PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 August 2003
         DOCKET NUMBER: AR2002071052


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Robert Duecaster		Member
Ms. Marla J. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests reconsideration of his request for correction of his records to show he was not discharged but remained on active duty; that he was afforded early retirement with corresponding back pay and allowances or at least to correct the records to provide him with full, rather than half, separation pay; that his discharge cite retirement as the narrative reason; that the Defense Clearance and Investigations Index (DCII) records be amended to remove his name from the title of any adverse investigations, matter, or report; by expunging from his records the proceedings of the Board of Inquiry (BOI), the proceedings of the Board of Review, the Article 15, and the letter of reprimand (LOR); that the administrative memorandum of reprimand (MOR) issued on 10 July 1998 be expunged; and that his Officer Evaluation Report (OER) for the period ending 30 September 1997 be expunged.

3. The applicant defers to counsel. Counsel states that the Board’s decision (to partially grant relief) is inconsistent because it purports to expunge references to homosexual misconduct when in fact it relies on such references to support the adverse action taken. The decision notes that the Board did not have access to the complete record of the BOI, which came as a surprise to counsel. Reliance on the events concerning the Private, E-2 (PV2) as a basis for the applicant’s discharge, even with the substituted rubric of Secretarial Authority, is entirely unwarranted. In that case, the BOI found an allegation of propensity to engage in homosexual conduct to be untrue.

4. Counsel states that, accordingly, any reliance on a claim that such conduct occurred as even a partial basis for the revised discharge is irrational and unfounded. In addition, any theory that the interaction with the PV2 was of sufficient gravity to warrant a discharge is totally contrary to the historical record. Specifically, the commanding general thought the matter sufficiently minor that he modified command policy regarding disciplinary action for officers so that a subordinate commander (the brigade commander) was asked to handle the matter in such a manner as seemed appropriate. The only reason the military police report on the matter ever entered the Crime Records Center is that the entirely separate civilian informant's ("informant's") allegations were received in Korea.

5. Counsel contends that, regarding the applicant’s perjury, what is entirely lacking in the Board’s decision is any recognition that the protracted interrogation in which the “perjured” testimony occurred was a blatant violation of Department of Defense (DOD) policy. The entire matter should never have been the subject of a BOI in the first place because there was no credible basis for an investigation. The interrogation had the effect of subverting the very policy that was issued by the Secretary along with the protective machinery put in place to prevent abuses. The protracted interrogation itself was an abuse.

6. Counsel contends that a charge of perjury would likely ensue when a member is subjected to improper questioning, the very evil against which the framers of the policy sought to guard. If the command really believed what the applicant did was as grave as perjury and of such a nature as to mandate his expulsion from the Army, it is unclear why court-martial proceedings were not instituted.

7. Counsel contends that the Board’s decision to sustain the titling of the applicant for sodomy is inconsistent with the remainder of its ruling. The Board rested this part of its ruling on the theory that titling decisions will stand except in cases of mistaken identity or where credible information does not support the decision. The DOD Inspector General (DODIG) advised the U. S. Army Criminal Investigation Command (CID) by letter dated 7 January 1999 that if a management review results in a determination that credible information did not originally exist, the titling decision could be reversed.

8. As supporting evidence, counsel provides the transcripts (166 pages) of the BOI; his original memorandum in support of the applicant; a 7 January 1999 memorandum from the DOD Deputy Assistant Inspector General, Criminal Investigative Policy and Oversight to the Commander, CID; an Agent Activity Summary, CID Form 66, dated 19 September 1997; four email messages dated 3, 17, 17, and 20 July 1998; CID Memorandum dated 9 February 2000, Subject: ALCID Memorandum 006-00, Change to Paragraphs 5-25 and 5-26, CID Regulation 195-1, Criminal Investigation Operational Procedures, 1 January 2000; and three Military Police Reports, DA Forms 3975.

9. Incorporated herein by reference are military records which were summarized in proceedings prepared to reflect the Board's original consideration of the applicant's case on 29 January 2002 (Docket Number AR2001052760).

10. An undated DA Form 3975 shows the military police received a report on 5 August 1997 of a complaint against the applicant for indecent language, conduct unbecoming an officer, and fraternization. The complaint was evaluated as a founded criminal offense. The military police action was referred to military police investigators. A dated (26 September 1997), redacted copy of the same report also indicates a Crime Records Center control number was added. The third DA Form 3975 is undated and redacted.

11. On page 13 of the transcripts, the “other man” testified that he did make and sign a sworn statement, portions of which were, “I first became sexually involved with (the applicant) around November or December 1995 and have been involved with him sexually until now. We engage and have engaged in anal and oral sex on a number of occasions.” On page 16, he testified that he had not at any time engaged in homosexual activity with the applicant and that he lied on his sworn statement to help the applicant. On page 17, he testified that the CID agent typed up “sexually involved” and he told the agent it was not his intention to say that. The agent then told him that if he said it was true then they could prove that he (the “other man”) was closer to the applicant than anybody else and they therefore could counter another accusation. So he (the “other man”) went forth with it, signing where the agent told him to sign and initialing where he told him to initial. On page 19, the “other man” testified that he met the applicant’s girlfriend once or twice.

12. On page 39, Major M___, an acquaintance of the applicant, testified that the applicant mentioned he had a girlfriend back in the Washington, D. C. area, Michelle, and that he talked to her frequently. The last time the applicant spoke to him about Michelle was about a month previously. On page 41, he testified that it was a fair assessment that the applicant discouraged his girlfriend to come to Korea. The applicant told him that he could not support her. He got the impression from his conversation with the applicant that his girlfriend wanted to talk him into getting married.

13. On page 48, Major B___ testified that the applicant told him the normal things about Michelle, that she was a nice person and he was interested in her. He knew Michelle was someone the applicant was dating back then. The applicant mentioned (to Major B___) the dating was pretty serious.

14. On page 55, Major K___ testified that the applicant told him about his girlfriend probably in July 1997. The applicant did not tell him how he met Michelle. The applicant did say he was not sure he wanted Michelle to come over.

15. On page 56, Second Lieutenant K___ testified that she remembered the applicant mentioning he had a girlfriend in the D. C. area and that she really wanted to come here and visit him but he felt strongly against having her not come over here.

16. On page 85, the applicant testified that he was initially in air defense. When he became a counter intelligence officer he found a whole new world, they thought there were no ranks and that they were better than everybody and he had a problem with that. When he was a commander, he upset a lot of his company because he insisted on military bearing. When, during a briefing for the brigade commander some briefers used first names, he stopped the briefing and told them they were not on a first name basis. The White House was 100 percent worse. They were not allowed to wear uniforms and nine-tenths of the people in the situation room were civilians. When he first got there he had a big problem but he was told he had better deal with it because that was the way it was. He met the PV2 his second week in country, being in uniform for the first time in a long time. On page 86, the applicant testified that only later in the conversation did he realize the PV2 was a private. To him, a soldier was a soldier, whether he was a private or an officer. On page 90, he testified that he met Michelle in March 1995. On page 91, he testified that Michelle was a GS-12 for the government. He did not think it would be appropriate for her to go to Korea with him. His biggest concern was that he did not know if he wanted to marry her. On page 102, he testified that he stopped talking to Michelle about November 1997.

17. On page 162, the recorder entered into a stipulation of fact indicating that the person in a photograph earlier entered into evidence and at which time the applicant testified that the person was Michelle, was actually another individual. The applicant testified that he had no pictures of Michelle. He had been trying to locate her for a long time, for months. On page 163, he testified that if he were a board member he would be so confused about Michelle. It was his fault because he knew by allowing the "other man" to come here (to Korea), so many (questions) were going to come up. Michelle was not as serious as everyone made it out to be. Michelle was not something that was serious enough where he brought her in and introduced her to everybody.

18. Army Regulation 190-45, Law Enforcement Reporting, chapter 4 establishes policy for reporting founded criminal offenses by Army installation and major Army command provost marshal offices. It states the DA Form 3975, among other uses, is used to record all information or complaints received or observed by military police, to serve as a record of all military police and military police investigator activity, and to report information developed by commanders investigating incidents or conducting inspections that result in the disclosure of evidence that a criminal offense has been committed. An incident will not be reported as a founded offense unless adequately substantiated by police investigation. A person will be reported as the subject of an offense on DA Form 3975 when credible information exists that the person may have committed a criminal offense or is otherwise made the object of a criminal investigation. A known subject will be reported to the U. S. Army Criminal Records Center when the offense is punishable by six months or more confinement. When a person is entered in the subject block of the DA Form 3975, their identity is recorded in DA automated systems and the DCII. Once entered into the DCII, the record can only be removed in cases of mistaken identity.

19. ALCID Memorandum 006-00 states that the CID will not conduct any investigation solely to determine a service member’s sexual orientation. It will not conduct any inquiries where the allegations consist solely of a verbal admission from a service member of his or her sexual orientation. As a general policy, it will not conduct investigations where sexual misconduct is the only allegation involved. In cases where an allegation of sexual misconduct is discovered through the conduct of an unrelated investigation or deemed appropriate under other provisions, the investigation will be limited to the factual circumstances directly relevant to the specific sexual misconduct allegation. The focus of the investigation should be to determine if an offense in violation of the Uniform Code of Military Justice (i.e., sodomy, indecent act, adultery, etc.) has been committed. These investigations will be conducted in compliance with chapter 7 of CID Regulation 195-1.

20. On 28 February 1994, DOD instituted its current policy on homosexual conduct in the military. In an April 1998 Report to the Secretary of Defense, Review of the Effectiveness of the Application and Enforcement of the Department’s Policy on Homosexual Conduct in the Military, prepared by the Office of the Under Secretary of Defense (Personnel and Readiness), it was noted that DOD’s policy provided that sexual orientation is a personal and private matter that is not a bar to military service unless manifested by homosexual conduct. Applicants for military service could no longer be asked about their sexual orientation. The services could not initiate investigations solely to determine a member’s sexual orientation unless credible information was received that a service member has engaged in homosexual conduct.

21. The Report concluded that many of the criticisms made about improper initiation of investigations reflected a misunderstanding of DOD’s policy. It noted that, in practice, credible information had sometimes been provided to commanders in ways that service members might not have expected would have occurred. For example, current or former partners, roommates, or unrelated third parties sometimes came forward on their own to report information or evidence of homosexual conduct to commanders against the wishes of the service member in question. Photographs or written communications that evidenced homosexual conduct sometimes had been revealed to civilians who then brought this evidence to the attention of a commander, without any inquiry having been conducted by the commander. Credible information had also been incidentally discovered in the course of proper, entirely unrelated criminal or disciplinary investigations of the member or of others. It is not a violation of DOD policy for a commander to initiate an investigation when information has been reported in any of these circumstances provided that the information received is credible. Indeed, because federal law requires that those who engage in homosexual conduct must be discharged from the military, commanders are obligated to investigate whenever they receive credible evidence of homosexual conduct.

22. Department of Defense Instruction (DODI) 5505.7, Titling and Indexing of Subjects of Criminal Investigations in the DOD, contains CID's authority and criteria for titling decisions. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. The criteria for titling are a determination that credible information exists that a person: (a) may have committed a criminal offense; or (b) is otherwise made the object of a criminal investigation. It provides that, generally, once the subject of an investigation has been indexed (when the titling decision has been entered into the records system) the name shall not be removed (from the title block) except in the case of mistaken identity. That a person is subsequently found not to have committed the offense under investigation and/or the offense did not occur are not sufficient basis for
removal.

23. In the processing of this case, an advisory opinion was obtained from CID. CID noted that the "informant's" second, 1 August 1997, complaint to the White House Liaison Office (which alleged the "other man" engaged in homosexual acts with the applicant and implied that the applicant unlawfully used Government funds to move the "other man" to Korea) was the basis for CID's investigation. It quoted in part CID Regulation 195-1's guidance on the issue of homosexual investigations, "…USACIDC field elements shall not initiate a criminal investigation into adult private consensual sexual misconduct where such misconduct is the ONLY offense involved (emphasis in original)."

24. The advisory opinion noted that other guidance was that allegations shall normally be referred to the service member's commander, who determines if credible evidence exists and whether to request CID investigate or handle the matter internally. A CID special agent in charge (SAC) may initiate a Report of Investigation (ROI) without a commander's request if the SAC determines that the information is credible and the facts and circumstances of the incident warrant a CID investigation without referring to the commander. The actual decision to initiate an ROI is made by the Commanding General or Deputy Commander after the Deputy Chief of Staff for Operations (DCSOPS) reviews the information.

25. The advisory opinion noted that between 15 August and 19 September 1997, the Assistant DCSOPS requested an investigation into the allegations against the applicant, the results of which would be returned for the final decision as to whether or not to initiate an ROI. The Yongsan, Korea CID Resident Agency (RA) conducted a preliminary investigation with input from the Fort Meade, MD RA and the Fort Belvoir, VA RA. The Fort Belvoir, RA took a statement from the "informant" which confirmed the earlier allegations of sodomy between the "informant" and the applicant.

26. The advisory opinion noted that the allegation of fraudulently using Government funds to move the "other man" to Korea was not confirmed by the "informant's" statement but two additional allegations of wrongdoing by the applicant were introduced – that the applicant intended to use his rank to intimidate other military members into providing sexual favors and that he had homosexual pornography posted on his personal computer. There is no record at CID of any attempt to confirm or deny the allegation relating to the applicant's personal computer.

27. The advisory opinion noted that a second request for information went out to the Fort Belvoir RA asking them to re-interview the "informant" and the "other man". The investigation continued to focus on how the "other man" may have moved to Korea and on questioning the "other man" about adult private consensual sexual misconduct between the applicant and the "other man."

28. On 25 September 1997, the Yongsan RA learned the applicant was the subject of an MPR (concerning the fraternization allegations). The next day, the SAC discovered the applicant was scheduled to receive nonjudicial punishment that day for the three offenses listed in the MPR. There was no record of the applicant's commander requesting the Yongsan RA continue their investigation; however, since the commander apparently cancelled the Article 15 proceeding pending further investigation, the advisory opinion noted that the logical conclusion was that he had requested the Yongsan RA continue investigating the "informant's" allegations.

29. The advisory opinion noted that the Initial ROI determined the applicant committed sodomy with the "informant" but failed to list all the allegations (sodomy with the "other man," larceny of Government funds, fraternization, indecent language, and conduct unbecoming an officer). An Initial ROI was noted to be a flexible document intended to be only the beginning of an investigation. The investigation continued. On 2 October 1997, the "other man" made his statement that he and the applicant were involved in a homosexual relationship. The servicing Judge Advocate (JA) then opined that probable cause existed to believe the applicant committed the offense of sodomy with the "other man." On 20 October 1997, the applicant was offered the Article 15, which he accepted. At that time, the "informant" had not recanted or refused to cooperate with further investigation and the "other man" had not recanted his statement. A Final ROI determined that investigation established probable cause to believe the applicant committed the offense of sodomy with the "informant" and the "other man." It did not title him for other offenses which the Yongsan RA had credible information to support (i.e., the Article 15). The allegation that the applicant moved the "other man" to Korea with Government funds was refuted by "the other man's" statement.

30. The advisory opinion further noted that following release of the ROI, the Yongsan and Fort Belvoir RAs continued their investigation at the request of the applicant's commander and his Trial Defense Counsel. The "other man" recanted his statement. The "informant's" character was called into question and the Fort Belvoir RA became convinced his allegations were false. A supplemental ROI reopened the case. The "other man's" cooperation waned and the veracity of both his statements was left in doubt. A second supplemental ROI was issued which added the "other man" as a subject for false official statements but inadvertently deleted the narrative that explained there was insufficient evidence to determine the applicant and the "informant" engaged in sodomy. It created the impression that the applicant was found to have committed sodomy with the "informant" when it should have stated that he probably committed sodomy with the "other man." A final supplemental ROI listed the offenses the RA found were probably committed (the applicant...sodomy and the "other man"…false official statement).

31. The advisory opinion noted that the applicant made attempts to further modify the ROI. On 17 December 1998, the Yongsan RA issued a last final supplemental ROI which found that an investigation did not establish sufficient evidence to prove or disprove the applicant committed the offense of sodomy. The applicant was not satisfied with this result and filed a complaint with the DODIG who agreed with his assertion of improprieties on the part of CID during the investigation of his case. The DODIG, however, did not direct CID to make any changes to the ROI, only to reconsider. The reconsideration took place on 13 December 2000 and was denied by the Commanding General, CID. The applicant subsequently applied to the Board, which granted partial relief. He has since mailed three letters to CID asking he be removed from the DCII. He confided that the Defense Intelligence Agency is offering him a position at the White House once the issue of him being the subject of a CID case file is resolved.

32. The advisory opinion noted the guidance given in DODI 5505.7 and a clarifying memorandum that makes it clear the standard for titling is "credible information" and not "probable cause" which is the standard for listing an offense as "founded" or more likely than not it did occur.

33. The advisory opinion concluded by stating that the applicant's request contained no new evidence which would convince a reasonable person to believe he should be removed from the title block in a report that states insufficient evidence exists to determine he engaged in sodomy with the "other man." While the investigator's narrative was not a model of clarity, the facts did support the findings. The preliminary investigation revealed credible evidence to believe the applicant committed some offense so a formal investigation was opened. The "informant's" accusations were initially determined to be credible; later investigation discredited him. As evidence proved the original allegation incredible, the report was changed to reflect that fact. The ROI is now accurate as to the one offense it lists. The law does not require changing or deleting it nor would that fulfill the purpose for which DCII was created.

34. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He responded, through counsel, by opining that the CID's advisory opinion defended what went on not in terms of what its personnel actually did but what they might have done. He believes that to be utterly unacceptable. He provides a redacted copy of a 24 January 2000 memorandum for record in which a Chief Warrant Officer Four from the Current Operations section, CID, confirmed that it was not Headquarters, CID's intention for anyone to pursue the allegations of private adult consensual sexual misconduct. He contends that what might have been done, however, is not at all irrelevant to the issue presently before the Board. Specifically, CID (and the Board's earlier decision) places weight on the BOI misstatements attributed to the applicant as an alternative ground for refusing him the relief to which he is entitled.

35. Counsel makes two comments concerning this issue of BOI misstatements, one of which is that Army Regulation 600-8-24 states that a BOI "may (based on the evidence) present findings that amend or specify new allegations." Thus, if this immaterial misstatement, obtained from the applicant through an entirely improper line of questioning in the first place, were a valid and warranted basis for recommending his discharge, the BOI was expressly authorized to add it as a reason. It did not do so. Instead, the command ambushed him with an MOR on this basis. He fully agrees with the advisory opinion's conclusion that actions to delete individual records from the DCII should be rare. His case is, in effect, one of those rare cases. One would have hoped that the CID would have gracefully admitted a mistake. Since they did not, it falls to the Board to finish the task.

36. Around November 2002, the applicant initiated a new request with CID to reconsider their titling decision. CID issued a new advisory opinion on 6 February 2003. This advisory opinion was the same in its essentials as CID's initial advisory opinion. This advisory opinion noted that the "informant's" statement to the Fort Belvoir RA did not confirm or disprove the allegation of fraudulently using Government funds to move the "other man" to Korea. (The initial advisory opinion noted that "the informant's" statement did not confirm the allegation.) This advisory opinion also requests that the Board correct the applicant's records to add the offense of having made a false official statement to CID's titling action.

37. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. The applicant, through counsel, states that CID's advisory opinion disregards the most fundamental rule of record-correction law – an applicant cannot be made worse off than he or she as before seeking relief. Yet that is precisely what CID suggests, that the records now be corrected to show the applicant is "titled" for having made a false official statement. This is something the record does not presently indicate. (Counsel contends that CID's advisory opinion is nonetheless important and helpful. CID has admitted that the applicant did not commit perjury at the BOI. Yet that is the precise term used in the LOR. The LOR is therefore invalid.) Beyond this, CID's current submission seeks to disregard the conclusions reached by the DODIG. Equally shocking is CID's failure to come to grips with the fact that the conduct of which it complains would never have happened had the Army not violated the don't Ask/Don't Tell rules in the first place.

38. Counsel further contends that CID suggests that if the Youngsan RA had decided to title the applicant for sodomy, larceny, fraternization, indecent language, conduct unbecoming, and making a false official statement, the Board would have sustained that titling. That is totally beside the point because CID did not title him for any offense other than sodomy. It would appear the basis for CID's aggressive stance is the fact that the applicant seeks government employment that may require a security clearance. The applicant's civilian employment aspirations are no concern of CID and its intrusion into such matters smacks of vindictiveness. In sum, the applicant was discharged for "Homosexual Act" based on an allegation of consensual sex with a civilian. When CID reversed its probable cause finding after the applicant had been discharged, the Board redacted all references to that act from his military records, to include the BOI proceedings. Given that, there is no basis for his discharge and it is illegal to try to substitute a different one. Changing his separation document from "Homosexual Act" to "Secretarial Authority" does not meet this objection.

39. The DOD Financial Management Regulation provides that full separation pay is authorized to service members who are involuntarily separated from active duty and meet all of several conditions, including being fully qualified for retention. Half separation pay is authorized to service members who are involuntarily separated from active duty and meet all of several conditions, including being not fully qualified for retention under any of eight conditions (to include homosexuality and convenience of the government).

40. The Manual for Courts-Martial United States (2002 edition) defines Article 107, False Official Statements, as "any person…who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false…"

41. The Manual for Courts-Martial United States (2002 edition) defines Article 131, Perjury, as "any person…who in a judicial proceeding or in a course of justice willfully and corruptly (1) upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry; or (2) in any declaration, certificate, verification, or statement under penalty of perjury…subscribes any false statement material to the issue or matter of inquiry, is guilty of perjury…"

42. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires.

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CONCLUSIONS:

1. The BOI may have found that the applicant did not have a propensity to engage in homosexual conduct but it did find that he engaged in a homosexual act with the “other man.” As noted in the proceedings dated 29 January 2002, the BOI’s standard was preponderance of the evidence. Testimony showed that the “other man” was a known homosexual living in the same quarters with the applicant. The “other man” initially provided a sworn statement that he was sexually involved with the applicant. The applicant misrepresented his relationship with Michelle from the beginning (before any investigation was initiated) because (on page 163 of the transcripts) he knew by allowing the “other man” to come (to Korea) so many (questions) were going to come up.

2. Considering the above facts, the BOI’s finding that the applicant engaged in a homosexual act with the “other man” appears to have been a reasonable, considered finding. It appears to the Board that the incident with the PV2 had no bearing on this particular finding on the part of the BOI and that the 29 January 2002 Board did not determine that a “propensity to engage in homosexual conduct” was the sole reason for his discharge.

3. The Board does not agree with counsel’s contention that the interaction with the PV2 was insufficiently grave to warrant a discharge. The BOI found that the applicant, in addition to attempting to fraternize with the PV2, communicated indecent language to the PV2. The applicant testified that his prior combat arms training contrasted sharply with his duties as a counterintelligence officer to the point of upsetting a lot of his company because he insisted on military bearing. He testified that when he first got to the White House he had a big problem for the same reason. He met the PV2 his second week in country, being in uniform for the first time in a long time. The Board presumes that the BOI did not believe that his initial military training was so displaced that he would talk so, without identifying himself, over the telephone to a PV2 he had met only once, without it being a deliberate decision to do so.

4. Whether or not the commanding general thought the matter with the PV2 sufficiently minor that he allowed a subordinate commander to handle it, the Manual for Courts-Martial United States, 2000 edition provides for a maximum sentence of a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months for the offense of indecent language. Actual punishments are up to a commander’s discretion. The fact that an Article 15 with an MOR only as punishment was imposed is immaterial. The nonjudicial punishment then triggered the U. S. Total Army Personnel Command, a separate command at Headquarters, Department of the Army, to initiate the show cause action.

5. The show cause action then resulted in the BOI substantiating the commander’s finding that the applicant used indecent language towards the PV2. Higher headquarters than the commanding general (i.e., the Secretary of the Army) then believed that the matter was sufficiently major, along with the other findings, to approve the applicant’s discharge. This Board agrees with the conclusion of the 29 January 2002 Board that this single incident is prejudicial to good order and discipline because it materially erodes the confidence of enlisted soldiers in officers and it alone would have been a justifiable reason for the applicant’s discharge.

6. Contrary to counsel’s contention, the DA Form 3975 concerning the incident with the PV2 was not filed with the Crime Records Center because of the entirely separate allegations of the "informant." It was filed there because Army Regulation 190-45 required it to be so filed (a known subject will be reported to the U. S. Army Criminal Records Center when the offense is punishable by six months or more confinement).

7. The Board does not agree with counsel’s contention that the entire matter should not have been the subject of a BOI in the first place. As the April 1998 Report to the Secretary of Defense, Review of the Effectiveness of the Application and Enforcement of the Department’s Policy on Homosexual Conduct in the Military noted, credible information may sometimes be provided to commanders from current or former partners, roommates, or unrelated third parties. It is not a violation of DOD policy for a commander to initiate an investigation when information has been reported in any of these circumstances provided that the information received is credible.

8. The “informant's” first accusation, combined with the “other man’s” sworn statement that he had engaged in sexual relations with the applicant, plus the report of the applicant using indecent language towards the PV2, was more than sufficient for an investigation to have been initiated.

9. The Board does not agree with counsel’s contention that the protracted interrogation itself was an abuse. Federal law requires that those who engage in homosexual conduct must be discharged from the military and so commanders are obligated to investigate whenever they receive credible evidence of homosexual conduct. It appears the applicant opened himself up to charges of perjury from the beginning of his tour in Korea when, knowing that allowing the “other man” to join him in Korea would cause many questions to come up, he embroidered the tale of a girlfriend.

10. The applicant is not authorized full separation pay even though the 29 January 2002 Board changed the narrative reason for his separation from homosexuality to Secretarial Authority. The fact remains that he was not fully qualified for retention.

11. Notwithstanding the above, the Board finds some merit to the contention of the applicant's counsel that the Board's previous decision of 29 January 2002 did not carry its findings to their logical conclusion with respect to the issue of titling. That Board directed the redaction of all references to the commission of sodomy contained in the Article 15 of 14 October 1997 and the letter of reprimand of 19 November 1997 as well as the redaction of "all matters regarding a homosexual relationship between the applicant and the "other man" appearing in the BOI.

12. This Board also notes that USACIDC guidance is that field elements shall not initiate a criminal investigation into adult private consensual sexual misconduct where such misconduct is the only offense involved. However, since the other initial allegation against the applicant was that he misused Government funds to move the "other man" to Korea, it appears CID did not violate either its own guidance or DOD guidance when it investigated the applicant for homosexual conduct.

13. The misuse of Government funds was the trigger that allowed the other investigation to continue. Nevertheless, that offense is not noted in the final ROI or any of the supplemental ROIs even if only to mention that investigation could establish insufficient evidence to prove or disprove that he committed the offense. CID acknowledges that the ROI did not title the applicant for several other offenses that were supported by credible information (e.g., fraternization and indecent language). Since these offenses, in addition to the fraud allegation, were omitted from the ROI, the Board finds that no harm would be done to the public if the titling for homosexuality was also removed. It would be equitable to delete the applicant's name from the title block of any investigations involving sodomy with the "other man" or with the discredited complainant. Despite the CID's entirely proper decision not to delete the applicant from the title block, as a matter consistency and fairness the titling should not stand.

14. In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by redacting all references to the applicant (name and social security number) in all CID ROIs (initial, final, supplementals) related to the referenced sodomy incidents.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__rjw___ __rd____ _mjt____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond J. Wagner
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071052
SUFFIX
RECON
DATE BOARDED	20030826
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Brown
ISSUES 1.	100.00
2.
3.
4.
5.
6.