RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070012888 


	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.  




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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's issues are provided in counsel's arguments below. 

2.  The applicant defers to his counsel's written brief. 

3.  The applicant provides his counsel's brief and all associated documents.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests:

	a.  a finding that the Army's decision that applicant violated Article 133 of the Uniform Code of Military Justice (UCMJ) was erroneous and unjust;

	b.  a finding that the Army violated the applicant's right to due process of law;

	c.  a finding that the applicant's elimination from the Army was erroneous and unjust and that he be reinstated in the Army at the rank of captain (CPT), with all back pay allowances, and benefits to which he is entitled; 

	d.  voiding the General Officer Memorandum of Reprimand (GOMOR) or, in the alternative, transferring the GOMOR to the restricted portion of the applicant's  Official Military Personnel File (OMPF); and

	e.  voiding the applicant's referred Officer Evaluation Report (OER).

2.  Counsel provides lengthy arguments based on two central issues; right to due process of the law and failure to state an offense.  Counsel's arguments are summarized below: 

	a.  the applicant was subjected to an unlawful and factually flawed investigation based on allegations that he engaged in an adulterous relationship. The investigation resulted in a finding that the applicant engaged in improper relationships with female family members of two of his former trainees;

	b.  the investigation was farcical; in fact, no real investigation took place, and the investigating officer (IO – the executive officer, a lieutenant colonel (LTC)) relied on the applicant's sworn statement alone.  The IO did not interview any witnesses other than the applicant; he did not interview the Soldiers of the female family members with whom the applicant allegedly had improper relations; he did not interview the women themselves, even though the applicant's wife contacted one of the women to confirm that no sexual relations occurred; and he did not interview any of the applicant's colleagues to determine their own understanding and perception of the circumstances;  

	c.  the IO failed to inform the applicant of the full grounds for the adverse actions so that the applicant could effectively respond to them, as was his lawful right under the applicable regulations and the U.S. Constitution.  The IO only provided new facts and issues in support of conclusions to the separation authority at the same time the applicant was being discharged;  

	d.  under Army regulations, an "informal investigation," also known as a "Commander's Inquiry," is governed by Army Regulation 15-6, and no other regulation authorizes investigations of the sort that allegedly occurred here.  Therefore, as a matter of law, one must presume that the informal investigation was made pursuant to Army Regulation 15-6 or was guided by those provisions, since the Army does not adhere to "frontier justice."  The GOMOR and OER referred to "[the IO's] informal investigation," indicating that the decision-making officials had access to information in addition to the applicant's sworn statement. This means the applicant had no opportunity to review that information allegedly in the IO's informal investigation and his right to due process was violated because he had a right to review relevant evidence;

	e.  the GOMOR and referred OER were based on the IO's alleged investigation but since no "true" investigation took place, there was no Report of Investigation to which the applicant could respond;  

	f.  the applicant did not violate Article 133 of the UCMJ.  The GOMOR states the applicant engaged in "conduct unbecoming an officer in the U.S. Army, in violation of Article 133 of the UCMJ."  However, Article 133 does not define "conduct unbecoming" and provides no guidance as to what conduct may violate this article.  The task of clarifying what conduct is "unbecoming" has been left largely to the courts to decide.  The Soldiers who were related to the 2 women in question were not in the applicant's unit or chain-of-command since they had departed to permanent duty stations.  The applicant did not engage in sexual activity with either of the women involved.  One relationship consisted only of a few phone calls and 2 non-sexual, consensual meetings at a hotel.  The other relationship consisted of no more than electronic mails (e-mails) of a non-sexual nature;  

	g.  in order to establish a violation of Article 133, it must be shown that the applicant was given notice that his conduct was unbecoming.  There is no regulation prohibiting male officers from interacting with the female family members of other Soldiers.  Such interaction is commonplace.  There are no regulations prohibiting officers from visiting female family members at private hotels or from communicating with the mother of a former trainee via e-mail  Nor is there a regulation prohibiting married officers from interacting with civilian family members of Soldiers in an intimate manner short of sexual activity.  There is simply nothing in any Army regulation or custom that put the applicant on notice that his conduct was unbecoming that of an Army officer;  

	h.  the applicant's command never told him that he was prohibited from developing non-sexual relationships with female relatives of his former trainees.  Indeed, leaders were encouraged by their commanders and training to support their Soldiers by involving the Soldiers' parents and siblings in military life;  

	i.  the Board might argue that since the applicant was not court-martialed, the elements of Article 133 did not need to be proven because the applicant was administratively discharged and there was no burden to prove the elements of the offense.  However, this contention would be illogical.  Since the GOMOR stated that the applicant violated Article 133, it was used as a basis to eliminate the applicant;  

	j.  the applicant admitted to using the Government vehicle for personal business; however, that infraction does not rise to the level of punishment the applicant received;  

	k.  the referred OER was erroneous and unjust; and he was denied a request for a Commander's Inquiry into the referred OER.  His rater described his actions as "immoral and illegal."  However, the applicant's conduct did not violate any law, regulation, or Army custom, and this statement was based on personal bias and a misunderstanding of the applicable law.  The applicant's conduct was not immoral; it reflected poor judgment.  It is not immoral to have non-sexual relationships with the family members of former trainees.  It is not immoral to feel emotionally or physically drawn to a woman who happens to be the sister of a former trainee.  It is not immoral to share affections with a woman who is not your spouse;  

	l.  the Army presently is waiving into the service recruits with serious criminal convictions.  The applicant has been punished sufficiently and would like nothing more than to return to the Army.  

3.  Counsel cited cases decided by the courts in support of his arguments on behalf of the applicant.
4.  Counsel provides a copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty); copies of the GOMOR and all associated appeal documents; a copy of the referred OER and all associated appeal documents; a copy of the applicant's elimination packet; copies of the applicant's civilian performance reviews; and copies of cases decided before the Court of Military Review that are relevant to the applicant's case.

CONSIDERATION OF EVIDENCE:

1.  After prior enlisted service, the applicant was appointed as a second lieutenant in the Regular Army on 23 September 1998.  He was promoted to CPT on 31 March 2002.

2.  The applicant was serving at Fort Knox, Kentucky as commander of an M1A1 tank company (Company B, 2nd Battalion, 81st Armor Regiment) with the mission of training Initial Entry Soldiers and awarding the military occupational specialty 19K (Armor Crewman) when the incidents in question transpired.  Apparently, the applicant initially approached his battalion executive officer (XO) and battalion commander and made an oral, voluntary report of his involvement in an improper relationship.  The applicant's self-report appears to have been based on his wife's discovery of the incident.  

3.  After the applicant's initial oral report of the incident, on 7 January 2004, he rendered a sworn statement (DA Form 2823) after being properly notified that he did not have to answer any questions or say anything; that anything he said or did could be used as evidence against him in a criminal trial; that he had the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with him during questioning; and that if he were willing to discuss the offense(s) under investigation, with or without a lawyer present, he had the right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if he signed the waiver.  The applicant voluntarily signed the waiver indicating that he understood his rights and that he was willing to discuss the offense(s) under investigation and make a statement without talking to a lawyer first and without having a lawyer present with him.  

4.  The applicant's sworn statement, in pertinent part, states:

"I had an improper friendship with the sister of an IET Soldier.  The improper relationship started the end of my former cycle in November 2004.  I had met this sister at the graduation dinner and then at the graduation the following day.  I had given the Soldier my e-mail and number and said that if he needed anything to give me a call.  I had made an off-handed comment that his sister was attractive and then walked the sister and her mother out to their POV [privately owned vehicle].  Approximately on the following Monday, I received the first phone call from her and an e-mail.  I then spoke with her either every day or every other in the beginning as just friends.  After a period of time, she wanted to meet me in person and I agreed to meet her over a Friday and Saturday.  She drove down from Ohio and stayed at the Gold Vault Inn in Radcliffe.  I met her on that Friday for approximately 3 hours at her room.  During the visit, at no time did I remove any items of clothing and neither did she.  On the Saturday, I had met her in the afternoon about 11 and left at about 1:30 in the afternoon.  On this meeting, I did not remove any items of clothing from her but I did take a t-shirt off which I was wearing for approximately 15-20 minutes and laid on the bed and watched TV with her before I left the prior evening.  I did drive my Company GSA van to the hotel when I met her and also to stop by Wal-Mart to shop for a bike for my oldest son R___ for Christmas.  The Soldier's sister left Sunday morning.  I continued to speak with her until I was questioned and caught by my wife A____.  After speaking with her and admitting that this had occurred, I was given a no-contact on by both MAJ G_____ and LTC Z______, which I have obeyed.  Prior to speaking with LTC Z_____, my wife and I spoke with MAJ D_____ as a mediator so she could get the information she wanted and to also begin the process of working out the issues in our relationship.  MAJ D_____ spoke with me and let me know that LTC Z____ overheard the conversation in which he was discussing my situation with legal counsel.  I immediately requested to speak with LTC Z____ in an effort to be upfront and accept responsibility for my actions.  I told him what had occurred, told him that my spouse and I both spoke with my bishop, F___ A____ in an effort to repair our marriage.  I have agreed to upon his, LTC Z____ and my wife to go to marriage and individual counseling in an effort to prevent a divorce and to have a better relationship with my wife.  I also had a correspondence with a Soldier's mother.  This originated just from e-mail asking questions about family day and graduation.  I corresponded with this mother by e-mail for approximately 3 weeks about every 3-4 days.  I spoke with her in total approximately 10 times.  I have never carried this to the point where it was [like] the previous incident with the Soldier's sister.  At no time did I have any sexual relationship, oral sex, improper touching of private parts with either one of these individuals.  Since these incidents came to light I have emplaced systems to prevent any other instances of this type of behavior.  I have also had to begin the painful process of repentance through my church in an effort to regain my standing as a member of good faith both with the LDS [The Church of Jesus Christ of Latter-Day Saints] Church and with my wife.  I have admitting my wrongdoing in an effort to quell rumors which are circulating in the battalion to set the record straight and to place the truth to those in my chain of command and to my spouse.  I do this freely in an effort to save my marriage and livelihood.  I am taking all measures and will continue to do so to prevent this from happening again…I regret the discredit that this has brought to the battalion and the brigade."  

5.  On 17 January 2005, the applicant paid for an independent polygraph test.  The report, dated 26 January 2005, shows, that in the opinion of the examiner, no deception was indicated to the relevant questions on the examination.  (Relevant questions:  Did you lie in your signed statement?  Did you put any false information in your signed statement?)

6.  On 21 January 2005, the applicant was given a General Officer Memorandum of Reprimand (GOMOR).  It read, in pertinent part:

"…based upon your own statements and an informal investigation conducted by LTC Z___, I reprimand you for violating 31 U.S. Code Section 1344 and engaging in conduct unbecoming an officer in the U.S. Army, in violation of Article 133 of the UCMJ.  Despite being married, you developed an inappropriate relationship with your former trainee's sister and even visited her at a local motel on 2 occasions.  On one occasion you drove a government owned vehicle to meet your former trainee's sister at the motel.  In addition, you drove the GOV to Wal-Mart for personal business.  You also maintained an inappropriate relationship with another trainee's mother.  Your actions have adversely impacted good order and discipline, while undermining our Army's ability to developing the Army Values in our new recruits." 

He advised the applicant that he intended to file the memorandum permanently in the performance portion of his Official Military Personnel File (OMPF) and that he would consider all matters the applicant submitted before making his final decision.

7.  The applicant submitted a response to the GOMOR, which is undated.  He apologized for any discredit he may have brought the installation and the U.S. Army.  He indicated that he chose to come forward and be honest with his chain of command to diffuse many rumors and innuendos which were floating around the battalion and brigade about what had occurred.  He also wanted his wife to know that although his behavior was inappropriate, it did not rise to the level of adultery.  An independent polygraph examination he took on 17 January 2005 proved that the relationships did not culminate in sexual acts.  He admitted to the misuse of the GOV on 1 occasion.  He requested that the GOMOR be filed locally based on the length and quality of his overall service, and on the effect it would have on his family.

8.  The applicant's battalion commander recommended that the GOMOR be filed in the performance portion of his OMPF because the applicant "displayed a pattern of immoral and illegal behavior, not a single isolated incident.  Additionally, he purposely deceived me the first time he talked to me with the intent to cover up his improper actions and lessen the apparent severity of the actions."  The brigade commander concurred with the battalion commander's recommendation.

9.  On 24 January 2005, the applicant's brigade commander made a request to the Commanding General (CG), Fort Knox to relieve the applicant from his command of B Company, 2nd Battalion, 81st Armor Regiment.  He made this request based upon the applicant's sworn statement, the results of the informal investigation, and because he had lost confidence in the applicant's ability to serve as a company commander. 

10.  On 25 January 2005, the CG approved the applicant's relief of command.  

11.  On 7 February 2005, the CG initiated elimination action against the applicant and notified him to show cause for his retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b(5) and (8) because of misconduct, moral or professional dereliction.  The CG indicated that he was initiating elimination action based on the applicant's personal misconduct, constituting conduct unbecoming an officer, as substantiated by his own statement and an informal investigation conducted by LTC Z____ and; misuse of a GOV as substantiated by the applicant's own sworn statement and an informal investigation by LTC Z___.

12.  The applicant was advised that he could submit his resignation in lieu of elimination; request discharge in lieu of elimination; apply for retirement in lieu of elimination if otherwise eligible; or in lieu of resignation, discharge, or retirement, submit a rebuttal or a declination statement and request appearance before a Board of Inquiry.  

13.  On 11 February 2005, the CG directed that the GOMOR, with endorsements, be placed permanently in the performance portion of the applicant's OMPF and that a copy also be filed in his local unit file as long as the reprimand remained filed in the performance portion of the OMPF.

14.  On 13 February 2005, the applicant's Senior Defense Counsel responded to the CG's proposed elimination action.  He requested that the CG recall the applicant's elimination proceedings.  Counsel argued that the GOMOR and an adverse OER were sufficient to impact the applicant's future career assignments and potential for promotion.  He also argued that while the applicant did not live up to the Army Values in his previous errors, he exhibited personal courage and integrity by choosing the difficult path by confessing to his wife when she inquired about the misconduct; by involving his chain-of-command and readily confessing in a written statement; and taking a polygraph he paid for in an attempt to bolster his truthfulness.  He also opined that the applicant's misconduct was not of the same caliber as those Soldiers and officers who receive a DUI (driving under the influence of alcohol) or who defraud the Army by receiving temporary duty funds and by not paying their government credit cards.  He requested a Board of Inquiry for the applicant if the CG did not reconsider his proposed elimination action.

15.  On 4 March 2005, the CG, after thoroughly reviewing the applicant's request for reconsideration of his elimination, disapproved his request and directed a Board of Inquiry.

16.  On 18 March 2005, the applicant voluntarily waived his right to appear before a board of officers and requested discharge under the provisions of Army Regulation 600-8-24, chapter 4, in lieu of further elimination proceedings.  He acknowledged that he understood that if his request was accepted, he would be furnished with either an honorable or general under honorable conditions discharge.  The applicant submitted a separate statement requesting an honorable discharge based on his overall length and quality of service.

17.  On 29 March 2005, the applicant's battalion and brigade commanders recommended approval of his request for discharge in lieu of elimination proceedings with an honorable discharge.

18.  On 30 March 2005, the CG recommended approval of the applicant's resignation request with an honorable discharge.

19.  The applicant received a Relief for Cause OER for the period 14 December 2004 through 8 October 2005.  In Part IVa (Army Values), the rater marked "NO" for honor, integrity, courage, and duty.  In Part IVb (Leader Attributes/Skills/Actions), the rater marked "NO" for demonstrates sound judgment; displays self-control; and employs sound decision-making and logical reasoning.  In his remarks, the rater indicated the applicant severely lacked integrity, good judgment, and moral values; that as a married man, he had 2 improper relationships with female family members of the trainees; he wrongfully used a GOV vehicle, to rendezvous at a local hotel; that he intentionally deceived the rater by omitting most of the facts the first time he talked to him about his immoral and illegal actions; and that he attempted to preempt further investigation in a calculated manner by benignly describing only one of the relationships.  To his credit, the rater indicated that the applicant admitted the whole truth later when he asked him for a written statement and the applicant did regret his actions.  The rater further indicated that he had lost confidence in the applicant's ability to lead Soldiers and did not recommend him for promotion.

20.  The Senior rater concurred with the rater and recommended that the applicant not be retained in the Army.  

21.  On 3 May 2005, the applicant requested a Commander's Inquiry for his OER for the period covering 20041214 through 20050108.  The applicant contended that the OER contained inaccurate and highly unjust comments from both the rater and senior rater:

	a.  The rater alluded to a hotel and that the applicant's "improper relationships" were adulterous.  However, the relationships were not sexual, as confirmed by an independent polygraph.

	b.  The relationships were "benign" and although the applicant used the term "improper relationships" in his sworn statement to describe them, it was only because he had fraternized with females who were not his wife.

	c.  The only reason his chain-of-command learned of the incident was that his wife, who was naturally suspicious and upset, wanted to talk the issue over with the battalion executive officer (XO) in what he was advised was a "privileged conversation."  The XO then informed the battalion commander.

	d.  The IO (the battalion commander) accused him of deception by omission.  However, the IO failed to advise the applicant of what he said was untruthful.  

	e.  He had Article 31, UCMJ, rights against self-incrimination.

	f.  He was accused of attempting to preempt further investigation; however, there was no investigation.

	g.  He did misuse a GOV on one occasion.

	h.  The senior rater did not conduct his own investigation and relied on what the battalion commander told him.

	i.  He readily admitted to his mistake, but that did not mean he "severely lacked integrity, good judgment, and moral values."  His errors did not rise to that level.

	j.  He showed integrity at every level, including admitting to his wife immediately where he was.  He demonstrated courage by taking immediate responsibility and voluntarily bringing the issue to the attention of his command.

22.  On 17 May 2005, the battalion commander responded to the applicant's referred OER.  He stated that the rater and senior rater comments on the OER were accurate and correct.  The applicant was a married man.  Though the battalion commander had heard rumors about 3 relationships with women, he only commented on 2 because he was not convinced of the 3rd relationship by his inquiries.  The applicant's sworn statement clearly established 2 relationships. The rater considered the relationships improper; even the applicant called them improper in his sworn statement.  The applicant's wife considered the relationships improper, perhaps worse judging by her tone of voice and manner of speech.  "Improper" was a fair and accurate characterization of the relationships because:  The applicant was a married man; he met the sister at a graduation dinner; he met the sister again at graduation; after graduation, he walked the sister to her car; he gave the Soldier his e-mail address and phone number and told the Soldier his sister was attractive; he talked to the sister or e-mailed her every day or every other day; he agreed to meet her over a weekend; the sister drove from Ohio and stayed at a hotel for the purpose of fostering a relationship with the applicant; he was in her room at the hotel on 2 occasions; he laid on the bed, and according to his statement, either fell asleep or watched TV; removed his shirt; and continued to talk to the sister after the weekend until he admitted in his sworn statement, "[He] was questioned and caught by his wife."

23.  The battalion commander also indicated the applicant wrongfully used a GOV to take to the hotel and to Wal-Mart.  The applicant advised the battalion commander about a single improper relationship within 24 hours of his assuming battalion command.  The XO wanted to give him a "heads up" because he knew the commander was busy.  However, the applicant insisted on walking into the battalion commander's office and did so, against the XO's advice.  The battalion commander believed the applicant knew he was busy and took advantage of the opportunity to just give him enough information so that when the commander heard about the applicant's relationships, he could dismiss the information as already investigated and primarily rumor.  The battalion commander also indicated that he was unsure of the whole truth, but he was convinced that the applicant was severely lacking in judgment, character, integrity, and moral standards, and that he regretted being caught, being relieved of command, and the many rumors which resulted in the unit.

24.  The applicant responded to the battalion commander's (rater) written statements as follows:

	a.  He met every family member of every Soldier present at the graduation dinner and at graduation, not just the sister of the Soldier with whom he had the improper relationship.  He did not make a point of meeting the sister again at graduation, or as the rater suggested, "stalk" her.

	b.  He only walked past her car to the orderly room after graduation.

	c.  He gave his e-mail address to every Soldier in his company, not just the Soldier of the sister.  He did make the remark that the Soldier's sister was attractive.

	d.  He did not initiate the first telephone call, he only returned the call.  His mistake was communicating with her beyond the first call.  

	e.  He did agree to meet with her over the weekend, but he did not intend to engage in sexual activity nor develop a long-term relationship.

	f.  He could not speak for the woman and what her intentions were.

	g.  It was grossly misleading to state that he was in the sister's room at the hotel on Friday and Saturday.  He was only there once on Friday and once on Saturday, for a total of 5.5 hours.

	h.  He did lay on the bed and he did remove his shirt.

	i.  His wife did find the woman's phone number on his office phone.

	j.  He did use the GOV for minor personal business on 2 occasions.  He did not know such actions might amount to "theft of services."

	k.  The battalion XO strongly encouraged him to speak to the battalion commander.  He did not insist on walking into the battalion commander's office against the XO's advice.  He was completely honest with the battalion commander.

	l.  The battalion commander's statements were opinion and speculation.  It reflected his personal dislike of the applicant and his strong desire to see him removed from the Army.

25.  On 31 May 2005, the Deputy Assistant Secretary (DASA), Army Review Boards Agency, indicated that the Department of the Army Ad Hoc Review Board had reviewed the applicant's request for resignation in lieu of elimination. The DASA accepted the applicant's resignation and directed that he be separated with an honorable discharge.

26  On 6 June 2005, Human Resources Command (HRC), Alexandria, notified the CG, Fort Knox, that the DASA, Army Review Boards Agency had approved the applicant's resignation in lieu of elimination and had directed an honorable discharge under the provisions of Army Regulation 600-8-24, chapter 4-2b, for misconduct, moral, or professional dereliction (conduct unbecoming an officer).

27.  On 23 June 2005, the applicant was honorably discharged.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 600-8-24, paragraphs 4-2b and 4-24a(1), for unacceptable conduct.

28.  On 8 May 2007, the applicant's counsel submitted an appeal package to the Department of the Army Suitability Evaluation Board (DASEB) on the applicant's behalf requesting transfer of the GOMOR to the restricted portion, or its removal from the applicant's OMPF.

29.  On 26 July 2007, the DASEB returned his appeal without action because he was no longer eligible to submit documents to the DASEB for consideration after discharge.

30.  On 31 August 2007, the applicant's wife provided a written declaration.  She stated that around 22 December 2004, she was contacted by "an informant" who told her that he had overheard COL G____ say to his assistant, "We have a problem with a CPT in 2/81."  The informant told her the CPT was her husband and that he was facing allegations of sexual misconduct.  She corroborated the applicant's version of events, and indicated that she called the woman involved with her husband to verify that they had not engaged in any sexual misconduct.  The applicant's wife called COL G____ and begged him not to proceed with an investigation, but the COL told her that a major/0-4 officer would conduct the investigation.  She also states that she spoke to the IO and inquired whether there would be an investigation, and the IO informed her that there was an on-going commander's inquiry into the allegations. 

31.  Army Regulation 600-8-24 sets forth the basic authority for officer transfers and discharges.  Chapter 4 outlines the policy and procedure for the eliminating officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and the interest of national security.  

32.  Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Paragraph 1-5, in pertinent part, stipulates that an administrative fact-finding procedure may be designated an investigation or a board of officers.  The proceedings may be informal or formal.  Proceedings that involve a single investigating officer using informal procedures are designated investigations.  In an informal investigation or board, the report will be written, unless the appointing authority has authorized an oral report.  

33.  Paragraph 1-9 of Army Regulation 15-6 stipulates that there is no requirement that an investigation be conducted before adverse administrative action, such as relief for cause, can be taken against an individual.  However, if an investigation is conducted using the procedures of Army Regulation 15-6, the information obtained, including findings and recommendations, may be used in any administrative action against an individual, whether or not that individual was designated a respondent, and whether formal or informal procedures were used. There is no requirement to refer the investigation to the Soldier who is its subject if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards.  

34.  Chapter 3 of Army Regulation 15-6 covers the rules of evidence and proof of facts for investigations.  Proceedings under Army Regulation 15-6 are administrative, not judicial.  Therefore, an IO or board of officers is not bound by the rules of evidence for trials by courts-martial or for court proceedings generally.  Accordingly, anything that in the mind of reasonable persons is relevant and material to an issue may be accepted as evidence, except as noted in paragraph 35 below.  All evidence will be given such weight as circumstances warrant.  

35.  Administrative proceedings governed by Army Regulation 15-6 generally are not subject to exclusionary or other evidentiary rules precluding the use of evidence.  However, the following limitations do apply:  (1) privileged communications; (2) polygraph tests (no evidence of the results, taking, or refusal of a polygraph test will be considered without the consent of the person involved in such tests); (3) "off the record" statements are to be used only as help to finding additional evidence; and (4) statements regarding disease or injury.  No military witnesses or military respondents will be compelled to incriminate themselves, to answer any question the answer to which could incriminate them, or to make a statement or produce evidence that is not material to the issue and that might tend to degrade them.  A person refusing to provide information must state specifically that the refusal is based on the protection afforded by the UCMJ, Article 31, or the Fifth Amendment.  The IO or board will, after consultation with the legal advisor or, if none has been appointed, the servicing Staff Judge Advocate, unless impractical to do so, decide whether the reason for refusal is well taken.  If it is not, the witness may be ordered to answer. 

36.  Whenever it appears appropriate and advisable, an IO or board will explain their rights to witnesses and respondents.  A Soldier, for example, who is suspected of an offense under the UCMJ, will be advised of his or her rights under the UCMJ, Article 31, before being asked any questions concerning the suspected offense.  The Soldier will be given a reasonable amount of time to consult an attorney, if requested, before answering any such questions.  No adverse inference will be drawn against Soldiers who invoke their rights under UCMJ, Article 31.  It is recommended that the procedure for explaining rights set forth on DA Form 3881 (Rights Warning Procedure/Waiver Certificate) be used.  

37.  Chapter 4 of Army Regulation 15-6 states, in relevant part, that an informal investigation or board may use whatever method it finds most efficient and effective for acquiring information.  Informal procedures are not intended to provide a hearing for persons who may have an interest in the subject of the investigation or board.  No respondents will be designated and no one is entitled to the rights of a respondent.  The IO or board may still make any relevant findings or recommendations, including those adverse to an individual.   

38.  Article 133 of the UCMJ is the statute for conduct unbecoming an officer and gentleman, found at 10 U.S. Code 933.  The text of the statute reads:  "Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."  The elements of Article 133 are:  (1)  the accused did or omitted to do certain acts; and (2) under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.  

39.  The nature of the offense of conduct unbecoming an officer and gentleman is the Manual for Courts-Martial is described as follows:  Conduct violative of this article or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer's character as a gentleman, or action or behavior in an unofficial or private capacity, which in dishonoring or disgracing the officer personally, seriously compromises the person's standing as an officer.  There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty.  Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person's standing as an officer, cadet, or midshipman or the person's character as a gentleman.  

40.  Examples of offenses under Article 133 are:  Knowingly making a false official statement; dishonorable failure to pay just debt; cheating on an exam; opening and reading a letter of another without authority; using insulting or defamatory language to another officer in that officer's presence or about that officer to other military persons; being drunk and disorderly in a public place; public association with known prostitutes; committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support the officer's family.

41.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army's Evaluation Rreport Systems.  These include reporting systems for officers and noncommissioned officers and academic performance and potential.  
42.  Paragraph 3-20 of Army Regulation 623-3 states, in pertinent part, that each report will be an independent evaluation of the rated Soldier for a specific rating period. It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation. 
43.  Paragraph 3-21 of Army Regulation 623-3 states, in relevant part, that in preparing their comments, rating officials will convey a precise but detailed evaluation to convey a meaningful description of an officer's performance and potential.  In this manner, both Army selection boards and career managers are given the needed information on which to base a decision.  A thorough evaluation of the Soldier is required. 
44.  Paragraph 3-23 of Army Regulation 623-3 stipulates, in pertinent part, that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER, NCOER, or AER.  
45.  Paragraph 3-24 of Army Regulation 623-3 states that the use of inappropriate or arbitrary remarks or comments that draws attention to differences relating to race, color, religion, gender, age, or national origin is prohibited.  Subjective evaluation will not reflect a rating official's personal bias or prejudice.  When nonjudicial punishment is given and filed in the restricted section or locally, rating officials may not comment on the fact that such nonjudicial punishment was given to a rated Soldier.  This does not preclude mentioning the rated Soldier's underlying misconduct that served as the basis for the nonjudicial punishment. 
46.  Army Regulation 600-8-104 (Military Personnel Information Management /Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  It states, in pertinent part, that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the file unless directed by competent authority.  
47.  Army Regulation (AR) 600-37 (Unfavorable Information) sets forth policies and procedures to (1) authorize placement of unfavorable information about Army members in individual official personnel files; (2) ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and (3) ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  
48.  The Court of Appeals for the Armed Forces (CAAF) is the highest military appellate court of all branches of the service; the next higher level is the Supreme Court itself.  One of the issues granted review by the CAAF in United States v. Rogers, 54 M.J. 244 (C.A.A.F.2000) was "Whether the Air Force Court of Criminal Appeals erred by upholding Charge II of the Specification thereunder (alleging an unprofessional relationship under Article 133 because the specification was unconstitutionally vague when it failed to identify a relevant custom or regulation which prohibited relationships between officers."  The gist of appellant Rogers' offense was an "unprofessional relationship of inappropriate familiarity" and not actual sexual misconduct.  The CAAF ruled that "In sum, the granted issue asks whether the specification was unconstitutionally vague in failing to allege violation of a regulation or custom of the service which forbade a relationship such as his [the appellant] and his subordinate.  The Constitution, however, does not require that a regulation or custom of the service be established."  In other words, there is no requirement under the Constitution (and therefore likewise under the UCMJ or other relevant law) to specify the regulation or custom that was violated in order to properly state the offense of conduct unbecoming an officer and gentleman.
49.  Manual for Courts-Martial, 2002 edition, Rule for Courts-Martial (RCM) 303, "Preliminary inquiry into reported offenses," authorizes what is known as a Commander's Inquiry.  It states, in pertinent part, upon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court-martial, the immediate commander shall make or cause to be made a preliminary inquiry into the charges of the suspected offenses.  
DISCUSSION AND CONCLUSIONS:

1.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  The applicant has not shown error, injustice, or inequity for the relief he requests.  There is also no evidence of arbitrary or capricious actions by the applicant's command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The evidence clearly shows that the applicant initially approached his battalion XO and battalion commander to report he was involved in an improper relationship.  Subsequent to this initial report, and after being advised of his rights under Article 31, UCMJ, he waived these rights and provided a written statement in which he declared that he "had an improper friendship with the sister of an initial entry Soldier."  His own voluntary statements triggered an informal investigation by the IO of an improper relationship.    

3.  There is no evidence that the applicant was subjected to an unlawful and factually flawed investigation based on allegations that he was engaged in an adulterous relationship.  Counsel argues that "The ABCMR must presume as a matter of law that the IO's 'informal investigation' was made pursuant to the provisions of AR 15-6 or was guided by those provisions."  But he also asserts that "Under Army regulations, an 'informal investigation,' also known as a 'Commander's Inquiry,' is governed by AR 15-6."  In actuality, RCM 303, "Preliminary Inquiry into reported offenses," authorizes what is known as a Commander's Inquiry.  It is certainly possible to have a Commander's Inquiry and not an AR 15-6 informal or formal investigation.  The two types of investigations are not one and the same.  As for the applicant, in his case the investigation appears to have been conducted under RCM 303, and not under AR 15-6, since there is no available documentation showing than an IO was appointed by a senior commander (usually the brigade commander or the commanding general). This would be required even for an informal AR 15-6 investigation.  In addition, there is no DA Form 1574 (Record of Proceedings by IO/Board of Officers) prepared and submitted to the appointing authority, or at least none is available.  If the investigation was conducted under RCM 303, then needless to say, AR 15-6 rules did not even have to apply.  This theory seems to be verified by the sworn statement given by the applicant's spouse.  In it, she recalls that "COL G_____ initially told her that an IO, who would be an O-4 officer (major), would be appointed to conduct the investigation in the applicant's case."  Later, she indicates that LTC Z_____ updated her and told her that a "commander's inquiry" was being conducted instead, as the applicant had admitted to his misconduct.  

4.  The applicant's counsel also alleges that there is no evidence there was an informal investigation at all, other than the applicant's own sworn statement.  In actuality, there is evidence that the IO, as the applicant's immediate commander and the RCM 303 investigator, conducted his own investigation.  He stated "Though there was rumor about 3 relationships with women other than [the applicant's] wife, I only commented on 2 [in the OER] because I was not convinced of the third by my inquiries."  Moreover, the IO ended up helping the applicant, and did not accuse him of being involved in a third improper relationship.  

5.  Counsel argues that the applicant was forced to respond to his referred OER with incomplete evidence available to him.  More specifically, he argues that what was "most troubling about the IO's conduct" was that he allegedly failed to inform the applicant of the full grounds for the adverse actions so that he could effectively respond to them.  He also argues that the IO provided new evidence and argument to the GOMOR imposing authority in response to the applicant's request for an AR 623-105 'Commander's Inquiry' into the referred OER.  But, all of these arguments do not make much sense, given that the primary and overwhelming evidence against the applicant was his own sworn statement and his own conversation with the IO.  This being the case, the most relevant evidence was unquestionably available to him.  

6.  As regards counsel's argument that the applicant's request for a Commander's Inquiry into his referred OER, the correct and legal route to contest a referred OER is to appeal it through the established OER appeals system, not via a Commander's Inquiry.  The applicant apparently did not pursue this until after he was released from active duty, when it was too late.  The DASEB advised him that it could no longer review an appeal because he was no longer on active duty and the DASEB therefore lacked jurisdiction.

7.  Regarding both the GOMOR and referred OER, counsel argues that the applicant's due process rights under AR 15-6 were violated.  However, the evidence shows that there was no such violation.  That is, the applicant's counsel alleges that the applicant had the right under AR 15-6 to be notified in advance and in writing of these two proposed adverse administrative actions before they were issued to him, to be provided that part of the investigation upon which the proposed actions were based, and to be given a chance for rebuttal before the actions were taken.  However, the Army regulation (AR15-6, paragraph 1-8d) he relies upon provides a clear exception to this requirement.  This paragraph states that there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  As such, the applicant was afforded his due process rights in accordance with AR 15-6 at the correct time when he was allowed to rebut both the GOMOR and the OER after they were issued to him, but before they were permanently filed, in compliance with the Army regulations governing these particular actions.  Given that the OER and GOMOR in question have been officially filed in his OMPF, the presumption of administrative regularity goes with the rater, as the applicant does not offer any independent evidence to overcome the IO's version of events.

8.  Counsel argues that the applicant's misconduct did not constitute a violation under Article 133, UCMJ, alleging in effect that there was a failure to state an offense.  He goes further when he alleges that there is no regulation prohibiting married officers from interacting with civilian family members of Soldier in an intimate manner short of sexual activity.  He cites numerous court cases in support of his arguments; however, these cases can be clearly distinguished from the applicant's case, and their facts can be shown to be of no support to the facts in the applicant's case.  However, as was noted above in Rogers, supra, the CAAF has ruled on this issue.  Since the Article 133 specification was found to be legally sufficient in U.S. v. Rogers when it charged an unprofessional relationship of inappropriate familiarity, then the allegation in the applicant's case should be similarly sufficient.  That is, the specification in the Rogers case did not allege adultery, but instead alleged conduct unbecoming an officer and gentleman.  Evidentiary elements for adultery are that the accused had sexual intercourse with a certain person; that one or both parties were then married; and that, under the circumstances, the conduct was prejudicial to good order and discipline in the armed forces or would bring discredit to the armed forces.  (See Manual for Courts-Martial, 2002 edition, Punitive Articles at paragraph 62b, page IV-97).  These are not the elements for a conduct unbecoming an officer and gentleman offense, which are that the accused did or omitted to do certain acts; and that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.  

9.  The applicant's and his counsel's repeated emphasis and reliance on the lack of evidence for adultery (or any type of sexual relationship) are misplaced.  In effect, a conduct unbecoming offense encompasses a much broader range of misconduct than only adultery.  In the applicant's case, a primary consideration was how other Army members and members of the general public actually and/or potentially viewed his alleged misconduct and how this in turn affected his standing as an officer and a commander.  The fact remains that some of the applicant's conduct was noticed and became part of rumors spreading throughout his company and at a higher level as well.  Whether or not a sexual encounter actually occurred does not matter as far as proving the conduct unbecoming allegation; rather it is the perception that was generated that mattered in proving whether or not his behavior qualified as conduct unbecoming an officer and gentleman.  

10.  The applicant's counsel also argues that the applicant was not put on notice that his conduct might be in violation of the UCMJ.  However, the rights warning that was administered to the applicant before he made his voluntary sworn statement was certainly sufficient to put him o notice that he was suspected of misconduct, possibly criminal in nature and chargeable under the UCMJ.  This should have been enough to warn any reasonable person of the seriousness of the offenses, especially an officer who was a company commander and who might have read the same Article 31 rights warning to his own Soldiers suspected of UCMJ offenses.  For whatever reason, even after being warned, the applicant chose to waive his constitutional right against self-incrimination and in doing so voluntarily provided the strongest evidence against him.  The applicant described the relationship as "improper"; he reported that his conduct affected his marriage and upset his wife to the point that she also met with the battalion commander; and there was clear evidence that rumors about his behavior were circling throughout the battalion and brigade.  He also voluntarily admitted that he used a GOV on 2 occasions for personal business.  As such, his conduct seriously compromised his standing as an officer, his chain-of-command lost confidence in him, and he was relieved of his command for cause.  

11.  There cannot be any legal or equitable issue with the applicant's Board of Inquiry because he waived his right to contest his proposed elimination from the Army.  Since he agreed to resign from the Army in exchange for an Honorable discharge, he cannot now credibly contest what he voluntarily and permanently waived.  Because of his waiver, reinstatement in the Army cannot be based on the same substantive legal arguments his counsel cites to justify removal of his GOMOR and referred OER.  The applicant's only route for reinstatement relief would be if his requests for removal of the GOMOR and referred OER had merit and the ABCMR granted relief.  In that scenario, he could legitimately argue for reinstatement because the documents that were the basis for his elimination would no longer be part of his record.  But, since these arguments are actually without merit, and no relief is warranted as to either the GOMOR or referred OER; therefore, there is no basis to grant reinstatement.   

12.  The applicant's counsel calls the Board of Inquiry's elimination proceedings extreme punishment.  However, the proceedings were not punishment, but initiated in order to determine whether or not the applicant was a suitable caliber of officer to remain in military service, in view of his GOMOR and referred OER.  Whether or not the elimination proceedings were deemed extreme, the fact of the matter is that the applicant waived his entitlement to a Board of Inquiry.  

13.  Counsel argues that there was insufficient evidence to prove the allegations. However, a confession by an accused is usually considered the best evidence of guilt, which is why a guilty plea at trial is accepted as the strongest form of proof known under the law.  It is correct that usually corroboration of the confession is required, however minimal.  In the applicant's case, his confession was corroborated by none other than his spouse.  In her sworn statement, she said she called the sister of the former trainee, who "corroborated everything in my husband's statement to the IO."  Given that the applicant properly waived his right against self-incrimination, his sworn statement would have been admissible into evidence in a court of law (absent proof that the statement was coerced, but neither the applicant nor his counsel makes such an allegation).  Therefore, based primarily upon his confession and upon other relevant evidence, there was certainly a legally and factually sufficient amount of evidence to find the applicant guilty of violations of Article 133, UCMJ.

14.  After careful review of the applicant's entire record and the circumstances of his case, the DASA, Army Review Boards, accepted the applicant's resignation in lieu of elimination and directed his discharge.

15.  Given all of the above, there is no basis upon which to grant the applicant's request.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tsk___  __jlp___  __dwt___  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.




							TSK
      ______________________
                CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20070012888



24


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508