IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20070004211 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be reinstated into the United States Army, that he be commissioned a Second Lieutenant, and that he be paid all pay and allowances due him from 1 February 2006 to the present.

2.  The applicant states, in effect, he was unjustly terminated from Officer Candidate School at Fort Benning, Georgia, because of unproven allegation made by a female officer candidate who lived three doors down from him that he was stalking her.  The applicant adds that given he had completed all the training requirements he should be reinstated and commissioned as a Second Lieutenant.

3.  In support of his request, the applicant submits an addendum to his DD Form 149, Application for Correction of Military Record, dated 28 March 2006; a copy of a DD Form 214, Certificate of Release or Discharge from Active Duty, dated 10 February 2006; a copy of a Memorandum from the Commander, Headquarters, United States Army Infantry School, dated 7 February 2006; a copy of a DA Form 3822-R, Report of Mental Status Evaluation, dated 4 January 2006; a copy of a DD Form 2808, Report of Medical Examination, with two attachments, dated 9 January 2006; a copy of a DD Form 2807-1, Report of Medical History, dated 9 January 2006; a copy of a DD Form 2215E, Reference Audiogram, dated 13 January 2006; a copy of a DD Form 2697, Report of Medical Assessment, dated 9 January 2006; a copy of an Enlisted Record Brief, with a brief date of 24 January 2006; a copy of two DA Forms 2823, Sworn Statement, submitted by the applicant on 23 February 2006, to explain incidents that occurred on the weekend of Thanksgiving and before and after the Christmas exodus; and a copy of two DA Forms 2823 submitted by the female officer candidate whom the applicant was accused of having stalked, dated 4 and 27 November 2005, respectively.

4.  In a follow-up letter of transmittal, the applicant submitted two copies of his DD Form 214, with an effective date of his discharge of 18 January 2006, and a copy of a DA Form 71, Oath of Office – Military Personnel, with an effective date of 19 January 2006.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel made no direct request of the Board.  The letter he addressed to the Board is essentially a letter of transmittal which conveys those documents already submitted by the applicant in his request to the Board.

2.  Counsel’s letter of transmittal does include a copy of the applicant’s four-page rebuttal to the initiation of the separation action which was prepared on 25 January 2006, as well as his acknowledgement of initiation of separation action under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c; what appears to be a partial memorandum [four pages are available with no introduction and no signature page; however, the applicant attached the name of an individual named L****** to the memorandum] about the applicant’s behavior, with a nineteen page rebuttal to statements made in that memorandum; a copy of page one of a two-page sworn statement made by another officer candidate, dated 27 November 2005, with a 10-page rebuttal to this sworn statement; and a second sworn statement made by yet another officer candidate on 27 November 2005, with a three-page rebuttal to this officer candidate’s sworn statement.  [The rebuttal to the separation action shows a list of 11 enclosures; however, neither the applicant nor his counsel made these available to the Board for its review.]

CONSIDERATION OF EVIDENCE:

1.  The evidence shows that the applicant enlisted and entered active duty in the Regular Army in the rank and pay grade, Specialist, E-4, on 4 August 2005, with prior service in the Air Force Reserve.

2.  All the documents related to the applicant’s removal from his officer candidate school class and his discharge "packet" are not available in his service record for review by the Board.  The applicant provided several documents in support of his request; however, he did not provide a complete copy of all documents related to these actions.

3.  On 1 November 2005, the applicant was given a direct order by his superior commissioned officer, CPT L, to never talk to Basic Officer Candidate (BOC) PJH for the duration of their time in officer candidate school.

4.  On 4 November 2005, BOC PJH submitted a sworn statement in which
she described a series of text messages she received from the applicant on 30 September 2005; and 8, 13, and 29 October 2005 which she considered harassing and inappropriate.  She had apparently reported the applicant's advances to leadership and was asked to provide written statements for any action that might be considered necessary or appropriate.

5.  On 27 November 2005, BOC PJH submitted a second sworn statement.  In this statement, she described events that took place during the Thanksgiving holiday period [24 November through 27 November 2005] during which the applicant was still under direct orders not to speak to BOC PJH.  She wrote in her statement, "I knew about the direct order he was given not to talk to me or even look at me."  Later, in the same statement, she stated, "As soon as I saw CPT L, I reported W [the applicant] and was asked to write this statement.  I do not feel comfortable around W.  He is getting more vocal and aggressive."

6.  The evidence shows the applicant underwent a mental status evaluation on 4 January 2006.  His behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist, an Army medical corps officer, found him to be mentally responsible, considered to have the mental capacity to understand and participate in other proceedings, and to meet the retention standards of AR 40-501, Chapter 3.  The evaluating psychiatrist opined there was no mental disease or defect that warranted disposition of the applicant through medical channels; but, he added that at the present time, the service member appeared appropriate in thought and behavior.  Although, the psychiatrist opined, he did not have any apparent overt mental illness, this was not a guarantee that he would not behave in a criminal manner in the future.  It was recommended that any possible legal issues, including threats, be addressed with proper legal entities such as the CID (Criminal Investigation Command).  At the time of the applicant’s examination, he denied any intention of hurting himself or any other individual.  Based on the results of the evaluation, the applicant was cleared for any administrative proceedings deemed necessary by the command.

7.  On 9 January 2006, the applicant underwent a medical examination for the purpose of retention/separation.  The DD Form 2808 completed in conjunction with the medical examination shows he was found qualified for separation.

8.  On 9 January 2006, the applicant completed a DD Form 2807-1 in conjunction with the medical examination he underwent.  The applicant reported he was in good health but he reported in Item 11.g. he felt he had a hearing loss.  In Item 29 (Explanation to “Yes” Answers), he entered, “Have trouble with auditory discrimination at times.”  The applicant underwent a hearing test on 13 January 2006 to address his claimed hearing loss.

9.  The applicant submitted a copy of a DD Form 214, with an effective date of discharge of 18 January 2006.  The DD Form 214 shows the following selected information related to this discharge document:  Type of Separation:  Discharge; Character of Service:  Honorable; Separation Authority:  Army Regulation 635-200, Paragraph 16-1A; Narrative Reason for Separation:  Accept Commission or Warrant in the Army.

10.  The applicant submitted a copy of a DA Form 71, with an effective date of acceptance of a commission as a Second Lieutenant in the Field Artillery Branch, of 19 January 2006.

11.  On 25 January 2006, the applicant’s unit commander notified him he was initiating action to separate him from the Army prior to his normal expiration of term of service date under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for commission of the serious offenses of disobeying a superior commissioned officer and for stalking under the Official Code of Georgia.

12.  On 30 January 2006, the applicant submitted a rebuttal to the intended action to initiate separation action against him.  The applicant vehemently denied having violated Georgia law by having stalked anybody; however, he did admit that his having spoken to the officer candidate, whom he was ordered not to speak to, or to have anything to do with her, was an error in judgment on his part. He summarized that he had learned from his mistakes in judgment, but he certainly did not violate any Georgia statutes.  He requested that he not be separated from the Army and that he be permitted to prove that he could be an officer by directing him to be recycled to another officer candidate class.

13.  On 1 February 2006, the applicant completed an Election of Rights.  In this form, he stated he had been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct – Commission of a Serious Offense, under Army Regulation 635-200, Chapter 14, paragraph
14-12c, and the rights available to him and the effect of any action taken by him in waiving his rights.

14.  The applicant acknowledged he understood that because he had less than 6 years of total active and Reserve military service at the time of initiation of separation under Army Regulation 635-200, Chapter 14, paragraph 14-12c, and because he had not been notified that he was subject to a characterization of service under other than honorable conditions, he was not entitled to have his case heard by an administrative separation board.

15.  On 7 February 2006, the Commander, Headquarters, United States Infantry School, 11th Infantry Regiment, the authority empowered to approve the separation action, ordered that the applicant be separated with a general, under honorable conditions, discharge, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for the commission of a serious offense.  The separation authority recommended the applicant not be transferred to the Individual Ready Reserve.  In the lower left hand corner of the memorandum appears an entry that shows there were 8 enclosures for the commander to consider among which were the results of a legal review.  A copy of the comments which were made in the body of this legal review, and the recommendation(s) made to the commander, are not available for the Board's review.

16.  The applicant submitted a copy of a DD Form 214 showing he was discharged with a general, under honorable conditions discharge, in the rank and pay grade of Specialist, E-4, on 10 February 2006.  The authority for his discharge is Army Regulation 635-200, Chapter 14, paragraph 14-12c, for Misconduct, (Serious Offense).  The applicant refused to sign the DD Form 214 and it is so indicated in Item 21 (Signature of Member Being Separated); however, the DD Form 214 was authenticated by the Chief, QSD (acronym unknown).

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes the policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was given a direct order not to talk to another BOC for the duration of their time in officer candidate school.

2. The evidence shows the applicant, in his words, admitted to having used bad judgment by speaking to another BOC in violation of the direct order he had been given on 1 November 2005.  The other BOC submitted sworn statements to her officer candidate school chain of command in response to their requests on 4 and 27 November 2005.
3.  Based on this violation, it appears that the applicant was already under investigation for violation of the UCMJ and the Official Code of Georgia when the DD Form 214 and the DA Form 71 were prepared which were intended for his discharge from his enlisted status and his acceptance of a commission as an officer in the Field Artillery Branch.  It further appears that these documents were completed in advance and in anticipation that the applicant would complete all requirements essential for graduation from officer candidate school and essential for him to receive a commission as an Army officer.  Included in this anticipation was a belief that he would be able to establish his innocence and would be exonerated of the charges without penalty or prejudice before the date he would otherwise have been commissioned.

4.  The evidence, however, shows that even if he did complete all academic and other requirements to graduate from officer candidate school and was otherwise qualified to receive a commission as an Army officer, he was found in violation of disobeying a superior commissioned officer and for stalking under the Official Code of Georgia.  These violations were considered by command to be serious offenses and sufficient to serve as a basis for the applicant’s discharge from the Army while he was still in his enlisted status and for his commission in the Army to be withheld/voided.

5.  The applicant's statement in the rebuttal to his proposed separation from the officer candidate school class and from the Army that, "he not be separated from the Army and that he be permitted to prove that he could be an officer by directing him to be recycled to another officer candidate class" indicates that even though some administrative tasks had been completed in advance and in anticipation of his graduation from officer candidate school and being commissioned an officer of the Army, such as the pre-discharge date preparation of the DD Form 214 and the pre-commissioning signing of the DA Form 71, he was not administratively cleared by command to graduate and accept a commission.

6.  Given that the applicant had been given an order not to speak to the officer candidate he had been accused of stalking and his admission that he had used poor judgment by having spoken to the officer candidate, whom he was ordered not to speak to, the applicant incriminated himself and essentially proved the commander’s case.  Despite the applicant’s admission he had learned from his mistakes in judgment he requested that he not be separated from the Army and that he be permitted to prove that he could be an officer by directing him to be recycled to another officer candidate class.

7.  Despite the absence (non-availability) of the whole discharge "packet" for the Board's review, the evidence is clear.  Before granting approval for the applicant's discharge for misconduct for a serious offense, the "packet," to include the intended characterization, authority, and narrative reason for the applicant's discharge were reviewed by the commander's legal advisor(s) and it is further apparent the "packet" was found to have been prepared and processed in accordance and in compliance with all applicable regulations and the applicant's rights had been fully protected throughout the discharge process.

8.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement or that would support his reinstatement into the United States Army and for him to be commissioned as a Second Lieutenant and for him to be entitled to receive all pay and allowances due him from 1 February 2006.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ___x____  ____x__  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.




      ___________x____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070004211



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ABCMR Record of Proceedings (cont)                                         AR20070004211



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