IN THE CASE OF:	  

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090004179 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

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

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reinstatement in the Michigan Army National Guard (MIARNG) with reinstatement of his Federal recognition or that he be transferred to the Army Reserve with full rank, promotions, and back pay and allowances to the date of his release from the MIARNG.

2.  The applicant states his rights were violated; specifically, the Army Regulation (AR) 15-6 investigation was conducted by a subordinate officer.  The investigating officer failed to sufficiently investigate the situation; he was denied his right to a hearing and to have legal counsel.  The Army sexual harassment policy and procedures were also violated as he was never placed on notice of any unwanted comments. 

3.  The applicant provides an extensive packet of information listing 28 exhibits (totaling 90 pages) related to his appointment as a member of the Judge Advocate General’s (JAG) Corps and the subsequent withdrawal of that appointment. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 February 1978 and was relieved from active duty on 8 October 1980 due to hardship.



2.  He served in the Arizona Army National Guard (AZARNG) from 1 July 1981 through 30 November 1983 and in the Inactive National Guard from 1 December 1983 through 30 June 1984.  He had a break in service from 1 July 1984 through 15 October 2006.  On 16 October 2006, he enlisted in the MIARNG in military occupational specialty 31B (military police).

3.  In 2006, while acting as a civilian lawyer for a defendant, the applicant was held in contempt of court for repeatedly asking his client to testify directly about laws governing his profession.  Despite repeated warnings from the judge not to follow this line of questioning, the applicant continued to do so.  The judge found him in contempt and sentenced him to 15 days in the county jail.  

4.  The applicant appealed the decision and sentence.  However, on 19 December 2006, the State of Michigan Court of Appeals upheld the criminal contempt charge and the sentence.

5.  In early 2007, the applicant commenced the application process to be commissioned in the MIARNG as a member of the JAG Corps.  

6.  On 16 November 2007, he was notified that he had been accepted in the MIARNG JAG Corps pending approval by the National Guard Bureau and The JAG of the Army.

7.  On 18 August 2008, the applicant was notified he had been approved for appointment in the MIARNG JAG Corps.

8.  On 15 September 2008, the applicant underwent a pre-commissioning physical examination at the Wixom Health Center, Wixom MI.  During this examination it is alleged that the applicant made some statements of a sexual and/or confrontational nature.  The staff relayed the statements to the office manager who in turn relayed them to the attending physician.  The attending physician entered the following comments on the Report of Medical History form: "Confrontational Behavior," "Inappropriate behavior/sexually explicit conversation with medical staff throughout physical examination." "Conduct unbecoming of an NCO or future officer," Counseling with sexual harassment/EEO officer/chain of command for inappropriate behavior."  

9.  On 25 September 2008 the applicant was appointed a first lieutenant (1LT) in the MIARNG and given temporary Federal recognition.  



10.  On 1 October 2008, Brigadier General (BG) A____, the Assistant Adjutant General for the MIARNG directed that an informal investigation be conducted concerning the allegations noted on the applicant's Report of Medical History.  He appointed Chief Warrant Officer Three (CW3) S____ as the investigating officer (IO).

11.  On 2 October 2008, the IO found the evidence supported the findings that the applicant had acted in a confrontational manner towards the staff at the Wixom Health Center.  It was determined that he made inappropriate comments of a sexual nature during his examination and that the attending physician, Dr. S____, entered the applicant's comments on the Report of Medical History based on information provided to him by a member of his staff and not based on personal interaction with the applicant.  The IO opined that the applicant had made those inappropriate comments "unknowingly" and recommended the applicant attend Equal Opportunity - Consideration of Others training.  The IO recommended a new physical be administered by the medical command to determine if the applicant met eligibility requirements for commissioning because the physical as completed by Dr. S____ could not be submitted for commissioning purposes. 

12.  On 16 October 2008, BG A____ notified the applicant he was contemplating cessation of his Federal recognition as a result of the investigation pursuant to AR 15-6.

13.  On 18 October 2008, the applicant submitted a "rebuttal" to BG A____'s decision setting forth his version of the events.  The applicant stated that he did nothing wrong during his medical examination and that he did not know why he was subject to the false allegations.  He indicated that he had filed a complaint against the doctor and the clinic for violation of medical standards.

14.  On 29 October 2008, BG A____ replied to the applicant's rebuttal.  He affirmed his prior decision and stated that the MIARNG was not in a position to forward the applicant's request for Federal recognition.  The withdrawal of Federal recognition would result in the loss of the applicant's status as an officer.

15.  On 12 November 2008, the applicant raised the question of the propriety of having an IO who was junior to him.  In this letter the applicant cites the Michigan Code of Military Justice and contends that he was not afforded his rights against self incrimination, interrogation without prior notification of the nature of the accusations, and other Miranda rights.


16.  On 15 December 2008, BG A____ stated he had appointed CW3 S____ because she was the most qualified available officer.  In effect, he determined that the appointment of this IO was a harmless error in the procedures or proceedings and that there was no material adverse effect on the individual's substantial rights.

17.  In an undated letter, the applicant stated that he wished to clear his name and that he would do so by any means necessary.  He reiterated that he violated no regulation and did not sexually harass anyone.  He stated "…people will be sued.  Monies will be spent.  Careers will be destroyed.  I'm certain that this will become public knowledge, and everyone will be embarrassed.  His long-time secret of being molested [as a child] would become public record, and the treatment of a good Soldier by his own command would be widely publicized and, he believed, criticized."  He also stated that he believed the action taken against him was retribution for reporting the misconduct of medical staff and military officer(s)

18.  On 21 January 2009, the applicant was discharged in accordance with State Order 022-031, dated 22 January 2009.

19.  A memorandum written by the MIARNG General Counsel, to the MIARNG Adjutant General, dated 3 May 2009, in response to a congressional request for an investigation stated that the agency acted correctly in denying the applicant's request for permanent Federal recognition.  He laid out the facts and findings of the examination incident including the fact that the applicant threatened to sue the health clinic and the director.  It was also noted that a records check revealed the contempt of court charge and sentence.  General Counsel noted that by regulation IO’s should be appointed based on their education, training, experience, length of service, and temperament.  The appointment of CW3 S____ as the IO did not have a material adverse effect on the applicant's case.

20.  A letter dated 11 May 2009 from the MIARNG Adjutant General and addressed to a Congressional Representative, the MIARNG Adjutant General states that he asked the MIARNG General Counsel to review the applicant's complaints.  The General Counsel stated that the applicant sexually harassed several civilians of the medical clinic where he was taking his pre-commissioning physical examination and threatened to sue various employees when he became disgruntled.  It was subsequently learned that the applicant had been held in contempt of court and served 15 days in jail for inappropriate courtroom conduct.  As a result of the applicant's conduct, the MIARNG was not in a position to invite him to become a member of the JAG Corps.


21.  On 12 June 2009, an advisory opinion was obtained from National Guard Bureau.  It recommended denial of the applicant's request for reinstatement in the MIARNG and denial of Federal recognition.  The opinion also states that there is no absolute right for a person to be appointed as an officer in a particular State's National Guard.  The State has the right to withdraw temporary Federal recognition at any time and does not have to articulate a reason for such action.

22.  A copy of the opinion was forwarded to the applicant.  In his rebuttal, dated 8 July 2009, the applicant stated that he did no wrong and that he has filed a complaint against the attending physician and his staff for violation of medical standards and that he intends to file litigation against the doctor and his clinic in the near future.  He says that there is nothing in the advisory opinion about the AR 15-6 investigation being improperly handled.  

23.  In the 8 July 2009 rebuttal the applicant also stated if he had known he would only serve 3 and 1/6 months as a commissioned officer he would not have accepted the commission.  He states that all he did was report his medical history and concerns to the medical staff.  Now he feels he has been raped again.  He stated that he did nothing wrong during his medical examination and does not know why he is subject to the false allegations.  

24.  The record does not contain any evidence that the applicant applied for or was appointed an officer in the United States Army Reserve.

25.  National Guard Regulation 600-100, chapter 2, states that appointment of officers in the Army National Guard is a function of the State and that temporary Federal recognition may be withdrawn at any time.  

26.  AR 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.  It provides the following:

	a.  Any action initiated under this regulation is an administrative fact-finding investigation.  The proceedings may be informal or formal.  Unless formal procedures are expressly required, either by the directive authorizing the board or by the memorandum of appointment, all cases to which this regulation applies will use informal procedures.

	b.  Proceedings under this regulation 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.

	c.  Administrative proceedings governed by this regulation generally are not subject to exclusionary or other evidentiary rules precluding the use of evidence. 

	d.  IO's and board members shall be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service and temperament.  

	e.  An IO or voting member of a board will be senior to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations that may be made, except when the appointing authority determines that it is impracticable because of military exigencies.  If the appointing authority determines that military exigencies make these alternatives impracticable, the appointing authority may direct the IO or member to continue.  Generally, procedural errors or irregularities in an investigation or board do not invalidate the proceeding or any action based on it. 

	f.  Informal procedures may be used by a single IO or by a board of two or more members.  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 or individuals.  

	g.  Harmless errors are defects in the procedures or proceedings that do not have a material adverse effect on an individual's substantial rights.  If the appointing authority notes a harmless error, he or she may still take final action on the investigation.

	h.  Substantial errors are those that have a material adverse effect on an individual's substantial rights.  Examples are the failure to meet requirements as to composition of the board or denial of a respondent's right to counsel. 

	i.  Only a respondent is entitled to be represented by counsel.

	j.  A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record.  It is directly established by evidence in the record or is a conclusion of fact by the IO or board.

	k.  The nature and extent of recommendations required also depend on the purpose of the investigation or board and on the instructions of the appointing authority.  Each recommendation, even a negative one (for example, that no further action be taken) must be consistent with the findings.  IO's and boards will make their recommendations according to their understanding of the rules, regulations, policies, and customs of the service, guided by their concept of fairness both to the Government and to individuals. 

	l.  In an informal investigation or board, the report will be written unless the appointing authority has authorized an oral report.  Written reports of informal investigations will use DA Form 1574; however, its use is not required unless specifically directed by the appointing authority.  Every report — oral or written, on DA Form 1574 or not — will include findings and, unless the instructions of the appointing authority indicate otherwise, recommendations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rights were violated; specifically the AR 15-6 investigation was conducted by a subordinate officer.  He states the investigating officer failed to sufficiently investigate the situation.  He was denied his right to a hearing, and to have legal counsel.  He also contends that Army sexual harassment policy and procedures were violated as he was never placed on notice of any unwanted comments.  

2.  Regulations state that AR 15-6 informal procedures are not intended to provide a hearing, there are no respondents, and no one is entitled to the rights of a respondent.  Further, no hearing is required and the rules of evidence do not apply.

3.  The applicant avers that the AR 15-6 investigation is invalid since the IO was junior to him.  The appointing authority stated that he appointed this particular IO because she was the most qualified available officer.  AR-15-6 provides for the appointment of a junior officer as an IO.  It was determined that the appointment of this IO was a harmless error in the procedures or proceedings that do not have a material adverse effect on the applicant's substantial rights.  

4.  The MIARNG does not need the AR 15-6 investigation or any investigation to deny permanent recognition status.

5.  The IO found that the applicant made offensive comments and that he had been confrontational during his medical examination.  The appointing authority concurred with the findings of the AR 15-6 investigation, but as is his prerogative, he did not concur with the IO's recommendation.

6.  It was determined that the applicant's conduct, which included both the incident at the health clinic and his contempt of court conviction, were sufficient to warrant denial of permanent Federal recognition and dismissal from the MIARNG, especially since the applicant applied for commission as a JAG Corps officer.

7.  There are no provisions in law or regulation that allows for a direct appointment into the USAR as a JAG Corps officer under the applicant's circumstances.  In addition, the Board does not normally use its authority to circumvent the vetting power of a normal appointing authority.  The applicant provided an insufficient reason why it should do so in this case.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090004179



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ABCMR Record of Proceedings (cont)                                         AR20090004179



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