MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 February 2003
         DOCKET NUMBER: AR2002076778

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

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Ms. Regan K. Smith		Member
Mr. Antonio Uribe		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that he be restored to active duty, promoted to captain/0-3, and that all derogatory information be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that his argument is provided in the enclosed petition prepared by his counsel.

COUNSEL CONTENDS: In effect, that the applicant’s elimination was the result of his mother’s adulterous affair with a United States Air Force (USAF) general officer (GO). Counsel claims that while assigned to Fort Bragg, North Carolina, the applicant performed various errands on behalf of the USAF GO, which included picking up keys at the Visiting Officers Quarters (VOQ), confirming room reservations, and managing personal affairs when the GO was visiting his mother in North Carolina. In March 1998, a personal assistant to the applicant’s mother made a room reservation at Camp Lejeune, North Carolina, for her and the GO. When they were delayed, the applicant complied with their request to sign for the reservation at Camp Lejeune. This led to an investigation pursuant to Army Regulation 15-6, with which the applicant cooperated, as evidence by the comments of the investigating officer (IO). The IO indicated that the applicant immediately provided answers and information in a straight forward manner, and accepted responsibility for the signatures and provided the rationale for his actions based upon an embarrassing family situation.

Counsel claims that during the investigation, the applicant was encouraged to reveal the name of the GO, and it was even suggested that if he provided this name, it would likely mean that he would be cleared of all wrongdoing. However, the applicant was never specifically ordered to provide this name, and he declined to voluntarily reveal the name. The applicant’s mother was contacted during the investigation, and although she admitted to having a relationship with a GO, she also declined to reveal his name. The IO indicated that the applicant’s mother stated that she would sacrifice her son’s career prior to providing the name of her companion and ruining both her and the GO’s private lives. Counsel provides a full outline of his view of the facts of this case in the enclosed Petition for Review, which was provided with the application to this Board.

Counsel finally argues that the applicant’s actions in assisting the USAF GO in signing for a room in March 1998 did not constitute criminal conduct. Counsel further states that the applicant did not lie and did not misrepresent himself. The applicant’s actions may have facilitated the USAF GO’s relationship with his mother, but the GO was retired, and his actions were outside the jurisdiction of Military Justice. Counsel states that the contention that the applicant’s actions constituted conduct unbecoming an officer and gentleman is without merit.

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Counsel further claims that the applicant was never ordered to reveal the name of the GO; however, it appears his punishment was based on his refusal to reveal this name. Counsel also states that the subsequent letter received from the GO in question enunciating the applicant in taking full responsibility constituted new evidence that deserved reconsideration of the nonjudicial punishment (NJP) imposed on the applicant under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). Moreover, the applicant’s complaint of wrong pursuant to Article 138 of the UCMJ should have been processed in accordance with the regulation.

Counsel further argues that the applicant’s elimination from the Army cannot be justified. The applicant is an excellent young officer whose performance was exceptional, and he was guilty of no misconduct. The IO found the applicant to be candid and straightforward; and therefore, this was not a question of integrity. Counsel also contends that the applicant was eliminated from the Army at a time when with zero defects and zero tolerance for any indiscretion dominated Army culture. Ironically, now that this country is at war, the Army is without the services of an outstanding officer.

Counsel concludes by outlining the relief requested by the applicant, and by stating that this young officer should not be punished for the indiscretions of another generation. Counsel claims the applicant’s actions were neither criminal or immoral and they do not justify separation from the Army. In support of this application, the applicant and counsel provide copies of the following documents: Officer Evaluation Reports (OER) ending in March 1997, September 1997, and March 1998; a complaint of wrong pursuant to Article 138 of the UCMJ; an appeal of the Article 15; a sworn statement from the applicant’s battalion commander; an 11 August 1998 letter from the USAF GO, and character reference letters from his battalion commander, parish priest, a retired United States Marine Corps GO, and from a first lieutenant who was his roommate at the time of the investigation.

EVIDENCE OF RECORD: The applicant's military records show:

On 9 August 1995, he was appointed a second lieutenant in the United States Army Reserve (USAR), and on 11 March 1996, he entered active duty in that status in the Signal Corps. The applicant attended and completed the Signal Officer Basic Course (OBC) in 1996, and upon completion was assigned to Fort Bragg, North Carolina.

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In April 1998, while the applicant was serving at Fort Bragg, an investigation was conducted on him under the provisions of Army Regulation 15-6. On 30 April 1998, the results of this investigation were published by the IO. The IO found that the applicant signed for VOQ at Camp Lejeune, North Carolina, which had been reserved for a retired GO in the name of the applicant’s father. Although the proper name of the applicant’s father was used for this reservation, his father was not a retired GO.

The IO specified that the applicant signed the register and picked up the keys for this VOQ room reserved for a GO, knowing that the room would not be used by a GO with his father’s name, and that no one with the name would be using the room. Further, the IO found that for several years the applicant had created the common belief among his peers and superiors that his father, or another relative, was a GO. The applicant encouraged this belief by driving two different cars with Department of Defense (DOD) GO stickers on them. The IO finally recommended that the chain of command forward the investigation results to the CG, XVIII Airborne Corps for appropriate action; and that the applicant be counseled on the inappropriateness of using a vehicle with a DOD GO sticker, on creating the impression that his father was a GO, and the inappropriateness of signing the register for VOQ in his own name and attesting to the fact that a retired GO with his father’s name would be residing in the room.

On 13 May 1998, the Chief, Administrative Law Division, found the investigation conducted on the applicant complied with legal requirements, that there was sufficient evidence to support the findings, and that the recommendations were consistent with the findings. On 18 May 1998, the XVIII Airborne Corps, Staff Judge Advocate (SJA) recommended that the CG XVIII Airborne Corps delegate the case to the Deputy CG to dispose of it as he deemed appropriate.

On 24 June 1998, the applicant was informed by the Deputy CG, XVIII Airborne Corps, that he was considering whether the applicant should be punished under Article 15, UCMJ, for making a false statement with the intent to deceive by wrongfully signing for a room at the VOQ, in his father’s name, and indicating that his father was a retired GO, a statement he knew to be false at the time.

On 26 July 1998, the applicant, having been afforded the opportunity to consult counsel, elected not to demand trial by court-martial. He further requested that his Article 15 proceedings be closed, that a person to speak in his behalf be present at a closed Article 15 hearing, and he indicated that matters in defense, mitigation, and extenuation would be presented in person at the hearing.

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On 12 August 1998, the applicant appealed the NJP action and presented matters in support of his appeal. On 28 September 1998, the SJA found the proceedings were conducted in accordance with law and regulation, and that the punishment was appropriate. On 2 October 1998, the CG, Forces Command, after considering all matters presented, denied the applicant’s appeal of the NJP action.

On 19 October 1998, the CG, XVIII Airborne Corps, notified the applicant that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2b (3), (5), and (8), because of misconduct and/or moral or professional dereliction. The reason cited for this action was the applicant’s mismanagement of personal affairs to the discredit of the Army, acts of personal misconduct, and conduct unbecoming an officer, as evidenced by the NJP action of 13 May 1998.

On 22 October 1998, the applicant acknowledged receipt of the initiation of elimination action and stated his understanding that he had thirty days to submit matters in rebuttal or to submit his resignation in lieu of elimination.

On 30 November 1998, the applicant’s battalion commander, after reviewing the elimination action on the applicant and the applicant’s rebuttal, found that the applicant compromised his integrity and he recommended that the applicant be separated with a general, under honorable conditions discharge (GD).

On 30 November 1998, the CG, XVIII Airborne Corps, after carefully reviewing the applicant’s response to the elimination action, finally recommended that the applicant be separated with a GD.

The Department of the Army Ad Hoc Review Board considered the applicant’s case and recommended that he be eliminated from the Army for misconduct, moral or professional dereliction, with an HD. On 21 January 1999, the Deputy Assistant Secretary, Army Review Boards, approved the findings and recommendations of the Ad Hoc Review Board, and he directed that the applicant be discharged with an honorable discharge (HD).

On 27 July 1999, the applicant was separated under the provisions of paragraph 4-2b, Army Regulation 600-8-24, by reason of unacceptable conduct. At the time of his discharge, he had attained the rank of first lieutenant/0-2, and he had completed a total of 3 years, 4 months, and 17 days of active military service.

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Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice. Section VI, chapter 3, provides guidance on appeals of NJP. It states, in pertinent part, that only one appeal is permissible under Article 15 proceedings, and that an appeal (including all documentary matters) submitted more than 5 calendar days after the punishment is imposed will be presumed to be untimely.

Chapter 20 establishes procedures for the preparation, submission, and disposition of complaints made pursuant to Article 138, UCMJ. It states, in pertinent part, that the prescribed procedures are intended to ensure that an adequate official channel for redress is available to every soldier who believes the soldier's commanding officer wronged the soldier. However, for many adverse actions, there are other, more specific channels and procedures to ensure the soldier has an adequate opportunity to be heard. Those specific procedures usually are more effective and efficient for resolving such matters, and Article 138 procedures should neither substitute for nor duplicate them.

The regulation further stipulates that a complaint is generally not appropriate under chapter 20 if other procedures exist that provide the soldier notice of an action, a right to rebut or a hearing, and a review by an authority superior to the officer originating the action. Generally, an action is an inappropriate subject for resolution under Article 138 procedures when one of the following conditions apply: review is provided specifically by the UCMJ or the action is otherwise reviewable by a court authorized by the UCMJ or by a military judge or military magistrate; action is taken pursuant to the recommendation of a board authorized by Army regulation at which the complainant was afforded substantially the rights of a respondent; or if Army regulations specifically authorize an administrative appeal.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the contentions of the applicant and his counsel that the actions that resulted in the NJP punishment and elimination actions in question did not constitute criminal conduct or conduct unbecoming an officer and gentleman, and that the applicant was ultimately punished and discharged for failing to reveal the name of the retired GO involved. As a result, his discharge was inequitable and was not appropriate based on the offense. However, after a careful review of all the facts and circumstances, the Board finds insufficient evidence to support these claims.

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2. The evidence of record confirms that the applicant accepted NJP, and that the Article 15 proceedings were conducted in accordance with applicable law and regulations. It is clear the applicant was given the opportunity to be represented, and to provide matters of defense, mitigation, and extenuation during the closed hearing he requested. Further, he was provided the right to appeal the NJP action, which he did. This appeal was considered and denied by the CG, Forces Command, the appropriate appellate authority. Therefore, the Board concludes that the applicant’s rights were fully protected throughout the NJP process and that he was afforded the appeal rights provided for by the governing regulation.

3. The record further shows that the applicant’s separation processing was accomplished in accordance with the applicable regulation, and that it was approved by the appropriate Department of the Army authority, who considered all the arguments and factors currently being presented to this Board by the applicant and his counsel. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4. The Board also carefully considered counsel’s argument that the requested relief is warranted because the letter provided by the GO in question exonerated the applicant of any wrongdoing, and because the chain of command failed to properly address the applicant’s Article 138 complaint. However, the Board notes that the applicant was discharged subsequent to a Department of the Army Ad Hoc Review Board review that included consideration of these factors, as is prescribed by regulation.

5. In view of the facts of this case, the Board concludes that the applicant’s complaint action was an inappropriate subject for resolution under Article 138 procedures as outlined in the applicable regulation, given the regulatory avenues of redress provided him during both the NJP and separation processes.

6. 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 this requirement

7. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__SAC__ __RKS _ __ AU __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002076778
SUFFIX
RECON
DATE BOARDED	2003/02/03
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999/07/27
DISCHARGE AUTHORITY	AR 600-8-24
DISCHARGE REASON	Unacceptable Conduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1023	106.0010
2.
3.
4.
5.
6.