IN THE CASE OF: BOARD DATE: 30 March 2010 DOCKET NUMBER: AR20090010229 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, in effect, that he be allowed to return to active duty and if necessary that he be considered by a properly convened and unbiased Show Cause Board to determine whether he should be retained in the United States Army. 2. The applicant states, in effect, that he was improperly separated from active duty pursuant to an improperly convened Show Cause Board. He also states that the AR (Army Regulation) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was improperly expanded without giving him notice. He was notified by representatives that he was under investigation for possessing adult pornography in violation of General Order Number 1B. The AR 15-6 investigation locked into and made findings far beyond the violation of General Order Number 1B. He was not given the opportunity to address those issues prior to the completion of the investigation which formed the basis for the Show Cause Board. 3. The applicant further states the investigating officer (IO) improperly provided his (the applicant's) "ex-wife" with personal information which she then used to manipulate money in his bank account. Pursuant to an Inspector General (IG) complaint, the IO was punished for improper contact and release of personal information to his "wife." The redacted IG report which he received pursuant to the Freedom of Information Act (FOIA) indicated that this could be grounds to reject the IO’s findings. 4. The applicant also states the Show Cause Board was flawed in several ways: (A) the board did not include a Medical Service Corps (MSC) officer as requested. While the original board was scheduled for 25 March, it was postponed to 1 April because of member availability. The Army operated a rotator with Fort McPherson, which could have brought an MSC officer to sit on his board. The Staff Judge Advocate statement that he rejected an Army Nurse Corps (ANC) officer as an option is incorrect. He did not reject an ANC officer as a suitable alternative. Nor did he tell his attorney to reject the ANC officer. The most important grounds for the improperly convened board is that two career police officers sat on his board. Any board which includes career police officers who routinely assess criminal responsibility is inherently biased and unfair. 5. In support of his application, the applicant provides copies of General Order Number 1B; a DA Form 3881 (Rights Warning Procedure/Waiver Certificate); a 2006 Memorandum for Record (MOR); a DA Form 1574 (Report of Proceedings by IO/Board of Officers); an Article 15 Hearing Script; a Punitive Reprimand; his Article 15 appeal memorandum, his Officer Evaluation Reports (OERs), dated 2007 and 2008; a letter from the IG; ten character reference statements submitted to the Show Cause Board, the Show Cause Board Proceedings; a memorandum, subject: Request Relief; and his DD Form 214 (Certificate of Release or Discharge from Active Duty). COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: Counsel defers requests and statements to the applicant and provides no additional documentation. CONSIDERATION OF EVIDENCE: 1. After having had prior service the applicant was appointed in the United States Army Reserve (USAR), MSC, as a first lieutenant, on 12 May 2001. He was ordered to active duty on the same date with a 3-year commitment. He was promoted to captain on 1 November 2004. 2. General Order Number 1B, dated 13 March 2006, was implemented to identify and regulate conduct that was prejudicial to the maintenance of good order and discipline of forces in the United States Central Command (USCENTCOM) Area of Responsibility (AOR). The general order was applicable to all United States military personnel while present in the USCENTCOM AOR. Paragraph 2e (Prohibited Activities) provides that the introduction, purchase, possession, transfer, sale, creation, or display of any pornographic or sexually explicit photograph, video tapes or compact discs (CDs), movie, drawing, book, magazine, or similar representation were prohibited. Paragraph 3 (Punitive Order), provided punishment under the Uniform Code of Military Justice (UCMJ) for violation of the general order. 3. A DA Form 3881, dated 12 September 2007, shows the applicant was advised of his legal rights concerning the violation of General Order Number 1B (Pornography). He declined to answer questions. 4. In an MOR, dated 2 October 2007, an Article 15-6 investigator stated that he had been given a CD identified as the result of RCERT (Regional Computer Emergency Response Team) file recovery efforts pertaining to the laptop computer seized from the applicant’s room. The CD consisted of 357 files and consisted of nude and pornographic pictures of both male, female, male with female, male w/males, female w/females, and hermaphrodites with females and males. All files were modified on 19 September 2007 and only 9 had a “date picture taken” which ranged from 13 September 2004 thorough 9 September 2007. At the time the CD had been returned to the Military Police Investigations for security and future investigation. 5. A DA Form 1574, dated 10 October 2007, shows the applicant was found to have imported, created, distributed, and stored pornographic material in the USCENTCOM AOR 2, he had three adulterous affairs involving sexual intercourse, he fraudulently received government family housing valued at $30,000, and failed to provide family support in the amount of $21,000. It was recommended that he be tried by a general court-martial and that restitution be made to his family for the arrears family support. The DA Form 1574 also included the applicant’s officer record brief, sworn statements, and email correspondence pertaining to the investigation. 6. On 27 November 2007, the applicant was punished under Article 15, UCMJ, for violation of a lawful general order, to wit: General Order Number 1B, (1) by wrongfully transferring pornographic or sexually explicit images of his private parts and female private parts through email between 1 May 2007 and 1 August 2007; (2) wrongfully possessing over 100 pornographic or sexually explicit images in his personal laptop computer between 1 May 2007 and 15 September 2007; and (3) wrongfully failing to comply with the financial support requirements of Army Regulation 608-99 (Family Support, Child Custody, and Paternity), paragraph 2-6, by not paying the proper amount of financial support to his family between 15 November 2005 and 1 September 2007. The punishment included a forfeiture of $2,717.00 pay and a Letter of Reprimand (LOR). 7. On an unspecified date, the applicant was issued a Punitive Reprimand for his conduct involving the possession of hundreds of pornographic images on his laptop and his transmittal of several pornographic images via email to his estranged wife. The LOR also stated that the images appeared to have been sent by him in an attempt to cause emotional harm to his former spouse. His conduct violated a general order and the UCMJ and showed a callous and disrespectful attitude towards Army values and fell far below the standards set for officers and leaders in the United States Army. 8. The applicant’s Article 15 appeal, dated 28 November 2007, shows that he stated he was accepting the punishment under Article 15 and that he accepted full responsibility for his actions. He stated that he understood he was being recommended for a Show Cause Board and that he believed such action was unwarranted and excessive in his case. He listed his accomplishments for the past 18 years that he had served in the military and requested leniency. He also stated he was informed the only evidence that would considered would be what was admissible in a court-martial, or the offenses he was found guilty of, and not the entire AR 15-6 Investigation. He was not given ample opportunity to dispute those claims as the AR 15-6 IO never interviewed him or advised him of his rights. 9. On 4 February 2008, the appellate authority found the Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offenses committed. On 22 February 2008, the applicant’s appeal was denied. 10. In a letter dated 8 February 2008, the Department of the Army, IG Office, advised the applicant that his IG complaint concerning the IO (LTC B_ _ _ _ _) was substantiated, no further action pertaining to the allegation would be taken by that office, and the case was closed. 11. The applicant submitted a copy of his annual OER for the period 11 March 2007 through 10 March 2008. In Part VIII (Senior Rater), the rater placed the applicant in the "Other" block. The rater stated that the applicant’s violation of CENTCOM General Order Number 1B had marred what would have otherwise been an excellent year for him. He was an exceptional medical operations officer. Unfortunately his judgment, discipline, and leadership failed him during this period as well. Throughout the process resulting in the Article 15 and follow on action, he had kept his mission focus and never failed them in any assigned task. The rater also stated that if the applicant’s future conduct shows he has learned from his mistake, then he should be considered competitive with his peers for promotion. 12. The applicant also submitted a copy of his permanent change of station OER for the period 11 March 2008 through 2 July 2008. In Part VIII, the rater placed the applicant in the “Fully Qualified” block. The rater stated that the applicant had performed extraordinarily well under extreme personal pressure during that rating period. The applicant was totally dedicated to the mission and worked extremely well under stressful conditions. Promote to major and select for advanced schooling. 13. In a memorandum, dated 28 March 2008, the SJA, Coalition Forces Land Component Command, Camp Arifjan, Kuwait, advised the Commander that the applicant had requested an MSC officer to sit as a voting member of his administrative elimination board set to convene on 1 April 2008 in accordance with AR 600-8-24, paragraph 4-7(d). The SJA stated that there were no Army MSC officers reasonably available to serve on the board. The only MSC officer in the rank of colonel or lieutenant colonel located in Kuwait had a direct working relationship with the applicant, was testifying on his behalf, and was therefore unable to serve as an impartial board member. The government offered the applicant an ANC officer as a potential member, but the offer was declined. MSC officers located in Atlanta, Afghanistan, Ostar, or Iraq are not reasonably available to serve on the board. It was recommended the commander find that there were no Army MSC officers reasonably available to serve on the elimination board and deny the applicant’s request. 14. The applicant submitted a copy of his statement to the Show Cause Board with ten character reference letters. 15. On 1 April 2008, a Show Cause Board convened and found the applicant had engaged in misconduct, moral or professional dereliction, by possessing over a hundred pornographic images on his laptop and transmitting several pornographic images via email in violation of a General Order. The board stated the volume and nature of the deviant photos were alarming. The applicant was also found to have engaged in misconduct, moral or professional dereliction, by having inappropriate relations with three different women, not his wife, while serving in the United States Army and fabricating numerous lies during his relationships with two of the women, including that he falsely portrayed an injury for personal gain and to garner sympathy. The board recommended that he be eliminated from the service with an under other than honorable conditions discharge. 16. On 22 April 2008, the applicant’s counsel requested relief for the applicant based on legal concerns that the board composition was inherently unfair and biased, two members of the board were police officers, the board members were changed without explanation, the board did not make proper findings, evidence was improperly admitted to the board, the board improperly considered written comments made by Major General H_ _ _ _, the board improperly considered evidence regarding two of the women, credibility problems with the AR 15-6 investigator and the applicant’s spouse, new evidence disclosed the applicant’s spouse had improperly accessed financial accounts and forged electronic signatures, and mitigating circumstances and background information. Counsel summarized that the applicant‘s potential for future service was astounding. The applicant took responsibility for all of his actions, both past and present. He did not shy away from his misconduct, but took them all head on. Over 16 years of exemplary service coupled with his family considerations should outweigh past transgressions. Counsel stated the applicant should be allowed to continue to serve and the applicant and counsel request that the recommendation of the separation board be disapproved or in the alternative suspended. 17. The applicant was discharged in the rank of captain on 1 August 2008, under the provisions of AR 600-8-24 (Officer Transfers and Discharges), paragraph 4-2(b), for Unacceptable Conduct. His service was characterized as under other than honorable conditions. He was credited with 7 years, 2 months, and 16 days of net active service during the period under review and 9 years, 7 months, and 16 days total prior active service. 18. AR 600-8-24, paragraph 4-2(b), specifies that elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interests of national security. 19. AR 600-8-24, paragraph 4-6, specifies that a board of inquiry’s purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army. Through a formal administrative investigation conducted under AR 15-6 and AR 600-8-24, the Board of Inquiry establishes and records the facts of the respondent’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service. Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer’s disposition, consistent with this regulation. The respondent is entitled to produce evidence to show cause for his retention and to refute the allegations against him. 20. AR 600-8-24, paragraph 4-7, specifies that board membership will consist of at least three voting members, a recorder, legal advisor, and respondent’s counsel without vote. The president of the board of inquiry will be the grade of colonel or above and senior in grade to the respondent. Other voting members will be Regular Army officers on active duty (unless the respondent is a Reserve Component officer) in the grade of lieutenant colonel or above and senior in grade and rank to the respondent. When the respondent is a minority, female, or special branch, the board will (upon the officer’s written request) include a minority, female, or special branch as a voting member (if reasonably available, as this provision is not an entitlement). DISCUSSION AND CONCLUSIONS: 1. Considering all the facts in this case, to include the evidence of record and that submitted by the applicant, there appears to be no error or injustice in his Show Cause Board and separation under the provisions of AR 600-8-24, paragraph 4-2(b). 2. The evidence shows the applicant was serving in the rank of captain when he was administered punishment under Article 15 of the UCMJ, as a result of an AR 15-6 investigation, for wrongfully transferring pornographic or sexually explicit images through e-mail, wrongfully possessing over 100 pornographic or sexually explicit images in his personal laptop computer, and wrongfully failing to pay the proper amount of financial support to his family. His punishment included a forfeiture of pay and a LOR. He submitted an appeal and stated that he accepted full responsibility for his actions. His appeal was denied. 3. Based on the violation of General Order Number 1B, a Show Cause Board convened on 1 April 2008. The board found the applicant had engaged in misconduct, moral or professional dereliction, by possessing over a hundred pornographic images on his laptop and transmitting several pornographic images via email; having inappropriate relations with three different women, not his wife; and fabricating numerous lies during his relationships with two of the women, including that he falsely portrayed an injury for personal gain and to garner sympathy. The board recommended he be eliminated from the service with an under other than honorable conditions discharge. He was discharged accordingly on 1 August 2008. 4. The applicant alleges the Show Cause Board was flawed in several ways. However, the evidence that was provided was insufficient to support his contentions. After considering the supporting documentation and the applicant's statements, neither the applicant nor counsel have provided clear and convincing evidence that his separation for unacceptable conduct was unjust, in whole, or in part, to support the applicant's requests. The available evidence fails to demonstrate that the contested Show Cause Board contained any serious administrative deficiencies or that it was not conducted in compliance with applicable regulations and policy. 5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement. 6. In view of the foregoing, there is no basis for granting the applicant's request to be reinstated to active duty and consideration by second Show Cause Board. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ___X____ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________X_________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090010229 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090010229 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1