IN THE CASE OF:	 

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080015721 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be set aside, that he be reinstated to active duty in the rank of captain, and that he receive back pay, allowances, and other entitlements permitted by law and regulations.  He also requests a personal appearance before the Board.   

2.  Counsel states, in effect, that in June 2006 the applicant came under investigation for allegedly submitting a fraudulent college diploma in his Officer Candidate School (OCS) packet.  He claims that the applicant cooperated fully with the investigation, that from the start he denied knowing that the diploma submitted was fraudulent, that he received the diploma from an internet based company, and that he became a victim of an internet scam and received a fake diploma.  After the investigation, the applicant's command decided to pursue general court-martial charges against him and he was charged with submitting a false official document (a fraudulent degree from Texas A&M University in his OCS packet) and with larceny of funds from the Government for receiving pay as an officer.  The Article 32 investigating officer recommended the charges be dismissed because the Government could not produce the OCS packet which contained the fraudulent degree and he found it problematic that the Government could not contradict the applicant's statement that he did not intend to commit 
fraud against the Government as is required to be convicted of submitting a false 
official statement.  The investigating officer also found that there was great ambiguity about which colleges were acceptable for Soldiers to utilize in obtaining college credit, he found it difficult to determine what process these colleges used for converting military education and experience to college credit, and he recommended not going forward at a general court-martial.    

3.  Counsel states that the charges were dismissed and the applicant was issued a Memorandum of Reprimand for the same conduct the court-martial charges were based upon.  The applicant submitted a rebuttal to the memorandum wherein he fully denied knowing the document was fraudulent.  In February 2007, he received a notice of the initiation of his elimination and he was ordered to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2, for intentional misstatements of fact in his official records, misconduct, and derogatory information.  He contends that he was notified that he had three options -- submit his resignation in lieu of elimination, request discharge in lieu of elimination, or submit a rebuttal or declination statement.  

4.  Counsel points out that according to paragraphs 4-18 and 4-19 of Army Regulation 600-8-24 only a "non-probationary" officer is entitled to a fourth choice when faced with elimination, having a Show Cause Board.  He states that by definition a probationary officer is a Regular Army commissioned officer or officer in the U.S. Army Reserve with less than five years commissioned service.  He indicates that even though the applicant had over 17 years of total service, he technically had slightly less than five years commissioned service as an officer.  Counsel points out that the applicant was not given the opportunity to demand a Show Cause Board.  Counsel describes a 1998 factually similar case before the U.S. Court of Federal Claims (Gonzalez v. The United States) and he contends the facts in the case were very similar to his and that the decision should serve as precedent for the Board in reaching its decision. 

5.  Counsel provides an incomplete DA Form 457 (Investigating Officer's Report); a Memorandum of Reprimand, dated 8 December 2006; a rebuttal to the Memorandum of Reprimand, dated 5 January 2007; a notice of initiation of elimination, dated 9 February 2007; a copy of the court proceedings of Gonzalez v. The United States; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted service in military occupational specialty 13B (field artillery crewman), the applicant was appointed a second lieutenant on 

6 September 2002 and he entered active duty that date as a Chemical Corps 
officer.  He was promoted to first lieutenant on 6 March 2004 and to captain on
1 December 2005. 

2.  The DD Form 457, dated 2 November 2006, provided by the applicant is not complete.  The DD Form 457 does show the investigating officer recommended that charge I be dismissed and stated that "Charge II relies on a finding of guilty in Charge I to be applicable, and even then it is questionable if it would apply."  He recommended pursuing further administrative action to separate the applicant from the Army as soon as possible.  The DD Form 457 states, in pertinent part, that the transcript states it is from Texas A&M, that the applicant paid $426 dollars to obtain his bachelor's degree, and that the applicant was allowed to pick his grade point average and change his college to Texas A&M.  It also states that the applicant requested that his credit hours be changed from 112 to 121 on his transcripts and the applicant states he utilized this transcript for his OCS application. 

3.  On 8 December 2006, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for providing a fraudulent college degree for his official military records which facilitated his commissioning as an officer.  The memorandum states that he purchased a fraudulent degree online from a company and presented it as part of his OCS packet in 2001, that he continued to include it in his military records, that he never attended or otherwise enrolled at Texas A&M University, and that he knew he was not entitled to this degree.  

4.  On 5 January 2007, the applicant submitted a rebuttal to the GOMOR.  In summary, he stated that he did not believe the document was fraudulent, that he was victimized by an internet company that operated to defraud consumers, and that his case is not criminal misconduct but poor judgment. 

5.  The Texas A&M University transcript in question shows the applicant attended mostly courses in criminal justice between 1998 and 2001.  It also shows he transferred 45 credits from 1993 to 1998.

6.  On 9 February 2007, the applicant was notified of his pending elimination under the provisions of Army Regulation 600-8-24, paragraph 4-2, for intentional misstatements of fact in his official record, misconduct, and derogatory information.  He was advised that in accordance with Army Regulation 600-8-24, paragraph 4-24 he could submit a resignation in lieu of elimination, request discharge in lieu of elimination, or submit a rebuttal or declination statement.  On 



20 February 2007, the applicant acknowledged receipt of the initiation of 
elimination and that he had 30 calendar days to exercise one of the options.  The applicant's election of options is not available. 

7.  On 27 July 2007, the applicant was discharged under honorable conditions 
(a general discharge) under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct.  He had completed 4 years, 
10 months, and 22 days as a commissioned officer and he completed a total of 
17 years and 4 months of creditable active service.  

8.  The applicant provided a transcript of a hearing in the U.S. Court of Federal Claims involving V----- A. G------- v. The United States, dated 30 June 1998.
Mr. G------- was a probationary officer involuntarily discharged with a general discharge due to drug abuse.  The Court held that Mr. G------- was denied due process when he was denied a hearing prior to his discharge and ordered him restored to active duty.  This unpublished case is neither binding nor factually similar to the applicant's case.

9.  Paragraph 4-2b of Army Regulation 600-8-24 states, in pertinent part, that elimination action may be or will be initiated for misconduct due to intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation.  Paragraph 4-24 of this regulation states, in pertinent part, that an officer identified for elimination may submit a resignation in lieu of elimination, request discharge in lieu of elimination, or apply for retirement in lieu of elimination if otherwise eligible.

10.  Paragraph 4-18 of Army Regulation 600-8-24 pertains to rules for processing an elimination of a nonprobationary officer.  Paragraph 4-19 of this regulation pertains to the steps for processing an elimination of a nonprobationary officer.

11.  Paragraph 4-20e of Army Regulation 600-8-24 states that processing an officer's recommendation for elimination under this paragraph does not require referral to a Board of Inquiry or a Board of Review unless the officer declines to elect one of the options listed above and an other than honorable conditions discharge is recommended.

12.  A nonprobationary officer is defined as a Regular Army commissioned officer or an USAR officer with more than 5 years commissioned service.

13.  A probationary officer is defined as a Regular Army commissioned officer or an USAR officer with less than 5 years commissioned service.

14.  Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR board members may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant, a captain, was discharged for misconduct due to intentional misstatements of fact in his official records.  In the absence of evidence to the contrary, it must be presumed that the applicant’s 
discharge was administratively correct and in conformance with applicable regulations.  His contention that he did not know the transcript was fraudulent is not credible.  He had previous enlisted service as a field artilleryman.  Yet, most of his course credits were in the criminal justice field.  It is difficult to believe that he thought an agency that would give him college credit in a field he never worked in could be legitimate.  

2.  The applicant was a probationary officer because he served less than five years commissioned service as an officer.  Therefore, paragraphs 4-18 (Rules for processing an elimination of a nonprobationary officer) and 4-19 (Steps for processing an elimination of a nonprobationary officer) of Army Regulation
600-8-24 would not apply to him.  He was not given an opportunity to demand a show cause board because he was not being recommended for an other than honorable discharge.

3.  Although the applicant requested a personal appearance before the Board, the governing regulation states that an applicant does not have a right to a hearing before the Board.  It does not appear that his case is so complicated that a formal hearing is required to make a fair and equitable decision in his case. 

4.  Based on the foregoing, there is no basis for granting the applicant's requests.
 
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.



      ___________xxx___________
               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)                                         AR20080015721



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ABCMR Record of Proceedings (cont)                                         AR20080015721



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