ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20160016205


APPLICANT REQUESTS:  his involuntary separation be rescinded and he be reinstated onto active duty

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* A Narrative/Self-Authored Statement
* A memorandum from the Federal Practice Group 
* A post-board appeal from his military defense counsel
* The Government’s case file
* A National Guard Retirement Points History Statement
* An Army Board for Correction of Military Records (ABCMR) case denying his application to remove a General Officer Memorandum of Reprimand (GOMOR)  

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was involuntarily released from active duty based on an event fraught with the deceitful testimony of a former spouse and outside the stature of limitations.  The separation and underlying GOMOR were based on the opinion of his chain of command that regardless of the jurisdiction, date of event or any other legal basis, his behavior was unacceptable.  He asks the Board to review the evidence, overturn the decision to involuntarily separate him, and reinstate him due to lack of evidence, lack of jurisdiction, and procedural error.   

3.  The applicant provides:

     a.  A ten-page statement alleging there were many improprieties throughout the elimination process including failures to adhere to regulations, and failures of due process, and failures to follow United States Supreme Court (Supreme Court) decisions.  The notable errors were:

* The GOMOR was for an event that occurred in 2003.  He was not in a Title 10 status at the time of the event and would not be for three more years, so the issuing authority had no jurisdiction over him.
* Indecent Acts, one of the offenses listed in the GOMOR, was not an offense at the time of the event or at the time the GOMOR was issued. 
* The ABCMR upheld his GOMOR based on a failure to live up to Army values both on and off duty, even though the regulation compelling such behavior was not published for four years after the incident.  
* There was no formal investigation into the allegation of adultery.
* There was no evidence of adultery beyond his own statement admitting to a consensual sexual act while not subject to the Uniform Code of Military Justice (UCMJ). 
* Merely holding a commission at the time of an event does not him subject to the UCMJ or other military regulations.  
* The Supreme Court determined in the case of Lawrence v. Texas, that a governmental entity does not have the right to enter the bedroom of a citizen for any purpose.  The Army may do this under the guise of maintaining good order and discipline, but he would still need to be in a Title 10 or Title 32 status and there would need to be an event that demonstrated a breach of good order and discipline.  There was no such breach and all his Officer Evaluation Reports show superior performance and mention no failures to maintain standards of behavior.  He was a civilian at the time of the event and is protected by Lawrence. 
* His 19 June 2013 board of inquiry (BOI) was improperly composed, because two members were not senior in grade to him.
* The 5 February 2013 “Initiation of Elimination” memorandum failed to inform him he could submit a retirement, if eligible.
* The event was far outside the UCMJ’s five year statute of limitations and was thus barred from use with respect to both the 2011 GOMOR and the 2013 BOI. 
* The BOI applied the wrong evidentiary standard.
* The BOI was confused as to its duties and responsibilities.  It did not address conduct unbecoming an officer, but instead stated that he “managed his personal affairs in a manner that discredits the Armed Forces” which in effect introduced a new reason for elimination that he had never been informed of, thus creating a Constitutional due process error.  
* The instructions to the BOI when it reconvened on 6 November 2013 did not cure the defect.  They simply clarified what matters the board considered.
* The findings of the BOI are irreconcilable with the GOMOR, given that the BOI found his wife was likely receptive to the introduction of third parties into their sexual relations and may have taken the initiative rather than participating in response to his coercion.
* The third BOI was allowed to hear previously inadmissible details of a civil hearing, because the government subpoenaed the lead Criminal Investigation Command (CID) agent on the case.  
* The regulation clearly states that the BOI is only supposed to determine, using a preponderance of evidence standard, whether he failed to maintain the standards of his grade and branch and not to determine guilt or innocence of a UCMJ violation.
* The record of his third BOI is not included in his packet, but he believes it is available to the ABCMR.

     b.  A memorandum from his civilian attorney at the Federal Practice Group to the Secretary of the Army, dated 7 March 2014, alleging procedural and factual deficiencies  in the applicant’s BOI.  This memorandum serves as the basis for much of the applicant’s self-authored narrative captured above.

     c.  A memorandum from his military defense counsel to the General Officer Show Cause Authority (GOSCA), dated 20 August 2013, appealing the result of applicant’s 19 June 2013 BOI.  The memorandum focuses on jurisdictional issues and applicant’s status at the time of the alleged actions arguing the GOMOR should never have been imposed.  With regard to evidentiary issues it argues evidence was improperly considered over defense objection and contrary to the advice of the legal advisor, that credibility issues related to applicant’s ex-wife discredit the allegations, and that the BOI failed to consider applicant’s outstanding service.  

     d.  The government’s case file relating to his 19 June 2013 BOI and the 6 November 2013 reconvening of the BOI for the purpose of clarifying its findings.   

     e.  An NGB Form 23B (Army National Guard Retirement Points History Statement), prepared on 20 September 2006 showing that he was an Army National Guard Unit Member from 10 October 2002 through 6 November 2004.

     f.  An ABCMR Record of Proceedings in Docket Number AR20150004778, dated   12 January 2016, in which the Board denied his request for removal of a GOMOR from his file.  

4.  A review of the applicant’s service record shows:

     a.  He enlisted in the United States Army Reserve (USAR) as a Cadet in the Reserve Officer Training Corps on 29 July 1986.

     b.  On 8 September 2006, he was issued a “Notification of Eligibility for Retired Pay at Age 60” informing him that he had completed the required years of service for non-regular retirement.

     c.  On 8 September 2011, the applicant was issued an administrative GOMOR for while being married and in the Army committing adulterous acts on multiple occasions and coercing his wife to take part in several of these encounters.  The memorandum also notes that the conduct is in violation of Articles 120(k), 133, and 134 of the UCMJ, Indecent Acts, Conduct Unbecoming an Officer, and Adultery, respectively.

     d.  On 5 February 2013, the Commanding General, United States Army Human Resources Command, initiated elimination action against applicant, because of misconduct, moral or professional dereliction citing the substantiated derogatory activity resulting in a GOMOR, dated 8 September 2011, and conduct unbecoming an officer as indicated in the referenced GOMOR.

     e.  On 25 April 2013, the applicant acknowledged receipt of the elimination action and asked for a BOI.  

     f.  On 14 May 2013, he unsuccessfully rebutted the necessity of a BOI.

     g.  On 19 June 2013, a BOI considered applicant’s case, entered findings, and recommended he be eliminated with a general (under honorable conditions) characterization of service.

     h.  On 6 November 2013, the BOI was re-opened for the purpose of clarifying its findings.  

     i.  On 21 March 2014, the Army Review Board Agency returned the BOI to the GOSCA due to an error which substantially prejudiced the applicant, specifically a statutory defect in the board membership.

     j.  On 10 April 2014, the GOSCA re-initiated elimination against applicant.  The basis for the elimination remained misconduct, moral or professional dereliction with specific references to the presence of substantiated derogatory activity in his file in the form of the 8 September 2011 GOMOR, mismanagement of his personal affairs to the discredit of the Army and conduct unbecoming an officer as indicated in the GOMOR, allied documents, CID Report of Investigation, and Thurston County, Washington court documents, and intentional omission or misstatement of facts relating to his denial of violating of a military protective order made in the course of a complaint against the recorder at his original BOI.

     k.  On 15 April 2014, he requested a BOI.

     l.  On 20 August 2014, the BOI convened and found the allegation of indecent acts in the GOMOR was not supported by a preponderance of the evidence, the allegations of adultery and conduct unbecoming an officer were supported by a preponderance, and that the findings warranted his separation.  It recommended he be eliminated with a general (under honorable conditions) characterization of service.

     m.  On 14 November 2014, after considering matters submitted by applicant’s military defense counsel, the GOSCA approved the findings and recommendation.  

     n.  On 14 April 2015, the Deputy Assistant Secretary of the Army (Review Boards) (DASA(RB)) determined that he should be involuntarily eliminated while noting that by operation of law the elimination action would convert to a non-regular retirement in lieu of elimination.  She also directed that the case be forwarded to the Army Grade Determination Review Board (AGDRB) for a recommendation as to his highest grade satisfactorily held for retirement.

     o.  On 1 May 2015, he was released from active duty and transferred to the USAR Control Group (Reinforcement).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 24 (Character of Service), Honorable
* item 25 (Separation Authority), Army Regulation 600-8-24, paragraph 4-2B and paragraph 4-24A(1)
* item 28 (Narrative Reason for Separation), Unacceptable Conduct

     p.  On 5 June 2015, he was reassigned to the Retired Reserve with an effective date of 2 May 2015. 

     q.  On 2 September 2015, applicant submitted a one-page written response for consideration by the AGDRB. 

     r.  On 19 November 2015, the DASA (RB) determined his service in the grade of O-5 (lieutenant colonel) was not satisfactory and directed he be placed on the Reserve Retired List in the grade of O-4 (major).

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the legal review of the separation, dated 20 November 2013 and 27 October 2014, the Board concluded that all rights and privileges of the applicant were properly executed when processing the separation.  For that reason, the Board concluded that there was insufficient evidence of an error or injustice which would warrant rescinding the administrative separation and placing the applicant back onto active duty status.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.


REFERENCES:

1.  Army Regulation (AR) 15-185, (Boards, Commissions, and Committees—Army Board for Correction of Military Records), provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  Paragraph 2-9 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.

2.  AR 600-37 (Personnel—General—Unfavorable Information), in effect at the time, prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It applies to all officers and enlisted personnel in the Active Army, Army National Guard, and the United States Army Reserve.

     a.  Paragraph 1-4 states that the objectives of the regulations are to:  

* Apply fair and just standards to all Soldiers.
* Protect the rights of individual Soldiers and, at the same time permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility.
* Prevent adverse personnel action based on unsubstantiated derogatory information or mistake identity.
* Provide a means of correcting injustices if they occur.
* Ensure that Soldiers of poor moral character are not continued in the Service or advanced to positions of leadership, trust, and responsibility.

     b.  Paragraph 3-3 states, in pertinent part, that records of courts-martial, court-martial orders, and records of nonjudicial punishment under the Uniform Code of Military Justice (UCMJ), Article 15 may be filed in the performance portion of the individual’s file without further referral to the recipient according to the provisions of AR 27-10 (Military Justice).  

     c.  Paragraph 3-4 states, in pertinent part, that the authority to issue and direct the filing of nonpunitive administrative letters of reprimand in the case of an officer is restricted to the recipient’s immediate commander or a higher level commander in the chain of command, rating officials, or any general officer who is senior to the recipient or an officer who exercises general court-martial jurisdiction over the recipient.  Regardless of the issuing authority, for a reprimand to be filed in the Official Military Personnel File (OMPF), it must be directed for such filing at the order of a general officer after referral to the recipient.  A letter to be included in the Soldier’s OMPF will:



* Be referred to the recipient concerned for comment and will include reference to the intended filing.
* Will include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis of the letter.
* Statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing before a final determination to file the letter is made.
* Should filing in the OMPF be directed:
* The statements and evidence may be attached as enclosures to the basic letter.
* The letter shall contain a statement that it has been imposed as an administrative measure and not as punishment under UCMJ, Article 15. 
* The letter will be signed by (or sent under the cover or signature of) an officer authorized to direct such filing.
* The letter will be forwarded only after considering the circumstances and alternative nonpunitive measures.
* Once placed in the OMPF, such correspondence will be permanently filed unless removed through the appeal process. 

3.  Title 10, USC, section 1181, “Authority to establish procedures to consider the separation of officers for substandard performance of duty and for certain other reasons”, states, in pertinent part, subject to such limitations as the Secretary of Defense may prescribe, the Secretary of the military department concerned shall prescribe, by regulation, procedures for the review at any time the record of any commissioned officer of the Regular Army to determine whether such officer should be required, because of misconduct, because of moral or professional dereliction, or because his retention is not clearly consistent with the interests of national security, to show cause for his retention on active duty.

4.  Title 10, USC, section 1182, “Boards of Inquiry”, states, in pertinent part, the Secretary of the military department concerned shall convene boards of inquiry at such times and places as the Secretary may prescribe to receive evidence and make findings and recommendations as to whether an officer who is required under section 1181 of this title to show cause for retention on active duty should be retained on active duty.  Each board of inquiry shall be composed of not less than three officers having the qualifications prescribed by section 1187 of this title.  A board of inquiry shall give a fair and impartial hearing to each officer required under section 1181 of this title to show cause for retention on active duty. 

5.  Title 10, USC, section 1184, “Removal of officer: action by Secretary upon recommendation of board of inquiry” states, the Secretary of the military department concerned may remove an officer from active duty if the removal of such officer from active duty is recommended by a board of inquiry convened under section 1182 of this title.  

6.  Title 10, section 1185, “Rights and procedures”, states, in pertinent part, under regulations prescribed by the Secretary of Defense, each officer required under section 1181 of this title to show cause for retention on active duty:

          (1)  shall be notified in writing, at least 30 days before the hearing of his case by a
                board of inquiry, of the reasons for which he is being required to show cause 
                for retention on active duty;

          (2)  shall be allowed a reasonable time, as determined by the board of inquiry, to 
                prepare his showing of cause for his retention on active duty;

          (3)  shall be allowed to appear in person and to be represented by counsel at   
                proceedings before the board of inquiry; and

          (4)  shall be allowed full access to, and shall be furnished copies of, records
                relevant to his case, except that the board of inquiry shall withhold any record
                that the Secretary concerned determines should be withheld in the interest of
                national security.   

7.  Title 10, USC, section 1186, “Officer considered for removal: voluntary retirement or discharge, states, in pertinent part, an officer removed from active duty under section 1184 of this title shall, if eligible for voluntary retirement under any provision of law on the date of such removal, be retired in the grade and with the retired pay for which he would be eligible if retired under such provision. 

8.  Title 10, USC, section 1187, “Officer eligible to serve on boards” states, in pertinent part, each board convened under this chapter shall consist of officers appointed as follows:  

          (1)  Each member of the board shall be an officer of the same armed force as the
                officer being required to show cause for retention on active duty.

          (2)  Each member of the board shall be on the active-duty list.

          (3)  Each member of the board shall be in a grade above major or lieutenant
                commander, except that at least one member of the board shall be in a grade
                above lieutenant colonel or commander.

          (4)  Each member of the board shall be senior in grade to any officer to be
                considered by the board.       
   

9.  Department of Defense (DoD) Instruction Number 1332.30 “Separation of Regular and Reserve Commissioned Officers”, in effect at the time, implements the above provisions of Title 10, USC, regarding the administrative separation of Regular and Reserve commissioned officers for substandard performance of duty, for an act or acts of moral or professional dereliction, or in the interests of national security.  It states, in pertinent part, that it is DoD policy:

     a.  To promote the readiness of the Military Services by maintaining high standards of conduct and performance.  An individual is permitted to serve as a commissioned officer in the Military Services because of the special trust and confidence the President of the United States has placed in his or her patriotism, valor, fidelity, and competence.  Commissioned officers are expected to display responsibility commensurate to that special trust and confidence, and to act with the highest integrity at all times.

     b.  To judge the suitability of persons for military service based on their conduct and their ability to meet required standards of duty, performance, and discipline.

     c.  To separate from military service those commissioned officers who will not or cannot:

          (1)  Meet rigorous and necessary standards of duty, performance, and discipline.

          (2)  Maintain those high standards of performance and conduct through
                appropriate actions that sustain the traditional concept of honorable military
                service.

          (3)  Exercise the responsibility, fidelity, integrity, or competence required of them.    
     
10.  AR 600-8-24, (Personnel—General—Officer Transfers and Discharges), in effect at the time, implements DOD Instruction 1332.30.  It prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  

     Paragraph 4-16 states, in pertinent part, if the Board of Inquiry committed an error that substantially prejudiced a substantial right of the officer, the case may be returned for a rehearing by a new board.  The new board may be furnished the evidence properly considered by the previous board, including extracts from the record of testimony of those witnesses not deemed reasonably available to testify at the rehearing.  The new board may call additional witnesses.  New allegations that could form the basis for an elimination under paragraph 4-2 may be presented to the new Board of Inquiry.  First, however, the officer will be given notice of the new allegations and provided an opportunity to respond.  The case will then be processed as stated in paragraph 4-18.  The new board will not be advised of the findings and the recommendations of the previous board.  The new board’s findings and recommendations may not be less favorable than that of the previous board unless additional allegations are considered.  Likewise, the recommendation of the appointing authority may not be less favorable than the initial recommendation, unless additional allegations are considered by the subsequent board.       

ABCMR Record of Proceedings (cont)	 AR20160016205


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