RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            1 December 2005
      DOCKET NUMBER:   AR20040011710


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Ms. Angela G. Love                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's involuntary separation be voided; he
be reinstated in the U. S. Army Reserve (USAR) retroactive to the date of
his involuntary separation; he be reimbursed back pay, allowances, and
entitlements; he otherwise be made whole; and he be reinstated as a
Department of the Army Military Administrative Technician.

2.  Counsel states the applicant's discharge from the USAR was in direct
contravention of the provisions of Army Regulation (AR) 135-175 and
constitutes unduly harsh disciplinary action in response to relatively
inconsequential misconduct.

3.  Counsel states the applicant was a major in the USAR, assigned to the
350th Civil Affairs Command (CACOM) in Pensacola, FL, an element of the U.
S. Army Civil Affairs and Psychological Operations Command (USACAPOC) at
Fort Bragg, NC.  He was also a Department of the Army civilian working as a
military administrative technician at the same command.  By orders dated 4
March 2003, he was placed on active duty for annual training at Fort McCoy,
WI to attend the Unit Administration Basic Course from 9 through 21 March
2003.

4.  Counsel states the applicant missed his 9 March 2003 flight because he
did not have an assigned seat.  He took a flight the following day, causing
him to be one day late.  On or about 28 March 2003, he filed a DD Form 1352-
2 (Travel Voucher).  On 13 April 2003, the Commander, 350th CACOM requested
the Commanding General (CG), USACAPOC appoint an investigating officer (IO)
to investigate an alleged false, fictitious, or fraudulent claim against
the government by the applicant.  On 11 June 2003, a second investigation
was appointed by the Commander, USACAPOC.  Based on those two
investigations, an administrative separation board was appointed by the CG,
USACAPOC.

5.  Counsel states the separation board initially recommended the applicant
be separated with a general discharge, suspended for 12 months (emphasis in
the original).  However, the proceedings were directed to be reconvened
purportedly because the board members did not have the authority to
recommend suspension of a separation.  Two legal reviews were conducted
that concluded no legal errors were apparent.  The applicant's military
counsel submitted a memorandum of appeal of the board findings, which was
substantially ignored.
6.  Counsel states he (who did not represent the applicant at his
administrative elimination proceedings) submitted an appeal by letter dated
12 February 2004, to which there also was no response.

7.  Counsel states the U. S. Army Special Operations Command (USASOC) is
identified in AR 135-175 as an "area command."  Paragraph 2-17f of the
regulation specifies that only an "area commander" may convene or appoint a
board of officers.  It does not provide for the delegation of such an
appointment authority.  The appointment and convening of the applicant's
elimination proceedings were done purportedly as a result of a 14 February
2002 written delegation of separation authority from the CG, USASOC to the
CG, USACAPOC.  Such delegation is not provided for, or authorized, pursuant
to the provisions of paragraph 2-17 of AR 135-175.

8.  Counsel states that, secondly and of equal importance, is the fact the
legal review of the applicant's separation proceedings provided prejudicial
and clearly incorrect advice to the CG, USASOC.  The legal advisory's 22
December 2003 memorandum opined, "The findings and recommendations of the
Board of Officers must not be disturbed.  (Emphasis added by counsel)…"  To
the contrary, AR 135-175 specifies the area commander's discretion to
approve board recommendations range from returning the administrative
record to the same board of officers to closing the case favorably to the
respondent, or convening a new board to reconsider the case.  This
constitutes a substantial and prejudicial error limiting the regulatory
discretion of the convening authority.

9.  Counsel states the board recommendations were later determined by the
convening authority's Staff Judge Advocate (SJA) to be "unlawful" despite
the original instructions to the board that a suspension of a discharge was
one of their authorized recommendations.  After reconvening, the board
deleted the recommendation of suspension and substituted the recommendation
that the applicant "should be separated from the U. S. Army."  The
substituted recommendation constitutes an error that materially prejudiced
the applicant's substantive and procedural rights and warrants reinstating
him in the USAR.

10.  Counsel states the applicant's separation constituted an extremely
disproportionate "punishment" in view of the minor nature of the misconduct
alleged during the course of the administrative separation board.
Paragraph     2-15a of AR 135-175 provides that every officer deserves a
fair chance to demonstrate his or her capabilities (emphasis provided by
counsel).  The applicant was never afforded the "fair chance" contemplated
by the regulation.  In essence, the applicant was separated from the USAR
because of a one-day alleged absence without leave, $26.00 in claimed
laundry fees and overpayment of $65.00 in the nature of parking fees.
Clearly, the "punishment" in this case does not fit the nature of the minor
misconduct.

11.  Counsel states the administrative separation action initiated on the
applicant was retaliatory in nature.  On 1 November 2002, the applicant, in
his capacity as a Military Technician with the 350th CACOM, filed a formal
grievance to the CG, USASOC charging the incoming commander of the 350th
CACOM, then Brigadier General (BG) D___, caused or contributed to a hostile
work environment within the 350th CACOM.  Five months later, BG D___
requested the CG, USACAPOC initiate a 15-6 investigation against the
applicant.  Such an action between the commander of the 350th CACOM and the
CG, USACAPOC, Major General (MG) A___, constitutes unlawful retaliation in
violation of Army equal employment opportunity (EEO) regulations,
Department of Defense EEO directives, and federal law.

12.  Counsel provides as evidence the 21 enclosures listed on the Exhibit
List.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the U. S. Navy Reserve and
the Army National Guard (ARNG), the applicant accepted a commission in the
ARNG on 23 July 1983.  He was discharged from the ARNG on 1 July 1995 and
transferred to the USAR Control Group (Annual Training).  He was promoted
to major 8 May 1997.  He was assigned to the 350th CACOM, Pensacola, FL
around August 1999.

2.  On 1 November 2002, the applicant filed a formal grievance with MG
A___.  He alleged that, upon the assignment of BG D___, he (the applicant)
had to answer to the Operations Officer as to his job activities,
performance, and command-related issues and concerns despite the chain of
command and rating scheme identified in the job announcement and
description.  He alleged that, as a result of the hostile work environment
against civilian employees at the 350th CACOM and his actions to prohibit
that activity and protect the junior employees, he was given the worst
civilian evaluation he had ever received in 17 years.

3.  By memorandum dated 14 February 2003, Lieutenant General (LTG) B___,
CG, USASOC delegated "the full authority of the Area Commander to initiate,
process and act on all separations under the provisions of AR 135-175,
Chapter 2" to the Commander, USACAPOC."  Cases would still have to be
forwarded through Headquarters, USASOC to Headquarters, Department of the
Army.  The delegation included the authority to convene boards but did not
include the authority to separate officers.  The intent of the delegation
was to provide the CG, USACAPOC the same authority over Reserve Component
officers of his command that AR 600-8-24 granted him over Active Component
officers of his command.

4.  Orders dated 4 March 2003 ordered the applicant to annual training for
a period of 13 days.  He was to report to Fort McCoy, WI no later than 4:00
p.m.    9 March 2003 to attend the Unit Administration Basic Course.

5.  On 26 March 2003, the applicant completed a DD Form 1351-2 (Travel
Voucher or Subvoucher).  In item 15 (Itinerary), he indicated he had
departed his home in Navarre, FL on 9 March 2003, arrived at the Pensacola
airport on          9 March 2003, and arrived at Fort McCoy, WI on 9 March
2003.  Item 15 shows he departed Fort McCoy on 21 March 2003 and arrived in
Florida on 21 March 2003.  In item 19 (Reimbursable expenses) he claimed
$308.00 in lodging at Fort McCoy; $65.00 in parking fees; and $60.00 in
laundry fees.

6.  The applicant's reimbursable charges were determined to be $798.48 --
$683.00 in per diem at $55.00 per day (including $55.00 for 9 March 2003);
$24.48 in mileage/transportation allowances; and $91.00 in reimbursable
expenses.

7.  A Summary of Investigation dated 4 April 2003 (but most likely prepared
later as it referenced an 11 April 2003 meeting, a 29 April 2003 contact,
and two July 2003 contacts) indicated Colonel M___ conducted an informal
investigation into the applicant's travel status on 9 March 2003.  Colonel
M___ discovered the applicant was given $200.00 for giving up his seat on
his flight.  He also discovered it was not the vehicle the applicant
claimed on his "statement" that was parked at the airport but rather
another of the applicant's vehicles.  Colonel M___ also discovered the
applicant did not use Fort McCoy, WI on-post cleaners for his laundry.

8.  On 13 April 2003, BG D___ requested USACAPOC appoint an IO to
investigate an alleged false, fictitious, or fraudulent claim against the
government by the applicant.  BG D___ informed USACAPOC that, since the
applicant had filed a civilian personnel grievance against him in the past,
a determination might be looked at as some sort of reprisal.  Due to the
applicant's dual Troop Program Unit (TPU) and Military Technician status
the alleged incident, if founded, could have grave consequences for both
the applicant's military and civilian status and should be directed and
overseen by USACAPOC.

9.  BG D___ stated his deputy commander had conducted an informal inquiry
into the alleged incident.  The inquiry revealed the applicant had reported
to the Pensacola Regional Airport on 9 March 2003 and found his flight was
overbooked.  He voluntarily took a free travel voucher to fly at a later
time.  There were two other flights scheduled on 9 March 2003 the applicant
could have taken but the availability of those flights could not be
verified.  The applicant flew out the next day and reported to his class
one day late and did not notify the deputy commander, the applicant's
supervisor, of the later departure or of the free voucher.  Upon his
return, he filed his travel voucher as if he did the full duty from 9
through 21 March instead of 10 through 21 March 2003 without requesting any
amendment to his original order.  The applicant's claim for parking
expenses was also found to be suspect.

10.  On 21 April 2003, MG A___ appointed Lieutenant Colonel P___ as an IO
to conduct an informal investigation into the alleged false claims against
the government by the applicant and an alleged failure to repair by the
applicant.

11.  On 4 May 2003, Lieutenant Colonel P___ substantiated the allegation
the applicant failed to report on time for the Unit Administration Basic
Course.  The investigation revealed there were other airlines that could
have been utilized that would have allowed the applicant to arrive on time
but, as the applicant indicated in his own statement, it did not cross his
mind to see if another airline had any other flights going to Wisconsin.
Also, the applicant was offered a 4:00 p.m. flight for later the same day
that he refused.

12.  The IO substantiated the applicant accepted a free ticket ($200.00)
voucher for not flying to his annual training destination on his regular
scheduled flight.  The applicant had provided the IO with two vouchers, one
a voluntary voucher and the other an involuntary voucher.  However, the
involuntary voucher was only provided several weeks after the investigation
had begun.

13.  The IO substantiated the applicant filed both his travel voucher and
annual training orders with no amendments as if he did the full annual
training from        9 through 21 March 2003.

14.  The IO substantiated the applicant submitted a claim for reimbursable
expenses of $65.00 for parking in conjunction with the annual training
where he could have easily parked his vehicle at the unit location, which
was in walking distance of the airport.

15.  The IO discovered that a change in flights by the applicant did not
result in a major increased cost to the government.  The IO also discovered
that a student could report not later than day two [of the course] at 7:30
a. m. or they would be a no-show.  Therefore, there was no effect on the
government (instructors) as the applicant did report to the course within
that window.

16.  The IO recommended the applicant receive an official letter of
reprimand, he reimburse the government one day (9 March 2003) per diem, be
given the opportunity to apologize to his chain of command, and be
reassigned from his present civilian job location as soon as possible.

17.  On 1 October 2003, MG A ___ appointed a board to consider the
involuntary separation of the applicant.  The appointment letter informed
the board it would limit (emphasis in the original) its recommendations to
determining if the applicant should be retained or separated.  If the board
recommended separation, should his service be characterized as
honorable/general/other than honorable and should or should not his
separation be suspended for 12 months (or less).

18.  On 21 October 2003, the separation board convened.  The board was
originally comprised of three lieutenant colonels.  After consultation with
the U. S. Army Reserve Personnel Command (currently designated USAHRC –
STL), it was determined at least one member must hold the rank of colonel.
The information arrived after two witnesses had been called and examined.
All parties were informed of the requirement and given an opportunity to be
heard.  The president of the board decided the board should break and await
the arrival of the colonel member.  She arrived, one of the lieutenant
colonels was excused, and the colonel became the new president of the
board.  The two witnesses previously examined were re-called and re-
examined on the record so the new president would have full access to the
witness testimony.

19.  The recorder noted the applicant was notified of the hearing [by
memorandum dated] 1 October 2003.  The applicant denied receiving notice of
the hearing date, and counsel for the applicant stated he was aware of the
date but may have failed to notify the applicant of the date.  The issue
was discussed and the applicant, through counsel, waived the notice
requirement and consented to continuation of the board.

20.  The applicant testified that when he got to the gate agent at the
airline they never gave him a seat.  He did not volunteer to give up his
spot.  He declined the 4:00 p.m. flight because of prior bad experiences
with taking later flights.  He went back to work for 3 or 4 hours and
studied a hand book because he knew he would mss a day of class.  He
notified the school he would be late by leaving a voice mail message.  He
did laundry twice while at Fort McCoy.  The travel voucher he submitted is
a form flow document and he simply forgot to change the travel order
number.  He did not intend to defraud, he was just given misinformation.
In hindsight, he would do things differently.  He never looked at his DFAS
statement.

21.  The separation board found the applicant mismanaged his personal
affairs to the discredit of the service by (1) failing to report on time
for his training course and (2) filing a fraudulent travel voucher
overstating certain expenses incurred during the trip to Fort McCoy and
indicating he traveled to Fort McCoy on             9 March 2003. (The
separation board had six additional findings that were essentially a
restating of these two findings, i.e., "…affairs detrimentally affecting
the performance of his duty by…"; "…commit personal misconduct by…"; and
"…commit conduct unbecoming an officer by….")

22.  The separation board found the applicant did not mismanage his
personal affairs to the discredit of the service by (1) making false sworn
statements with regards to parking fees of $65 and laundry fees of $60 and
(2) by keeping a $200 voucher he received for being bumped from a flight
(with six additional findings essentially restating these two
unsubstantiated findings as described in the paragraph above).

23.  The separation board recommended the applicant be separated from the
USAR with a general characterization of service and that his separation be
suspended for 12 months.  The board also recommended the applicant repay
the Government the $26 in laundry fees he was paid on the travel voucher;
repay $65 in parking fees; repay a day's pay for 9 March 2003; return the
$200 voucher to the Government; and recommended a general officer
memorandum of reprimand be placed in his records.

24.  The separation board action contains the following two paragraphs:

      "The recommendation of suspension was unlawful.  The board reconvened
on 23 Oct 2003 to deliberate on new recommendations.  All parties and the
legal advisor were present either in person or telephonically for purposes
of reviewing the finding and recommendation."

      "The findings remained unchanged.  The findings above do warrant
separation for the above mentioned conditions.  The respondent should be
separated from the U. S. Army.  The respondent's service should be
characterized as general.  This concludes the deliberation of the board."

25.  MG A___ apparently amended the board appointment letter to inform the
board it would limit (emphasis in the original) its recommendations to
determining if the applicant should be retained or separated.  If the board
recommends separation, should his service be characterized as
honorable/general/other than honorable).  The amended letter is not dated.


26.  MG A___'s concurrence with the findings and recommendations of the
board is not available.

27.  On 11 November 2003, the Deputy SJA, USACAPOC reviewed the applicant's
separation proceedings and determined the proceedings complied with
applicable legal requirements; no substantial errors were apparent;
substantial evidence supported each finding and the basis for the
recommendation for separation appeared appropriate to, and warranted by,
the findings; and the CG could recommend a characterization of discharge as
general under honorable conditions or honorable.

28.  On 26 November 2003, the SJA, USACAPOC forwarded the applicant's
elimination board proceedings to the CG, USACAPOC recommending the CG
ratify and forward the board's recommendation.  The SJA noted the board
characterized the applicant's conduct as detrimentally affecting the
performance of his duty, mismanagement of his personal affairs to the
discredit of the service, and as conduct unbecoming an officer but not as
alleged misconduct.  The SJA noted the board initially recommended the
applicant be separated but that his separation be suspended.  When the
legal advisor to the board advised that a suspended discharge was not
within the board's authority, the board reconvened and subsequently
recommended the applicant be separated and issued a general discharge by a
2-1 vote.

29.  On 28 November 2003, the applicant's military trial defense counsel
requested the USAHRC - STL disapprove the board's recommendation to
separate the applicant.  He contended the recommendation was flawed in
several ways.  First, counsel contended the board's findings were not
supported by substantial evidence.  He contended:

      A.  Travel voucher indicating travel on 9 March 2003.  At the board,
the applicant offered uncontradicted testimony and documentary evidence
that after he was "bumped" from his flight he went to the Reserve Center
and performed Army Reserve duties.  Because he had performed his duty on 9
March 2003, he believed that submitting a voucher for pay using the
original orders was acceptable.

      B.  Claiming reimbursement for airport long term parking in the
amount of $65.00.  At the board, the applicant and the Government agreed
the applicant incurred legitimate charges because he had a car parked in
the overnight parking garage from 16 through 23 March 2003.  The applicant
also offered additional uncontradicted testimony that he incurred
additional parking charges for short-term parking at the airport on 9 and
10 March.  His combined parking charges totaled about $60.00.  However,
because he had lost his receipts, he estimated his parking charges slightly
high.

      C.  Claiming reimbursement for laundry expenses in the amount of
$60.00.  Similarly, the applicant testified that, because he had gotten his
uniforms cleaned before and after his duty at Fort McCoy, he thought this
was a proper submission for reimbursement.  Despite the fact the laundry
bills presented were outside the scope of the applicant's duty days, the
uncontradicted evidence did not meet the "substantial evidence" standard
required because it did not even amount to an admission of criminal
knowledge.

      D.  $200.00 Delta Airlines Voucher.  The applicant offered as
uncontradicted evidence that he did not ask for the voucher, when it was
given to him he did not know what to do with it, he never used it and the
IO did not know where to send the voucher.  The applicable travel
regulation does not indicate where to send such a voucher.

30.  Counsel also contended there were three procedural problems with the
separation board:  (1) the applicant was not given 30 days notice of the
board hearing date; (2) the board was improperly convened on 21 October
2003 and had to be reconvened later that same day, which resulted in
prejudice to the applicant as the new board president was not able to
adequately see the first opening remarks and witness; and (3) the audiotape
recorder malfunctioned at some point before the board had to be reconvened
during the afternoon of        21 October 2003 so the board proceedings
could not be corroborated by a verbatim tape or transcript.

31.  Counsel contended the applicant showed he met all the requirements of
AR 135-175 for retention even with the evidentiary and procedural problems
noted above.  He had well over 20 years of faithful service to his country
and was not given a full, fair hearing.  The board ignored the guidelines
of the requirements of the regulation by failing to recommend retention.
Even if the board chose to disregard all of the uncontradicted testimony
referenced above, the regulation required that, because of the large
investment in training of Soldiers, reasonable efforts at rehabilitation
should be made.  It mandates the board consider the potential for
rehabilitation.

32.  Counsel contended the board's recommendation for a general discharge
also violated Army policy regarding the characterization of discharge.
According to Title 10, U. S. Code, section 12865 (sic, counsel presumably
meant section 12685), there is a presumption that a reservist will receive
an honorable discharge even when the discharge is for cause.  He quoted
section 12685):

      A member of a reserve component who is separated for cause, (emphasis
by counsel) except under section 12684 of this title, is entitled to a
discharge under honorable conditions (emphasis by counsel) unless:  (1) the
member is discharged under conditions other than honorable under an
approved sentence of a court-martial or under the approved findings of a
board of officers convened by an authority designated by the Secretary
concerned; or (2) the member consents to a discharge under conditions other
than honorable with a waiver of proceedings of a court-martial or a board.

33.  Counsel also contended AR 135-178, paragraph 2-8a states a Soldier's
characterization of service "must be based upon the overall period of
service and not on any isolated actions."  The applicant's "overall period
of service" was outstanding.  Recommending a general discharge for him
after so many years of faithful and honorable service was a travesty of
justice.

34.  On 19 November 2003, MG A___ forwarded the applicant's elimination
proceedings through the CG, USASOC, Fort Bragg, NC to USAHRC - STL.

35.  On 22 December 2003, the USASOC Deputy SJA reviewed the applicant's
separation proceedings.  He determined the proceedings complied with
applicable legal requirements; no substantial errors were apparent;
substantial evidence supported each finding, and the basis for the
recommendation for the separation appeared appropriate to and warranted by
the findings.  The CG, USASOC could recommend a characterization of
discharge as general under honorable conditions or honorable.

36.  The USASOC Deputy SJA noted the rational nature of the board
deliberations was evidenced by their having determined that, based on the
evidence placed before them, some of the charges against the applicant were
substantiated while others were not.  There was no basis to assert that in
their deliberations they did not afford the applicant the appropriate due
process under the applicable regulations.

37.  The USASOC Deputy SJA opined that counsel's assertion the board's
recommendation for a general discharge was invalid had no basis.  The
Deputy SJA noted the board initially sought to recommend a suspended form
of separation.  When informed that was not an option, but instead the board
could recommend only separation or retention, the board returned with a
recommendation to separate.  That added deliberation, when faced squarely
with the issue of retention, indicated the board gave ample consideration
to the matter of retention and added consideration to the characterization
of discharge.

38.  The USASOC Deputy SJA addressed counsel's allegations of three legal
errors and prejudice to the applicant as a result:

      First, the applicant had a right to 10-days notice per AR 135-175,
paragraph 2-19, not 30 days notice.  That matter was discussed on the
record and the applicant, through his counsel, waived the notice
requirement and consented to the continuation of the board.

      Second, regarding counsel's assertion the board was improperly
convened in that it originally convened with an ineligible member, that
matter was corrected in the presence of the applicant and counsel and
reflected on the record.  The record reflected the error was corrected
after two witnesses had testified.  The record also reflected the then
properly-qualified board recalled those two witnesses.  As that error would
have also given the applicant two opportunities to conduct cross-
examination, the error was harmless and no prejudice was evident.

      Third, the applicant was not entitled to a verbatim record under AR
    135-175, paragraph 2-35; therefore there was no error and no prejudice
can follow.

39.  The USASOC Deputy SJA concluded by stating the findings and
recommendation of the board of officers must not be disturbed.

40.  On 31 December 2003, Lieutenant General K___, CG, USASOC, ratified
the board appointed pursuant to a written delegation by his predecessor.
He reviewed the elimination action and the board proceedings' findings and
recommendations and recommended the applicant be separated from the   USAR
with a general discharge.

41.  On 12 February 2004, a different counsel for the applicant (his
current counsel) provided a rebuttal to the elimination action.  He pointed
out that USASOC is identified in AR 135-175 as an "area command," and
paragraph      2-17f of the regulation specifies that only an "area
commander" may convene or appoint a board of officers.  Paragraph 2-17 does
not provide for the delegation of such an appointment authority.  Secondly,
the legal review of the separation proceedings provided prejudicial and
clearly incorrect advice to the CG, USASOC.

42.  Counsel for the applicant noted that, in paragraph 3 of the 22
December 2003 legal review, the legal advisor opined, "The findings and
recommendations of the Board of Officers must not be disturbed." (emphasis
added)  Counsel stated, to the contrary, paragraph 2-20 of AR 135-175
specifies the scope of the area commander's actions on board
recommendations. The area commander's recommendations range from returning
the administrative record to the same board of officers to closing the case
favorably or convening a new board to reconsider the case.  The legal
advice was incorrect and constituted a substantial and prejudicial defect.

43.  Counsel for the applicant noted, third, the separation board made an
initial recommendation, in part, to suspend the applicant's separation for
12 months.  The board recommendations were subsequently determined to be
"unlawful" and, after reconvening, the board changed its recommendations
and determined the applicant "should be separated from the U. S. Army."
The substituted recommendation for separation was diametrically opposed to
the initial recommendation that any separation be suspended.  That major
discrepancy constituted an error that materially prejudiced the applicant's
substantive and procedural rights and warranted the convening of a new
board in accordance with paragraph 2-20a of AR 135-175.

44.  Counsel for the applicant contended the approval of the recommendation
  the applicant be separated constituted an extreme and disproportionate
"punishment" in view of the minor nature of the misconduct alleged during
the course of the board.

45.  Counsel for the applicant also stated the convening of the separation
board had the appearance of retaliation against the applicant.  The
applicant, in his capacity as a military technician with the unit,
communicated a formal grievance to MG A___ against BG D___.  Five months
later, BG D___ requested MG A___ initiated an investigation against the
applicant.  Such an action between BG D___ and MG A___ could constitute
unlawful retaliation in violation of Army EEO regulations, and Department
of Defense EEO directives, and federal law.

46.  On 25 March 2004, the USAHRC - STL approved the findings and
recommendations of the board of officers and approved the issuance of a
general discharge to the applicant.

47.  Accordingly, orders dated 5 April 2004 discharged the applicant from
the USAR with a general under honorable conditions discharge.

48.  On 8 April 2004, the applicant was provided a notice of proposed
removal from his position of Supervisory Staff Administrator due to his
failure to maintain a basic condition of employment, i.e., Selected Reserve
membership.  He was given 15 days to reply to the notice.  The applicant
apparently requested an extension.  His request was denied as law mandated
his removal and he provided no further response to the notice.  By
memorandum dated 10 May 2004, he was notified he would be removed from the
position of Supervisory Staff Administrator.  He acknowledged receipt of
the notification on 12 May 2004.

49.  During the processing of this case, an advisory opinion was obtained
from the Office of The Judge Advocate General (OTJAG).  OTJAG noted the
Commander, USASOC delegated his authority, as an Area Commander, to
initiate, process, and act on separations as outlined in Army Regulation
135-175, to include the authority to convene separation boards.  OTJAG
noted the delegation specifically did "not include the authority to
separate officers."  OTJAG opined that, based upon a review of the
redelegation memorandum as limited therein and a review of Army Regulation
135-175 and applicable provisions of Title 10, U. S. Code, they perceived
no legal objection to the subject delegation.

50.  A copy of the advisory opinion was provided to the applicant's counsel
for comment or rebuttal.  Counsel responded by stating that OTJAG's opinion
that the 14 February 2002 memorandum from the CG, USASOC was a proper
delegation of authority is in complete and obvious contradiction of
paragraph      2-17 of AR 135-175.  He stated paragraph 2-17 identifies
"actions" which may only be taken by an area commander.  USASOC is
identified as an "area command" but USACAPOC is not an "area command."
Another conclusion is tantamount to an authorized supplementation of AR 135-
175 by the CG, USASOC, which is not authorized.

51.  Counsel stated the above view is supported by the legal analysis of
this issue by a legal advisor to the Board.  The legal advisor talked to a
paralegal in counsel's office in early October 2005, stated it appeared the
applicant's board had not been properly convened as the CG, USACAPOC was
not an "area commander," and stated she was going to recommend the Board
grant the relief requested.  Several days later, the Board's legal advisor
called again and stated she would have to reverse her recommendation based
upon receipt of OTJAG's advisory opinion.

52.  AR 135-175 (Separation of Officers) provides policy, criteria, and
procedures for the separation of Reserve officers of the Army.  Paragraph 1-
6 states maximum consideration of all events and circumstances leading to
the discharge is essential in determining the type of discharge certificate
to be furnished or recommended.  The type of discharge certificate to be
furnished will be based solely on the officer's behavior and performance of
duty during the current period of service when (1) actually performing
active duty, active duty for training, or inactive duty training; or (2)
actively participating in or under an obligation to participate in Reserve
activities, and the behavior relates directly to the officer's Reserve
status.  An honorable discharge is a separation with honor.  The issue of
an honorable discharge is conditioned on proper military behavior and
proficient and industrious performance of duty, giving due regard to the
grade held and the capabilities of the officer concerned.  A general
discharge is a separation under honorable conditions of an officer whose
military record is not sufficiently meritorious to warrant an honorable
discharge.

53.  AR 135-175, paragraph 1-13d states section 1163(a) of Title 10, U. S.
 Code precludes the involuntary separation of officers with 3 or more years
of commissioned service except on the approved recommendations of a board
of officers convened by competent authority or as otherwise provided by
law.  Paragraph 1-13f states section 1163(c) of Title 10, U. S. Code
precludes the separation of an officer for cause under conditions other
than honorable unless discharged under conditions other than honorable
pursuant to "…(2) approved findings of a board of officers convened by
competent authority…."

54.  AR 135-175, paragraph 2-8 states Headquarters, Department of the Army
will take final action on the recommendations of boards of officers for
USAR officers based on the reasons given in paragraphs 2-10 through 2-14.
Area commanders will forward these cases with the recommendations and
remarks to the Commander, USAHRC – STL.

55.  AR 135-175, paragraph 2-12 states, while not all-inclusive, existence
of one of several listed or similar conditions, unless successfully
rebutted, authorizes involuntary separation of an officer due to moral or
professional dereliction.  The listed conditions include:  mismanagement of
personal affairs to the discredit of the service, mismanagement of personal
affairs detrimentally affecting the
performance of duty of the officer concerned, and intentional omission or
misstatement of facts in official statements or records, for the purpose of
misrepresentation.

56.  AR 135-175, paragraph 2-15 states no person has an inherent right to
continue service as an officer.  Responsibility for leadership and example
require effective performance of assigned duties and exemplary conduct at
all times.  The Army has no place for officers who cannot meet these
requirements, and their involuntary separation is essential.  Every officer
deserves a fair chance to demonstrate his or her capabilities.  When an
officer shows ineffective tendencies, especially if they are due to
inexperience, that officer will, when practicable, be given another chance
under another commander.  Any officer who has been given a fair chance and
has failed to become an effective officer will be considered for
involuntary separation to ensure his ineffectiveness is not permitted to
continue to affect the Army adversely.

57.  AR 135-175, paragraph 2-17e states, in part, if it is determined that
sufficient basis exists to initiate involuntary separation action, the area
commander will notify the officer concerned of the requirement to show
cause for retention and give the individual the reason for this
requirement.  Paragraph 2-17f states, in part, on securing the
acknowledgement of receipt for the officer, the area commander will, if the
officer elects appearance before a board or elects board proceedings but
waives appearance, take necessary steps to appoint the board as prescribed
in this regulation and in AR 15-6.

58.  AR 135-175, paragraph 2-20a states if the area commander, in his
review of a case in which involuntary separation has been recommended by
the board of officers notes a substantial defect in the proceedings, he
will:

      (1) if the board has failed to make findings and recommendations as
required by this regulation, return the case to the same board for
compliance with this regulation;

      (2) if there is an apparent error or omission in the record which may
be corrected without reconsideration of the findings and recommendations of
the board, return the case to the same board for corrective action;

      (3) if the board committed an error that materially prejudiced a
substantial right of the officer, he may close the case favorably to the
respondent or may convene a new board to hear the case.  The new board may
not make
recommendations that are less favorable to the officer than those made by
the initial board unless additional allegations are considered by the new
board; and

      (4)  except under the circumstances in (1) through (3) or by direction
of Headquarters, Department of the Army, he may not reopen the proceedings.

59.  AR 135-175, paragraph 2-25c(1) states the board of officers will be
appointed by letter issued by the area commander.

60.  AR 135-175, paragraph 2-34b(2) states, when the findings have been
determined, the recommendations of the board of officers will be limited to
the following:  retention or involuntary separation.  Paragraph 2-34(3)
states recommendation for involuntary separation of an officer must also
include a recommendation for the type of discharge to be issued.

61.  AR 135-175, appendix A, section II defines "area command" as a
geographic area of command with Reserve Component functions and
responsibilities.  It lists six area commands, including USASOC.

62.  AR 600-20 (Army Command Policy), paragraph 2-1b states commanders are
responsible for everything their command does or fails to do.  However,
commanders subdivide responsibility and authority and assign portions of
both to various subordinate commanders and staff members.  In this way, a
proper degree of responsibility becomes inherent in each command echelon.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contended the applicant's discharge from the USAR was in direct
contravention of the provisions of AR 135-175 in part because USASOC was
the area command and paragraph 2-17f of that regulation specifies that only
an area commander may convene or appoint a board of officers and it does
not provide for the delegation of such an appointment authority.

2.  Counsel misquotes the regulation.  Paragraph 2-17f of AR 135-175 does
not state that only an area commander may convene or appoint a board of
officers.  In addition, while the regulation does not specifically provide
for the delegation of such an appointment authority, neither does it
prohibit the delegation of such authority.  Therefore, the authority given
to the area commander in AR 600-20 has precedence – commanders may
subdivide (i.e., delegate) responsibility and
authority and assign portions of both to various subordinate commanders.
Since the CG, USASOC retained the authority to review the separation board
proceedings, he did not violate the requirements of AR 135-175.

3.  Counsel contended the legal review of the applicant's separation
proceedings provided prejudicial and clearly incorrect advice to the CG,
USASOC when it opined, "The findings and recommendations of the Board of
Officers must not be disturbed."

4.  Contrary to counsel's reading of AR 135-175, paragraph 2-20a states the
area commander may "disturb" the findings and recommendations of the board
of officers only in three specific instances when involuntary separation
has been recommended:  (1) if the board fails to make findings and
recommendations as required by this regulation, he will return the case to
the same board for compliance with this regulation; (2) if there is an
apparent error or omission in the record which may be corrected without
reconsideration of the findings and recommendations of the board, he will
return the case to the same board for corrective action; and (3) if the
board committed an error that materially prejudiced a substantial right of
the officer, he may close the case favorably to the respondent or may
convene a new board to hear the case.

5.  Except under those three specific circumstances, or by direction of
Headquarters, Department of the Army, the area commander may not reopen the
proceedings.  His authority to close the case favorably was not
discretionary; it was very limited only to a particular circumstance.
Since there is no evidence the board committed an error that materially
prejudiced a substantial right of the applicant, there was no basis for the
area commander to close the case favorably to the applicant.  That is, he
could not disturb the findings and recommendations of the board of
officers.

6.  Counsel contended the substituted recommendation (to recommend
separation without a suspension of the separation) constituted an error
that materially prejudiced the applicant's substantive and procedural
rights.  He, in effect, contended the original recommendation was the
"lawful" one because the original instructions to the board informed the
members that a suspension of a discharge was one of their authorized
recommendations.

7.  It is acknowledged the original instructions to the board informed the
board members a suspension of a discharge was one of their authorized
possible recommendations.  However, that instruction was contrary to AR 135-
175, paragraph 2-34b(2) which states when the findings have been
determined, the
recommendations of the board of officers will be limited to the following:
retention or involuntary separation.  The appointment authority properly
returned the case to the board in accordance with AR  135-175, paragraph 2-
20a(1):  if the board fails to make findings and recommendations as
required by this regulation, he will return the case to the same board for
compliance with this regulation.

8.  Counsel contended the applicant's separation constituted an extremely
disproportionate "punishment" and constituted an unduly harsh disciplinary
action in response to relatively inconsequential misconduct.

9.  As noted in AR 135-175, no person has an inherent right to continue
service as an officer.  Responsibility for leadership and example require
effective performance of assigned duties and exemplary conduct at all times
and the  Army has no place for officers who cannot meet these requirements.
 It is acknowledged the regulation also states every officer deserves a
fair chance to demonstrate his or her capabilities and, when an officer
shows ineffective tendencies, especially if they are due to inexperience,
that officer will, when practicable, be given another chance under another
commander.

10.  The applicant, however, was not inexperienced.  He was a major with
many years of experience in the Army.  Even if his failing to report on
time to his training course was overlooked, his completing a DD Form 1351-2
indicating he departed his home on 9 March 2003 and arrived at Fort McCoy,
WI on 9 March 2003 cannot be overlooked.  His defense counsel's
explanation, "because he had performed his duty on 9 March 2003, he
believed that submitting a voucher for pay using the original orders was
acceptable," is not credible.  The DD Form 1351-2 is a Travel (emphasis
added) Voucher or Subvoucher.  The applicant's explanation during his board
testimony that the travel voucher he submitted was a form flow document, he
simply forgot to change the travel order number, and he was simply given
misinformation did not explain why he indicated on the form he arrived at
Fort McCoy on 9 March 2003 and claimed per diem for that day of travel.

11.  Although the IO substantiated allegations the applicant made
questionable decisions regarding parking and laundry expenses and the
airlines voucher issue, the separation board found those allegations to be
unsubstantiated.

12.  The issuance of an honorable discharge is conditioned on proper
military behavior giving due regard to the grade held and the capabilities
of the officer concerned.  A general discharge is a separation under
honorable conditions of an officer whose military record is not
sufficiently meritorious to warrant an honorable discharge.

13.  AR 135-175 also states the type of discharge certificate to be
furnished will be based solely on the officer's behavior and performance of
duty during the current period of service.  The applicant's current period
of service appears to have begun when he was discharged from the ARNG on 1
July 1995 and transferred to the USAR.  At the time of the incidents for
which he was discharged, he had less than 8 years of "prior" exemplary
conduct.

14.  The applicant fails to provide evidence now to explain and his board
testimony failed to explain how he could not have known that he was
submitting a request for payment for travel on a day he did not travel.
For a senior field grade officer, that was not "relatively inconsequential
misconduct" and the decision to separate him with a general under honorable
conditions discharge appears to have been appropriate.

15.  Counsel contended the administrative separation action initiated on
the applicant was retaliatory in nature.  He bases his contention on the
applicant's filing a formal grievance with the CG, USASOC charging the
incoming commander of the 350th CACOM caused or contributed to a hostile
work environment within the 350th CACOM and then, five months later, the
350th CACOM commander requested the CG, USACAPOC initiate an investigation
against the applicant.  Counsel contended such an action between the
commander of the 350th CACOM and the CG, USACAPOC constitutes unlawful
retaliation.

16.  The evidence shows the Commander, 350th CACOM requested USACPOC
appoint an IO to investigate the allegations precisely because the
applicant had filed a civilian personnel grievance against him in the past.
 He therefore properly went to his higher command to request an impartial
investigation be conducted.  Counsel provides no evidence the investigation
was conducted as a result of unlawful retaliation.  By counsel's reasoning,
no investigation of a member who files a complaint against a superior could
ever be conducted by any level of command because it could be construed as
"reprisal."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __rgs___  __agl___  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.




            __John T. Meixell_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011710                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]