IN THE CASE OF: BOARD DATE: 21 May 2020 DOCKET NUMBER: AR20170012393 APPLICANT REQUESTS: * overturn of the Reserve Officers' Training Corps (ROTC) disenrollment decision * commission in the U.S. Army * removal of all negative documentation related to his ROTC disenrollment from his military records * rescission of orders separating him from the Maine Army National Guard APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Brief in Support of Application for Records Correction, Counsel, undated, with 12 exhibits – * Exhibit 1 – Transcripts and Training Certificates * Exhibit 2 – Five Character Statements * Exhibit 3 – National Guard Bureau Form 22 (Report of Separation and Record of Service) covering the period 16 January 2013 through 24 October 2016 * Exhibit 4 – Memorandum, First Lieutenant C____, dated 25 April 2017, subject: Character Statement for (Applicant) * Exhibit 5 – Statement, S____, dated 14 November 2014 * Exhibit 6 – DA Form 2823 (Sworn Statement), Cadet J____, dated 5 March 2014 * Exhibit 7 – Email, Cadet C____, undated; Statement, undated; and DA Form 2823, dated 5 May 2014 * Exhibit 8 – DA Form 2823, Cadet S____, dated 5 March 2014 * Exhibit 9 – Personal Statement, F____, dated 15 November 2014 * Exhibit 10 – DA Form 2823, Applicant, dated 14 November 2014 * Exhibit 11 – Facebook Messages, undated * Exhibit 12 – Letter, S____, dated 13 November 2014, regarding: Disenrollment of (Applicant) – Army ROTC Cadet REFERENCES: 1. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), in effect at the time, established procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. a. Paragraph 1-8 (Function of Preliminary Inquiry, Administrative Investigation, and Board of Officers) stated it is the duty of the investigating officer (IO) or board to thoroughly and impartially ascertain and consider the evidence on all sides of each issue, to comply with the instructions of the appointing authority, to make findings that are warranted by the evidence, and, where appropriate, to make recommendations to the approval authority that are consistent with the findings. b. Paragraph 2-3 (Who May be Appointed) stated IOs and board members will be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service, demonstrated sound judgement and temperament. IOs and board members must be impartial, unbiased, objective, and have the ability to complete the investigation in a timely manner. c. Paragraph 5-2 stated IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 2. Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior ROTC Program. Paragraph 3-43 (Disenrollment) stated a non-scholarship and scholarship cadets will be disenrolled for misconduct, demonstrated by disorderly or disrespectful conduct in the ROTC classroom or during training, or other misconduct that substantially interferes with the ROTC mission, including participation in unlawful demonstrations against the ROTC, illegal interference with rights of other ROTC students, or similar acts. 3. Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign Plan, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Harassment/Assault Response and Prevention Program. Chapter 7 (Prevention of Sexual Harassment) states sexual harassment is unacceptable conduct and will not be tolerated. Army leadership at all levels will be committed to creating and maintaining an environment conducive to maximum productivity and respect for human dignity. Sexual harassment destroys teamwork and negatively affects combat readiness. The Army bases its success on mission accomplishment. Successful mission accomplishment can be achieved only in an environment free of sexual harassment for all personnel. 4. Army Regulation 135-178 (Enlisted Administrative Separations), in effect at the time, established policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the U.S. Army Reserve. a. Chapter 8 (Entry Level Performance and Conduct) stated a Soldier may be separated if he or she is notified of the initiation of separation proceedings while in an entry-level status when it is determined the Soldier is unqualified for further military service by reason of unsatisfactory performance or conduct (or both), as evidenced by inability, lack of reasonable effort, failure to adapt to the military environment, or minor disciplinary infractions. b. The glossary defines entry-level status for Army National Guard and U.S. Army Reserve Soldiers as the first 180 days after beginning training if the Soldier is ordered to active duty for training for one continuous period of 180 days or more. 5. National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of the Army National Guard and the Army National Guard of the United States enlisted Soldiers in the functional areas which includes enlisted separations. Paragraph 6-35d(4) states failure to attend initial entry training (phase I or phase II) within 24 months as reason for administrative separation or discharge from the Reserve of the Army, the State Army National Guard only, or both. FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. As a cadet in the Army ROTC Program, he successfully completed his bachelor's and master's degrees and continuously excelled in all aspects of the ROTC Program. He was also a member of the Maine Army National Guard through the Simultaneous Membership Program. At the time of his disenrollment, he had completed all of the commissioning requirements of the ROTC Program and his commissioning ceremony was scheduled. b. The disenrollment proceedings began when the applicant's relationship with a fellow cadet ended. The applicant's ex-girlfriend and her friends engaged in a course of action to protect their reputations and attacked the applicant, which resulted in initiation of an Army Regulation 15-6 investigation. The original investigation was conducted by an IO who had a close relationship with one of the cadets. The investigation was flawed and extremely prejudicial manner. The IO conducted interviews in a manner that allowed multiple witnesses to be present and have full access to the statements of other witnesses. c. A new investigation was initiated; however, the IO from the original investigation was permitted to act as the recorder for the second investigation, ensuring he was present during witness interviews and discouraging the presentation of exculpatory evidence. The IO elected to exclude relevant witness statements from witnesses who put forth contradicting statements to those statements of the complaining witnesses. The result was a final investigation based on fabricated and highly questionable evidence. d. The combination of legal error in the investigative process, falsified testimony, and an IO who refused to consider exculpatory information resulted in clear legal error and a terrible injustice. 3. The applicant's DA Form 597 (Army Senior ROTC Non-scholarship Cadet Contract), dated 23 August 2012, states his consent to participation in the ROTC Program at Husson University in Bangor, Maine. a. Paragraph 5 (Terms of Disenrollment) states he understood and agreed that if he were disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria established now or in the future by Army regulations (which include, but are not limited to Army Regulation 145-1), the Secretary of the Army or his or her designee may order him to active duty as an enlisted Soldier for a period of not more than 2 years. b. Paragraph 7 (Release from Obligations) states he understood the Secretary of the Army or his or her designee may at any time release him without notice from the obligations of this contract and disenroll him from the ROTC Program without further benefits if it is in the best interest of the Army. 4. The applicant enlisted in the Maine Army National Guard on 16 January 2013 in the rank/grade of specialist/E-4. 5. The memorandum from the Professor of Military Science, University of Maine, dated 16 October 2014, subject: Notification of Disenrollment from the ROTC – Due Process and Appellate Rights of Scholarship/Non-scholarship – (Applicant), notified the applicant of initiation of action for his disenrollment from the ROTC Program based on misconduct that substantially interfered with the ROTC mission, in that he was found to have sexually harassed fellow cadets with unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. 6. Section V (Recommendations) of the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 6 May 2014, states the applicant displayed a pattern of misconduct and inappropriate behavior toward females. The applicant's behavior is not what should be displayed as an officer in the U.S. Army. The IO recommended the applicant's disenrollment from the University of Maine ROTC Program and not commissioned as an officer. 7. On 29 August 2014, the applicant's counsel, Trial Defense Counsel and Judge Advocate for the Maine Army National Guard, stated the Army Regulation 15-6 investigation findings are deeply flawed and not legally sufficient. Without providing the applicant an opportunity to respond to the allegations, to access immediate assistance, or to submit documents or statements in his defense before the IO report was acted upon, it appears that he was denied due process. 8. The DA Form 1574, dated 12 December 2014, shows in: a. Section IV (Findings): (1) On 28 August 2012, the applicant did enter into a valid Army Senior ROTC Cadet Contract. (2) The applicant did receive advanced educational assistance in the form of ROTC scholarship monies for financial incentives from the U.S. Government in the amount of $5,000.00 that constitutes a valid debt to the U.S. Government. (3) The applicant did breach the terms of the ROTC contract due, in whole or in part, to misconduct that substantially interfered with the ROTC mission, in that he was found to have sexually harassed fellow cadets with unwelcomed sexual advances, sexual language, created a hostile environment, and/or physical conduct of a sexual nature. b. Section V (Recommendations): (1) The applicant should not be retained in ROTC as a non-scholarship or scholarship cadet based upon his displayed pattern of sexual harassment. (2) The applicant should be disenrolled from ROTC based on Army Regulation 145-1, paragraph 3-43a(12), for misconduct that substantially interfered with the ROTC mission, in that he was found to have sexually harassed fellow cadets. (3) The applicant should be released from his ROTC contractual obligation due to his failure to maintain the U.S. Army values and failure to uphold the standards expected of a commissioned Army officer. (4) The applicant should not be ordered to active duty in an enlisted status based upon his violation of Army Regulation 600-200, paragraph 7-4 (Prevention of Sexual Harassment). (5) The applicant should be ordered to repay his valid debt of $5,000.00 to the U.S. Government, comprised of advanced educational assistance received in the form of scholarship benefits or financial incentives. 9. The memorandum from the Commanding General, Headquarters, U.S. Army Cadet Command and Fort Knox, dated 18 June 2015, notified the applicant of his disenrollment from the U.S. Army ROTC Program. a. After a careful review of his case, he was disenrolled and discharged from the ROTC Program under the provisions of Army Regulation 145-1, paragraph 3-43a(12). His disenrollment was based on his misconduct as demonstrated by numerous instances of sexual harassment of fellow cadets. b. Since he was a member of the Army National Guard, but not under the Simultaneous Membership Program, he was released to his Army National Guard unit to fulfill the remainder of his military service obligation. 10. ROTC, University of Maine, Orders 169-01, dated 18 June 2015, discharged the applicant from the U.S. Army Reserve Control Group (ROTC) effective 18 June 2015. His service was uncharacterized. 11. Joint Force Headquarters Maine National Guard Orders 302-021, dated 28 October 2016, discharged the applicant from the Army National Guard effective 24 October 2016 under the provisions of Army Regulation 135-178, chapter 8, and National Guard Regulation 600-200, paragraph 6-35d(4). His service was uncharacterized. 12. His National Guard Bureau Form 22 shows he was discharged for failure to attend initial entry training (phase I or phase II) with 24 months. 13. The applicant provided 10 character/sworn statements to attest to his integrity, high moral character, and ethical principles. Statements additionally question the methods and procedures of the ROTC investigation and the inappropriate group interviews. 14. The memorandum from the Deputy Chief of Staff for Personnel, Headquarters, U.S. Army Cadet Command and Fort Knox, dated 20 April 2020, subject: Advisory Opinion – Former Cadet (Applicant), states: a. The applicant was contracted as a non-scholarship Simultaneous Membership Program cadet on 23 August 2012 and was disenrolled on 18 June 2015. The reason for disenrollment was for breach of contract based on misconduct as demonstrated by numerous instances of sexual harassment against his fellow cadets. b. At the time of his disenrollment, a Disenrollment Board was appointed to review the circumstances and whether to recommend retention. The board concurred with the Professor of Military Science's recommendation of disenrollment and made the recommendation to the brigade commander. The brigade commander reviewed the file and recommended disenrollment to the commanding general. A legal review was conducted prior to signing the final disenrollment memorandum. The proceedings were deemed legally sufficient with no procedural errors and sufficient evidence to support the findings. c. The applicant was given an opportunity to appeal/dispute the findings and did not file an appeal. Based on the facts surrounding his disenrollment, relief is not warranted. The applicant violated the Army Values and was appropriately separated. 15. On or about 15 May 2020, the applicant's counsel responded to the advisory opinion wherein he stated: a. The advisory opinion does not examine the validity of the applicant's legal arguments. The fact that the author of the advisory opinion is using the applicant's decision not to appeal his disenrollment in 2015 against him is wholly unjust and inappropriate. b. The author of the advisory opinion rendered no opinion on the material error of procedure argument set forth that the basis for the applicant's disenrollment was a fatally flawed Army Regulation 15-6 investigation. Although a second investigation was initiated after the first IO botched the investigation entirely, the first IO was permitted to actively participate in the second investigation as the recorder. His inclusion in the second Army Regulation 15-6 investigation vitiated any chance for an unbiased investigation. c. The witnesses were initially tainted the veracity of the witness statements due to confirmation bias and the opportunity to corroborate each other's statements instantaneously. d. The advisory opinion author ignored the exculpatory and contradicting evidence that was provided by certain Army Regulation 15-6 investigation witnesses and the applicant's counsel in his petition to the ABCMR. e. The applicant's disenrollment from ROTC and separation from the Maine National Guard was based on a fatally flawed Army Regulation 15-6 investigation, thus making his disenrollment and separation the proverbial fruit of the poisonous tree. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his ARNG status, his enrollment in ROTC, the nature of the misconduct, the results of investigations, the statement of support, the recommendation of the Disenrollment Board, legal review and his disenrollment. The Board considered the review and conclusions of the advising official and the response from the applicant’s counsel. Based on a preponderance of evidence, the Board determined that the applicant’s disenrollment from ROTC, the associated documents on his record and his discharge from the ARNG were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. ADMINISTRATIVE NOTE(S): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012393 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1