RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 February 2004
         DOCKET NUMBER: AR2003089940

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. John T. Meixell		Member
Ms. Mae M. Bullock		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).


1. The applicant requests, in effect, immediate reinstatement on active duty in the Army with full benefits, pay and allowances, including promotions due her since April 2001; and that her separation document (DD Form 214) and all negative documents related to her separation be removed from her Official Military Personnel File (OMPF).

2. The applicant states, in effect, that United States Army Recruiting Command (USAREC) took more than five years to end her otherwise promising career based on an informal investigation conducted under the provisions of Army Regulation (AR) 15-6. She claims that the investigating officer (IO) played a significant role in the decision making process and he systematically convinced a “Show Cause” Board of Inquiry (BOI) to eliminate her while colluding with her chain of command to withhold evidence, tamper with official transcripts of procedures, and cover his mistakes by shielding more evidence. She claims the evidence presented was inconclusive due to its poor quality, which indicates a hidden agenda. She claims that not one senior noncommissioned officer (NCO) under her command was mistreated, nor did she violate the rights of any member of her unit. She further states that she never practiced sexism, nor did she condone illegal practices.

3. The applicant states that due to the mitigating factors, circumstances, and the four year USAREC driven process of undue influence and hidden agendas, she requests immediate reinstatement with full benefits, allowances and restitution due her from April 2001. She concludes by stating that she was improperly boarded out of the military, the IO withheld valuable evidence from the BOI and directed officials to adhere to his orders. Further, she states that an official transcript contains a myriad of false statements that do not coincide with the actual oral, recorded proceedings. She claims that three key witnesses admitted culpability, but the recorded version of their testimony is covered by noise. She claims that officials of the Department of Veterans Affairs (DVA) officers in New Mexico and Texas have determined the IO acted improperly.

4. In support of her application, the applicant provides a self-authored letter to the Board, records and endorsements from the DVA, a letter of physical fitness to return to active duty, and her DD Form 214.

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CONSIDERATION OF EVIDENCE:

1. The applicant served on active duty in an enlisted status from 22 March 1983 through 28 August 1989, at which time she was honorably separated in order to enter the Reserve Officer Training Corps.

2. On 1 June 1991, she was commissioned a second lieutenant in the Chemical Corps. She was promoted to captain on 1 October 1995 and assigned to the San Antonio Recruiting Battalion as a company commander on 19 May 1997.

3. On 30 October 1997, a captain from the 5th Recruiting Brigade was appointed as an IO pursuant to the provisions of AR 15-6 to conduct an investigation into whether the applicant maltreated her subordinates and/or was derelict in the performance of her duties, and whether she violated equal opportunity (EO) policies toward her subordinates.

4. On 14 November 1997, the IO completed the investigation. He found that the applicant did maltreat her subordinates, while serving as a recruiting company commander. The IO further found that the evidence also showed a pattern of verbally abusive, rude, and unprofessional treatment of the battalion staff and members of the San Antonio Military Entrance Processing (MEPS) staff. The IO also determined that the evidence established that the applicant violated EO policies and while violations related to gender were more prevalent, incidents that could reasonably be perceived as racial discrimination were also noted. The IO finally found that the evidence did not show that the applicant was derelict in the performance of her duties.

5. In the 14 April 1997 findings, the IO recommended that the applicant be suspended from all duties associated with her company and/or direct involvement with recruiting activities until a full review of her expected rebuttal was complete. He further recommended that the applicant be referred to the appropriate mental health agency and given a complete psychological examination/evaluation. Finally, he recommended that if the applicant were found to be medically fit and still unable to satisfactorily rebut the negative findings, she should be relieved of command and eliminated from the Army.

6. On 24 February 1998, a lieutenant colonel of the 5th Recruiting Brigade was appointed as an IO pursuant to the provisions of AR 15-6 to conduct a second investigation into whether the applicant wrongfully displayed unauthorized military citations on her uniform and whether she forged the paperwork supporting the citations.

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7. On 12 March 1998, the IO completed his investigation and summarized his findings by indicating that the applicant did knowingly submit a falsified and forged award recommendation (DA Form 638) to her battalion commander and to the officer records division, Fort Sam Houston, Texas, in order to authorize and wear an unearned Meritorious Service Medal (MSM). The IO further stated that the applicant did knowingly and falsely submit a falsified document to authorize the wear of an unearned Aircrew Member Badge. Based on his findings, the IO recommended that based on the applicant’s questionable integrity and lack of moral courage, she be immediately removed from command and suspended from all recruiting duties. He further recommended that she be prosecuted to
the full extent allowed by the Uniform Code of Military Justice (UCMJ) based
on her violation of Articles 107 (False Official Statement), 123 (Forgery), and
134 (Conduct Unbecoming an Officer).

8. On 9 June 1998, the commanding general (CG), USAREC notified the applicant that he was considering whether she should be punished under Article 15 of the UCMJ, for wrongfully wearing an MSM ribbon on her uniform, making a false statement to her battalion commander, and for conduct unbecoming an officer and gentlewoman, by wrongfully and dishonorably wearing an unauthorized decoration and knowingly using fraudulent documents to support her false claim to her battalion commander and to the servicing military personnel records office that she had earned the aforementioned decoration.

9. On 24 June 1998, the applicant elected not to demand trial by court-martial and elected to have the case resolved through an Article 15 hearing. On 16 July 1998, the applicant accepted nonjudicial punishment (NJP) under Article 15 and elected not to appeal the punishment. The punishment imposed included a forfeiture of $930 per month for two months and a written reprimand.

10. On 22 July 1998, the USAREC CG issued the applicant a Memorandum of Reprimand (MOR). The CG stated that he was convinced beyond a reasonable doubt that the applicant wrongfully and without authority wore the ribbon signifying a MSM on her uniform, made a false official statement to her battalion commander, and used fraudulent documents to support her false claim that she had been awarded the medal.

11. On 5 May 1999, a BOI convened at Fort Sam Houston, Texas, to determine if the applicant should be discharged from the Army. The applicant and her counsel were present. After hearing testimony and considering the evidence, the BOI found the applicant culpable in eight of the ten charges presented and voted unanimously to recommend that the applicant receive an under other than honorable conditions (UOTHC) discharge.

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12. On 3 September 1999, the applicant’s defense counsel submitted a memorandum to the CG, USAREC, requesting that the BOI recommendation be disapproved. Counsel indicated that discharging the applicant after 17 years of service would not be in the best interest of the Army and that sufficient evidence existed to show the applicant should be retained on active duty. Counsel indicated that the BOI based its recommendation on the testimony of a few witnesses who clearly had a bias against the applicant. Furthermore, the alleged misconduct of the applicant had already been punished under Article 15 of the UCMJ, which resulted in her receiving a MOR. Two points were raised to show why the applicant should not be eliminated. First, the circumstances surrounding the incidents and second the applicant’s performance both before and after the incidents in question.

13. Counsel stated, In regard to the MSM incident, that while it may have been established that the MSM was an altered document, no evidence was ever presented that showed the applicant was the one who altered the document. Counsel further stated that handwriting examples were taken, but the findings were not disclosed at the BOI hearing. However, the applicant obtained the results through a Freedom of Information Act (FOIA) request, and discovered that the results were inconclusive. In other words the handwriting examples could not establish that the applicant altered the documents. Counsel further stated that the AR 15-6 IO commented during the BOI hearing that when the applicant was asked about the award recommendation, she invoked her right not to answer the questions. Clearly, this testimony created the perception that the applicant had something to hide. However, the applicant had an absolute right to remain silent and no adverse inference should have been drawn from her invoking this right. Counsel also alluded to the applicant’s record of exemplary performance and that it demonstrated that the applicant should be retained.

14. On 7 September 1999, a recruiting battalion command sergeant major (CSM) submitted a memorandum of support for the applicant. After explaining his relationship with and impressions of the applicant, he recommended that she be retained in the Army. He stated that she had never displayed racial prejudice or sexual harassment practices in the accomplishment of her mission while he worked with her. He stated that in fact, her solid performance record is indicative of her potential for future growth and development as a productive member of the Army.

15. On 27 September 1999, the CG, USAREC, after reviewing the memoranda submitted by the applicant’s defense counsel and the supporting statement of the recruiting battalion CSM, recommended approval of the BOI recommendation for the applicant’s UOTHC discharge.


16. On 6 January 2000, the Army Board of Review for Eliminations convened to consider the applicant’s case. After reviewing the BOI and other pertinent information and evidence, this board found that it had been established by a preponderance of the evidence, that the applicant should be eliminated from the Army for significant misconduct, moral or professional dereliction. It finally recommended that the applicant be eliminated from the Army and issued an UOTHC discharge.

17. On 18 January 2000, the Deputy Assistance Secretary, Army Review Boards, approved the recommendation of the Army Board of Review for Eliminations that the applicant be eliminated for misconduct, moral or professional dereliction, with an UOTHC discharge.

18. On 22 February 2000, the applicant was assigned to the medical holding company, Brook Army Medical Center (BAMC), Fort Sam Houston, Texas. On 27 March 2001, subsequent to undergoing disability processing, the Army Physical Disability Appeal Board, after a careful review of all the available information, found the applicant physically fit with a disposition of return to duty as fit.

19. On 13 April 2001, the applicant was reassigned to the BAMC transition point and separated with an UOTHC discharge. The DD Form 214 she was issued at this time shows that she was separated under the provisions of paragraph 4-2b, Army Regulation 600-8-24, by reason of unacceptable conduct. It also confirms that at the time, she had completed a total of 16 years and 11 days of active military service.

20. The applicant provides an administrative decision document from the Department of Veterans Affairs (DVA). This document indicates that the DVA decided to consider the applicant’s discharge of 13 April 2001 as honorable for DVA purposes. The basis cited for this decision was that the applicant was discharged for falsifying documents to show she had been awarded the MSM, but the facts and circumstances that were provided by the Army contained evidence that was not considered by the BOI. This evidence was a memorandum, dated 18 August 2000, which showed results that the applicant’s handwriting samples were inconclusive. The DVA decision further opined that the Army failed to provide facts and circumstances to validate the charges against the applicant related to her creating an abusive command climate that fostered charges off racism and sexism from her senior enlisted soldiers.

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21. Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for
30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. Paragraph 4-2b provides, in pertinent part, the authority to separate officers for misconduct, moral or professional dereliction.

22. Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. Chapter 4 provides the authority to conduct informal investigations without respondents. The regulation stipulates an informal investigation may use whatever method it finds most efficient and effective for acquiring information.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention that she was unjustly discharged and the supporting DVA decision she provided were carefully considered. However, the evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulation. Thus, there is an insufficient evidentiary basis to support the requested relief.

2. The applicant’s allegation that relevant evidence that could have cleared her of charges related to an unauthorized award was withheld from the BOI was also carefully considered. However, the record shows that the applicant elected not to demand a trial by court-martial and accepted NJP for the offenses related to her wearing an unauthorized MSM. Further, she elected not to appeal the punishment imposed for this offense.

3. The fact that the handwriting samples referred to by the applicant and in the DVA decision were inconclusive would not have cleared her of the misconduct related to this offense. This evidence was simply inconclusive; however, even had it proven that she did not personally alter the award documents in question, this does not impact the finding that she knowingly wore the unauthorized award and that she presented the fraudulent documents to personnel officials for filing in her official record.

4. Further, it is clear that the applicant made a false statement to her battalion commander indicating that she had received the award and that she presented the fraudulent documents to support this false statement.

5. The applicant’s assertions that the AR 15-6 investigations conducted on her were bias and unduly influenced by the chain of command were also carefully evaluated. However, there is no evidence to corroborate the allegations she makes in her self-authored statements.
6. The evidence of record confirms that the two separate independent investigations done on the applicant were properly conducted in accordance with the applicable law and regulation. There is no evidence presented nor any indication in the record that the IOs that conducted the investigations were in anyway bias or unduly influenced to arrive at their findings. Further, the applicant’s case was reviewed by a properly constituted BOI that, after hearing all the testimony to include the applicant’s and her counsel’s, found that she was culpable in eight of the ten charges against her.

7. Finally, the elimination action against the applicant was reviewed by a properly constituted Department of the Army Board that determined, after reviewing the BOI and other pertinent information and evidence, that the preponderance of the evidence established that the applicant should be eliminated from the Army for significant misconduct, moral or professional dereliction.

8. 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.

BOARD VOTE:

________ ________ ______ GRANT RELIEF

________ ________ _______GRANT FORMAL HEARING

_AO__ ___JM__ ___MB__ 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.




                  Arthur A. Omartian
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089940
SUFFIX
RECON
DATE BOARDED	2004/02/26
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2001/04/13
DISCHARGE AUTHORITY	AR 600-8-24
DISCHARGE REASON	Unacceptable Conduct.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1044	102.0900
2.
3.
4.
5.
6.