RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23August 2007
	DOCKET NUMBER:  AR20060012885 


	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. Catherine C. Mitrano

Acting Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. John T. Meixell

Member

Mr. Richard T. Dunbar

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 deferred to counsel and remained silent. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Attorney, as counsel for the applicant, requests, in effect, that the Board grant the applicant the following corrections to her Army record on grounds of legal error and injustice:  

a.  amend her Army records to show that she was commissioned on 28 May 2005;

	b.  amend her Army records to place her in the lineal precedence she would have enjoyed had she been permitted to graduate with her West Point class;  

	c.  that she be paid back pay and allowances as a second lieutenant  (2LT/O-1) from 28 May 2005 through 17 April 2006, when she was finally commissioned at the direction of the Secretary of the Army.

2.  Counsel provides facts relevant to his client's application:

a.  Counsel argues that the applicant matriculated into the United States Military Academy (USMA) as a Plebe (or freshman) during the summer of 2001.  Her record of performance at the USMA was one of excellent performance and conduct.  She proved herself to be a strong and dominant female cadet and was well on her way to graduating with her class when a fellow female cadet falsely accused her of a homosexual act - kissing another female cadet on the lips within the cadet dormitory.

b.  After the allegation was made, the applicant disputed it, cooperated in its investigation, and worked within the system to favorably and accurately 
resolve the issue.  Notwithstanding, the denials of the applicant and the other Cadet B_____ regarding the events claimed to have been witnessed by their accuser, a formal investigation was convened to investigate the allegation of homosexual act - pursuant to Army Regulation 210-26, Chapter 6.  The investigation was conducted during January 2005.  The investigating officer (IO) 



concluded that one of the two allegations of homosexual conduct had been substantiated.  The IO concluded that the second allegation, involving the allegation that the applicant kissed Cadet B_____ on the lips was substantiated.  The IO, however, applied an incorrect legal standard in reaching her conclusion, which became the subject of later appeals by the applicant.

c.  On 29 July 2005, the Commandant of Cadets reviewed the report of the investigation and provided his recommendations to the Superintendent.  In his recommendation that the applicant be separated, the Commandant incorrectly asserted that two accusations of homosexual acts alleged against the applicant had been substantiated.

d.  On 5 August 2005, through counsel, the applicant provided matters for 
consideration of the Superintendent, USMA.  In her submission, she again 
denied that she engaged in homosexual acts; pointed out the lack of reliability of 
her accuser; detailed the inaccuracy of the Commandant’s report on the 
findings of the investigation; and, requested to personally meet with the 
Superintendent.  Despite her request, she was never provided the opportunity 
to meet with the Superintendent; however, the Superintendent’s asserted 
reason for not meeting with the applicant was that he was unaware of her 
request.  After not meeting with her and apparently not reading her 
submission, he recommended to the Assistant Secretary of the Army’s (SA's)
designee that she be dismissed from the USMA.

e.  On 1 September 2005, the applicant was sent home from the USMA to await a decision on whether she would be separated and her dismissal executed. On 9 September 2005, after learning of the recommendation that she be dismissed from the USMA, she provided matters for personal consideration to the Assistant Secretary of the Army (Manpower and Reserve Affairs) [ASA/MRA] designee for separation of West Point Cadets.  Following direction by the G1, regarding the procedural deficiencies identified by the applicant and counsel, the record was returned to the USMA for corrective action.  The Superintendent adhered to his original recommendation to separate her and his undated memorandum reflected that recommendation.

	f.  In response, through counsel, the applicant provided additional matters to the SA’s designee opposing her discharge.  Although she was not party to the communications, she was advised that the SA’s designee disagreed with the handling of her case, and in particular, the decision to separate her.  There were a series of communications between the SA’s staff and the USMA reflecting this disagreement.  Ultimately, the SA’s designee overruled the Superintendent's, recommendation to separate her and she was graduated and commissioned on 17 April 2006, more than 11 months later than the rest of her graduating class.  The applicant was not reinstated to the lineal standing she would have enjoyed had she been permitted to graduate with her class, nor was she paid the back pay she is due by reason of the overruled recommendation to separate her.

3.  Counsel, in his discussions, reiterated what was discussed in his relevant facts.  He elaborated on similar cases that arose in the United States Navy (USN) where Naval Academy midshipmen were tried and acquitted by court-martial or who were retained administratively as witnesses for the court-marital without being permitted to graduate and who were later reinstated to their class graduating date and appropriate lineal precedence with payment of back pay.  He respectfully urged that her request be approved.

4.  The applicant provides a declaration in support of her request in which she 
reiterated what has been discussed previously in this Record of Proceedings by counsel.

5.  Counsel provides copies of several memorandums and copies of additional evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  On 4 May 2005, US Army Human Resources Command (AHRC)-Alexandria Orders 21-3-A-29 were published which show that the applicant was commissioned as a second lieutenant (2LT/O-1) in the Regular Army, from the USMA, with an effective date and date of rank (DOR) of 28 May 2005.

2.  A misconduct investigation took place on or about 6 to 7 June 2005.  After the investigation, it was determined by the IO, that the applicant had committed a homosexual act by kissing another female cadet on the lips, on 9 May 2005, within the cadet dormitory.  

3.  On an unknown date, the applicant received a copy of the investigation and provided her written comments and rebuttal to the IO's findings.  She requested in writing, on an unknown date, that the Superintendent disapprove the findings
in accordance with Army Regulation 210-26 and that she be permitted to graduate and be commissioned in the Army as a second lieutenant. 




4.  On 29 July 2005, the Commandant, USMA, prepared a memorandum for the Superintendent.  He considered the transcript, findings, and recommendations of the IO regarding the misconduct investigation, which was conducted on 6 and 7 June 2005, in the case of the applicant.  He recommended, based upon two substantiated violations of Army Regulation 210-26, chapter 6, that the applicant be separated, with recoupment for educational benefits.

5.  The Superintendent reviewed the record of proceedings and allied documents and approved the IO's finding, in accordance with regulation.  He recommended that the applicant be separated from the USMA, with the issuance of a general discharge certificate.  He did not recommend active duty and recommended financial recoupment of her educational expenses.  He suspended the applicant pending the final decision on her case.

6.  On 5 August 2005, the applicant retained counsel.  Counsel reiterated that the applicant was not a homosexual and she did not engage in a homosexual act.  She kissed a friend on the cheek as a matter of consolation with no component of sexual gratification, or intent "to excite --- sexual lust and desires."  Counsel stated that imposing the USMA "death penalty" on the applicant’s separation and recoupment for an act that clearly could have been innocent - and was innocent - is a grossly disproportionate and unfair penalty.  There was no chance, based upon these proceedings, that such conduct would ever be repeated again, nor would it have happened in the first place if counseling and mentoring had been conducted.  Accordingly, on behalf of the applicant, he respectfully requested, pursuant to Army Regulation 210-26, paragraph 6-27(1)3, that the Superintendent disapprove the substantiated finding of the investigation. 

7.  On 15 August 2005, the USMA Staff Judge Advocate (SJA), prepared a response for the Superintendent.  She informed the superintendent that the applicant had reviewed the record of proceedings in the misconduct investigation.  The SJA stated that she [the applicant] asserted the evidence did not support the IO's finding and requested that the Superintendent disapprove the findings.  The SJA determined that the record contained sufficient evidence to support the findings of the IO.  Contrary to the arguments of the applicant and Cadet B____, and their attorneys, a review of the entire record, including the credibility determinations of the IO, provided sufficient evidence from which a reasonable person could conclude that the burden of proof was satisfied.  The SJA recommended that the applicant and Cadet B____ be separated from the Academy and discharged from the Army.



8.  On 9 September 2005, counsel supported the applicant in her appeal.  Counsel discussed errors, omissions, and inaccuracies in the matter of the applicant’s treatment.  He concluded that the applicant was not a homosexual and she did not engage in a homosexual act.  Counsel requested that pursuant to Army Regulation 210-26, that the findings of the investigation be disapproved.

9.  On 30 September 2005, the Chief, Military Personnel Law Branch, Administrative Law Division, Office of The Judge Advocate General (TJAG), Washington, D.C., prepared a memorandum for the Office of the Deputy Chief of Staff, G1.  This staff member of TJAG stated that he was responding to a request for legal review of the recommendations from the Superintendent, USMA, to separate the applicant and Cadet B____, and to discharge them from the Army for violating Army Regulation 210-26, paragraph 6-27 (Homosexual Conduct).  He concluded that after reviewing the record of misconduct proceedings, they noted that the IO may have applied one or more incorrect standards when making her finding that the applicant and Cadet B_____ committed homosexual conduct.  Although the Superintendent did not expressly adopt any incorrect standard, he did not expressly disregard them either.  In their view, this ambiguity, while not rising to the level of legal error, calls into question the intent of the Superintendent when he acted on these cases.  Accordingly, they strongly recommend that this action be returned to the Superintendent, USMA for corrective action. 

10.  On 13 October 2005, the Director of Military Personnel Management, Office of the Deputy Chief of Staff, G1, prepared a memorandum for the Superintendent, USMA, Subject:  Separation for Homosexual Conduct.  The G1 stated that the separation of the applicant was suspended until the sufficiency of the evidence was reviewed.  The G1 also stated that based on the recommendation of TJAG, there was a legal objection to the Superintendent's, USMA, recommendation to separate the applicant and Cadet B____.  The IO may have applied one or more incorrect standards when making her finding that the applicant had committed homosexual conduct.  

11.  The G1 stated that specifically, the IO cited the definition of "sexual act" found at Army Regulation 210-26, paragraph 6-8.  Paragraph 6-8 provides the authority to separate cadets for sexual misconduct.  The applicant and Cadet B_____ were processed for separation under paragraph 6-27 (homosexual conduct) not paragraph 6-8 (sexual misconduct).   The IO’s possible use of the incorrect definition as a basis of her finding and the Superintendent’s possible adoption of the incorrect definition, created an ambiguity that should be corrected.


12.  On 21 October 2005, the Superintendent, USMA prepared a memorandum for Headquarters, Department of the Army, Subject:  Misconduct Investigation.  The Superintendent stated that based on the 13 October 2005 memorandum from G1, he had reviewed the case for a second time and found the evidence sufficient to support a violation of Army Regulation 210-26, paragraph 6-27, by the applicant.

13.  On 17 November 2005, the applicant retained counsel once again.  Counsel provided his views on what he termed significant errors, omissions, and inaccuracies and requested that the findings of the investigation be disapproved, or alternatively, the case be returned to the Superintendent with direction that he order a new hearing where the applicant would have the benefit of an investigating officer who applies the correct legal standard to the evidence.

14.  On 6 April 2006, the Chief, Officer Division, Office of the Deputy Chief of Staff, G1, prepared a memorandum pertaining to the applicant, Subject:  Regular Army Commission.  The G1 informed the applicant that she would be commissioned as a second lieutenant in the Regular Army and assigned as a military police officer.  She was informed that she must notify G1 on the date that she would graduate and be commissioned.  With the date provided, G1 would coordinate with Accessions Branch, Human Resource Command (HRC), who would generate her Regular Army Orders.

15.  The USMA provided a copy of the applicant's Academic Record, College Transcript, which shows that she completed the course requirements and graduated on 17 April 2006.

16.  On 11 April 2006, AHRC Orders 25-1-A-110 amended those orders to show an effective date and DOR of 17 April 2006.  Orders were changed to reflect the date all pre-commissioning requirements were completed.

17.  On 7 August 2007, a member of the ABCMR staff inquired of the USMA Liaison Officer and Officer Accessions Policy Integrator if it was the G1's intent to graduate the applicant on 28 May 2005 and thereby make her whole or was it the G1's intent not to graduate and commission the applicant on the amended date 17 April 2006.





18.  On 7 August 2007, the USMA Liaison Office and Officer Accessions Policy Integrator responded, they had nothing on file nor was there a policy to support their original recommendation.  The bottom line is that USMA and/or the Army Leadership chose not to pursue the allegations.  If the allegations, investigation, etc., had never been initiated, she would have graduated and commissioned with her class on 28 May 2005.  As a result, they recommended that the ARBA (Army Review Board Agency) approve her requests.

19.  The applicant is currently serving on active duty as a 2LT at Fort Stewart, Georgia.

20.  The required minimum time in grade for promotion to first lieutenant is currently 18 months. 

21.  A review of records for classmates who graduated in 2005 were promoted to first lieutenant on 28 November 2006, which was 18 months following their graduation date.

22.  Army Regulation 210-26 (United States Military Academy) applies to major Army commands and Headquarters, Department of the Army agencies of the Active Army and the US Army Reserve (USAR).  It also applies to individuals assigned, appointed, or detailed to USMA.  Paragraph 5-3 pertains to graduation and conferring of degree.  Subparagraph 5-3e states that the Secretary of the Army has delegated to the Superintendent the authority to defer graduation of 
any cadet for good cause such as a cadet under investigation for violation of the Honor Code, serious misconduct, or immorality, or is the subject of an administrative action that could result in separation, or the award of extended punishment.

23.  Paragraph 6-8, of the same regulation, pertains to sexual misconduct.  Paragraph 6-27 pertains to homosexual conduct, which includes homosexual acts, statement(s) that demonstrate a propensity or intent to engage in homosexual acts, or homosexual marriage or attempted marriage.  

24.  Subparagraph 6-27i pertains to actions by the Superintendent.  Upon receipt of a report of investigation in which the investigating officer has found there has been homosexual conduct by a cadet, the Superintendent will take one of the following actions:  approve the findings and forward the case to Headquarters, Department of the Army, with a recommendation that the respondent be separated from the Academy; approve the finding that the respondent engaged in homosexual conduct, but direct retention under the limited circumstances; or disapprove the findings.
25.  Army Regulation 601-100 (Appointment of Commissioned and Warrant Officers in the Regular Army) prescribes the policies and procedures for Regular Army integration.  It applies to the Active Army, the Army National Guard of the United States (ARNGUS), and the U.S. Army Reserve, and is applicable during mobilization.  Paragraph 2-3 (Commissioned officer confirmation date), states that the confirmation date is the date the United States Senate confirms the President’s nomination of the applicants for appointment as commissioned officers in the Regular Army.

26.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of officers on active duty.  This regulation applies to Active Army, Army National Guard, and US Army Reserve commissioned and warrant officers on an active duty list (ADL).  Chapter 3 states, in pertinent part, that officers with a source of appointment from the USMA will be promoted to first lieutenant (1LT/O-2) after serving 18 months of active duty from their main graduation date/PED (promotion eligibility date).

DISCUSSION AND CONCLUSIONS:

1.  The applicant, while attending USMA, was accused by a fellow female cadet of committing a homosexual act - kissing another female cadet on the lips, on 9 May 2005, within the cadet dormitory.  She disputed the allegation.

2.  A formal investigation was conducted which concluded that one of the two allegations of homosexual conduct had been substantiated.  However, only one (kissing of another cadet) of the allegations was discussed in the IO's report.   The IO concluded that the second allegation was substantiated.  

3.  The applicant provided a written response to the IO's findings.  She requested that the Superintendent disapprove the findings in accordance with regulatory authority.  

4.  The applicant retained counsel in support of her appeal regarding the investigation’s findings and recommendations.  Counsel discussed the errors, omissions, and inaccuracies in the matter of her treatment.  Counsel concluded that the applicant was not a homosexual and did not engage in a homosexual act.  Counsel requested that pursuant to Army Regulation 210-26 that the findings of the investigation be disapproved.



5.  The SJA reviewed the IO's proceedings and indicated that the applicant had asserted that the evidence did not support the IO's findings and recommended that the Superintendent disapprove the findings.  The SJA, after a review of the applicant’s submission and record of proceedings, determined that they were
without merit.

6.  The Superintendent approved the IO's findings and recommended that the applicant be separated from the USMA, with a GD Certificate, and that her educational expenses be recouped.

7.  The G1 suspended the applicant's separation until the sufficiency of the evidence was reviewed.  There was a legal objection to the Superintendent's recommendation based on the recommendation of TJAG.  The G1 stated that the IO may have applied one or more incorrect standards when making her final determination that the applicant had committed homosexual conduct.

8.  The G1 cited the definition of "sexual act" and homosexual conduct.  G1 determined that the applicant was processed for homosexual conduct not sexual misconduct.  The IO's possible use of an incorrect definition created an ambiguity that should be corrected.

9.  The Superintendent reviewed the case for the second time and found the evidence to support a violation of regulation.  

10.  In response to the Superintendent‘s decision, the applicant's counsel again requested disapproval of her case and requested a new hearing and that the correct standard be applied to the evidence.

11.  Ultimately, the SA's designee, the G1, overruled the Superintendent's recommendation to separate the applicant from the USMA.  On 6 April 2006, she was informed by the G1 that she would be commissioned as a 2LT in the Regular Army.  She completed all pre-commission course requirements on 17 April 2006 and was commissioned on the same day; 11 months after the rest of her class. 

12.  Counsel argues that her commissioning date should be changed to show that she was commissioned on 28 May 2005 instead of 17 April 2006.  However, on the date she would normally have been commissioned, she was under investigation for misconduct.  She was suspended and did not complete all pre-commissioning and graduation requirements until 17 April 2006.

13.  Orders were published with an original date of 28 May 2005 and those orders were amended after the investigation.  The applicant was provided a commission date of 17 April 2006.  

14.  The evidence shows that there was nothing on file nor was there a policy to support the G1 recommendations that the applicant be graduated and commissioned on 17 April 2006.  The G1's representative opined that had the allegations, investigation, etc., never been initiated, she would have graduated and commissioned with her class on 28 May 2005 and therefore, it was his recommendation that the applicant's request be approved.  

15.  Based on the applicant's USMA graduation date/PED of 28 May 2005, she was eligible for promotion to 1LT/O-2, providing that all other promotion requirements were met, with an effective date and date of rank of 28 November 2006.  

16.  Based on the foregoing information and all the facts and circumstances of this case, it would now be appropriate, as a matter of fairness and equity, to correct the applicant's records by:  rescinding AHRC Orders 25-1-A-110, Amendment of Order; by showing that she was commissioned on 28 May 2005, which would place her in the lineal precedence she would have enjoyed had she been permitted to graduate with her West Point class; that she be paid back pay and allowances as a 2LT/O-2 from 28 May 2005 through 16 April 2006; that she be promoted to 1LT/O-2 with an effective date and date of rank of 28 November 2006, providing that she met all other promotion requirements on that date; and with entitlement to back pay and allowances as a 1LT/O-2 from 28 November 2006 to present.

BOARD VOTE:

___J____  ___e____  __RTD__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

	a.  that AHRC Orders 25-1-A-110, Amendment of Order, be rescinded;

b.  that she was commissioned on 28 May 2005, which would place her in the lineal precedence she would have enjoyed had she been permitted to graduate with her West Point class; 

	c.  entitlement to back pay and allowances as a 2LT/O-2 from 28 May 2005 through 16 April 2006;

	d.  that she was promoted to 1LT/O-2 with an effective date and date of rank of 28 November 2006, 18 months after her initially established and now reinstated USMA graduation date/PED, providing that she met all other promotion requirements on that date; and

	e.  entitlement to back pay and allowances as a 1LT/O-2 from 28 November 2006 to present.




_____Lester Echols_______
          CHAIRPERSON




INDEX

CASE ID
AR20060012885
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070823
TYPE OF DISCHARGE

DATE OF DISCHARGE
ACTIVE DUTY
DISCHARGE AUTHORITY
AR . . ACTIVE DUTY
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
102
2.

3.

4.

5.

6.