IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090014220 


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 correction of his record as provided by counsel.

2.  The applicant states his contentions through his counsel.

3.  The applicant provides evidence as identified by his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, expeditious cancellation of the applicant's active duty orders and assignment to Fort Leonard Wood as a result of his disenrollment from the United States Military Academy (USMA) in July 2008 and reinstatement to USMA in January 2010.  Counsel further requests recusal of the Assistant Secretary of the Army for Manpower and Reserve Affairs ASA (M&RA) and the Deputy Assistant Secretary of the Army, Review Boards (DASA (RB)) from considering or making a decision in this case.  On 22 January 2010, counsel amended his original request by asking for readmission to USMA in August 2010 or enrollment in the Brigham Young University Reserve Officers' Training Corps program.

2.  Counsel states, in effect, the following:

	a.  The Secretary of the Army should personally act on the applicant's case to avoid an actual or apparent conflict of interest on the part of the ASA (M&RA) and the DASA (RB).  Counsel contends the Army Board for Correction of Military Records (ABCMR) must engage in an objective evaluation of this case and may not delegate its deliberative responsibilities to a staff analyst.  He also contends the conflict in this case rests in the fact that the ASA (M&RA) approved the applicant's separation from the USMA and the applicant's current application seeks a reversal of that decision.  Since the DASA (RB) is subordinate to the ASA (M&RA), it would be unfair for her to take action or be involved in a case challenging a superior's judgment.  Counsel concludes that their removal from this case would avoid a conflict of interest, prejudgment, or bias.

	b.  The goal of the statute (Title 10, U.S. Code, section 1552) governing the ABMCR is to free Congress from the burden of handling private relief bills to correct military records and Congressional bans on private relief.  Counsel submits a lengthy historical dissertation explaining the standards that govern the ABCMR, such as the so-called "Caddington test," which states the ABCMR must take appropriate steps to ensure thorough and fitting relief, equity, traditional fairness, and public perception.

	c.  The ABCMR is not equipped to handle certain cases because it does not have permanent Board members or a full-time 3-member panel devoted only to the adjudication of cases.  Counsel contends this situation hampers the independence of the Board because its members lack the flexibility to focus exclusively on the claims from applicants.

	d.  The ABCMR has no published procedures regarding an accelerated appeal.  Counsel contends that the Secretary of the Army should triage ABCMR applications to ensure accelerated and expedited review in cases involving irreparable harm to applicants.  Counsel suggests three levels of response:

		(1)  express cases (with suggested subject matter categories, including cases where irreparable harm to an applicant may occur) that should be adjudicated in the fastest time possible;

		(2)  accelerated cases for active duty members in a war zone; and

		(3)  routine cases for those not involving expedited or active duty cases.

   e.  Counsel contends the applicant's case falls in the first category because he will suffer irreparable harm if relief is not granted in time for him to be reinstated to the USMA by January 2010, now amended to August 2010.

	f.  The applicant passed a polygraph examination showing he did not lie to military police (MP) and the action to disenroll him essentially stemmed from his efforts that were unpopular with USMA staff and some cadets to assist Cadet N. P. in pursuing a sexual assault complaint against a popular cadet.  Counsel contends that the polygraph should carry great weight with the Board, citing the high profile case of former California Representative G___ C___ in the investigation concerning the death of his aide, C___ L___, as proof of the value of lie detectors.  Counsel notes the traditional ban on the use of polygraph examinations in trials has been relaxed in some State and Federal jurisdictions.  Further, such tests are used in marital and family counseling sessions to alleviate fears and prove innocence to spouses and family members.  Counsel also cites the Federal Employee Polygraph Protection Act to demonstrate the approved use of polygraph results by civilian employers in certain situations.  Counsel states polygraphs are used by law enforcement agencies and the Federal government because of a belief in their value.

	g.  The polygrapher who tested the applicant, Mr. V. P., worked for a city police department in Utah for 13 years and went to a school for lie detection.  After retiring from the police force in 2004, he and another former police officer conducted polygraph examinations for private businesses and Utah police departments.  Overall, he has conducted approximately 2000 polygraphs.  Mr. V. P. conducted the applicant's polygraph on 24 July 2009.  The applicant's responses to questions by Mr. V. P. mirrored the answers provided to the MPs on 24 July 2008, reflecting no deception on his part.  Counsel offers the polygraph as proof the applicant did not lie when interviewed by MPs on 24 July 2008.  Counsel instead contends the MPs misunderstood the applicant's statements.  When the applicant told the MPs that Cadet N. M. was with him, he meant to imply she was with him in his hotel room.  The MPs believed the applicant told them he had taken Cadet N. M. to the USMA dental clinic; whereas the polygraph effectively shows that the applicant told the MPs he planned to take her there once he got his installation pass.

	h.  The applicant exemplified Army and USMA values but the culture of the wall of silence at USMA failed to appreciate it.  In essence, counsel asserts several factors support a conclusion that USMA acted under the guise of an alleged honor code violation to punish the applicant for his relationship with Cadet N. M. and his efforts to push USMA authorities to investigate an alleged sexual assault.

	i.  The applicant was in Idaho working on a physics project when he received a frantic telephone call from Cadet N. M. wherein she reported being the victim of sexual molestation.  She did not know what to do about it and asked the applicant not to tell anyone until he could talk to her in person.  On his way back to USMA, the applicant stopped at Cadet N. M.'s parent's house to pick up a care package; later, MPs would interrogate him about this as if he were transporting illegal substances.

	j.  When the applicant finally spoke to Cadet N. M. about the assault, her two front teeth were missing.  Cadet N. M. related that another cadet, Cadet T. G., teased her about the missing teeth and then molested her by pulling down her shorts so she could not run, touched her breasts, and forcibly kissed her.  Cadet N. M.'s Tactical Officer opined that Cadet N. M. instigated the matter.  The U.S. Army Criminal Investigation Command (USACIDC, also known as CID) discouraged her from making a complaint by telling her she would face criminal prosecution if Cadet T. G. passed a polygraph.

	k.  The applicant acted in a chivalrous manner by providing Cadet N. M. some humane assistance.  Counsel states that the applicant upheld DOD principles for responding to sexual assault.  Counsel essentially claims that USMA officials were nonresponsive to this sexual assault and, instead, imposed a 90-day no-contact order between Cadet N. M. and the applicant.  He argues that a 90-day no-contact order imposed on the applicant prohibiting him from contacting Cadet N. M. demonstrates persistent efforts by leadership to lure one or the other to "give up the other," and USMA's decision to initiate honor proceedings against both cadets created a whirlwind of innuendo.  This environment prevented a fair, equitable decision on the applicant's case from being made and, before this Board, requires equitable relief.

	l.  Some at USMA may have regarded the applicant and Cadet N. M. as Bonnie and Clyde when they were closer to the tragic Romeo and Juliet, though the applicant kept their friendship in check because she was a Plebe (freshman).  Cadet N. M.'s abuse by a senior cadet and the indifference of the command in responding to her complaint and the command's effort to break up the relationship between the applicant and Cadet N. M. stand as proof of the tragic handling of this case by USMA officials.  In this swirling "Peyton Place" like context, confusion and misunderstanding arose and USMA leadership spent more time keeping the applicant and Cadet N. M. apart than it did investigating the perpetrator of sexual abuse.  In the end, counsel concludes, like Romeo and Juliet, both Cadet N. M. and the applicant were vanquished.  She was separated for academic failure and the applicant for an honor violation.  The strain crumbled their relationship.  The totality of these circumstances surrounding the applicant's separation from West Point, including his passing of a lie detector test, warrant the conclusion that the Secretary of the Army and the ABCMR should lack confidence in the fairness of the applicant's separation from an equitable perspective.

	m.  The applicant's actions throughout this process were not taken with the intent to hide behind Cadet N. M.'s allegations to escape accountability for his alleged statements to the MPs.  Counsel provides two charts to show the Command's actions against the applicant had a nexus to his involvement with his intervention into the investigation of Cadet N. M.'s sexual assault claims.

	n.  The Military Whistleblower Protection Act essentially dictates that the ABCMR liberally construe and apply law and equity to military whistleblower claims.  Counsel asserts that the USMA's actions against the applicant indicate actual or perceived retaliation against the applicant for his involvement with Cadet N. M. and his assistance in her report of a sexual assault allegation.  Counsel asserts that the applicant was victimized by a whistleblower reprisal or there is the perception of such a reprisal.

	o.  The USMA created a material error by giving the applicant less than 24 hours to prepare a rebuttal before the Superintendent took final action in approving the findings of the Honor Investigation Hearing (HIH).  He cites Army Regulation 210-26 (United States Military Academy), paragraph 6-4c(1), for the proposition that a cadet should be provided a "reasonable time (normally 3 days)" to prepare a response.  Counsel argues that this materially prejudiced the applicant because the superintendent's decision involved the applicant's military career.

	p.  The advisory opinion obtained by the ABCMR from the Army Deputy Chief of Staff, G-1, concerning the applicant's disenrollment was of no meaningful value because it lacked any analysis and also violated the prohibition against ex parte communications contained in Title 10, U.S. Code, section 1556.  Counsel argues as to the latter point that the applicant should have received the ABCMR memorandum and the record of any oral communication between the ABCMR staff and G-1.  Counsel further argues that the ABCMR is obligated to determine if the agencies from which it seeks an advisory opinion (in this case, G-1) contacted other agencies and, if so, advise the applicant of those contacts.  Further, counsel argues that he is entitled to know the contents of a supposed "case file" reviewed by G-1 in formulating its advisory opinion to the ABCMR.  Counsel seeks as a remedy a re-service of the advisory opinion with the contents of the case file reviewed by G-1 and an opportunity to submit a further rebuttal.

3.  In counsel's additional submission, dated 22 January 2010, he expanded upon his prior arguments and presented the following additional arguments which essentially state:

	a.  The applicant was expecting Cadet N. M. to testify as his star witness but the hearing advisor and the applicant's counsel at the time assisted in burying her presence.  When Cadet N. M. did not appear to testify as scheduled at the HIH, the applicant expressed alarm to his counsel, who advised him not to worry about it because it was best that she not testify as her presence would add confusion or words to that effect.  He further states that the hearing advisor advised the applicant there was no need to call Cadet N. M. as a witness because she did not have anything relevant to say or words to that effect.  Counsel acknowledges the HIH transcript notes Cadet N. M. invoked her Article 31b rights and did not appear, but states there is no documentation in the record sustaining this claim.  Counsel argues that excluding Cadet N. M. had a devastating impact on the applicant's case.

	b.  The hearing advisor advised the applicant that the standard of proof for the HIH to find him guilty of violating the honor code was "by a preponderance of the evidence."  However, the board president announced the findings and indicated the evidence established the applicant committed an honor violation by substantial evidence.  Counsel argues this invalidates the finding of the board because it was required to use the higher standard of preponderance of the evidence, not the lower standard of substantial evidence.

	c.  The summary opinions by the superintendent and the ASA (M&RA) fail the arbitrary and capricious test.  The summary boilerplate language used by superintendent and the ASA (M&RA) says absolutely nothing of any analytical substance and makes it impossible to discern their azimuth or course.  He further states the decrees by the superintendent and Assistant Secretary were not equitable and lack fairness.  After 31/2 years of devotion to West Point, strong character, evidence supporting retention, a strong record with no prior problems, and a 5-1 cadet honor hearing committee supporting retention based on the doctrine of remediation, the applicant should have received more than summary termination.  The unfair result fails the public perception test.

4.  Counsel provides a 47-page legal brief, dated 18 August 2009, with 7 tabs including a roster of appendices and tabs.  On 22 January 2010, counsel provided an additional 117-page legal brief with 5 appendices.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the Army as a cadet at the USMA on 27 June 2005.  On 27 June 2005, the applicant executed a contract with the Army acknowledging he could incur a financial obligation for the cost of his education or an obligation to serve in the Army in an enlisted status if he, after entering his second class (junior) year at the USMA, breached the terms of the agreement.

2.  The applicant's record contains official statements from two USMA MPs which describe an incident involving the applicant on 24 July 2008.  The two statements describe the circumstances surrounding this incident as follows:

	a.  Staff Sergeant (SSG) R. P. essentially states that, on 24 July 2008, he was notified by Sergeant (SGT) M. J. of a possible government weapon being located in a privately-owned vehicle (POV) at the Econo Lodge in Highland Falls.  Upon arrival at the Econo Lodge to validate the complaint, both MPs met with the hotel employee (SGT M. J.'s spouse) who identified the vehicle containing the weapon.  The MPs observed a government issued M-16 rifle in the front passenger seat of an Acura sport utility vehicle belonging to the applicant.  SSG R. P. states that during the discussion with the applicant, he stated that "he had picked up Cadet N. M. from her training area at Camp Buckner and drove her to building 606 for a dental appointment.  After he dropped her off, he stated that he was unsure of what to do with her weapon so he took it with him to the Econo Lodge to meet his girlfriend, while he waited to pickup Cadet N. M. from the dental clinic to take her back to training."  SGT M. J. confiscated the weapon and instructed the applicant to pick up Cadet N. M. and proceed directly to the MP station.

	b.  SGT M. J. essentially states that he received a phone call from a worker at the Econo Lodge hotel in Highland Falls in reference to a possible unsecured government weapon in a POV in their parking lot.  SGT M. J. and SSG R. P arrived at the hotel and made contact with hotel personnel who pointed them in the direction of the vehicle and they then made contact with the owner who was identified as the applicant.  SGT M. J. further states that the applicant informed him and SSG R. P. that "he was holding the weapon for a Cadet N. S. M." and that "he picked Cadet N. M. up at Camp Buckner in his POV and dropped her off at the dental clinic for an appointment."  SGT M. J. further states that the applicant said "he did not know what to do with the weapon so he held onto it and drove back off post in his POV with the weapon in his sole possession, to the Econo Lodge where he was waiting for her to finish her scheduled appointment."  SSG R. P. and SGT M. J. confiscated the weapon from the applicant and informed him to pick up Cadet N. M. from the clinic and for both to proceed to the MP station.

3.  The applicant's record also contains a sworn statement from him regarding the incident of 24 July 2008.  The statement essentially states the applicant went to Camp Buckner because he brought a package of cookies and donuts for Cadet N. M. from her mother and grandmother.  The applicant further states that he assumed he would just drop off the package and return to his hotel, but after talking with Cadet N. M. it was evident that she needed to return to USMA to pick up rank and he also mentioned that she needed to talk to the Dental Activity (DENTAC) about a follow appointment for an injury.  The applicant states he volunteered to take her to USMA because she did not want to wait for the duty driver.  He continues that Cadet N. M. brought her "rifle," but he was unaware that this was an issue because she maintained physical control of the weapon.  Upon "getting to" USMA the applicant realized that he did not have his "cadet temporary decal" and could not go through the DOD gate.  He stated, as a result, he returned to his hotel room to retrieve his decal and change into his Army combat uniform.  While he was changing there was a knock at the door and the hotel staff and the MPs were at the door.  He states that apparently Cadet N. M. "had left her weapon in my car and we were both unaware of it."  He stated he turned the weapon over to the MPs and hurried over to the MP station at USMA.

4.  A Commander's Inquiry completed on 26 July 2008 by the applicant's Company Tactical Officer regarding the 24 July 2008 incident recommended that "Both individuals should receive a Regimental Board as a minimum.  It is doubtful that both individuals were ignorant of the fact that transporting a weapon in a POV is unlawful.  It is also clear that there was fraternization involved.  There also appear to be honor issues and a pattern of misconduct."

5.  A sworn statement, dated 31 July 2008, made by the applicant to his tactical officer, addressed the following pertinent points:

	a.  When asked what he intended to accomplish when he arrived at Camp Buckner, he stated he planned to drop off her [Cadet N. M.] package and make sure she was OK because she had told him she felt threatened by a "Firstie" [a first year or senior cadet] on the regimental staff.  The applicant also clarified that he told the MPs who responded to the scene that Cadet N. M. was with him at the hotel and that he had planned on taking her to DENTAC.

	b.  When asked when did he discover that he did not have his temporary decal, he stated he realized "right after" leaving the gate at Camp Buckner that his temporary decal was in his overnight bag at his hotel.  He further states he did not want to go through any hassles at the gate because he had his luggage and bike in the back of his car.  He states he also told Cadet N. M. that her mom's bag was probably in the back of his car and she could go through it while she "waited in the car for me [the applicant] to get the decal."  He continued that it later became apparent that her bag was not in the applicant's car but that he had brought it to his room when he checked in the previous night.  He states she came up to his room to look at her bag as he looked for his temporary decal in his overnight bag.

	c.  When the MPs asked who the M-16 rifle belonged to, the applicant stated that it was a CFT (Cadet Field Training) cadet's whom he was transporting to West Point.  When the MPs further inquired where the CFT cadet was and where he told them she was, he stated that "she was with me and that I had planned on dropping her off at West Point to see DENTAC."

	d.  When asked where Cadet N. M.'s rifle was when the applicant picked her up, he stated that her rifle was on her person.  He further stated he did not notice this fact until they started driving out of Buckner.

6.  On 28 August 2008, the applicant accepted punishment under Article 10 of the Cadet Disciplinary Code for failing to comply with regulations, orders, and instructions by having Cadet N. M.'s M-16 rifle in his POV in a parking lot of an Econo Lodge Hotel on 24 July 2008 and for lying to M.Ps by stating that Cadet N. M. was at a dentist appointment when in fact she was with him in the hotel.  The applicant's Brigade Tactical Officer (BTO) imposed punishment of 100 hours of extra duty, 60 days of restriction, a reduction in cadet rank, and withdrawal of all privileges for 90 days.  The applicant elected not to appeal this punishment.  The applicant asserts that his BTO informed him that his case would have gone much smoother had he not become involved with the sexual harassment allegations made by Cadet N. M. against Cadet T. G.

7.  The events timeline provided by the applicant states:

	a.  On 5 September 2008, he assisted Cadet N. M., who was serving the walking tour imposed upon her at the Brigade Board, by carrying her weapon.  The applicant's Tactical Officer, CPT A. M. warned the applicant that helping Cadet N. M. would cause him more trouble.

	b.  On 8 September 2009, Cadet N. M. asked the applicant to accompany her to the Equal Opportunity Office at USMA where she intended to file a victim complaint against Cadet T. G.

	c.  On 10 September 2008, the BTO issued the applicant and Cadet N. M. a no-contact order.  CPT M., the company commander, read the applicant the formal, written no-contact order on 12 September 2008.

8.  On 30 September 2008, SGT M. J. provided an additional sworn statement to elaborate on the statement he previously provided on 24 July 2008 regarding the incident involving the applicant's possession of an M-16 rifle.  In this statement, SGT M. J. essentially indicated that while talking to the applicant on 24 July 2008 he noticed Cadet N. M. stick her head out from behind the door of their upstairs motel room.  He further states, given the amount of time it took the applicant and Cadet N. M. to arrive at the USMA MP station, it would have been impossible for the applicant to have picked up Cadet N. M. from the dental clinic where he had reportedly dropped her off for an appointment.  He concludes that it is from first-hand knowledge that he knows Cadet N. M. was in the Econo Lodge hotel room rented out to the applicant the entire time the MPs were questioning him.

9.  On 2 October 2008, the 4th Regimental Honor Representative for the USMA Cadet Honor Committee recommended that the commandant convene an HIH to review the allegation that the applicant lied to the MPs on 24 July 2008.  On 28 October 2008, the Vice Chairman of Education for the Cadet Honor Committee, Cadet SGT B. T., announced that the Cadet Honor Committee recommended the case be forwarded to an HIH to resolve whether the applicant lied to the MPs about Cadet N. M.'s whereabouts and whether he was lying by equivocation by stating the female in his hotel room was his girlfriend, a statement that was made with the intent to deceive or mislead.  On 6 November 2008, the Commandant of Cadets, Brigadier General (BG) M. L., referred the first allegation to an HIH.  He did not refer the second allegation, alleging a lie by equivocation.

10.  On 9 November 2008, the applicant acknowledged notice of the HIH.  In acknowledging the HIH, the applicant received a "Notification of Respondent's Rights and Responsibilities" memorandum, outlining his rights in the HIH process, which includes the right to appear before the HIH, call witnesses, question witnesses, challenge board members, obtain investigative reports, and have a Cadet Advisor present.  On 17 November 2008, BG M. L. formally appointed the board for the applicant's HIH.

11.  On 17 November 2008, the HIH convened a preliminary session to advise the applicant of his rights and receive his elections.  The sole allegation before the board was whether the applicant lied to the MPs on 24 July 2008 when he stated that he had dropped off Cadet N. M. at the USMA Dental Clinic.  The transcript of the proceeding shows that the applicant consulted an attorney prior to the hearing and was satisfied with her advice.  The applicant was represented by a Cadet Advisor throughout his hearing.  The applicant also acknowledged that he had the ability to offer information about himself for consideration by the board members, the Commandant of Cadets, and the USMA Superintendent.  The hearing advisor then advised the applicant that the HIH would reconvene on 21 November 2008 to hear testimony.  The applicant indicated that he would be prepared for the hearing.

12.  The HIH reconvened on 21 November 2008.  At the beginning of the hearing, the applicant submitted 13 character statements from various officers and cadets.  The applicant was also notified the board would call Cadet C. on the merits and LTC C. C. as a character witness.  The applicant elected not to challenge any of the board members for cause.

13.  The HIH board called CPT A. M. and SGT M. J. to testify on the merits of the honor allegation.  SGT M. J.'s testimony was consistent with his statements prepared soon after the incident at the Econo Lodge involving the M-16 rifle.  SGT M. J. testified that the applicant stated he was holding on to the weapon for a friend whom he had dropped off at the USMA dental clinic.  On cross examination, the applicant attempted to show that SGT M. J. was mistaken in his recollection.  SGT M. J. essentially responded that he correctly remembered and recorded the applicant's statement that Cadet N. M. was at the Dental Clinic.

14.  The applicant's testimony began with a narrative statement.  In it, the applicant pointed out several instances in his Cadet career where he told the truth even though he knew it adversely affected a punishment he received or his grades.  The applicant maintained that he told the MPs that Cadet N. M. was with him in the hotel, which was the same claim he made in his written statements and later to his Tactical Officer.  The board members then questioned the applicant about his interaction with the MPs and details contained in his various statements.

15.  The HIH transcript includes a note which states "The IR [Investigative Representative] informed the Board President and hearing advisor Cadet N. M. was exercising her Article 31 rights."  It further shows the board president announced during the proceeding "Cadet N. M. is not available to testify, so she won't be testifying today."

16.  After hearing the applicant's closing argument, the voting members of the board held a closed session to deliberate on the merits of the honor allegation.  The HIH transcript shows that prior to the start of deliberations, the board members received final instructions from the Board President which included the standard of proof requirements.  However, the transcript was summarized and the actual instructions given were apparently not transcribed verbatim.  The board, with at least four of the six voting members concurring, found that the applicant violated the honor code by lying.  Specifically, the board found he lied to the MPs, by stating he had dropped Cadet N. M. off at the USMA Dental Clinic knowing the statement was false and with the intent to deceive or mislead another person.

17.  At the conclusion of the board, the six voting board members completed a questionnaire in accordance with United States Cadet Command (USCC) Pamphlet 15-1, Honor Committee Procedures, to aid the Superintendent in making a final decision on the retention of the applicant.  Each board member recommended that the Superintendent grant discretion in this case by allowing the applicant to remain a cadet at West Point and either be allowed to graduate with his class or with a delayed graduation by 1 year with a full year turn back.

18.  On 21 November 2009, following the HIH, the applicant acknowledged receipt of chapter 4 of USCC Pamphlet 15-1 concerning Post-Hearing Procedures and the Review Process.

19.  On or about 1 December 2009, the applicant received a copy of the HIH board transcript with the exhibits considered during the board.  The applicant claims he had less than 24 hours to provide a statement to the USMA Superintendant to consider in taking final action on his case.  However, no evidence of record confirms this assertion.

20.  On 12 January 2009, the USMA Superintendant approved the findings of the HIH and the applicant's disenrollment from USMA.  The Superintendant recommended that the Secretary of the Army transfer the applicant to the Army Reserve in the grade of E-4 for 3 years and order the applicant to active duty for a period of 3 years.

21.  On 10 July 2009, the ASA (M&RA) approved the Superintendant's recommendations and transferred the applicant to the Army Reserve in the grade of E-4 for 3 years and immediately ordered the applicant to active duty for a period of 3 years.  On 5 August 2009, the Army ordered the applicant to active duty effective 24 August 2009 for a period of 3 years.

22.  The applicant's counsel provided a report of polygraph examination, dated 15 August 2009, which shows that in the opinion of the polygraph examiner, the applicant was truthful when asked the following questions:

	a.  In reference to the allegations that you lied to the MPs on 24 July 2008, do you intend to answer truthfully each question about that?  Answer:  Yes.

	b.  On 24 July 2008 at the MP station did you lie to any MPs during that interview?  Answer:  No.

	c.  During the interview on 24 July 2008 did you lie to any of the questions asked by the MPs?  Answer:  No.

23.  In the processing of this case, the ABCMR requested an advisory opinion from the Department of the Army, Office of the Deputy Chief of Staff, G1 (G-1).  In the opinion, dated 9 September 2009, the Chief, Officer Division concluded the applicant was properly disenrolled from USMA and ordered to active duty in accordance with applicable policy, regulation, and law.

24.  The applicant's counsel provided comments on the G-1's advisory opinion on his behalf on 9 October 2009.  Counsel essentially contended the ABCMR did not properly comply with the ex-parte provisions of Title 10, U.S. Code, section 1556, because they did not provide the applicant all of the requests from ABCMR to the G-1.  Counsel further contends the G-1 advisory opinion has no value because it did not provide a meaningful analysis of the applicant's disenrollment from USMA.  

25.  On 29 January 2010, the ABCMR requested an additional narrowly focused advisory opinion from the G-1 and USMA addressing whether the honor board members, who found that the applicant committed an honor violation, applied the proper standard of proof in assessing the evidence presented during the HIH held on 17 and 21 November 2008.  In its opinion, dated 8 February 2010, the USMA cites instances within the HIH transcript where standard of proof instructions were presented by the hearing advisor and/or the board president to the applicant, the board president and the honor board members.  In addition to its opinion, the USMA provided a standard script used during any HIH and it articulates and requires the preponderance of evidence standard to be read during several portions of the proceedings.  As a result, USMA concluded, it is clear that during the HIH, the proper standard of proof in assessing the evidence was used and a clerical error on a findings worksheet does not mean the honor board members used a lower level of proof during its deliberations of the applicant's case.  The Army G-1, in its response, supports USMA's advisory opinion indicating that USMA presented numerous examples to illustrate that the preponderance of evidence standard was used during the applicant's HIH.

26.  The applicant's counsel provided comments on the USMA's and G-1's advisory opinion on 26 February 2010.  Counsel essentially states that relying on the photocopied script provided by USMA with its advisory opinion, as proof that the honor board was provided and understood the standard of proof required for finding that the applicant committed an honors violation, would be unfair.  He further states that there is no way to determine whether the hearing advisor properly communicated all the matters to the applicant, the board president and ultimately the honor board members or that they understood the instructions.  He further argues that the advisory opinion fails to rebut the clearly stated finding by the HIH of an honor violation based on a substantial evidence standard.  Counsel rejects the assertion by USMA that the hearing advisor used a standard script or instructed the members of the proper evidentiary standard and as a result, concludes that relief is warranted as a matter of equity in this case.

27.  The ABCMR acts for the Secretary of the Army to correct Army records pursuant to Title 10, U.S. Code, section 1552.  Title 10, U.S. Code, section 1552(a)(1), provides in relevant part, "[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department."

28.  Army Regulation 15-185 sets forth the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.   Paragraph 2-1 provides that the ABCMR is composed of members regularly employed in the executive part of the Department of the Army who are appointed by the Secretary of the Army to serve as a Board member as an additional duty.  Neither the statute nor the regulation requires the appointment of full-time Board members.

29.  Army Regulation 15-185, paragraph 2-14, permits the Secretary himself to take action on any particular application for correction of Army records.  The ASA (M&RA) very rarely takes final action on any ABCMR case.  Nothing in Title 10, U.S. Code, section 1552, or the regulation contemplates or requires the ABCMR or DASA (RB) to defer action on a case because the ASA (M&RA) or a higher Army authority made the final decision or took final action on an issue being challenged before the ABCMR.  Such decisions most often involve officers, since the final decision on many officer-related actions is taken by the ASA (M&RA) or the Secretary of the Army.  A review of the ABCMR's online reading room (http://boards.law.af.mil) containing past ABCMR decisions reveals the ABCMR regularly reviews requests for corrections of ASA (M&RA) and Secretarial decisions and it has granted relief in certain cases either as a matter of law or as a matter of equity.

30.  Army Regulation 15-185 does not dictate the relative priority the ABCMR must assign a given application.  Title 10, U.S. Code, section 1557 provides time standards for processing ABCMR cases.  Title 10, U.S. Code, section 1557(a), provides that the ABCMR must complete final action on 90 percent of all applications within 10 months of receipt.  Title 10, U.S. Code, section 1557(b), provides all actions must be completed within 18 months of receipt.  Only the Secretary of the Army may exclude an individual application from this timeliness requirement.  According to statistics maintained at the Army Review Boards Agency (ARBA), the ABCMR completes the review on 99 percent of all applications within 10 months.

31.  Title 10, U.S. Code, section 4348, provides the Secretary of the Army can require a cadet entering the USMA to execute a written agreement obligating the cadet to serve in an enlisted status for a designated period of time if the cadet fails to complete the educational requirements in the agreement.  For USMA cadets, this service obligation attaches upon entry into their 2nd Class (Junior) year.  This agreement is executed by every cadet upon entry to the USMA.

32.  Army Regulation 210-26, paragraph 6-16 provides a succinct recitation of the USMA cadet honor code:  "A cadet will not lie, cheat, or steal, or tolerate those who do."  The USMA Superintendent is responsible for establishing and maintaining a system to administer the cadet honor code.  Pursuant to Paragraph 6-16(c), a cadet found to have violated the Cadet honor code normally will be separated from USMA.  However, the cadet may, at the discretion of the Superintendent, be retained or returned to the next lower class and also awarded punishments specified under paragraph 6-4 of the regulation.

33.  USCC Pamphlet 15-1 (Honor Committee Procedures), provides guidelines for investigating honor allegations and conducting formal HIH.  Chapter 3 (Hearings), paragraph 302, sets forth the purpose of and the rights of the cadet before a formal HIH.  The purpose of the HIH is twofold:  a) to determine whether or not the honor code has been violated; and b) if a violation occurred, to provide a recommendation to the Superintendent regarding the final disposition of the cadet's case.  A cadet called before an HIH has the right: to remain silent; to consult with legal counsel before all proceedings; to call witnesses and present evidence; to object to evidence; to appear personally, and be present during open sessions of all hearings; to question all witnesses; to challenge any board member "for cause"; to obtain copies of all investigative reports, recommendations, statements, hearing member worksheets, and other official documents relating to the investigation, hearing, and subsequent review process; to have a Cadet advisor present at the hearing; to bring matters to the attention of the hearing advisor if he perceives anything as unfair; to challenge the hearing advisor "for cause"; and to make an opening statement and a closing argument before the board.

34.  Paragraph 305(g) of USCC Pamphlet 15-1 sets forth the Rules of Evidence applicable at an HIH.  This paragraph provides that hearsay evidence is admissible, although a personal statement or testimony of a witness is usually better evidence than an earlier written statement by the witness.  The paragraph provides that a witness should appear before the board unless he or she is not reasonably available (e.g., cannot be located; cannot be ordered to appear and refuses to do so; the importance of such testimony or personal appearance is disproportionate to the delay, expense, or difficulty in obtaining it).  An HIH is not subject to the exclusionary rules applicable to trials by court-martial.  However, some exclusionary rules do apply.  Of note, this paragraph states, "[t]he HIH will not receive or consider any evidence of the results, taking, or refusal of a polygraph (lie detector) test."

35.  Chapter 4 of USCC Pamphlet 15-1 sets forth the post-hearing procedures for an HIH.  This process includes a preliminary review by the USMA Staff Judge Advocate (SJA), recommendations from the Special Assistant to the Commandant for Honor, and the Commandant.  This information, along with the transcript and all other recommendations are then provided to the applicant.  Pursuant to paragraph 405, the cadet then has 3 days to submit a rebuttal for consideration by the Superintendant in taking final action on the case.  If a rebuttal is submitted, the SJA has two duty days to prepare a review of the cadet's rebuttal and assemble the entire case file for the Superintendent's review and decision.  Paragraph 406 provides that the Superintendent will review the entire record, including the SJA's review and any matters submitted by the Commandant of Cadets and the respondent, come to his own conclusions, and then take action on the matter.  The Superintendent is not bound by the HIH finding of an honor code violation or by the HIH recommendations.  In order to find that the cadet violated the honor code, a greater weight of the evidence must exist than supports a contrary conclusion.  If the finding is not supported by sufficient evidence, the Superintendent must set it aside.  This provision does not require the Superintendent, in approving the HIH findings, to state his rationale for doing so.

36.  Paragraph 406(g) of USCC Pamphlet 15-1 sets forth factors for the Superintendent to consider in taking action against a cadet found in violation of the honor code.  Considerations include: duress at the time of the violation; time under the honor code; resolve to live honorably in the future; the manner in which the case was reported; and the overall performance and conduct history of the cadet.  The superintendent may exercise discretion by retaining the cadet at USMA and direct sanctions and any developmental alternative to separating the cadet as he deems appropriate.  Although this regulation requires the superintendent to consider factors in exercising his discretion, it does not require he detail the factors relied upon in making his final decision.

37.  Title 10, U.S. Code, section 1556, prohibits ex-parte communications by members of the ABCMR and it provides that the Secretary of Army shall ensure an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications (including summaries of verbal communications) to or from the agency or board, or a member of the staff of the agency or board, with an entity or person outside the agency or board that pertain directly to the applicant's case or have a material effect on the applicant's case.  Title 10, U.S. Code, section 1556(b) provides exceptions to this rule for classified information, information the release of which is otherwise prohibited by law or regulation, any record previously provided to the applicant or known to be possessed by the applicant, any correspondence that is purely administrative in nature, and any military record that is or may be provided to the applicant by the Secretary of the military department or other source.

38.  Title 10, U.S. Code, section 1034, otherwise known as the Whistleblower Protection Act prohibits certain retaliatory personnel actions.  Title 10, U.S. Code, section 1034(b), prohibits an official from taking an unfavorable personnel action or retaliation against an individual for communicating information to law enforcement or an investigative agency.  This statute empowers the ABCMR at the request of an applicant and its discretion to review Whistleblower Protection Act claims of an applicant, and consistent with Title 10, U.S. Code, section 1552, correct an applicant's records as appropriate when a violation of the Act resulted in retaliation or unfair personnel action.

39.  Uniform Code of Military Justice, Article 31 (Compulsory self-incrimination prohibited), states in pertinent part, no person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the DASA (RB) should recuse herself from this case and have the Secretary of the Army personally act on the applicant's case lacks any basis in law or in fact.  The heart of the applicant's contention is the DASA (RB) and the ABCMR are hampered from acting independently in this case because the ASA (M&RA) approved the applicant's disenrollment from USMA and his call to active duty.  This argument, taken to its logical extension, would automatically recuse the DASA (RB) and ABCMR from reviewing any request for relief involving a final action by the ASA (M&RA) or the Secretary of the Army.  This ignores a plain reading of Title 10, U.S. Code, section 1552, which does not carve out such an exception.  The ABCMR regularly reviews such decisions and, as proof of its independence, grants relief where dictated by the law or equitable considerations.  If counsel had presented some evidence showing actual bias or partiality on behalf of the DASA (RB) or the ABCMR, recusal would have been a consideration.  However, counsel has offered no evidence even hinting that the DASA (RB) or members of the ABCMR are biased, unable to remain impartial, operating under undue influence by the ASA (M&RA) or are otherwise incapable of rendering a fair decision based solely upon the evidence of record.

2.  Counsel's discussion of the purpose of Title 10, U.S. Code, section 1552, while informative to those unfamiliar with the corrective discretion of the ABCMR, is not helpful concerning the merits of the applicant's case.  The ABCMR has a decidedly long history of interpreting, applying, and fairly resolving the applications of thousands of Soldiers applying for relief under this statute.  Counsel's montage on the considerations that should drive the outcome of any application, such as fairness and equity, simply reiterates what every Board member knows and what already guides the ABCMR's determinations.

3.  Counsel's claim that the members of the ABCMR are unable to give the applicant's case the consideration it merits because of the Board's caseload and status as part-time volunteers is misguided.  Title 10, U.S. Code, section 1552 specifically delegates the authority to have the ABCMR act on cases through such a Board.  By regulation, the Board understands its responsibility to give each case the consideration necessary to arrive at a fair and just result.  Although Board members are volunteers, they are selected for duty by the Secretary of the Army by virtue of their age, experience, knowledge of military personnel rules and laws, and judicial temperament.  Each member brings to each Board a wealth of knowledge and experience critical to ensuring each case is viewed fairly, impartially, and that all claims by an applicant are fully adjudicated.  The Board is not obligated to follow the recommendations from staff members or analysts who support its deliberation.  Where the ABCMR disagrees with an analyst's recommendation, it votes accordingly and announces its reasoned analysis for reaching its decision.

4.  Counsel's suggestions related to triaging of cases by the ABCMR are not relevant to the applicant's request.  Counsel's position in this regard offers a potential theoretical talking point for a meeting with senior Army leaders, but not one required or contemplated under the law when weighing the relative merits of each application.  The ABCMR timely and fairly adjudicates the requests of all applicants, completing 99 percent of all applications received in less than 10 months, far exceeding its Congressional mandate.  Recommendations from counsel on how and in what order they do this, while appreciated, have no bearing on the merits of the applicant's current request.

5.  The applicant's contention that the ABCMR violated the ex-parte provisions of Title 10, U.S. Code, section 1556, lacks merit.  The ABCMR requested an advisory opinion from the Army G-1 using a standard request format asking G-1 to review the applicant's request (which was attached) and provide a comprehensive advisory opinion.  The memorandum further requested that the G-1 notify the ABCMR if the case had to be forwarded elsewhere for additional documentation or opinions.  The evidence of record contains no indication the G-1 forwarded the request.  Further, the evidence of record contains no indication of verbal communications between G-1 and the ABCMR.  As a result, this request from the ABCMR to G-1 was exempt from disclosure under Title 10, U.S. Code, section 1556(b).  The actual request letter from the ABCMR was purely administrative in nature.  The attachment (being the applicant's request to the ABCMR) was exempt from the provisions of Title 10, U.S. Code, section 1556(a), because the applicant possessed those records.  Finally, the additional documents considered by the ABCMR that were not contained in the applicant's request are documents the applicant could obtain through a request to USMA.

6.  Also without merit is counsel's contention the ABCMR must produce the documents reviewed by the G-1 in conducting its review in preparing the advisory opinion.  Again, Title 10, U.S. Code, section 1556 excludes documents that the applicant may obtain through a request under the Privacy Act or Freedom of Information Act from that office.  Title 10, U.S. Code, section 1556 governs communications to and from the agency or board with entities or persons outside the agency or board.  It does not relate to matters not communicated.

7.  Counsel's contention the G-1 did not provide a meaningful analysis of the applicant's request or his disenrollment from USMA was considered.  Admittedly, the Army G-1's opinion did nothing more than state a conclusion that USMA and the ASA (M&RA) acted in accordance with policy, regulation and statute in disenrolling the applicant from USMA for an honor code violation and then ordered him to active duty in an enlisted status.  However, this does not render the advisory opinion invalid or require the ABCMR to seek a more robust opinion from G-1.  The ABCMR seeks advisory opinions when an applicant raises an issue that requires an explanation from an agency or otherwise requires additional information to render a decision.  In this case, the ABCMR sought two advisory opinions based on the many and varied challenges raised by counsel regarding the applicant's disenrollment.  However, the applicant's request and documents in the record before the ABCMR provide sufficient information on which the ABCMR can adequately and fully review the applicant's request.  This case comes down to the question of whether the USMA properly concluded that the applicant lied and whether the process for disenrollment under the cadet honor code substantially complied with applicable rules and regulations.  Sufficient evidence existed to support a determination the applicant lied and USMA and ASA (M&RA) disenrolled the applicant in accordance with law and regulation.  Counsel's argument goes to the weight to be attached to the advisory opinions and does not affect their admissibility.

8.  Counsel's claim that USMA violated the Whistleblower Protection Act relies upon the applicant's assertions and has no basis in fact.  The record contains no evidence nor has the applicant provided any evidence to show he ever made a protected communication under the act.  At most, the evidence of record shows he encouraged Cadet N. M. to make a complaint and accompanied her to an appointment.

9.  The HIH followed proper procedures in handling the applicant's case.  The applicant was given due process throughout the proceeding, was given the opportunity to speak and present evidence, and was provided an opportunity to provide a rebuttal.  The applicant's major procedural challenge to the HIH stems from his claim that he had less than 24 hours notice to provide a rebuttal to the USMA Superintendent.  The evidence of record shows at the conclusion of his HIH on 21 November 2009, the applicant received a copy of Chapter 4 of USCC Pamphlet 15-1 describing his post-hearing rights, which included submission of a rebuttal to the Superintendant.  The applicant received the transcript of his hearing and associated documents on or about 1 December 2009.  The Superintendant did not take final action until 12 January 2009.

10.  From the time his HIH ended, the applicant had ample opportunity to consider the nature of his rebuttal to the Superintendant.  He in fact submitted a 9-page rebuttal describing the facts leading to the honor allegation, reasserting he did not lie, and alleging a series of events, to include the HIH was taken in retaliation, due to his support of Cadet N. M. in her attempts to report a sexual assault by a popular Senior Cadet.  The Superintendant considered the very claims the applicant now makes before the ABCMR.  Assuming the applicant did receive less than 24 hours notice to provide rebuttal, he has not shown any material and identifiable prejudice.

11.  The ABCMR finds the evidence of record is insufficient to overturn the findings of the applicant's HIH, the recommendations of USMA officials, and the final decision of the ASA (M&RA) to disenroll the applicant and order him to active duty in an enlisted status in accordance with the agreement the applicant signed when he entered USMA.

12.  Counsel's claim that the Superintendent and the ASA (M&RA) acted arbitrarily and capriciously in not detailing their rationale for upholding the HIH and disenrolling the applicant from USMA lacks merit.  Regulations governing the honor process at USMA and the ASA (M&RA) action do not require an explanation outlining the basis for supporting a decision rendered by an HIH that an honor violation occurred.  In fact, any rationale for supporting an honor violation contrary to the evidence and facts presented at an HIH would undermine the process.  The Superintendent's decision and recommendation for disenrollment rested solely within his discretion.  Further, the factors for consideration listed in the regulation are non-binding and non-exclusive.  Since the presumptive sanction, especially for a senior cadet, is disenrollment, a high bar exists to show the Superintendent abused this discretion.  The applicant has not provided sufficient proof to show such an abuse occurred in this case.

13.  Counsel's contention the applicant's favorable polygraph proves he did not commit an honor violation was carefully considered.  However, USCC Pamphlet 15-1 clearly prohibits an HIH from considering the results of a polygraph or, conversely, a cadet's refusal to subject themselves to this process.  Although the ABCMR is not bound by such rules, it may consider the purpose underlying the prohibition on polygraph test results.  A polygraph serves to substitute the readings of a machine and the subjective interpretations of a polygraph examiner for the decisions of board members who had the opportunity to consider all of the evidence, observe the demeanor of the witnesses and a cadet accused of lying, and make a judgment based on all of the facts presented.  As a result, the results of a machine and interpretations of an examiner do not substitute for the reasoned judgments of the HIH board members.

14.  Counsel points out that state case law exists that looks favorably upon polygraph results.  However, the ABCMR also recognizes that a polygraph test, while an indicator of veracity, is far from a perfect science.  Further, a private polygraph test is subject to examiner bias.  In this case, the applicant paid a private polygrapher to assess whether or not he was telling the truth and then, in a process that involves a degree of subjective assessment, interpreting the results of his answers.  Since no machine is able to conclusively determine if an individual is telling the truth, there is an insufficient basis to consider the applicant's polygraph results.

15.  Counsel's various arguments that the applicant did not lie to the MPs are not persuasive.  Lacking evidence that the HIH's finding the applicant lied was unsupported there is no basis to overturn the decision by the ASA (M&RA) in this case.  The MP's testimony and statements in the record appear to be credible and support the finding of the HIH that the applicant lied.  The applicant had the opportunity to challenge SGT M. J.'s recollections during the HIH.  The HIH board members had the opportunity to question SGT M. J. and assess his credibility, ability to remember, and motives to tell the truth before rendering judgment on the applicant.  The HIH board members, considering the testimony of the MPs, the applicant's relationship with Cadet N. M. and the motivation on the applicant's part to conceal it, and the other evidence presented, determined the applicant violated the honor code.  The finding by the HIH was a fair conclusion based on the available evidence and lacking a sufficient evidentiary basis.  There is no basis to overturn the HIH's decision at this time.

16.  The applicant's successful tenure as a cadet and favorable character recommendations do not provide a basis for the ABCMR to grant the applicant relief.  The applicant did succeed academically as a cadet.  However, he was entering his senior year at USMA when he violated the honor code and disenrollment was the presumptive sanction for such a violation.  The decision by the Superintendant and the ASA (M&RA) to disenroll the applicant and order him to active duty as a SPC was not inequitable under the totality of the circumstances in this case and was not contrary to applicable regulations or law.

17.  The summary transcript of the HIH proceeding shows that while reading the HIH's finding, the board president stated the allegation against the applicant is supported by "substantial evidence."  The required standard of proof in the applicant's case was a preponderance of the evidence standard.

18.  However, the transcript also shows the hearing advisor provided the applicant with the correct standard of proof required for finding him guilty of lying to the MPs during his preliminary hearing on 17 November 2008.  The standard of proof was again articulated to the honor board members by the board president in his preliminary instructions on 21 November 2008, to the applicant in a closed session with the hearing advisor and the board president prior to the final instructions to the board, and again during the board president's final instructions to the honor board members prior to their deliberations.  The script provided by USMA with its advisory opinion clearly states the correct standard of proof required in this case.  Lacking evidence to the contrary, it appears this script was used and the correct standard of proof was articulated and understood by everyone involved in these proceedings.  Thus, the reference in the summary transcript to finding by "substantial evidence" was apparently a typographical error.

19.  Counsel's claim the HIH hearing advisor and the applicant's counsel at the time assisted in burying Cadet N. M.'s presence at the HIH which had a devastating impact on the applicant's case was carefully considered.  However, given Cadet N. M. invoked her Article 31 rights, there would have been no other option but to exclude her from testifying at the HIH in the applicant's case.  Therefore, lacking evidence to show Cadet N. M. did not invoke her Article 31 rights, no irregularity exists and there is no basis to support counsel's claim.

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)                                         AR20090014220



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1