in the U.S. Army without a waiver. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150016744 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 reconsideration of his earlier request for: a. reinstatement in the U.S. Army Reserve (USAR) in the rank/pay grade of major/O-4 with appropriate credit for time in service with retroactive pay and benefits; and b. removal of three memoranda of reprimand, four officer evaluation reports (OERs), school disenrollment, negative counseling statements, and administrative separation from his Official Military Personnel File (OMPF). 2. As new issues, he requests: a. reinstatement of the Student Loan Repayment Program (SLRP) incentive ($20,000.00), b. retroactive award of the Soldier's Medal, and c. issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his deployment to Iraq. 3. The applicant states he was wrongfully discharged based on command violations of rules, regulations, procedural errors, and due process rights. This led to his wrongful board of inquiry (BOI) notice, discharge under other than honorable conditions, and wrongful separation. For years he was systematically and repeatedly denied his rights and this ruined his career. 4. The applicant provides evidence through counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier requests for: a. reinstatement in the USAR in the rank/pay grade of major/O-4 with appropriate credit for time in service with retroactive pay and benefits; and b. removal of the memoranda of reprimand, four officer evaluation reports, school disenrollment, negative counseling statements, and administrative separation from the applicant's OMPF. 2. As new issues, counsel requests: a. reinstatement of the applicant's SLRP incentive ($20,000.00), b. retroactive award of the Soldier's Medal to the applicant, c. issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing the applicant's deployment to Iraq, and d. correction of the applicant's reentry eligibility code to show he is fully qualified to reenter service in the U.S. Army without a waiver. 3. Counsel states: a. The applicant was wrongfully discharged based on command violations of rules, regulations, procedural errors, and due process rights. This led to his wrongful BOI notice and discharge under other than honorable conditions. b. New legal arguments and evidence explain numerous violations of Army regulations. c. The applicant was systematically and repeatedly denied his rights for years and resulted in his wrongful termination. 4. Counsel provides: * 70-page brief with 30 exhibits as identified on page 70 * 4-page summary of a new legal argument and evidence of violation of the applicant's rights * letter, dated 19 July 2016 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  AR20140002707 on 8 October 2014. 2. Counsel's arguments are new evidence that were not previously considered by the Board and warrant consideration at this time. 3. Having prior enlisted service in the Army National Guard, the applicant was commissioned as a second lieutenant in the USAR on 19 December 1986. 4. His OER covering the period 7 September 2000 through 14 March 2001 shows: a. He was rated "Unsatisfactory Performance, Do Not Promote" by his rater for his performance during the rating period and his potential for promotion with the following comments: [Applicant] was arrested by MPI [a military police investigator] for shoplifting at the Fort Lewis exchange during this rating period. [Applicant] was asked to resign his commission or face the legal or administrative action as a consequence of his actions. [Applicant's] honesty and integrity are in question as a consequence of his actions. Officer has no potential for promotion. Officer did not take the APFT [Army Physical Fitness Test] during this rating period. b. He was rated "Do Not Promote" by his senior rater for his promotion potential to the next higher grade and "Below Center of Mass, Do Not Retain" for his potential compared with officers senior rated in same grade with the following comments: Poor Officer. [Applicant] has consistently put his own self interests ahead of those of the organization and the soldiers assigned to him. I do not trust this officer's word due to his pattern of distorting events to ensure he is looked at in a better light. He deliberately chose to misrepresent the events surrounding his arrest by the Military Police for shop lifting at the Fort Lewis Washington exchange, causing myself and the command to expend a great deal of effort in reviewing the case, only to find out that he had, at best, misrepresented many of the facts in his case. [Applicant] chose the option of resigning his commission rather than risk a Field Grade Article 15 or court martial. This individual should not be allowed to serve in the military in any capacity. Officer is unavailable for signature. 5. He was promoted to major/O-4 effective 27 June 2001. 6. While attending the Psychological Operations Officer Qualification Course, a commander's inquiry was initiated to investigate allegations that the applicant had harassed female officers in his class. On 30 January 2004, his commander submitted a request to relieve him from the course for misconduct. The request was approved on the same date. On 1 February 2004, the investigating officer determined there was sufficient evidence to show the applicant's conduct was inappropriate and administrative action against the applicant was warranted. 7. On 3 February 2004, the Commander, Headquarters, 3rd Battalion (Airborne), 1st Special Warfare Training Group (Airborne), U.S. Army John F. Kennedy Special Warfare Center and School, issued him a memorandum of reprimand for his inappropriate and unprofessional behavior. 8. His OER covering the period 1 August 2003 through 14 March 2004 shows: a. He was rated "Unsatisfactory Performance, Do Not Promote" by his rater for his performance during the rating period and his potential for promotion with the following comments: [Applicant] attended the Jan[uary] 2004 PSYOP [Psychological Operations] Officer Course but was relieved as the class leader position followed by formal disenrollment from the course due to substantiated investigation on hos unprofessional conduct and inappropriate actions as an officer toward the opposite gender. He subsequently received letters of reprimand from the school and myself. Since his arrival in August 2003, his performance was limited to a formal military briefing conducted to unit soldiers which was completed to Army standards. He needs additional mentoring, guidance and formal POSH [Prevention of Sexual Harassment] and EO [Equal Opportunity] training improved himself. Failing to do so may incur similar incidents adversely affecting the morale of the soldiers or the high standards set forth in the unit, the Officer Corp[s] and the US Army. He should not be promoted and be considered for promotion at this time. b. He was rated "Do Not Promote" by his senior rater for his promotion potential to the next higher grade and "Below Center of Mass, Do Not Retain" for his potential compared with officers senior rated in same grade with the following comments: [Applicant] was disenrolled from the PSYOP Officers Course. While attending the course, a Commander's Inquiry substantiated inappropriate conduct between [Applicant] and a female officer. Prior to attending the PSYOP Officers Course, [Applicant] contributed to the success of the 361st PSYOP Company. I have reassigned [Applicant] to my Group Headquarters pending further administrative action. Do not promote. 9. On 1 April 2004, the Commander, Headquarters, 12th Psychological Operations Battalion, issued him a memorandum of reprimand for his inappropriate and unprofessional demeanor and intended to recommend issuance of a general officer memorandum of reprimand through the chain of command. 10. On 9 June 2009, the Commanding General, Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), directed permanently filing the memorandum of reprimand in the applicant's OMPF. 11. On 13 July 2004, he was notified that he was required to appear before a show-cause board for retention. 12. His OER covering the period 13 March 2004 through 6 November 2004 shows: a. He was rated "Satisfactory Performance, Promote" by his rater for his performance during the rating period and his potential for promotion with the following comments: [Applicant] is a technically and tactically proficient officer. He possess the ability to assess upcoming missions, employ decision making procedures, assist in product development, and execute plans to successfully accomplish the support mission. When required, [Applicant] can be counted on to execute a mission to standard. His leadership abilities are acceptable for a field grade officer. His overall knowledge of PSYOP is good. He has learned the PSYOP target audience analysis process and demonstrates the ability to assess information used to develop PSYOP products. He exercises candor and is not afraid to raise issues when warranted. [Applicant] should enroll in ILE [intermediate level education], be considered for responsible positions, and promoted with peers. [Applicant] declined opportunity to submit his DA [Form] 67-9-7 support form [DA Form 67-9-1 (OER Support Form)] to complete this report. b. He was rated "Fully Qualified" by his senior rater for his promotion potential to the next higher grade and "Center of Mass" for his potential compared with officers senior rated in same grade with the following comments: During this rating period, [Applicant] accomplished all assigned tasks. Given a mission, he will perform duties and responsibilities to standard in the prescribed timeframe. Although he needs to complete the Psychological Operations Officer Course and does not currently possess a [an area of concentration] 39B PSYOP functional area rating, he demonstrates the ability to conduct psychological operations as the tactical level. His past experiences as a combat arms officer will provide Soldiers working for him opportunities to refine combat survival skills, enhance predeployment preparations, and better integrate tactical PSYOP teams with supported maneuver commanders. Consider for ILE and promotion. Although afforded time, [Applicant] did not provide a DA [Form] 67-9-1. Rated officer not available for signature. 13. On 6 November 2004, he appeared before a show-cause board with counsel. The board found he sexually harassed two female officers and he submitted a false official statement in his application for appointment in the USAR. The board recommended his discharge under other than honorable conditions. 14. On 2 February 2007, he was transferred to the USAR Control Group (Reinforcement). 15. U.S. Army Human Resources Command Orders A-02-703383, dated 8 February 2007, ordered him to a contingency operation temporary tour of active duty in support of Operation Enduring Freedom effective 3 March 2007 for a period of 365 days. 16. U.S. Army Human Resources Command Orders M-08-701895, dated 2 August 2007, ordered him to active duty for a period of 25 days for mobilization processing no later than 18 August 2007. If found medically qualified for deployment, he was further ordered to active duty for a period of 365 days under partial mobilization authority in support of Operation Iraqi Freedom. 17. There is no evidence showing he completed 90 or more days of continuous active duty service in 2007. 18. On 11 October 2007, the U.S. Army Human Resources Command approved the findings and recommendations of the show-cause board and directed the applicant's discharge under other than honorable conditions. 19. U.S. Army Human Resources Command Orders D-10-721625, dated 12 October 2007, discharged him from the USAR. His service was characterized as under other than honorable conditions. 20. His OER covering the period 12 November 2006 through 11 November 2007 shows: a. He was rated "Unsatisfactory Performance, Do Not Promote" by his rater for his performance during the rating period and his potential for promotion with the following comments: [Applicant has no place in the United States Army. He is a profligate liar and manipulator. He acts solely in his own self interest and for personal gain. He chronically disobeyed direct and repeated orders and intentionally failed to use the chain of command. Even after an administrative separation board found he committed misconduct and recommended separation under Other than Honorable conditions, he abused the system. While flagged for that adverse action by USACAPOC(A) [U.S. Army Civil Affairs and Psychological Operations Command (Airborne)], he twice convinced HRC-St Louis [U.S. Army Human Resources Command, St. Louis] to transfer him to another command to deploy. The first time (Mar[ch] 2007) he was caught and demobilized prior to deploying to Afghanistan; the second time (Aug[ust] 2007) he managed to deploy to Iraq—and then had to be involuntarily returned. This unethical behavior has wasted countless staff hours to return him to the correct duty status. [Applicant] is thoroughly convinced the system is out to get him and he refuses to bear responsibility for his actions and his gross misconduct. Although he has an analytical and competent mind, he uses it to manipulate events in his favor rather than for the betterment of the Army. I would not willing[ly] serve with this officer under any circumstances or in any environment. I certainly would not serve with him in combat, nor would I allow him to lead American Soldiers. b. He was rated "Do Not Promote" by his senior rater for his promotion potential to the next higher grade and "Below Center of Mass, Do Not Retain" for his potential compared with officers senior rated in same grade with the following comments: [Applicant's] performance falls way below that of the other officers I senior rate. He has a history of poor performance and has repeatedly disobeyed orders and manipulated the personnel system. [Applicant] demonstrates a lack of sound judgement, self-control, and a willingness to learn from his mistakes. He was flagged for Suspension of Favorable Personnel Actions and twice failed to follow the instructions of his chain of command during this rating period. His behavior and values fall far below that expected of an Army officer. [Applicant] does not display any future potential as an officer and I would not recommend that he be retained in the United States Army in any future capacity. 21. U.S. Army Human Resources Command Orders M-08-701895R, dated 20 February 2008, revoked Orders M-08-701895, dated 2 August 2007. 22. There is no evidence showing he contracted for the SLRP. 23. There are no orders for award of the Soldier's Medal in his available records. 24. A review of his OMPF in the interactive Personnel Electronic Records Management System revealed copies of the four OERs in question and the memorandum of reprimand, dated 1 April 2004, are filed in the performance folder. 25. On 24 August 2009, the Army Discharge Review Board upgraded his discharge under other than honorable conditions to general under honorable conditions. 26. Department of the Army, U.S. Army Human Resources Command, Orders D-09-015551, dated 1 September 2010, discharged him from the USAR. His service was characterized as general under honorable conditions. 27. On 8 October 2014, the ABCMR denied his request for: * voidance of his discharge and restoration to active duty * an upgrade of his general discharge * removal of his last three OERs, his BOI results, and his memorandum of reprimand from his official records 28. Counsel provided a 70-page brief, dated 14 October 2015. a. Counsel stated an unreliable allegation in 2004 initiated a series of career-ending administrative actions which, with an invalid investigation finding and another unreliable anonymous statement (which had been disproven), initiated an involuntary separation. At that separation hearing, withheld discovery which was irrelevant and unreliable was used against him in clear violation of a dozen rules. The U.S. Army Human Resources Command twice identified and returned this injustice over the next 2 years until it was mysteriously approved in 2007. This case contains dozens of material, legal, and equitable mistakes and ethical shortcomings against the applicant that justice and fairness requires a thorough analysis since this is his last opportunity. It is noteworthy that his previous lawyers were unskilled at identifying and arguing these issues, committing ineffective assistance. b. Counsel stated the new argument and evidence includes the unsupported findings of the 2004 BOI; the unfairness; empty generalities; vague impressions; lack of reliability of the original complaints; systematic, repeated, and deliberate violation of the regulations, rules, and his rights by U.S. Government investigators, leaders, counsel; ineffective notice; surprise evidence; nonconformity with the regulations and Uniformed Code of Military Justice regarding the definition of a "false official statement"; and even ineffective assistance of counsel which seems to have gone unaddressed for over a decade. c. Counsel stated the U.S. Government Judge Advocates repeatedly failed to act in good faith and failed their duty of candor to the tribunal by repeatedly failing in their obligations to timely provide discovery; denying the applicant due process; attempting to circumvent the rules established for fairness; providing outlandish arguments to support their dubious legal positions to deny his rights; ambush him; and introduce unfair, unreliable, and mischaracterized evidence; and misleading the U.S. Army Human Resources Command about the adherence to regulations relating to policies, procedures, and due process, which is evident was not done in several material ways. d. Counsel stated the ABCMR has large timeline gaps and new information fills in those gaps, which highlight exonerating and mitigating evidence wrongfully withheld or mischaracterized by his commanders, board members, and lawyers. There are newly identified violations of the Army regulations by the U.S. Government which severely prejudiced the applicant, including procedural errors, due process violations, an inadequate investigation, wrongful introduction of prejudicial evidence (his OERs which were based upon faulty, unreliable, and/or allegations for which he was exonerated and/or outside the term of service), and "Brady violations," which amount to the U.S. Government concealing favorable information from him (two officers both later provided exculpatory evidence of which the applicant was unaware in his 2004 hearing, and denial of award of the Soldier's Medal for his heroic actions in 2003). The applicant did not commit the allegations and no evidence has ever been presented to demonstrate otherwise. e. Counsel stated the subject evidence of the notice was unreliable, the allegations of sexual harassment was un-witnessed and unsworn, and the allegations of child abuse was an anonymous letter. Some allegations were later unfounded, some later determined to not be allegations at all, and others totally anonymous and/or otherwise lacking reliability or relevance. One presumed "allegation" was unfounded in the 2004 BOI. One presumed "allegation" was not an allegation at all, and was clarified and recanted 3 years later. f. Counsel provided a lengthy factual procedural historical timeline with a legal analysis of the applicant's case, beginning in December 2000 and continuing to October 2015. He contends this timeline presents a picture of systematic injustice. He stated the applicant notified the USAR he had resigned in March 2001 and there was no false official statement; a prior shoplifting allegation was dismissed in April 2001, but leadership ignored this and unfairly punished the applicant with a negative OER; the applicant was mountaineering on Mount Adams in September 2003 when he witnessed and literally saved the life of a gravely injured climber and he never received any military recognition for his heroism; and he faced false allegations he sexually harassed several females in January 2004. g. Counsel stated the applicant was materially and repeatedly maltreated by leadership for most of 7 years (2000-2007) and that cost him his career, promotion, reputation, significant income and benefits, and denied him a high-level military award which he earned and schooling he never received. He was grossly and repeatedly denied fundamental due process under the investigation standards of Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers); denied due process when he was disenrolled from school; given an unfair memorandum of reprimand, reprimands, and several adverse OERs based upon unfair allegations without rebuttal; denied proper notification and due process rights leading up to and at this BOI. The U.S. Army Human Resources Command twice rejected the separation action (in 2006 and 2007) based upon legal insufficiency and severe procedural errors, and recommended holding a new BOI. That was never done. h. Counsel cited numerous violations of Army regulations. He contends the applicant's prior lawyers failed him in varying degrees. i. Counsel stated it was apparent that the applicant's career, dedication, sacrifices, character, valuable skills, and abilities were not taken into consideration by the ABCMR as they should have been. By 2004, the applicant had served in the military for over 20 years in various capacities and was a significant asset. In 2003, he should have been awarded the Soldier's Medal, one of America's top awards, for putting himself in danger to save the life of a gravely injured hiker on the dangerous slope of Mount Adams. His chain of command failed him. This gives insight into the people for whom he worked. The applicant was a high-caliber Soldier who had completed the Army Ranger Course; Sapper Course; Airborne School; Air Assault School; and Nuclear, Biological, and Chemical Defense School; and possessed a thick stack of awards, achievements, certificates, and commendations. He was wrongly disenrolled just a few hours from completing the Psychological Operations Commander's Course. This destroyed his plan to move directly into active duty upon graduation. In spite of the adversity from 2004 to 2007, he rebounded and he showed initiative and leadership and sought opportunities to serve and deploy in support of Operation Enduring Freedom and Operation Iraqi Freedom while patiently waiting for 3 years for the Army to discharge him instead of sitting idle. He is also a father. It is clear the ABCMR did not consider any of this as mitigating or the significant horrible impact this discharge would cause, which the Board clearly should have. j. In summary, counsel stated the applicant lost his career based on an unwitnessed and unsworn statement by a first lieutenant, who was never questioned; the misunderstood trivial response to a question from a captain in the 2004 investigation, which she clarified as having not complained or been victimized when interviewed in 2007; and an alleged false official statement which failed to meet the Uniformed Code of Military Justice definition and was clearly a clerical error pertaining to a confusing question in a standardized form from 3 1/2 years prior when he was ambushed about it at the hearing. In reality, the applicant suffered for years at the hands of the worst leadership and lawyers a person could endure at various levels, suffering denial of due process, fundamental fairness, ethical duties and obligations, and flat-out foul play by his leadership and various lawyers. k. Counsel stated an unchallenged and unreliable harassment allegation (unsworn and un-witnessed) was the cause of a bungled 2004 investigation, citing two different allegations (which are now confirmed to be an unsubstantiated statement and a clarified non-harassment statement), neither of which should have passed any legal review. Instead, tragically, it resulted in numerous completely unfair career-ending adverse administrative actions (disenrollment, several reliefs, reprimands, and maligning OERs). Based on these and an anonymous, unfounded child abuse complaint which should never have been admitted, the applicant was given inadequate notice and unjustly sent to an administrative separation hearing. At this hearing, the U.S. Government ambushed him with unreliable, unfair, and highly objectionable baseless allegations, having given him less than a day's notice. l. Counsel stated the applicant had a promising career prior to the baseless 2004 sexual harassment allegation. The applicant was a Reserve officer in the Psychological Operations Commander's Course (within hours of completion) with arrangements to enter active duty immediately following course completion, ready and eager to deploy in support of Operation Iraqi Freedom or Operation Enduring Freedom. That opportunity was denied him due to the baseless allegations, relief, reprimand, and adverse actions. Those adverse actions were again barriers for him while serving on active duty in 2007 when he was finally discharged. The applicant was serving as an activated officer in Iraq. In spite of the passage of 11 years, he is still mentally and capably fit for duty today and can pass any psychological and fitness test necessary to prove it. 29. Counsel additionally provided a 4-page summary of a new legal argument and evidence of violation of the applicant's rights. a. Counsel cited violations of the Uniform Code of Military Justice. (1) The alleged false official statement failed to meet the definition, spirit, or intent of a false official statement and was otherwise unsupported by the evidence. (2) Irrelevant and unreliable evidence was admitted (by essentially admitting anonymous statements and rumors), even under relaxed administrative standards. (3) A commander's inquiry requires deposition of future unavailable witnesses, which was not conducted in 2004. (4) Later in 2007, a key witness denied having made the underlying harassment allegations. Had she been deposed, the commander's inquiry would not have found against the applicant or this finding would have been unsubstantiated if she were called to testify. (5) False official statements were made by the U.S. Army Civil Affairs and Psychological Operations Command Staff Judge Advocate and a colonel in processing the faulty BOI results to the U.S. Army Human Resources Command. (6) Numerous members of his chain of command failed to obey orders and regulations by repeatedly denying the applicant's Army regulation rights. b. Counsel cited violations of Army regulations. (1) The February 2004 investigation was not done to standard. It did not accurately compile the facts, assess the correct findings, and gave faulting recommendations as a result. Pertinent witnesses, including the applicant and a first lieutenant, were never interviewed. The investigating officer wrongly paraphrased the witnesses' statements. The investigating officer wrongly found two unclear violations. The standard of proof was not correctly implemented. The investigating officer also omitted exculpatory evidence. In November 2004, the BOI unsubstantiated one of the two allegations. In 2007, the other alleged harassment victim stated she was never harassed. This invalidated the entire investigation. (2) BOI members made numerous material false statements in the findings and recommendations forms, including properly authenticated documents, meeting notification requirements, and having an opportunity to cross examine adverse witnesses. A defective DA Form 61 (Application for Appointment) did not list an option to retain the respondent, thereby denying all of the options to the BOI. (3) The applicant's discharge certificate in 2007 (stemming from the 2004 BOI) wrongly reflected allegations from a prior 2001 term of service. (4) The applicant's discharge in 2007 (stemming from the 2004 BOI) wrongly considered allegations introduced it his 2004 BOI, resulting in a dismissal from 2001. A wrongfully used anonymous complaint, which was the subject of a court acquittal, was used against him in his BOI. His lawyers had to spend time and effort combating wrongly introduced allegations for the majority of his response. (5) The applicant's right to a fair hearing, not based on generalities, was denied due to the defective notice. (6) The applicant's right to confront witnesses against him was denied. He could not cross-examine written allegations and no witnesses supporting the material allegations against him were produced, denying him the ability to cross-examine allegations. (7) The applicant was given unfair and irrelevant information the day before his BOI and the information was admitted over his lawyer's objections to the applicant's detriment. (8) The U.S. Army Human Resources Command twice rejected the BOI for material procedural error. Upon evidence of procedural error, the command must reconvene a BOI or retain the respondent. This was twice not followed (2006 and 2007). (9) Prompt and expeditious handling of BOI results were violated when it took his unit nearly 13 months to initially process his 2004 discharge and 35 months to complete it by twice resubmitting a defective BOI. (10) The BOI failed to ensure the applicant had all the evidence in a timely fashion. Unfair documents were allowed by the BOI outside the notice parameters. (11) All material rulings wrongly went against the applicant. Blatantly unfair evidence was admitted with no requirement for witnesses and no continuance. (12) The BOI failed to ensure the applicant was able to present all of his evidence, which he clearly could not do under the circumstances. (13) The BOI failed to call or judge against the U.S. Government and dismiss those allegations for failure to call material witnesses, like the first lieutenant or captain. (14) The findings and recommendations were not written as required and the form contained numerous material falsehoods and errors of injustice. The findings were not appropriate given the paltry evidence and gross denial of the applicant's rights. (15) The effective date of separation was complex, leaving room for misunderstanding, negating the element of intent or knowing for a false official statement, thereby negating the false official statement claim. (16) The Soldier's Medal is appropriate for heroism when a Soldier is in danger. In 2003, the applicant put himself in danger to directly save the life of a civilian, yet he was denied any recognition for his heroism by his leadership. (17) On numerous occasions in the applicant's BOI and adverse administrative actions, anonymous communications (or similar) were admitted and used against him with no meaningful opportunity to rebut the allegations. His lawyers had to spend time and effort combating wrongly introduced allegations for the majority of his BOI. (18) The unfair evaluations were later used against the applicant in his BOI. He was denied the opportunity to review and comment. Four unfair OERs and two reprimands were filed in his OMPF and were unproven or later disproven. (19) The applicant did not receive a response to his complaint filed in 2006. (20) The U.S. Government counsel in the BOI and at the Staff Judge Advocate level repeatedly and systematically violated their ethical duties and obligations to follow the rules of fairness, candor, and ethics by not providing discovery, introducing known unreliable evidence, not timely or correctly processing his BOI results, not investigating known exculpatory evidence in 2007, and not following U.S. Army Human Resources Command guidance when the U.S. Army Human Resources Command twice rejected the BOI findings and cited error. (21) Denial of discovery for 7 months was a direct violation of the rules and of material harm to the applicant. (22) The 2004 Psychological Operations Officer Qualification Course relief and reprimand was completed prior to any investigation and/or rebuttal opportunity by the applicant. The investigation was legally flawed. (23) An invalidated underlying 2004 investigation must invalidate all of the subsequent adverse administrative actions based on the same (OERs, reliefs, and separation). 30. Counsel also provided a letter, dated 19 July 2016, reiterating his arguments. 31. Counsel further provided U.S. District Court Eastern District of New York Memorandum and Order in the Case of Major J____ B____ versus Lieutenant General R____ M____, U.S. Marine Corps, and U.S. Department of the Navy, dated 6 December 2016. This lawsuit arises from a military BOI disciplinary proceeding that recommended the major's dismissal from the U.S. Marine Corps. The major brings this action against Lieutenant General  R____ M____, U.S. Marine Corps, and U.S. Department of the Navy, challenging the BOI proceeding under the Administrative Procedure Act. The major's second amended complaint requests that the court vacate the findings and recommendation of the BOI and permanently enjoin defendants from taking any adverse personnel action against him on the basis of the BOI proceeding, his referral to the same, or the purported facts underlying the BOI proceeding. The court denied the defendant's motion to dismiss or for summary judgment, except that the court dismissed all claims against defendants for lack of subject matter jurisdiction; and granted the major's motion for summary judgment to the extent that the court finds that the U.S. Government violated Secretary of the Navy Instruction 1920.6C (Administrative Separation of Officers) under the particular circumstances of this case. The court vacated the BOI's findings and recommendations, and this case was remanded to the Secretary of the Navy for further proceedings consistent with this memorandum and order, including providing the major with documents that are relevant to his retaliation claims and with a new BOI proceeding during which he can fully and fairly explore those issues and complete the administrative record. 32. Counsel provided a letter from J____ H____ to Lieutenant General  E____ S____, dated 25 August 2004, regarding the applicant's actions to rescue his daughter following a mountain-climbing accident. He described how the applicant responded immediately to stabilize his daughter who was struck by a falling boulder and requested assistance from the Army National Guard to medically evacuate her. The applicant then organized a rescue team of over 50 climbers to move the medical supplies up the mountain. He expressed his gratitude for the vital part the applicant played in saving his daughter's life. REFERENCES: 1. Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers) sets forth the basic authority for the separation of USAR officers. Chapter 2 provides the basis for involuntary separation of USAR officers for substandard performance of duty, moral or professional dereliction, or in the interest of national security. While a discharge under other than honorable conditions is normally considered appropriate, an honorable or general discharge may be granted. 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, USAR, and Army National Guard. Paragraph 3-13a(3a) states a person is not entitled to reenlist if he or she was discharged or released from active duty as an officer on the basis of a determination of misconduct, moral or professional dereliction, duty performance, or retention being inconsistent with the interest of national security. 3. Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The regulation also states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) states OERs and letters of reprimand will be filed in the performance folder of the OMPF. 5. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. a. It established standardized policy for preparation of the DD Form 214 and stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. b. It stated a DD Form 214 would be prepared for all Reserve Component personnel after completing 90 days or more of continuous active duty for training, full-time training duty, or active duty support, and after completing initial active duty for training which resulted in the award of a military occupational specialty, even though the active duty was less than 90 days. 6. Army Regulation 600-8-22 (Military Awards) provides that the Soldier's Medal is awarded to any person of the Armed Forces of the United States at the time of the heroic act who distinguished himself or herself by heroism not involving actual conflict with an enemy. The same degree of heroism is required as for award of the Distinguished Flying Cross. The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy. Award of the Soldier's Medal will not be made solely on the basis of having saved a life. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. DISCUSSION: 1. Counsel contends an unreliable allegation in 2004 initiated a series of career-ending administrative actions which, with an invalid investigation finding and another unreliable anonymous statement (which had been disproven), initiated the applicant's involuntary separation. 2. Counsel contends new argument and evidence include the unsupported findings of the 2004 BOI; the unfairness; empty generalities; vague impressions; lack of reliability of the original complaints; systematic, repeated, and deliberate violation of the regulations, rules, and the applicant's rights by U.S. Government investigators, leaders, counsel; ineffective notice; surprise evidence; nonconformity with the regulations and Uniformed Code of Military Justice regarding the definition of a "false official statement"; and ineffective assistance of counsel have gone unaddressed for over a decade. 3. There is no evidence showing the BOI findings were unsupported. 4. The evidence of record does not support counsel's contention the above-mentioned issues have gone unaddressed for over a decade. His case and supporting evidence were carefully considered and denied by the Board in October 2014. 5. Although counsel contends the applicant did not commit the allegations and no evidence has ever been presented to demonstrate otherwise, the evidence of record shows an investigation was conducted and a show-cause board found he did sexually harass two female officers and he did submit a false official statement in his application for appointment in the USAR. 6. Counsel requests reinstatement of the applicant in the USAR in the rank of major with appropriate credit for time in service with retroactive pay and benefits. The applicant's records of service included substantiated findings of sexual harassment and making a false official statement while serving in the rank of major. The evidence of record shows he was discharged under other than honorable conditions from the USAR on 12 October 2007. His discharge was upgraded to general under honorable conditions by the Army Discharge Review Board in 2010. 7. Counsel's request to remove the applicant's last four OERs from his OMPF was considered. An OER accepted for filing in the OMPF is presumed to represent the considered opinion and objective judgment of the rating officials when it was prepared. The contested OERs filed in his OMPF appear to have been prepared by the properly designated rating officials and are properly filed in his military records in accordance with the governing regulation. The evidence does not show the OERs in question represented anything other than the considered opinion and the objective judgment of the raters and senior raters at the time of preparation. There is no evidence showing the OERs were improperly prepared or filed. 8. Counsel's request to remove the applicant's memorandum of reprimand, school disenrollment, and negative counseling statements from his OMPF was also considered. There is no evidence and counsel did not provide any evidence showing this documentation was untrue, unjust, or improperly filed. 9. Although counsel contends the applicant's $20,000.00 SLRP benefit was cancelled, there is no evidence and he provided no evidence showing the applicant was ever offered this incentive. 10. Counsel's request for retroactive award of the Solder's Medal to the applicant was considered. Army Regulation 600-8-22 provides that eligibility for the Soldier's Medal requires: * distinguished heroism not involving actual conflict with the enemy * the same degree of heroism is required as for award of the Distinguished Flying Cross * the performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy 11. There is no evidence showing the applicant's life was in jeopardy when he rendered assistance to an injured climber. He did not meet the criteria for award of the Soldier's Medal. 12. Counsel's request for issuance of a DD Form 214 showing the applicant's deployment to Iraq from approximately 15 August to 25 October 2007 was considered. However, there is no evidence showing the applicant completed 90 or more days of continuous active duty in 2007. 13. Counsel's request for upgrading the applicant's reentry eligibility code was also considered. The governing regulation states a former officer discharged or released from active duty for misconduct, moral or professional dereliction, duty performance, or retention being inconsistent with the interest of national security, is not entitled to enlist. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016744 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016744 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2