RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080002984 


	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:




Chairperson



Member



Member
	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 a new reconsideration and, in effect, that his honorable discharge by reason of Secretarial Authority be voided and that he be afforded early retirement with all back pay and allowances.  He also requests a personal appearance before the Army Board for Correction of Military Records (ABCMR).

2.  The applicant states, in effect, the actions of the ABCMR in his previous two cases are insufficient and he wants to be retired.  He also states that the Board improperly changed the separation authority, the narrative reason for discharge, and the separation code on his DD Form 214 (Certificate of Release or Discharge From Active Duty).  The Board used an out-of-date, superseded Army regulation in establishing the authority, narrative reason, and separation code.

3.  The applicant provides:

	a.  A 12-page letter to the Assistant Secretary of the Army (Manpower and Reserve Affairs), dated 25 January 2008, in which he requests a new reconsideration by the ABCMR.

	b.  An undated document titled "Summary:  Discharge Decision."

	c.  A letter, dated 15 April 2004, from a former Captain, Judge Advocate General's (JAG) Corps.  The Captain's name appeared on a Military Police Report as rendering a probable cause finding that sufficient credible evidence existed to title the applicant for offense code 5A4 (fraternization) and offense code 6K4 (Indecent Language).  He contends he did not render said probable cause finding.  He adds that the validity of nonjudicial punishment (NJP) action under Article 15, Uniform Code of Military Justice and the elimination hearing by a "Show Cause" board of officers, both of which flowed from the Military Police Report, is brought into question as a result of this error in naming him as the lawyer rendering the probable cause finding.

	d.  A letter, dated 8 August 2000, from a retired CID (US Army Criminal Investigation (Division) Command) Special Agent stating his opinion that the applicant should not have been investigated by the CID for homosexuality and the offense of sodomy.

	e.  A CID Form 66, dated 19 September 1997.

	f.  A letter, dated 3 November 1999, from the Director of Human Resources, Office of The Deputy Chief of Staff for Personnel, Headquarters, Department of the Army (HQDA).  The letter opines that the allegation made against the applicant concerning homosexuality was little more than a vindictive, personal attack.

	g.  A copy of a 16 March 1998 Memorandum from the Staff Judge Advocate, Eight United States Army (EUSA), subject:  Request to Continue Board of Inquiry Proceedings.  The memorandum recommends continuance of the proceedings based on "behavior and statements that indicate a propensity to engage in homosexual conduct."

	h.  A copy of DA Form 3822 (Report of Mental Status Evaluation), dated 26 March 1998.

	i.  A copy of a letter, dated 8 March 1999, from the Deputy Inspector General, US Army Criminal Investigation Command.  The letter substantiates the allegation that a CID Special Agent called him a "Fag."

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001052760, on 29 January 2002, and in Docket Number AR2002071052, on 26 August 2003.

2.  Army Regulation 15-185, the regulation under which the ABCMR operates, provides that an applicant may request reconsideration of an ABCMR decision if the request for reconsideration is received within 1 year of the original decision AND [emphasis added] if the ABCMR has not previously reconsidered the matter.  The applicant has already had his case previously reconsidered on 26 August 2003.  Having already received reconsideration, he is not entitled to a second reconsideration; however in his current request, he provides as new evidence a 15 April 2004 letter from a former Army JAG officer, Captain S.  This new evidence is determined to be of such importance as to warrant, as an exception to policy, a second reconsideration of the applicant's case.  This reconsideration will reopen and address the relief the applicant sought in his last consideration.

3.  In September 1997, the applicant was listed as the subject on DA Form 3975 (Military Police Report), MPR 05045-97-MPC338.  On the MPR, the applicant was reported as having fraternized with, and used indecent language towards, a junior enlisted Soldier.  The MPR listed Captain S as the JAG officer who opined that sufficient credible evidence existed to title the applicant for offenses of fraternization and indecent language.  In his 15 April 2004 letter, the former JAG Captain stated he never rendered a probable cause finding in the case.  The former JAG Captain wrote:

My name is [LAS] – formerly an Army JAG Captain.  I was the Trial Counsel (Recorder) for [APPLICANT'S] Board of Inquiry (BOI) in Korea in March, 1998.  Concerning Military Police Report 05045-97-MPC338, I did not, in fact, render the probable cause finding as indicated on the report in September, 1997 [NOTE:  Army Regulation 190-30 (Military Police Investigations) provides, in pertinent part, "when necessary, investigators will coordinate with a JAG officer or civilian attorney employed in the Office of the Staff Judge Advocate for the purpose of establishing a legal opinion as to whether sufficient credible evidence has been established to title an individual in a Military Police Report"].  I arrived in Korea in August, 1997 and was expecting to start work as a Trial Counsel but was diverted to work in Administrative Law from August, 1997 until late January 1998.  I was being rated as a Trial Counsel (with other duties assigned – Chief, of Administrative Law) starting in August, 1997 – however I did not actually start working as a Trial Counsel until late January 1998.

It is a factual impossibility that I could have made the probable cause determination since, at the time, I had nothing to do with criminal law section (officially).  The Trial Counsel at the time were Captains [SP and DC].  The Chief of justice was Major [LC].  The SJA of the Yongsan Garrison at the time was LTC [GB].

I did not have any firsthand information of [APPLICANT'S] matter prior to my starting work as a Trial Counsel in late January 1998 – four months after the probable cause determination was made.  One of the jurisdictions I was responsible for, after actually working as a Trial Counsel, was the 1st Signal Brigade – for which I was subsequently assigned to be the Recorder at [APPLICANT'S] BOI in February 1998.

Although I do not know whether or not there were inappropriate motives behind my name being listed as the person who gave the probable cause finding, it does seem odd how it happened given the fact that the correct name should (must?) have been placed on the report in real-time as it related to the determination; i.e., no subsequent investigation could/should have occurred without a valid probable 

cause finding occurring first.  Thus, the identity of whoever did the probable cause finding is not something that could have been "fixed after the fact" by simply plugging in any name.

Moreover, the Letter of Reprimand issued to [APPLICANT] would appear to have been issued – at least partially – as a result of the probable cause finding.  It is my understanding that this Letter of Reprimand then led to [APPLICANT'S] Board of Inquiry, as directed by the 8th Army Commanding General.  As a result of these issues, it truly throws into question the legitimacy of the series of events that unfolded for [APPLICANT] – which obviously includes any and all disciplinary and/or adverse administrative measures taken against [APPLICANT] that derived from the "probable cause finding."

For what it's worth, I will say that had the MP Case (as constituted at the time) been presented to me, I seriously doubt that I would have issued a probable cause finding for the crime without, at least, some additional inquiry.  Also – for what it's worth again – the picture – from which [APPLICANT'S] Letter of Reprimand derived was not generated by myself but effectively inserted into the record by the Assistant Recorder, CPT [DC].

Should you need clarification and/or have any questions on any of the above-referenced matters, I can be contacted at [TELEPHONE NUMBERS].

4.  Based in part on MPR 05045-97-MPC338, the applicant was offered NJP on 14 October 1997.  On 20 October 1997, the applicant indicated that "[H]aving been afforded the opportunity to consult with counsel,...[he did] not demand trial by court-martial [and accepted NJP]."  As punishment, the applicant received a punitive LOR on 19 November 1997.  He appealed his punishment to the Commanding General, EUSA.  His appeal was denied and he was issued the punitive LOR which was placed in the Performance Section of his OMPF.

5.  The incident identified in the Military Police Report, coupled with a CID investigation into allegations of homosexual misconduct and sodomy, led to the applicant's appearance before a Board of Inquiry (BOI) where he was ordered to show cause for retention on active duty.  During the BOI proceedings, the applicant was determined to have lied under oath concerning a heterosexual relationship by inventing a girlfriend.  The BOI recommended the applicant be discharged.  His records were forwarded to HQDA for presentation to the Army Board of Review for Eliminations.
6.  On 1 October 1998, the Army Board of Review for Eliminations convened to review the action of a BOI which recommended the applicant's elimination from the Army for misconduct and homosexual misconduct.  After reviewing the applicant's case, the Board of Review found that the Government had established by a preponderance of evidence that the applicant should be eliminated from the Service for misconduct and homosexual conduct.  An Honorable Discharge was recommended.

7.  On 14 October 1998, the Deputy Assistant Secretary of the Army (Review Boards) approved the recommendation of the Army Board of Review for Eliminations and directed the applicant be eliminated for homosexual misconduct [emphasis added] with an Honorable Discharge.

8.  In order to properly evaluate the applicant's case, a review of the ABCMR's previous actions is required.  The applicant sought in his initial request – ABCMR Docket Number AR2001052760 – correction of his records to show:

		(1).  That his discharge be voided and he be continued on active duty until he qualified for early retirement, and that he then be retired and paid all back pay and allowances; 

		(2).  Correction of his DD Form 214 (Certificate of Release or Discharge From Active Duty) to show retirement as the narrative reason for separation, and to show non-stigmatizing entries as to separation code or reentry code;

		(3).  Award of any and all decorations he would have received had he remained on active duty; 

		(4).  Removal of his name from all Defense Clearance and Investigations Index (DCII) records; and

		(5).  Expunction of the proceedings of the BOI, the Army Board of Review for Eliminations; the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) and resultant punitive letter of reprimand (LOR); any and all suspension of favorable personnel actions (Flags); and his OER (Officer Evaluation Report) for the period ending 30 September 1997.

9.  On 29 January 2002, the ABCMR recommended denial of the applicant's request for retirement, but recommended:

	a.  Redaction, not expunction, of portions of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), a punitive letter of reprimand, and a BOI report;

	b.  Transferring to the Restricted Section of his Official Military Personnel File (OMPF), not expunction, of the 1 October 1998 transcript of his hearing before the Army Board of Review for Eliminations, the 14 October 1998 separation order issued by the Deputy Assistant Secretary of the Army (DASA), and the 20 October 1998 separation memorandum issued by the US Army Personnel Command (PERSCOM); and

	c.  Changing the applicant's DD Form 214, dated 20 November 1998, to show "Secretarial Authority" as the narrative reason for separation in Item 28 instead of "Homosexual Acts."

10.  As a result of the ABCMR's action in Docket Number AR2001052760, the applicant's DD Form 214 was subsequently corrected to in Item 25, AR xxx-xxx; in Item 26, "JFF"; and in Item 28, "Secretarial Authority."  Also, any references to commission of acts of sodomy were redacted from pertinent records.

11.  In his second case – ABCMR Docket Number AR2001052760 – the applicant essentially sought reconsideration of his request to be retired vice discharged, or in the alternative, that he be paid full, rather than half separation pay.  He also requested removal of his name from all DCII records, and expunction vice redaction of all other records.  On 26 August 2003, the ABCMR recommended denial of the applicant's requests, but did recommend that all references to the applicant (name and social security number) be redacted in all CID Reports of Investigation related to alleged sodomy incidents.

12.  The FY1993 National Defense Authorization Act (Sec. 4403, P.L. 102-484) granted temporary authority (which expired on September 30, 2001) for the services to offer early retirements to personnel with more than 15 but less than 20 years of service.  TERA was used as a manpower tool to entice voluntary retirements during the drawdown.  TERA retired pay was calculated in the usual ways except that there is an additional reduction of one percent for every year of service below 20.  Part or all of this latter reduction could be restored if the retiree worked in specified public service jobs (such as law enforcement, firefighting, and education) during the period immediately following retirement, until the point at which the retiree would have reached the 20-year mark if he or she had remained in the service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was the subject of allegations of homosexual misconduct and those allegations were investigated by the CID.  He was also the subject of a Military Police Report which resulted in his punishment under Article 15, Uniform Code of Military Justice, for fraternization with a junior enlisted Soldier and for using indecent language towards a junior enlisted Soldier.  He was then ordered to appear before a Board of Inquiry (BOI) to show cause for retention on active duty.  The BOI recommended he be eliminated and the proceedings of that board were forwarded to HQDA for presentation to the Army Board of Review for Eliminations.

2.  On 1 October 1998, the Army Board of Review for Eliminations convened in Arlington, Virginia to review the BOI recommendation for the applicant's elimination.  The Army Board of Review for Eliminations found, "[T]hat the Government has established by a preponderance of the evidence that [applicant] should be eliminated from the Service for [both] misconduct and homosexual conduct."  On 14 October 1998, the DASA (Army Review Boards) approved the recommendation and directed the applicant's Honorable Discharge for homosexual misconduct.

3.  On 29 January 2002, the ABCMR granted partial approval of the applicant's request to correct his military records.  The rationale for the Board's decision is contained in Docket Number AR2001052760, but it is sufficient to say the Board removed all mention of sodomy from the applicant's records and changed his DD Form 214 to show that he was honorably discharged by reason of "Secretarial Authority."  This action removed the stigma associated with his original discharge and served to erase all reference to homosexual acts (i.e., homosexual misconduct).

4.  By a preponderance of the evidence, the Army Board of Review for Eliminations determined the applicant to be guilty of misconduct related to his false statement to the BOI concerning a girlfriend and his fraternization and indecent language toward a junior enlisted Soldier, and homosexual conduct related to sexual activity with a male acquaintance.  However, the DASA did not eliminate the applicant for misconduct and homosexual conduct [emphasis added]; he only eliminated him for homosexual misconduct.  When the ABCMR action of 29 January 2002 removed homosexual misconduct from the applicant's record, that action served to remove the basis for the DASA's elimination decision, thus making the elimination improper.

5.  The applicant seeks to have all remaining adverse records surrounding these incidents, namely, the nonjudicial punishment with the resulting memorandum of reprimand and titling action deleted from Army records.  He asserts a faulty "probable cause” determination rendered the resulting titling, investigation, and punishment invalid.  In support of his argument he provided a statement from the former judge advocate who purportedly advised there was “probable cause.”  The former judge advocate states he did not provide the “probable cause” determination; therefore, the validity of the investigation is questionable.

6.  Applicant’s reliance on the provisions of AR 190-30 to invalidate the investigation and the actions that flowed from it is misplaced.  AR 190-30 as quoted in the applicant’s submission stated ”when necessary, investigators will coordinate with a JAG officer or civilian attorney employed in the Office of the Staff Judge Advocate for the purpose of establishing a legal opinion as to whether sufficient credible evidence [emphasis added] has been established to title an individual in a Military Police Report.”  First, applicant has failed to show that coordination with an attorney was required.  The wording “when necessary” appears to be discretionary in nature meaning “when prudent,” rather than requiring coordination in all cases before titling.  Second, coordination, if any, is not for the purpose of making a “probable cause” determination, but for the purpose of determining whether there is sufficient credible evidence to title, a much lower standard than probable cause.  In hind sight, the commander’s action on the nonjudicial punishment and the Boards’ of Inquiry and Reviews findings lend credence to the proposition there was sufficient credible evidence to proceed with investigation.  Third, the subsequent nonjudicial punishment had to have been based on the imposing commander’s belief that applicant had committed the offenses beyond a reasonable doubt.  The imposing commander’s decision is not tied to whether the investigator properly titled the individual, but whether the commander was convinced the evidence sufficiently demonstrated the applicant’s guilt.  Applicant has failed to demonstrate that the evidence was inadequate to support the commander’s determination. 

7.  As a matter of law, the applicant is entitled to the relief he seeks as pertains strictly to his request for early retirement.  The recommendations of the previous two ABCMR Boards remain valid as they relate to redaction and/or transfer of records vice expunction of those records, and removal of the applicant's name and social security number from CID Reports of Investigation relating to sodomy.

8.  The applicant requested a personal appearance hearing before the ABCMR.  Applicants do not have a right to a hearing before the ABCMR.  The Director or 
the members of the ABCMR may grant a formal hearing whenever justice requires.  In this case, there is sufficient information available to allow the Board to proceed without a personal appearance.

9.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  __rml___  __swf___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__gjp___  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial relief and amendment of the ABCMR’s decisions in Docket Number AR2001052760, dated 29 January 2002, and Docket Number AR2002071052, dated 26 August 2003.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Voiding his 20 November 1998 discharge;

	b.  Continuing his active duty for a total net active service of 15 years and 14 days to 31 May 2001 with entitlement to all pay and allowances in an amount to be determined by the Defense Finance and Accounting Service after applying civilian earned income offsets for the period 21 November 1998 through 31 May 2001;

	c.  Issuing to him a new DD Form 214 showing:  in Item 12a, 1986  05  18; in Item 12b, 2001  05  31; in Item 12c, 0015  00  14; in Item 23, RETIREMENT; in Item 24, HONORABLE; in Item 25, AR 600-8-24, CHAP 6; in Item 26, RBE; and in Item 27, 4R; and in Item 28, VOLUNTARY EARLY RETIREMENT; and

	d.  Placing him on the Retired List on 1 June 2001 with entitlement to retired pay at the appropriate rate to be determined by the Defense Finance and Accounting Service.
2.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a request for personal appearance before the ABCMR, and any other requests stated or implied by the applicant in his current application.



							RML
      ______________________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080002984



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