RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 July 2007
	DOCKET NUMBER:  AR20070001322 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jose A. Martinez

Member

Mr. William F. Crain

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:

1.  The applicant requests, in effect, to be commissioned a second lieutenant in the United States Army effective 16 May 2005.  He also asks to personally appear before the Board.

2.  The applicant states, in effect, that he was wrongfully disenrolled from the Reserve Officers' Training Corps (ROTC) program at Valley Forge Military College, Wayne, Pennsylvania.  He contends that the evidence presented at the board mandated his retention.  He was denied due process, counsel, and the right to remain silent.  He further states that adverse action was taken against him solely on the basis of a single unconfirmed laboratory test in violation of Department of Defense policy.  He says that he is the victim of unlawful command influence and was denied his right of appeal.

3.  The applicant provides copies of the board record, his rebuttal, and correspondence from Cadet Command.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the disenrollment decision be overturned and that the applicant receive his commissioning. 

2.  Counsel states that the disenrollment action needs to be corrected.  The board was initiated for misconduct.  Counsel believes that the applicant's actions failed to rise to a level of misconduct sufficient to support disenrollment so it was changed to a disenrollment for undesirable character as demonstrated by a second underage drinking offense.  Counsel contends that the only proof of a second underage drinking offense is an unconfirmed laboratory report showing that he had a blood alcohol content of 0.027.  Counsel also contends that the applicant was denied effective assistance of counsel.  The applicant's counsel received wrong advice.  He did not assist in gathering information, did not survey the officers and noncommissioned officers, as requested, did not research other ROTC programs to determine how similar cases were treated, and did not zealously defend him.  The applicant was not permitted to have counsel speak for him at the board and was not allowed to actively defend him at the hearing.  Counsel also contends that the applicant was denied a number of rights including, but not limited to, the right of due process, the right to remain silent, the right to a properly conducted board, the right to have the board receive a proper legal sufficiency review and to be provided an opportunity to see it, and the opportunity to appeal the decision of Cadet Command.  The cumulative effect of all of these errors denied the respondent a fair hearing.  The effect of command influence is most troublesome.  It appears that the Professor of Military Science (PMS), as the appointing authority decided to disenroll the applicant on 5 May 2005, on the basis of the laboratory report.  The appointing authority presented the applicant a developmental counseling statement at the same time that he initiated his disenrollment.  These actions left no option for the applicant to continue in the ROTC program.  Counsel also contends that when this counseling statement was put into evidence it allowed the appointing authority to become a witness against the applicant at a disenrollment board that he appointed.  The appointing authority also refused to provide information requested by the applicant and instructed his cadre not to answer the questions sent to them by the applicant.  The appointing authority took a vacation day and was not in the area on the day of the hearing.  Counsel states that the taint of command influence attaches to the process from 2 May 2005 forward.  The replacement of the appointing authority to take action on the packet did not remove that taint.  Unlawful command influence is an obstruction of justice and conduct unbecoming an officer.  Once the crime is committed it takes much more than happened in this case to make the procedure fair and proper.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  On 13 November 2003, the applicant signed a DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract).  Paragraph 5 stated that if the cadet were disenrolled from the ROTC Program for breach of contractual terms or any other disenrollment criteria, established then or in the future, the Secretary of the Army could order him to active duty for not more than two years.  

2.  On 2 May 2005, the applicant was counseled by the battalion commander regarding his second offense of underage drinking that occurred on or about 
21 April 2005.  The key points of this counseling discussed how his actions were unbecoming of a cadet and an officer in training; that his drinking had resulted in his sustaining a head injury that required medical attention and resulted in his inability to attend mandatory battalion training; that he had been counseled on 
31 October 2003 for underage drinking and had multiple counselings as a member of the Early Commissioning Program (ECP) on the use of alcohol and underage drinking; that he had placed personal desires above his leadership responsibilities; that his poor decisions resulted in a bad situation and that as a leader he would be held accountable for his actions; and that he had let down the cadre, school, peers, and himself.  In the Plan of Action section of the counseling form, the battalion commander indicated that he would allow the applicant the opportunity to submit any information bearing on this case.  He also informed the applicant that disenrollment from the ROTC program would result in his failure to receive a commission and the repayment of any associated benefits received as part of the program.  He also stated that he would not let cadets who demonstrated deficiencies in their character, decision making, initiative and leadership skills, become substandard officers. In response, the applicant indicated his disagreement and stated that he believed his credibility as a leader had not been damaged.     

3.  On 18 May 2005, the disenrollment notification was amended to reflect that under the provisions of Army Regulation 145-1, paragraph 3-43a (14), the commander was initiating action to disenroll him from the ROTC program based on his undesirable character as reflected by two incidents of underage drinking.  This notice indicated that the applicant had previously been provided supporting documents that were still pertinent to this amendment.  The original notice of disenrollment is not available for review.

4.  On 11 July 2005, a formal disenrollment board consisting of one board member convened, pursuant to Army Regulations 145-1 and 15-6, to hear evidence pertaining to the disenrollment of the applicant from the ROTC program.  Army Regulation 15-6 provides, in pertinent part, that if the board consists of one member, that member serves as the president and recorder. The board completed its findings and recommendations on 23 August 2005.  In attendance were the board president, board reporter, the applicant and his appointed counsel, the associate dean, the applicant's father, six witnesses for the applicant and one witness for the government. 

5.   At the beginning of the hearing, the board president advised the applicant of his right to remain silent and not testify. And that no adverse inferences would be drawn if he chose to invoke that right.

6.  In the applicant's opening statement during the hearing, he said that he did not stipulate to the allegations that he was drinking under age on two occasions.  The government must prove these allegations at this board.  The applicant refused to answer any questions regarding the drinking incidents in 2003 and 2005.  He also did not respond to questions about his head injury and whether it was related to the consumption of alcohol.  When asked if his actions on 21 and 
22 April 2005 reflected misconduct and undesirable character, he refused to answer, again, as was his right.

7.  The board found that the applicant had entered into a valid Army Senior Reserve Officers' Training Corps (ROTC) Cadet Contract (DA Form 597); did not receive advanced educational assistance in the form of ROTC scholarship monies from the United States Government; and did not voluntarily fail to complete the requirements of the ROTC Cadet Contract since he requested to continue with coursework and training.  He was placed on a leave of absence and not permitted to complete required coursework resulting in a final grade of F. He did fail to complete the requirements of the ROTC Cadet Contract because of misconduct, and no longer remained eligible for enrollment in the military training.  
8.  The board further found that the applicant's behavior that constituted misconduct included underage drinking on 17 October 2003, which is a violation of state law and of the no underage consumption of alcohol policy of Valley Forge Military Academy and College.  His violation of this policy resulted in punishment bringing discredit upon himself and the ROTC Early Commissioning Program (ECP).  The applicant served his punishment and was placed on administrative suspension from the ROTC ECP.  On the morning of 22 April 2005, the applicant was unable to attend the Battalion Field Training Exercise because he was under the observation of the health center for a head injury.  Upon examination the applicant was administered a urinalysis for suspicion of alcohol use.  The laboratory report indicated that he was above the legal limit for alcohol during the time the specimen was collected.  

9.  The board opined that the applicant's actions demonstrated an undesirable character and misconduct as indicated by his inability to exercise good judgment, that he needs much improvement on his decision making skills, and at this time is not ready to be an Army Officer.  

10.  The board recommended that the applicant should not be retained in ROTC as a nonscholarship cadet; that he should be disenrolled from ROTC under the provision of Army Regulation 145-1, paragraph 3-43a (14); that he should not be released from contractual obligations; that he should not be ordered to active duty in an enlisted status; and that he should be obligated to complete his military obligation in the Reserve component with his Simultaneous Membership Program (SMP) unit.  Paragraph 3-43a(14) lists several types of conduct that are considered to be undesirable character and notes that these acts may also be characterized as misconduct.

11.  The report of the board proceedings were determined to be complete and accurate.  The findings and recommendations of the board were approved.  

12.  On 31 August 2005, the Professor of Military Science, Valley Forge Military Academy and College, Wayne, Pennsylvania, issued a memorandum to the applicant, providing him with a complete copy of the disenrollment board findings and recommendations.  He was informed of his right to submit a rebuttal and that he had 10 days from receipt to submit it. 

13.  On 28 September 2005, the applicant submitted a thirty-one page rebuttal wherein he requested reconsideration of the decision to disenroll him from the ROTC program.  He argued that he is of good character and should be commissioned.  He identified flaws in the board process and segregates them in separate attachments titled Equal Protection, Laboratory Report, Denied Counsel, Due Process, Improper Comment on My Right to Remain Silent, Inadequate Record, Illegal Board Procedure, Recuse Cadet Command from Legal Review, Administrative Double Jeopardy, and Unlawful Command Influence. 

14.  On 11 August 2006, the Deputy Chief of Staff, G1, United States Army Cadet Command, issued a memorandum directing that the applicant be disenrolled from the ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a(14).  Disenrollment was based on his undesirable character as demonstrated by his two incidents of underage consumption of alcohol.  The memorandum further directed that the applicant be released to the United States Army Reserve unit in accordance with his SMP agreement.

15.  In the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff (DCOS), G1, United States Army Cadet Command, Fort Monroe, Virginia 23561-5000.  He addressed each of the applicant's seven arguments as follows:

a.  Argument 1: The basis for this disenrollment shifted from misconduct to undesirable character during the proceedings, thus making the findings invalid. 

The DCOS observed: The applicant was initially notified that disenrollment proceedings were being initiated to determine whether he should be disenrolled under Army Regulation 145-1, paragraph 3-43a (14), due to undesirable character as reflected by two incidents of underage drinking.  He was likewise so informed by the appointed officer prior to the hearing that these were the grounds for the disenrollment hearing.  The board found that the two incidents of underage drinking demonstrated undesirable character and misconduct.  Accordingly, it was completely appropriate and consistent for the underage drinking to be described as both undesirable character and misconduct. 

b.  Argument 2: No confirmatory test was conducted on the applicant's urine sample to determine the accuracy of the initial positive test for alcohol, as required by Enclosure 1 of Department of Defense Instruction 1010.16.  

The DCOS observed: The standards contained in the cited reference apply only to the testing of urine for illegal drugs.  Testing for alcohol does not require a confirmatory test. Furthermore, the cited standards apply only to testing conducted by or on behalf of the United States Army.  In the applicant's case, the testing was conducted by a civilian hospital.

c.  Argument 3:  No proof of undesirable character was presented during the disenrollment hearing.  Accordingly, insufficient evidence exists to support the finding of undesirable character.
  
The DCOS observed: While a large number of witnesses testified both orally and in writing that the applicant possessed good character, none of them testified that underage drinking reflected good character.  The board had the sole responsibility for determining whether the two incidents of underage drinking demonstrated undesirable character and misconduct for the purposes of commissioning potential.  The board's decision was clearly based on sound reason and common sense.  

d.  Argument 4:  Denial of effective assistance of counsel.  

The DCOS observed: Army Regulation 145-1 provides that the applicant was entitled to be assisted in the preparation of the hearing by any reasonable available military officer (not necessarily an attorney) or he may hire a civilian attorney at his own expense.  However, counsel may not represent the applicant at the hearing.  Counsel is authorized to provide advice only and may not speak on the applicant's behalf, cross-examine witnesses, or make arguments.  The military officer appointed to assist the applicant was not an attorney; therefore, he could not forge an attorney-client relationship that carried the privilege of confidentiality.  Inquiry into the possible misconduct of other cadre would have been a violation of their Fifth Amendment rights and any information about similar types of misconduct within the Cadet Command would not have been relevant to the proceedings.

e.  Argument 5:  Denial of various rights to include the right to due process, the right to remain silent, the right to a properly conducted board, the right of access to a legal sufficiency review of the board proceedings, and an opportunity to appeal the decision of Cadet Command.  

The DCOS observed: The applicant was afforded all rights granted to him by controlling law and regulation.  However, the applicant had no right to a legal sufficiency review.  The Cadet Command has the sole discretion in determining the need for a legal review.  The applicant was notified that he had the right to appeal any decision to recoup scholarship monies.  However, since he did not receive any such monies, the only right of appeal is to the Army Board for Correction of Military Records.

f.  Argument 6:  Unlawful command Influence. 

The DCOS observed:  Unlawful command influence is a term used in military law to define the unlawful meddling of a superior commanding officer in the discretion of a subordinate commanding officer over issues related to disciplinary actions under the Uniform Code of Military Justice (UCMJ).  This principle has no application to adverse administrative actions, such as cadet disenrollments.  Cadets are not subject to the UCMJ.  

g.  Argument 7:  The appointing authority was allowed to testify before the board without appearing and subjecting himself to cross-examination.  

The DCOS observed: The applicant argues that allowing the disenrollment notification to be included in the board packet, the appointing authority was allowed to testify.  This argument is without merit.  The notification was not used as evidence, but was merely a required enclosure to the packet for future verification that procedural requirements had been met.

16.  On 27 March 2007, a copy of the advisory opinion was mailed to the applicant for his information and opportunity to rebut.  

17.  On 23 April 2007, the applicant's counsel submitted his 15-page rebuttal to the advisory opinion.  He contended that the disenrollment action was initiated under Army Regulation 145-1a (11) vice (14) because subparagraph 11 was inapplicable.  Counsel also states that the advisory opinion misstates the Department of Defense policy and asserts that confirmatory tests were required for both drugs and alcohol and therefore it should not have been accepted into evidence.  Furthermore, counsel contends that there was no chain of custody to show that the urine sample actually was that of the applicant.  With regard to the establishment of the applicant's undesirable character, counsel contends that the government based its entire case on his drinking on or about 21 April 2005.  However, the government failed to meet its burden of proof.  Counsel also contends that when an officer who is not an attorney is appointed as military counsel, he becomes the lawyer for the individual he is assigned to represent.  As such, he should zealously represent his client and not let the command meddle in the applicant's preparations for the hearing.  Counsel contends that the applicant was denied due process, in part, because the same person acted as both the board president and board recorder.  One person cannot serve both of those roles since it is obvious that the board president would conclude that the board recorder had presented sufficient evidence to prove the government's case.  Due process was also denied as a result of ex-parte communications between the board president and the appointing authority. Counsel states that "unlawful command influence" is more than an offense under the UCMJ.  He contends that the essence of the offense is using a superior position to influence subordinates to take adverse action against someone who is being processed by the subordinate.  He further contends that such action could include an Article 15, a court-martial, an adverse administrative action as in this case, or a promotion issue.  Counsel states that the appointing authority should not also be a witness.  He offers that a higher authority could have appointed this board.

18.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  Paragraph 3-43a(14) states a cadet may be disenrolled for undesirable character demonstrated by cheating on examinations; stealing; unlawful possession, use, distribution, manufacture, sale (including attempts) of any controlled substances; discreditable incidents with civil or university authorities; or similar acts characterized as misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence in the record to fully consider this case, a formal hearing is not warranted.

2.  The applicant’s contentions, his counsel’s contentions, and the findings of the disenrollment board have been carefully considered.

3.  The evidence of record clearly shows that when the applicant was counseled for a second offense of underage drinking, he did not profess his innocence or deny guilt.  He simply disagreed, and stated that he did not think that this incident damaged his credibility as a leader.

4.  Counsel's contention that the disenrollment notification was amended to change the authority for the applicant's disenrollment is valid.  However, there is no evidence that what was done is in error or that it caused any injustice.  In fact, the applicant was supplied with greater rights because if his command proceeded with an action under paragraph 3-34(a) he would not have been entitled to an investigation under Army Regulation 15-6.  Furthermore, the applicant received notification of this change well in advance of his hearing and therefore, did not suffer any prejudice.  

5.  During the formal hearing, the applicant, as was his right, refused to answer any questions regarding the second incident of underage drinking, even though he elected to testify.   He simply remained silent on these issues; leaving the board to draw its own conclusions based solely on the laboratory report.  The board determined, based on a preponderance of the evidence, that the laboratory report supported the conclusion that the applicant had used alcohol.

6.  The laboratory report shows that a sample of the applicant's urine, taken on 22 April 2005, tested positive for an alcohol level of 0.027.  Although counsel contends that this report is of no value because it was not confirmed and there was no recorded chain of custody; there is no evidence of a statutory or regulatory requirement that mandates such handling of this type of evidence in this case.  The fact that the test was conducted by a private laboratory and that no confirmatory test was done only goes to the weight afforded to the test.  The Department of Defense policy cited by the applicant concerns entrant drug and alcohol testing and does not prohibit an administrative board from considering a laboratory test obtained at a hospital

7.  The applicant's board was properly constituted under Army Regulations 
145-1 and 15-6.  Since the applicant was not a scholarship cadet, his PMS properly acted as the appointing authority under regulation.  The fact that the PMS issued the applicant a developmental letter of counseling for his second incident of underage drinking did not impact or prevent him in exercising his role as the appointing authority.  Simply put, the PMS was executing his assigned duties.  The remaining complaints of the applicant were thoroughly reviewed by the staff of the board and found to lack any merit.  

8.  In view of the above, the applicant's request should be denied.    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __JAM___  __WFC _  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.





__   James E. Anderholm_______
          CHAIRPERSON




INDEX

CASE ID
AR20070001322
SUFFIX

RECON
 
DATE BOARDED
20070712 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
102.0000
2.

3.

4.

5.

6.