IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090015892 


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, in effect, that his transfer to the Retired Reserve be voided and that he be reinstated into the Ready Reserve.

2.  The applicant states profound legal errors were made in his show cause for retention board proceedings:

	a.  He states the proceedings were grossly improper, false, and inflammatory and he was denied an opportunity for a fair hearing.  He states the hearing was conducted contrary to the requirements of not only fairness and due process, but also to Army policy as it is expressed in Army Regulation 135-175 (Separation of Officers).

	b.  He also states he was subjected to show cause for retention boards of inquiry in March 2001, March 2007, and November 2008 and they all revolved around a false allegation against him of rape (nonconsensual sexual intercourse).

	c.  He states the largest and most profound error in the board which resulted in his involuntary retirement (the third board) was that the board improperly considered him for involuntary separation for conduct that had been the subject of earlier administrative involuntary separation proceedings that resulted in a final determination that he should be retained in service.

3.  The applicant provides eight exhibits:  a 2001 Summarized Board Hearing Transcript; DA Form 1547 (Report of Proceedings by Investigating Officer/Board of Officers); Memorandum, subject:  Army Regulation 135-175, Officer Elimination Action, dated 16 January 2008; redacted copy of Memorandum, subject: Army Regulation 135-175, Officer Elimination Action, dated 16 January 2008; Memorandum, subject: Motion to Dismiss and Motion to Strike Notice of Initiation of Elimination of Major J____ H____ directed to the Human Resources Command, St. Louis (HRC-STL); e-mail response to "Motion to Dismiss"; DA Form 67-9 (Officer Evaluation Report (OER)) for period of 18 July 1999 through 26 January 2000; and Memorandum, subject: Administrative Memorandum of Reprimand, dated 26 January 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Army National Guard (ARNG) on 13 February 1986.  He was awarded the military occupational specialty of infantryman.  He was appointed as a Reserve Commissioned Officer of the Army in the rank of second lieutenant on 18 May 1991.  He was promoted to major in the U.S. Army Reserve effective 2 June 2004.

2.  On 23 August 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for fraternizing with a subordinate enlisted Soldier.  Alcohol was involved in this incident.

3.  On 24 March 2001, the applicant was considered by a board of officers to determine if he should be retained.  The board found there was insufficient evidence to support that the applicant committed acts of personal misconduct including but not limited to acts committed while drunk or driving while intoxicated and conduct unbecoming an officer.  In view of the findings, the board recommended his retention in the military.

4.  On 21 March 2007, the applicant had a second separation hearing to determine if he should be retained:

	a.  The board found by a preponderance of the evidence the applicant drove while intoxicated (twice); consumed alcohol while underage; drove while impaired by the consumption of alcohol; exhibited conduct unbecoming an officer; committed the acts cited in a General Officer Memorandum of Reprimand (GOMOR) issued on 26 January 2000; directed the misuse of government resources; committed conduct unbecoming an officer (on at least three occasions); committed indecent assault on R____, and made a false statement.

	b.  The board found the evidence presented in the administrative hearing established that the applicant was undesirable for further retention in the military.  The board recommended that the applicant be separated with an under other than honorable conditions discharge.

	c.  Final disposition of that board's recommendation is not a matter of record; however, it apparently improperly considered the applicant's GOMOR since the GOMOR had been considered by his 2001 board.

5.  The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) contain a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 27 March 2008.

6.  On 14 November 2008, a third board of officers convened and found the applicant did commit acts of personal misconduct and did exhibit conduct unbecoming an officer:

	a.  the following findings were supported by the evidence presented:

		(1)  On 13 September 1991, while serving in an active duty status in Mannheim, Germany, the applicant operated a motor vehicle with a blood alcohol content of 0.059;

		(2)  Between 6 January 1992 and 29 September 1994, he was counseled and reprimanded for failure to fulfill his duties as the Battalion Food Service Officer (Officer in Charge of the Dining Facility);

		(3)  On 5 May 1994, while on active duty in the U.S. Army in Mannheim, Germany, he operated a motor vehicle with a blood alcohol content of 1.21 (German Standard);

		(4)  In September 2005, while in Afghanistan, he consistently violated the two-drink limit policy in the presence of a junior officer;

		(5)  On 22 October 2005, in Heidelberg, Germany, while attending the Military Police Ball, he was drunk and disorderly;

		(6)  On 22 October 2005, he pushed a commissioned officer;

		(7)  On 22 October 2005, in Heidelberg, Germany, he kissed a female civilian, who was not his wife; and

		(8)  Between 27 and 28 October 2005, while attending a Halloween party in Kabul, Afghanistan, he was drunk and disorderly.  The applicant aggressively pursued two female warrant officers and later became belligerent and challenged two male warrant officers to a fight.

	b.  the following findings were not supported by the evidence presented:

		(1)  Between 1 January 1992 and 29 September 1994, he overindulged and abused alcohol at battalion social events, including vomiting in the battalion commander's vehicle;

		(2)  On 8 August and 7 September 2005, he negligently failed to adhere to force protection measures by falling asleep in a vehicle while traveling between bases in Afghanistan;

		(3)  On 8 August and 7 September 2005, he directed a senior enlisted Soldier to drive him to Kabul International Airport in a U.S. Government vehicle for the sole purpose of getting a massage;

		(4)  On 7 October 2005, in Kabul, Afghanistan, he was found asleep in a latrine surrounded by vomit;

		(5)  On 22 October 2005, in Heidelberg, Germany, while attending the Military Police Ball, he attempted to kiss a junior female noncommissioned officer (NCO) and placed his arm around another female enlisted Soldier.  He fondled the buttocks of his date while she was vomiting in the shrubbery;

		(6)  On 22 October 2005, in Heidelberg, Germany, he grabbed the buttocks of a junior female officer; and

		(7)  On 15 August 2008, his supervisor counseled him about outstanding rent owed to his landlord.  He made a false official statement to his supervisor, telling him that he had paid his rent when he had not.

7.  The 2008 board did have the applicant's Official Military Personnel File (OMPF), which included the GOMOR and referred OER citing misconduct.  The board's recommendation not to retain the applicant was based on a pattern of poor judgment that was used during alcohol-related off-duty social settings.  The separation board stated, "…in addition, we evaluated Major H____'s on duty performance which reflects his honorable and dedicated service to his country; therefore warranting a recommendation of:  honorable discharge.  The board also recommends, this being to the approving - - appointing authority, that Major H____ be aloud [sic] to transfer to the Retired Reserve in lieu of the immediate imposition of this discharge."

8.  On 3 March 2009, the board's findings and recommendations were approved by the Commander, HRC-STL, and the recommendation for the applicant to be transferred to the Retired Reserve in lieu of involuntary separation was also approved.  It was directed that the applicant be transferred to the Retired Reserve. 

9.  On 9 March 2009, the applicant was assigned to the Retired Reserve.

10.  Chapter 2 of Army Regulation 135-175 prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when retention is not in the best interest of the service.  Paragraph 2-5, Limitations, states:

	a.  No officer will be considered for involuntary separation for the reasons in paragraph 2–11 or 2–12 because of conduct that has been the subject of judicial proceedings resulting in an acquittal based on the merits of the case or in an action having the same effect.

	b.  No officer will be considered for involuntary separation for the reasons in paragraph 2–11 or 2–12 because of conduct that has been the subject of administrative involuntary separation proceedings resulting in a final determination that the member should be retained in the service.  For purposes of this paragraph, an officer will be considered to have been the subject of involuntary separation proceedings only if allegations against him have been acted on (paragraph 2–17c or f) by the appropriate area commander.

	c.  The limitations in a above do not apply when:

		(1)  Substantial evidence is discovered (that was not known at the time of the original proceedings, despite the exercise of due diligence) which would probably produce a result significantly less favorable for the member at a new hearing.

		(2)  The member’s subsequent conduct warrants considering him for discharge.  Such conduct need not independently justify the member’s involuntary separation but must be serious enough to raise substantial question as to the member’s potential for further useful military service.  However, this exception does not permit further consideration of conduct of which the member has been absolved by a judicial body in a prior final, factual determination based on the merits of the case.

		(3)  An express exemption has been granted by HQDA on a determination that, due to the unusual circumstances of the case, administrative separation should be effected.

	d.  Under the circumstances in (2) below, an officer who has been considered for involuntary separation but retained may again be considered for involuntary separation because of recurrent misconduct subsequent to the earlier consideration; or because of misconduct that occurred prior to that alleged in the earlier proceedings but had not been discovered earlier, despite the exercise of due diligence.  Paragraph d (2) states that an officer may be considered for involuntary separation for moral or professional dereliction or in the interests of national security at any time subsequent to the closing of the prior case.  The grounds for involuntary separation in the earlier case may be joined with the grounds in the later case if both actions are based on the same ground (moral or professional dereliction, or national security) provided the earlier involuntary separation proceeding does not include a factual determination specifically absolving the member of the allegations then under consideration.  If the grounds for involuntary separation in the earlier proceedings are joined, the additional grounds considered in the subsequent proceeding need not independently justify the member’s discharge but must be sufficiently serious to raise a substantial question as to the member’s potential for further useful military service.

11.  Paragraph 2-20 of Army Regulation 135-175 further prescribes the following actions may be taken by area commanders on recommendations of a board of officers acting on involuntary separation cases, if the area commander in his review of a case in which involuntary separation has been recommended by the board of officers notes a substantial defect, in the proceedings, he will take action as follows:

	a.  If the board has failed to make findings and recommendations as required by this regulation, he will return the case to the same board for compliance with this regulation.

	b.  If there is an apparent error or omission in the record which may be corrected without reconsideration of the findings and recommendations of the board, he will return the case to the same board for corrective action.

	c.  If the board committed an error that materially prejudiced a substantial right of the officer, he may close the case favorably to the respondent or he may convene a new board to hear the case.  The new board may be furnished the evidence properly considered by the first board, including extracts from its records of testimony of witnesses who will not be available to testify at the rehearing.  The new board may call additional witnesses.  The new board may consider additional allegations, provided the respondent is advised. The new board may not make recommendations that are less favorable to the officer than those made by the initial board unless additional allegations are considered by the new board.  No more than one rehearing may be directed without approval from HQDA.

12.  An officer with 20 or more years of qualifying Federal service for retired pay who is being considered for involuntary separation will be given an opportunity to elect transfer to the Retired Reserve in lieu of involuntary separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends all three retention boards revolved around a false allegation against him of rape and that Army regulations prohibit being boarded for the same acts which were previously considered by a separation board.  

2.  The 2001 board found that the evidence was insufficient to support the allegations brought against the applicant.

3.  The 2007 board found that numerous allegations against the applicant were supported by a preponderance of the evidence.  However, this board improperly considered the applicant's GOMOR since it was the subject of the 2001 board and improperly considered incidents that occurred prior to applicant's commissioning as a second lieutenant.

4.  The 2007 board also improperly considered several items that occurred before the 2001 board which would have been disclosed with the exercise of due diligence since these incidents were documented in his OMPF.

5.  However, these errors were harmless in that HRC-STL, as the final approval authority, elected to re-conduct the board, presumably due to legal errors in the 2007's board process. 

6.  The 2008 board's findings and recommendations were not to retain the applicant based on a pattern of poor judgment during alcohol-related off-duty social settings.

7.  The applicant's concern regarding matters heard by a prior board in 2001 (nonconsensual sexual intercourse) and items prior to his commissioning are without merit.  These items were not presented to the 2008 board of officers.  Since the misconduct cited from 1999 was summarized in a GOMOR and was referenced in an OER, it does not invalidate the board.  The board may consider the items appropriately entered in an officer's OMPF.  Even if the matters were considered an error it was harmless because the applicant received an honorable discharge. 

8.  While the 2008 board erred when it considered allegations dismissed by the 2001 and 2007 boards, the 2008 board found the applicant committed numerous alcohol-related offenses and repeatedly conducted himself in a manner unbecoming an officer.  These findings were proper and supported by the evidence of record.

9.  This series of alcohol-related incidents warranted the applicant's separation.  At the time, the applicant was a recently-promoted major (June 2004).  He had served for years in the Area of Concentration of Military Police.  Once a basis for separation was determined to exist, the board then had to decide the larger question of whether he should be separated.  On this issue, the board could consider the applicant's current period of service, which, as an officer, extended back to his commissioning in 1991.

10.  As a second lieutenant, he received NJP under the provisions of Article 15 of the UCMJ for fraternizing with an enlisted Soldier (a subordinate).  Alcohol was involved with this incident.  He was cited twice (1991 and 1994) for driving under the influence of alcohol.  In 2005, he violated on a consistent basis command policy concerning alcohol consumption in Afghanistan.  Taking into consideration the alcohol-related incidents in Germany and Afghanistan in October 2005, the record contains ample evidence to support the 2008 board's recommendation to eliminate the applicant.

11.  Even if the 2008 board erred in considering the GOMOR and OER related to the incidents considered by the 2001 board, such error was harmless.  As previously noted, the board found a legitimate basis for separation and the evidence otherwise contained in the applicant's record supported a decision to eliminate him from the Army.  Additionally, the recommendation to honorably separate the applicant despite a long history of irresponsible and drunken behavior shows the incidents considered by the 2001 board had no material impact on the outcome of the 2008 board. 

12.  A preponderance of evidence indicates the separation board recommended that the applicant be discharged and that the involuntary separation action was based on substantial acts of personal misconduct and conduct unbecoming an officer.  Among these acts that he engaged in was drunk and disorderly behavior, operating motor vehicles after consuming alcohol, and kissing a female not his wife.

13.  There is no evidence of an apparent error or omission in the record that materially prejudiced a substantial right of the applicant.  As such, there is no evidence and the applicant has not provided any evidence showing he was not afforded due process.

14.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090015892



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ABCMR Record of Proceedings (cont)                                         AR20090015892



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