IN THE CASE OF: BOARD DATE: 19 February 2021 DOCKET NUMBER: AR20190005706 APPLICANT REQUESTS, in effect, to show: * a different narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from the United States Military Academy (USMA) * remission of his USMA educational debt * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD organized and tabbed in attachments: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * Self-authored statement, 30 April 2019 (13 pages) * Attachment 1 - U.S. Army Criminal Investigation Command (CID) Investigation Report * Attachment 2 - USMA Form 2-3 (Record of Formal Proceedings Under Article 10, Cadet Disciplinary Code (CDC)), 11 February 2016 * Attachment 3 - Superintendent, USMA, memorandum, (Separation of Cadet (Applicant), Company G-3, Class of 2016), 13 April 2016 with attached action document * Attachment 4 - Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA-M&RA), memorandum, (Conduct Separation, Cadet (Applicant), USMA, Class of 2016), 2 June 2016 * Attachment 5 - U.S. Department of the Treasury, Bureau of the Fiscal Service letter, 25 October 2016 * Attachment 6 - United States Corps of Cadets (USCC) Regulation 351-2 (The Cadet Disciplinary System), 15 May 2001 (Chapter 3 pages 19-32) * Attachment 7 - Example of DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) from Army Regulation 27-10 (Military Justice), 11 May 2016 (page 9) * Attachment 8 - Department of Defense Instruction (DODI) Number 1322.22 (Service Academies), 24 September 2015 * Attachment 9 - DD Form 214, for the period ending 2 June 2016 FACTS: 1. The applicant's official military personnel file is limited in its content of documentation. This case is being considered primarily based on the documents provided by the applicant. 2. The applicant states he believes his separation from USMA is unjust due to an inadequate investigation, a hurried "Brigade Board" proceeding, and ineffective assistance of counsel. Those factors resulted in deprivation of his Fifth Amendment right to due process and his Sixth Amendment right to effective assistance of counsel. 3. In an attached thirteen-page letter summarized below, the applicant notes the following: a. I am a former cadet at the USMA, West Point, New York. I was separated and discharged from USMA effective June 27, 2016. My separation was the product of an inadequate investigation, a hurried Brigade board proceeding, and ineffective assistance of counsel. My due process rights and right to counsel were denied, leading to my separation from USMA. I had long dreamed of obtaining a USMA diploma, was in good academic standing, and was a mere 10 days short of finishing graduation requirements. Because I did not fully meet all the requirements for graduation at the time of my separation, I did not qualify for a diploma. While a USMA diploma was a lifelong dream and within reach at the time of my separation, I am not asking the Board to grant me a diploma. I am requesting only that the Board correct my record by vacating the separation for misconduct and dismissing the recoupment action. Following my separation, I enrolled at the University of Nebraska for four semesters to obtain an undergraduate degree and applied and was accepted to medical school for Fall 2019. I will continue to serve my community and my country in another capacity. Relieving me of this debilitating financial burden would allow me to meet that goal. b. Factual Background. (1) I entered the Academy on June 27, 2011, joining the class of 2015. I majored in French and participated in a study abroad program in Willems, France, in the Spring of 2014. Due to a misunderstanding with my host family based on an incident involving alcohol and the language barrier, I was asked to find another host family. Although I had arrangements in place, USMA decided to end my study abroad and I was ordered to return to USMA. (2) On April 16, 2014, a misconduct investigation under the provisions of Army Regulation (AR) 210-26 was conducted. The stated purpose of the investigation was to determine whether I had violated provisions of AR 210-26 which incorporated violations of Articles 92, 133, and 134, Uniform Code of Military Justice (UCMJ). The Investigating Officer found that I had violated AR 210-26 by violating the UCMJ provisions and made his recommendations regarding separation and punishment to the Superintendent. I was directed to complete the requirements of the Special Leader Development Program (SLDP), reduced in rank, and given 35 demerits, 90 days' restriction, 120 days' withdrawal of privileges, and 120 extra duty hours. The Superintendent also directed that I enroll in the Army Substance Abuse Program (ASAP). Finally, he recommended separation from the Academy, but added a "turn-back" year and suspended separation until my graduation in 2016, contingent upon future exemplary conduct during this period. Among other terms, this action was considered to be violated if l "received an individual award of 35 demerits as a result of an Article 10 for an act that occurred during the probationary period…" (3) Following this event, I worked very hard to learn from my mistakes and become a better cadet. I excelled at the Academy. I was removed from conditioned status based on my performance. I successfully completed SLDP and was recommended to fill leadership positions within my company. In April 2015, I interviewed for the Company Commander position with my company tactical officer and was notified of my selection in July 2015, a role I filled beginning in August of that year. I had initially expected to fill a platoon leader position in the Fall, but was asked to step up and become the cadet company commander when the cadet who had been selected could not serve as the company commander. (4) The events which led to my separation from USMA took place on 22 September 2015. I spent the day (7:00am-4:30pm) at the biannual leadership conference with over 300 other cadets who all served in leadership positions in the Corps of Cadets. From 6:00pm-8:30pm, I attended the conference banquet. While at the banquet I had a full meal from the buffet line and drank two beers. From 8:30pm- 10:00pm, I attended a whisky tasting event organized by our Company Social Committee. This was a formally organized and sanctioned event attended by my chain of command. The event was run by a USMA-sanctioned local vendor who had a several-year history conducting these events at West Point. The vendor carefully monitors the amount of alcohol served and consumed by cadets and withholds further service if he believes a cadet has had too much to drink. I had very small samples of whisky (about one ounce each), along with water and additional food. My company commander and company NCO were both near me throughout the entire event and neither mentioned anything at that or any subsequent time about my behavior or that I was impaired or intoxicated. (5) After the tasting ended I returned to the barracks to do homework and prepare for the next day. In addition, as phone records indicate, I made phone calls home to discuss my branch decision, including a lengthy call with my uncle, a physician in Omaha, Nebraska. As I walked through the barracks I realized the plebes would be wearing their as-for-class uniform for the first time the next day. I then decided to ensure the plebes were prepared to wear the new uniform. My interaction with cadets varied depending on the circumstances. If lights were out I did not wake the cadets. I went into several rooms and talked to the plebes. As I was leaving one room I gave one of the three male roommates present a "good job" slap on the backside as many teammates do because he had his uniform in order, unlike his two roommates. At no point did it occur to me that there was anything inappropriate about my behavior or the interaction with the cadet in question. I have seen similar events countless times at West Point. (6) The following evening, about 19 hours later, at 5:00pm on September 23, I was called in, read a counseling statement, and relieved of my command. The decision was apparently based on a complaint filed by the plebe in question. I was ordered to stay away from him and moved to another cadet company where I remained until my separation on 10 May 2016. (7) From 25-30 September, I was totally demoralized by my situation. I was never given the reason for my demotion and move to another cadet company. I finally turned to the USMA Trial Defense Service (TDS) attorney on 30 September. The attorney took no action on my behalf and offered no advice, but suggested watchful waiting to let events play out. He offered no other advice. At this point I concluded I had exhausted the usefulness of legal counsel. I did not understand how desperately I needed an attorney's help as this attorney implied I should just be patient and let events play themselves out. As with nearly all cadets, I had little to no knowledge of how the system worked or how to engage with the system to my best advantage. Like most cadets, I trusted that the system would arrive at a just, honest, and accurate judgment, and that I needed to demonstrate loyalty and willingness to follow orders. I personally believed in my innocence. (8) At a much later date I learned that on 2 October (10 days after the event in question), the matter was referred for investigation to the CID office at USMA. I was totally unaware of this until the summer of 2016 and only after I filed a Freedom of Information Act (FOIA) request for the investigative report (Attachment 1). Only then did it become clear to me through studying the documents provided through the FOIA request that CID was treating this event as a sexual assault investigation. This investigation was undertaken despite the fact that the cadet in question clearly stated he did not view my pat on the backside as sexual in nature. He simply said it made him uncomfortable. The documents show the CID investigation to be cursory, incomplete, and grossly flawed. I was questioned and provided a statement, but at no point was my statement released to me nor was I provided an opportunity to read it to see if it accurately reflected what I said. The CID agent states in his notes that I admitted I was intoxicated at the time of the incident. I never admitted that I was intoxicated because I was not. As I stated earlier, my chain of command said nothing to me during or after the tasting event – something they clearly should have done if there was a problem. I was in full possession of my faculties during a documented 58-minute phone call with my uncle, a physician, later that evening. Yet, this critical piece of false information alleging my self-reported lack of sobriety was and is part of my file. (9) In late November or early December I was verbally informed that a decision had been made to drop the criminal investigation and any related charges. Apparently the USMA legal office had reviewed the investigation and determined that a court- martial was not warranted. My chain of command then decided to proceed with a Brigade Board. I was never given written notification of any charges against me nor told how the charges had been resolved. Upon formation of the Brigade Board proceeding, I was never informed of the charges against me or advised how to prepare for the Brigade Board nor was I told of the advisability of seeking legal counsel. None of the investigation materials were shared with me and I did not know the Brigade Board would have access to or use the CID investigation material during my hearing. As a result, I continued to believe my actions the evening of 22 September 2015 were completely innocent and comported with my responsibilities as a cadet company commander. Given my interaction with the TDS attorney on 30 September, I did not seek additional legal counsel and waited for the Brigade Board. (10) Finally, on 11 February 2016, my company commander notified me orally of a pending Article 10 for three violations of the cadet conduct code (Article 1, Article 6, and Article 7). It was alleged that I acted unprofessionally and made unwanted physical contact with a cadet on 22 September 2015. I was not informed of the specific charges nor was I informed of the nature of the evidence or any list of witnesses against me. I requested that a person speak on my behalf and I indicated I would present evidence in person. As I had already talked to a TDS attorney to no avail, it did not cross my mind to do so once more. While fully aware that my suspended separation resulting from the misconduct investigation in 2014 elevated the gravity of the situation, I understood that separation was specifically contingent on receiving 35 demerits. I was not informed that I was at risk and needed to prepare a defense to mitigate that risk. (11) The hearing was held on 17 February 2016. I was briefly present in front of the Brigade Board for approximately two minutes, during which time I was asked some questions and then asked to leave the room. I was not present when any witnesses were questioned nor was I given the opportunity or right to rebut or address anything that was said during the hearing. The hearing lasted approximately one hour. The Brigade Tactical Officer found me guilty and imposed the punishment as listed on the Article 10 form (Attachment 2). Only after the hearing was I shown the Article 10 form. The Article 10 form did not include any demerits as part of the punishment. Indeed, the "demerit" amount was left blank. Given that demerits were not awarded, I decided not to appeal the ruling. I did not understand nor was I told that demerits were automatic based on the ruling and the other punishment imposed. I learned about the automatic demerits several days later when I was told of the process to lift the suspension of my separation. I did not seek out legal counsel again at that point as the TDS attorney had been so nonchalant and unhelpful before. Had I truly understood the seriousness of my situation and what I was facing I would have sought legal counsel for assistance. (12) Two months later, on 13 April 2016, the Superintendent took action based on the results of the Article 10. He determined that I had violated one of the conditions of my suspended separation because I had automatically received 35 demerits based on the punishment imposed. He suspended me from USMA pending final action on my case at Headquarters, Department of the Army. The Superintendent recommended that I be separated from USMA, transferred to the Reserves for three years serving as an E-4, and ordered to active duty for three years. Finally, he recommended recoupment only if l did not complete the mandated three years of service (Attachment 3). (13) On 2 June 2016, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA M&RA) approved the Superintendent's recommendation to separate me. However, rather than approve the Superintendent's recommendation to transfer me to the Army Reserves with a concurrent call to active duty, she, without explanation, directed that I be separated, issued an Honorable Discharge Certificate, and repay the government for the cost of my education at USMA (Attachment 4). The amount I owe is currently approximately $360,000.00 (Attachment 5). (14) Not until August of 2016, and only after I filed a FOIA request was I given any material regarding the 17 February 2016 Article 10 proceeding. When it finally was provided, I was given only 16 pages related to the CID investigation, including a redacted Agent's investigation report, a redacted sworn statement from an unknown witness, and a series of redacted canvas interview worksheets. I was not even given a copy of my own sworn statement although my DA Form 3881 (Rights Warning) was released to me. c. Argument. (1) The Fifth Amendment to the United States Constitution forbids the deprivation of life, liberty, or property without due process of law. "The service academies are subject to the Fifth Amendment and ... cadets and midshipmen must be accorded due process before separation." Andrews v. Knowlton, 509 F.2d 898, 903 (2d Cir. 1975). Before a cadet can be dismissed or separated, "he must have a hearing, be apprised of the specific charges against him, and be given an adequate opportunity to present his defense both from the point of view of time and the use of witnesses and other evidence." Id. at 905 (emphasis added); see also Hagopian v. Knowlton, 470 F.2d 201, 211 (2d Cir. 197 2) ("The demands of due process, however, are greater when the accumulation of demerits subjects the cadet to the severe sanction of expulsion rather than a form of milder discipline…"). (2) I knew that my separation from USMA was suspended after the misconduct investigation in 2014. I also knew that the terms of the suspension would be violated if I received an award of 35 demerits as the result of an Article 10. Given the severe consequences I was determined that my actions would never be called into question. I do not believe I acted inappropriately during the uniform inspection nor do I believe the facts support that interpretation. I regret that a plebe felt uncomfortable as that was never my intent. What I viewed as a simple pat on the backside – something team members often do to show support – somehow became a "sexual assault" allegation that was referred to CID for investigation. Even a cursory reading of the 16 pages of the investigation that were released to me show an unprofessional and substandard investigation which greatly prejudiced me and led to the Article 10. This matter would have been handled entirely differently if CID had not been involved. The special agent who investigated the allegations did a poor job of interviewing witnesses – he took few sworn statements and failed to interview key witnesses such as my company commander, my TAC NCO (who were both present at the company-sponsored tasting event) or my roommate who walked back from the event with me. Those in the best position to judge my sobriety should have been interviewed. Instead, 10 days after the event, the special agent relied on interviews from plebes to arrive at a determination of my sobriety. The CID report included a false statement in which the special agent erroneously stated that I admitted I was intoxicated: this is patently false. I was not intoxicated or impaired that evening and I never suggested as much to the special agent. (3) Once this flawed investigation reached my chain of command, the decision was made to hold an Article 10 proceeding. In accordance with Army Regulation 27-10, paragraph 3-8a, Article 15s may not be imposed upon USMA cadets. Instead, USMA uses the Article 10 process. United States Corps of Cadets (USCC) Regulation 351-2 (Attachment 6) specifies the procedure to be followed when considering an Article 10. Paragraph 308 lays out the required protocol when notifying the cadet of a proposed Article 10. Item 1 on USMA Form 2-3 (Attachment 2) states the alleged offenses. Even if l had been provided that form before my hearing, the allegations provided there were so general and devoid of details that it was impossible for me, or anyone, to prepare for the hearing held six days later. Comparing the lack of detail on my Article 10 form with the sample Article 15 (Figure 3-1) on page 9 of AR 27-10 (Attachment 7) highlights the disparity in details on my Article 10 form. The Army clearly understands that details are important and required during an Article 15 proceeding to ensure a Soldier's due process rights are protected, but such details are absent in my case. (4) My Article 10 proceeding was flawed in that it clearly and explicitly failed to protect my due process rights. I was never informed of specific charges. As the form indicates (Attachment 2), the stated charges were unclear and included no details. My Company Commander similarly failed to provide any insight when he orally informed me of the upcoming hearing. This information was critical if I were to call my own witnesses or examine the witnesses or statements against me. I was not advised about how to prepare for the hearing nor was I advised of the option or advisability of seeking legal counsel. None of the materials collected during the investigation were shared with me and I was never told that those materials would be used by the Brigade Board. I was not told who any of the witnesses would be. I had no idea about the level of extreme jeopardy I was facing. I never received any evidence used against me until my FOIA request was granted, in August of 2016, over two months after my separation and six months after the hearing. Given these facts, a reasonable defense was impossible. Had I received proper advice from a military attorney, my engagement with and defense before the Brigade Tactical Officer would have vastly differed from my largely passive two-minute visit. Instead, lacking counsel, I was left to fend for myself in a very unfamiliar process with long-lasting, life-altering consequences. Furthermore, even without counsel I would have prepared a defense – the most basic being to rebut the statement of intoxication by my direct testimony and the testimony of those who were with me for much of the evening. (5) Further, I was not properly and adequately informed of my potential separation when I signed the Article 10 form in which I relinquished the chance to appeal the findings or punishment. Notably, the box marked "h" regarding demerits was blank when I signed the form (Attachment 2). Indeed, it is still blank. I was never told and did not have any notice that the proceeding could lead to my separation from USMA. This failure to note all the applicable punishment exemplifies the deficiencies undermining the entire process. No reasonable person in my position would have signed away the right to appeal had it been clear that this would result in separation and recoupment costs of over $360,000. I did prepare a letter for the Superintendent's consideration when making his recommendation, but I wrote this letter with no knowledge of the evidence, the witnesses or the case as presented to the Superintendent and thus could not address the allegations in any meaningful way. Again, had I been provided vital information or effective counsel, I could have mounted a clear, explicit, and strong defense of my case. (6) Finally, Department of Defense Instruction (DoDI) 1322.22 (Subject: Service Academies) (Attachment 8) addresses various instances when cadets or midshipmen may be dismissed from one of the Service Academies. Pursuant to the DoDI, paragraph 3(c), active duty service is the "primary means of reimbursement for education." In his final action on my case, the Superintendent recommended that I serve on active duty for three years. I was qualified for military service and would have been proud to serve my country. However, for reasons which appear to be entirely arbitrary and capricious, and which were never explained to me or anyone else, the ASA M&RA at the Pentagon ignored the West Point Superintendent's recommendation and ordered me separated (with an honorable discharge) and recoupment of my educational expenses ($360,000). My chain of command at USMA was very familiar with me, my performance, and my potential for future service. Knowing everything about me, the Superintendent recommended that I serve as an enlisted Soldier. I was, and remain, severely prejudiced by the arbitrary decision to ignore the Superintendent's recommendation. I was directed to leave USMA three weeks before graduation, in good academic standing, and on the verge of a USMA degree. I knew nothing about the status of my case until I was notified I had been separated and now owed the government over $360,000.00. I will never be able to pay off a debt of that magnitude as it will continue to accrue interest while I make payments. I will also be prejudiced by the DD Form 214 which indicates I was separated for misconduct deficiency (Attachment 9). As set forth above, the initial CID investigation was shoddy and incomplete. That investigation led to an Article 10 hearing five months later. Even though the "prosecution" had five months to prepare a case, I was not provided any materials or sufficient details to defend myself. I sought counsel from a TDS attorney who offered me absolutely no assistance or advice – even to apprise me of the gravity of what I was facing. Finally, I was inexplicably denied the option to pay off my accrued expenses through active duty service as the Superintendent recommended. These missteps and mistakes throughout the process violated my right to due process and my right to effective assistance of counsel. I was left to fend for myself at every step without knowing what I was facing. Given this inexplicable chain of events, I am asking the Board to waive my pending recoupment action and allow me to pursue my acceptance to medical school this coming fall. 4. The applicant's record does contain a signed and dated USMA Form 5-50 (Cadet Service Agreement) on 27 June 2011 appointing him as a cadet of the USMA. He acknowledged the following statements: a. "That if I voluntarily fail, or because of misconduct fail, to complete the period of active duty specified in paragraphs II b., c., d, or e., above, I will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided me as the unserved portion of active duty bears to the total period of active duty I have agreed to serve." b. "If I am obligated to reimburse the United States for the cost of my advanced education, any subsequent enlistment in an Armed Service will not relieve me of debt." c. "Further, that if I am separated from the United States Military Academy for breach of this service agreement, as defined in paragraph 1.g. (4), Statement of Polices on the next page, and the Army decides that I should not be ordered to active duty because such service would not be in the best interests of the Army, I shall be considered to have either voluntarily or because of misconduct failed to complete the period of active duty and may be required to reimburse the United States as described above." 5. The applicant requested and was provided a CID Investigation Report on or about 16 June 2018. The applicant was a Cadet, Company Commander for Company G-3. a. A CID Form 94 (Agent's Investigation Report) with auxiliary documents shows an investigation was conducted by the West Point CID Office, 28 October 2015, and contains the following: (1) That at about 1025, 2 October 2015, the CID office was notified by the Sexual Assault Response Coordinator (SARC), USCC, USMA that a fellow cadet was slapped on the buttocks by the applicant. (2) CID interviewed the "victim" who believed the incident was not sexual in nature; however, it was unwanted and very inappropriate. The applicant was intoxicated, entered the room without knocking to inspect their uniform, and touched the "victim" on the buttocks the previous Tuesday night at about 2200 hours. Other cadets were interviewed and one was a witness to the slapping of the buttocks. CID interview sheets from November 2015 contained other statements from cadets about the incident as well as seeing the applicant drinking alcohol. b. A DA Form 3881 (Rights Warning Procedure/Wavier Certificate) shows the applicant was informed of his rights for the offenses of "Sexual Assault," "Assault," "Conduct Unbecoming an Officer and Gentleman" and acknowledged his willingness to discuss the offense(s) with his signature at 1321 hours on 4 December 2015. c. In another CID Form 94, 4 December 2015, the applicant, in a sworn statement, admitted to slapping the "victim" on the buttocks twice while intoxicated. He denied any sexual gratification and stated it was not sexual at all. He entered the "victim's" room twice and each time slapped his buttocks. 6. USMA Form 2-3, 11 February 2006, shows the applicant was notified of his rights under the Article 10, CDC - Brigade proceedings in that he on 22 September 2015, acted unprofessionally and made unwanted physical contact with a cadet, specifically for the following misconduct: * Article 1, CDC - Failed to Comply with Regulations, Orders, Instructions * Article 6, CDC - Unsatisfactory Behavior * Article 7, CDC - Error in Judgment a. He was instructed his hearing would occur on 17 February 2016 and to prepare any matters for his defense. At his hearing he requested a person to speak on his behalf and appeared in person on 17 February 2016. His punishment included 100 hours of extra-duty of which 20 hours suspended, 60 days' restriction, withdrawal of all privileges for 90 days of which 60 days was suspended, and reduction in rank to private first class. b. He elected not to appeal and dated and signed the form on 17 September 2016. 7. A Superintendent, USMA, memorandum for the ASA-M&RA, 13 April 2016, with attached action document, was forwarded pursuant to Army Regulation 210-26 (USMA) noting the following: a. On 24 July 2014, I reviewed the record of the Misconduct Investigation of [Applicant]. At that time, I approved the findings of the Investigating Officer that [Applicant] wrongfully used medication in a manner contrary to its intended purpose and that he consumed alcohol in conjunction with a medication causing such impairment that required medical attention on or about 10 February 2014. This was in violation of Articles 92 and 133, UCMJ, and Army Regulation 210-26, paragraph 6-14. [Applicant] was placed on suspended separation status until his graduation from USMA in May 2016, contingent upon his future exemplary conduct and adherence to the terms of the suspended separation. b. One of the conditions of the suspended separation was that [Applicant] must not receive an individual award of 35 demerits as a result of an Article 10 for an act that occurred during his probationary period. On or about 22 September 2015, [Applicant], while intoxicated, made unwanted physical contact with a Fourth Class Cadet. On 17 February 2016, [Applicant] received an individual award of 35 demerits as a result of a Brigade Article 10. c. Based upon my review of the entire case file, [Applicant] has violated the terms of his suspended separation. I recommend that [Applicant] be separated from the United States Military Academy, transferred to the United States Army Reserve in the grade of E-4 for three years, and ordered to active duty for three years, in accordance with Army Regulation 621-205 [Appointment and Separation of Service Academy Attendees], Table 3, Rule 7. d. I have suspended [Applicant] from the United States Military Academy until final action on his case is taken by HQDA. In accordance with Title 10, Section 702, United States Code, and Army Regulation 612-205, [Applicant's] pay and allowances will be stopped upon his departure from West Point. During his period of suspension, his status will be: authorized leave of absence without pay and allowances pending separation. 8. In an attached action document, the Superintendent, USMA, further recommended that if the applicant does not complete three years of active service, he should be held responsible for repaying a proportionate amount of his education costs based on the remaining time not served. 9. In a memorandum for Superintendent, USMA, 2 June 2016, the ASA M&RA approved his recommendation to separate the applicant from USMA under the provisions of Army Regulation 210-26, paragraph 6-14 for misconduct deficiency. It further noted the following: a. In accordance with Army Regulation 612-205, table 3, rule 7, note 3, I find [Applicant] unsuited for military service. Therefore, I direct he be discharged from the United States Army with an Honorable Discharge Certificate. b. Prior to [Applicant's] separation you must ensure he receives a separation history and physical examination that meets all of the requirements of Department of Defense Instruction (DoDI) 6040.46 and Headquarters, Department of the Army (HQDA) Executive Order (EXORD) 162-15, attachment 3, paragraph 3. c. Pursuant to 10 U.S. Code sections 2005 and 4348, and the terms of [Applicant's] service agreement (USMA Form 5-50), I direct that he be ordered to repay the United States Government for the cost of the advanced education assistance expended on his behalf in the amount of $280,972.00. d. Request you take appropriate action to notify the Defense Finance and Accounting Service (DFAS) to pursue collection in the above amount. 10. The applicant was honorably discharged on 2 June 2016 under the provisions of Army Regulation 210-26, paragraph 6-14, by reason of misconduct deficiency. The DD Form 214 he was issued shows he had service as a USMA Cadet from 27 June 2011 to 2 June 2016, which was not creditable for any purpose in commissioned officer status. 11. The applicant provides: a. A U.S. Department of the Treasury, Bureau of the Fiscal Service letter, 25 October 2016, which informed the applicant that DFAS referred his unpaid debt to the U.S. Government to them for immediate collection. b. USCC Regulation 351-2, 15 May 2001, Chapter 3 pages 19-32 extract, which shows investigations and disciplinary hearing procedures and discusses Article 10 proceedings. c. An example of DA Form 2627 from Army Regulation 27-10 assumed to be as a comparison to the USMA Article 10 form. d. Department of Defense Instruction (DODI) Number 1322.22, 24 September 2015, establishing policy, responsibilities, and procedures oversight of the Service academies. BOARD DISCUSSION: 1. After careful review of the application and all supporting documents, the Board found relief is not warranted. The Board further found the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board found insufficient evidence to support a conclusion that the applicant's Constitutional rights were substantially harmed during the proceedings that led to his separation from USMA for misconduct deficiency. Based on a preponderance of evidence, the Board determined the decision to separate him and the reason for his separation were not in error, unjust, or inequitable. 3. Although the Superintendent, USMA, recommended the applicant be transferred to the U.S. Army Reserve as an enlisted member and ordered to active duty for 3 years in lieu of repaying the funds expended for his education, the ASA M&RA determined he was unsuited for military service. The Board agreed that the ASA M&RA was not obligated to approve the Superintendent's recommendation, and she acted within her authority in determining that the applicant was unsuited for military service, would be separated from USMA, and would repay the U.S. Government for the cost of his USMA education. The Board further agreed that the available evidence supports the decision made by the ASA M&RA. Based on a preponderance of evidence, the Board determined the decision that the applicant should repay the education assistance expended on his behalf was not in error, unjust, or inequitable. 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. Title 10, United States 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. 2. Army Regulation 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that 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. 3. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial, United States, 2019 (MCM), and the rules for courts-martial (RCMs) contained in the MCM. It further notes it applies to the Regular Army, the Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve, unless otherwise stated. 4. Army Regulation 210-26, 9 December 2009 with a rapid action revision issue of 6 September 2011, provides policy and procedures for the general governance and operation of the USMA. Paragraph 1-10 states the ASA-M&RA will separate first and second class cadets where separation and call to active duty is recommended. a. Chapter 6 (Misconduct, Honor, Disciplinary, and Other Grounds for Separation), states in: (1) Paragraph 6-4 states following a hearing of misconduct or honor resulting in a finding of a violation of paragraphs 6-6 through 6-14, or 6–16, respectively, of this regulation, the Superintendent may, in lieu of or pending separation, impose the following punishments in such amounts or in such combinations as the Superintendent deems appropriate: * Admonition * Reprimand * Restriction to limits * Deprivation of privileges * Reduction in or withdrawal of cadet officer or noncommissioned officer rank * Demertis * Punishment tours * Fatigue tours * Loss of leave * Turn-back to the next lower class * Suspension from the Military Academy (2) Paragraph 6-14 notes a cadet who commits an offense punishable under the UCMJ by confinement for a term of 6 months or more may be separated from the Military Academy and awarded punishments under paragraph 6-4 of this regulation. (3) Paragraph 6-17(c)(d) regarding the Cadet Disciplinary System states in cases of conduct deficiency where a report of proceedings and the recommendations of the Commandant are forwarded for action, the Superintendent may, under the procedures in paragraph 7-3 of this regulation, take one or more of the following actions: (1) direct retention (with or without probation); (2) direct transfer to a lower class; (3) direct suspension from the Military Academy; or (4) recommend separation to the Secretary of the Army. If the Superintendent recommends separation, he or she may immediately, or at any time prior to the Secretary's action on the case, suspend the cadet. The Superintendent may also suspend any of the above actions under such terms and conditions as deemed appropriate. b. Chapter 7 (Separations and Resignations) states in: (1) Paragraph 7-3 actions by the Superintendent will review the misconduct hearing and the cadet's entire record, and any matters offered prior to taking action on the case. Except in cases where the Superintendent is the separation authority, all documents pertinent to the separation of a cadet from the Academy will be forwarded to Headquarters, Department of the Army, for final action. The Superintendent will make recommendations concerning separation from the Academy and discharge from the Service. If discharge is recommended, the type of discharge recommended will be specified. (2) Paragraph 7-7 states a cadet who has been separated and discharged under any provision of this regulation normally will be issued an honorable or general discharge certificate unless HQDA, determines that the facts and circumstances of the case warrant issuance of a discharge of lower character. 5. Army Regulation 612-205, 15 May 1983 contains procedures for processing and strength accounting of US Army members appointed as cadets or midshipmen at the US Military, Naval, Air Force, or Coast Guard Academies and civilian personnel appointed as cadets at the US Military Academy (USMA). It also provides instructions for enlisted personnel appointed to cadet status at USMA for other Services. It state to refer to table 3 for separation, discharge, or service obligation policies. Table 3 - USMA cadet separation policies notes: a. Rule 7 - If separation action is started after commencement of the fourth academic year (senior year) then he or she will be transferred to the Reserve as an E-4 (or appropriate grade) for 3 years and may be ordered to active duty for not less than 2 years, or discharged from the Army if transfer to the Reserve is … (see notes 3 and 4) b. Note 3 - However, if the separation authority determines that the cadet is being separated from the Academy because of demonstrated unsuitability, unfitness, or physical disqualification from military service, the cadet will be discharged from the Army. c. Note 4 - Each case will be reviewed individually. The Superintendent will recommend to the Secretary of the Army (or designated representative) that the cadet be either transferred to the Reserve with further recommendation regarding order to active duty or that the cadet be discharged from the Army if such action if appropriate. 6. Title 10, United States Code, Section 2005 (Advanced education assistance: active duty agreement; reimbursement requirements), provides that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person shall agree: a. to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; b. that if such person failed to complete the education requirements specified in the agreement, such person would serve on active duty for a period specified in the agreement; c. that if such person does not complete the period of active duty specified in the agreement, or does not fulfill any term or condition prescribed, such person shall be subject to the repayment provisions of Title 37 United States Code, Section 303a(e); and d. to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States. 7. Army Regulation 37-104-4 (Military Pay and Allowances Policy), 8 June 2005 provides policies and provisions for entitlements and collections of pay and allowances of military personnel. Chapter 31 provides for recoupment of educational expenses (e.g., United States Military Academy, Senior Reserve Officer Training Corps, and advanced civilian schooling) under a previous agreement when obligated active duty service has not been completed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005706 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1