RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070003887 


	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

Ms. Loretta D. Gulley

Analyst


The following members, a quorum, were present:


Mr. David K. Haasenritter 

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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, that the reason for his disenrollment from the Army ROTC program be changed and any adverse statements in his record pertaining to his disenrollment be expunged from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, the reason for his disenrollment from the ROTC program was an indifferent attitude or a lack of interest in military training.  The applicant states, in effect, that on or about 25 March 2005, he confronted the Professor of the Military Science Department at the University of Central Oklahoma about his misuse of student activity fees and the Professor of Military Science (PMS) responded by threatening him and by initiating disenrollment proceedings against him in reprisal.  The applicant finally states, in effect, that throughout the disenrollment process, he was denied the opportunity to present any evidence, to cross-examine any witnesses, or to challenge any evidence presented against him.  

3.  The applicant provides a memorandum from Forensic Services, Oklahoma City, Oklahoma, dated 2 March 2007; a copy of a notarized statement from the applicant dated 21 March 2007, a copy of an unsigned memorandum from the applicant addressed to the Professor Military Sciences, dated 24 March 2005, no subject line; an email dated 1 April 2005, subject:  Broncho Battalion; a memorandum from the University of Central Oklahoma’s Department of Military Science, dated 29 March 2005, subject:  Disenrollment of applicant from ROTC; a memorandum from the University of Central Oklahoma’s Department of Military Science dated 29 March 2005, subject:  the applicant; a copy of an unsigned, undated 13 page rebuttal to the investigating officer’s report; nine copies of DA Form 4856 (Developmental Counseling Form); a copy of the Report of Proceedings by Investigating Officer/Board of Officers (DA Form 1574); two dated and six undated character references; memorandums from the Department of the Army, Army ROTC Battalion; and copies of Disenrollment from the Reserve Officer’s Training Corps (ROTC) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enrolled in the ROTC Program, effective 18 August 2003, and agreed to enlist in the U.S. Army Reserve (USAR) as a cadet for assignment to the USAR Control Group (ROTC) in order to become a member of the Army ROTC Nonscholarship Program.  In consideration of the agreement to the terms of the ROTC nonscholarship contract the Department of the Army agreed to pay a subsistence allowance for participation in the nonscholarship program for 10 months of any academic year at the rate of $350.00 for MS III cadets; $400.00 for MS IV cadets; and $400.00 for MS V cadets, for no more than 30 months.

2.  On 4 August 2004, the applicant was accessed into the Army National Guard’s Simultaneous Membership Program.

3.  The DA Form 4856 dated 15 September 2004, shows that the applicant was counseled for failing the Army Physical Fitness Test (APFT) during Warrior 
Forge 2004.  He was counseled for failing to meet the minimum Army standards for the record APFT.  He was placed on remedial Physical Training (PT) from 0600 to 0700 hours on Tuesday and Thursday until October when he would be retested.  The applicant concurred with the counseling.

4.  The DA Form 4856 dated 29 September 2004, shows that the applicant was counseled for inadequate APFT preparation in which he failed to achieve the minimum battalion standards, which was 80 points for each of the three events.  The applicant was again placed on remedial PT until he could meet the standards.  He was also told that PT would meet from 0600 to 0700 hours on Tuesday and Thursday.  The applicant concurred with the counseling.

5.  The DA Form 4856 dated 1 November 2004, shows that the applicant was again counseled for inadequate APFT preparation on 27 October 2004, in which he failed to achieve the minimum battalion standards, which was 80 points for each of the three events.  The applicant was placed on remedial PT until he could meet the standards.  He was also told that PT would meet from 0600 to 0700hrs on Tuesday and Thursday.  The applicant concurred with the counseling.

6.  The DA Form 4856 dated 12 November 2004, shows the applicant was counseled for being disrespectful towards a commissioned officer and for poor decision making skills by sending the professor an email stating that he was not going to show up for his Laboratories (LAB), PT and remedial PT.  The applicant nonconcurred with the counseling.

7.  On 10 January 2005, the Department of the Army, University of Central Oklahoma, Western Region, US Army ROTC Cadet Command, Commander informed the applicant that he was being placed on academic probation in accordance with Army Regulation 145-1 and that the probation would terminate on 15 May 2005.  The applicant concurred with the counseling.

8.  The DA Form 4856 dated 31 January 2005, shows that the applicant received his initial Warrior Forge 2005 and Spring Forge 2005 counseling regarding his additional duties and his academic standing.  The applicant concurred with the counseling.

9.  The DA Form 4856 dated 21 February 2005, shows that the applicant was counseled for failure to show up for PT for almost 2 months.  The applicant was advised of the days and time for remedial PT and the possible consequences of nonattendance.  The applicant nonconcurred with the counseling.

10.  The DA Form 4856 dated 21 February 2005, shows that the applicant was counseled for failure to turn in his Officer Evaluation Brief (OER) Support Form.  The applicant nonconcurred with the counseling.

11.  The DA Form 4856 dated 11 March 2005, shows that the applicant was counseled for failure attend PT for almost 2 months and for attending one LAB (Laboratory) since school started.  The applicant concurred with the counseling.  

12.  The DA Form 4856 dated 25 March 2005, shows that the applicant was counseled and informed that he would be disenrolled from the Army ROTC program due to an indifferent attitude and lack of interest in military training evidenced by his lack of participation in PT and Lab attendance.  The applicant nonconcurred with the counseling form and informed the Commander that he would be filing a complaint against him regarding the misappropriation of student fees.  

13.  On 29 March 2005, the Professor of Military Science (PMS), U.S. Army ROTC Instructor Group, Senior Division informed the applicant that he was initiating disenrollment of the applicant from the ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a(15), due to his indifferent attitude or lack of interest in military training as evidenced by his failure of the APFT at the LDAC and subsequent failure to attend physical fitness training or remedial physical fitness training as required by the PMS.  The PMS informed him of his rights.    

14.  On 1 June 2005, a formal board convened.  The board proceedings are available in the record.  The Board approved the findings and recommendations of the investigating officer. 

15.  The applicant submitted an undated 13 page rebuttal to the investigating officer’s report.  

16.  On 15 December 2005, the Cadet Command at Fort Monroe, Virginia notified the applicant that he was disenrolled from the Army ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a (15) and released to his ARNG unit in accordance with his ROTC contract.  Disenrollment was based on his indifferent attitude and lack of interest in military training as evidenced by his failure to attend military science classes, Labs, physical fitness training, and failure to complete all class requirements.  

17.  In the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff, G1, USACC, Fort Monroe, Virginia, dated 25 July 2007.  This advisory opinion included copies of the Command Judge Advocate’s Advisory opinion, subject: Disenrollment Board Proceedings, Headquarters, Headquarters, USACC, Fort Monroe, Virginia, USACC, Fort Monroe, Virginia, Disenrollment Proceedings, and memorandum.  

18.  The advisory opinion recommends that the applicant’s request to change the reason for his disenrollment be denied.  The advisory opinion states that the applicant was recommended for disenrollment due to a breach of contract due to his indifferent attitude and lack of interest in military training and that he was released back to his ARNG unit after being disenrolled form the ROTC program.  The advisory opinion states that the applicant’s decision to breach the terms of his ROTC contract was a voluntary action.  The evidence shows that the applicant showed an indifferent attitude and lack of interest in the program by missing 18 regular PT sessions, as required as part of the MS 401 curriculum, more than any other cadet.  He was dismissed from LDAC for APFT failure and not attending his Labs.  The applicant was formally disenrolled on 15 December 2005.  

19.  The advisory opinion continues that in the processing of the applicant’s disenrollment, he was afforded all of his due process rights, including notice and a hearing before a board of officers at which he had a right to examine evidence, question witnesses, call witnesses, and present evidence on his own behalf.  After the hearing was complete, the applicant was sent a complete copy of the record for his review, comment, and rebuttal.  The applicant filed a voluminous response which was considered before making a final decision in his case.  The advisory opinion states that there was substantial evidence that he was processed for disenrollment for the reasons stated and there is no evidence that the proceedings were based on retaliation or reprisal.  The advisory opinion also states that the applicant alleges that the PMS was misusing university funds.  He reported his allegations to university officials who found them unsubstantiated.  

20.  The applicant submitted a sworn statement in support of his application that was notarized on 31 March 2007.

21.  The applicant submitted a memorandum from the Forensic Services, dated 
2 March 2007, regarding a polygraph examination he was administered at his request regarding the sworn statement notarized 21 March 2007.

22.  On 13 August 2007, the applicant responded by stating he only received a copy of the one-page cover letter submitted by the Cadet Command, so he was unable to comment on the substance of any material that was submitted to the Board as enclosures.  The applicant stated that although he understood there was always a presumption of administrative regularity, he believes a grave injustice was committed when the depth of an investigation involved nothing more than a cursory examination of the paperwork submitted though the chain of command.  He stated that there were numerous inconsistencies and that he did not expect the board to rule in his favor he just asked that the original attendance records be produced for examination because he believes they were “filled” after the fact.

23.  On 3 December the applicant was furnished a copy of the staff advisory opinion for his information and possible rebuttal to the consideration of his case.  The applicant did not respond within the timeframe provided.  On 8 January 2008, the applicant e-mailed a response to the advisory opinion to the ABCMR.  Even though the applicant submitted these matters outside of the timeframe provided, they were nevertheless considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason for his disenrollment from ROTC be changed and any adverse statements be removed from his official records.  His claim that the Army dismissed him as reprisal for accusing the PMS of misuse of funds is noted.  However, the applicant provided insufficient proof regarding these claims and failed to show proof that these claims were substantiated.  

2.  The applicant also contends that he was not allowed to present his case, cross-examine witnesses and to challenge the evidence presented against him.  Evidence shows the applicant was present at his Board and he was afforded the opportunity to present evidence and call witnesses.  Further, he was presented a copy of all unclassified documents, and given an opportunity to make a final statement or argument in this case.  

3.  Evidence shows that the applicant was dismissed from the ROTC program for an indifferent attitude or a lack of interest in military training which is evidenced by his missing 18 regular PT sessions, not attending his Labs as required as part of the MS 401 curriculum, and failing his APFT.  Therefore, he is not entitled to have the reason for his disenrollment from the ROTC program changed or to have any adverse statements removed from is official records.

4.  The ABCMR noted the polygraph submission submitted by the applicant to support his contentions.  The ABCMR gives no weight to polygraph examinations, as the reliability of the test has not been proven to any degree of scientific creditability.  The Board confined its decision to the other statements and evidence of record.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___DKH__  __JRH _  __ EM____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




___David K. Haasenritter ____
          CHAIRPERSON




INDEX

CASE ID
AR20070003887
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080125
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
126.0400
2.

3.

4.

5.

6.