IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090016565 


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 that his general, under honorable conditions discharge from the Active Guard Reserve (AGR) program in 2002 be set aside and that he be reinstated back into the AGR with entitlement to back pay and allowances.

2.  In the alternative, he requests his discharge be set aside and changed to an honorable release from active duty into an active U.S. Army Reserve (USAR) status with reinstatement for the purpose of completing 20 qualifying years toward non-regular retirement, award of back pay for monthly drills and annual training, reinstatement to the promotion list, and promotion to captain (CPT)/O-3 (he was on the CPT promotion list at the time of elimination proceedings).

3.  The applicant states that in June 2001 he was diagnosed as having depression with a non-specified sleep disorder (chronic insomnia).  He was prescribed medications, but he suffered side effects and ultimately entered a sleep study.  In October 2001, the previously preferred court-martial charges for illegal drug abuse, adultery, and drug abuse were withdrawn due to lack of evidence.  In April 2002, nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the same charges was also withdrawn.  The commander even admitted that there was no proof of ingestion of illegal drugs and that he was legally separated from his spouse at the time.  In May 2002, he was issued a General Officer Memorandum of Reprimand (GOMOR) for the same charges.  The GOMOR was filed in his Official Military Personnel File (OMPF).  In May 2002, elimination action was initiated against him based on the GOMOR and his substandard performance as an Operating 
Room (OR) nurse.  On the latter, his chronic insomnia, depression, and adverse reaction to medications caused substandard performance as an OR nurse.  In June 2002, he requested a Board of Inquiry (BOI).  In the interim, he was placed on emergency leave due to the death of his mother.  His condition worsened and he was prescribed medications that impaired his judgment and, having not had any sleep for days and being under pressure, he submitted a waiver of the BOI despite having completed nearly 18 years of combined active duty and USAR service.  He was subsequently discharged by reason of unacceptable conduct with a general, under honorable conditions character of service.  He concludes that "his waiver and resignation [were] ineffective as not intelligent and knowing and when doubt as to all the charges and substantial mitigating evidence."  Later in 2005, he was properly diagnosed with sleep disorder that caused chronic depression.  He was properly treated in the 2006/2007 time-frame and he returned to his nursing profession after an extended period of unemployment.

4.  The applicant provides additional documentary evidence through counsel in support of his request.

5.  The applicant filed a claim before the U.S. Court of Federal Claims seeking relief related to his involuntary discharge from the Army, such as an order requiring the Government to expunge from his OMPF all adverse documents relating to the discharge, reprimand, and related documents.  On 19 February 2009, the Government filed a Motion to Suspended Proceedings.  The Government requested the Court stay all further proceedings in order to permit the applicant the opportunity to present his case to the Army Board for Correction of Military Records (ABCMR).  On 3 April 2009, the Court granted the Government’s motion and ordered the applicant to file his application to the ABCMR within 60 days from the date of this Order and the parties were ordered to submit a joint status report within 60 days from the date on which the applicant files his application to the ABCMR and every 60 days thereafter until the ABCMR reaches a decision. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the ABCMR set aside the applicant’s general, under honorable conditions discharge; retroactive reinstatement to active duty as a CPT; honorable retirement from active duty; and payment of back pay and allowances.

2.  In the alternative, counsel requests the applicant’s retroactive reinstatement to active duty as a CPT/O-3 with back pay to the date of the ABCMR decision, honorable transfer to the USAR, and granting 20 qualifying years toward non-regular USAR retirement at age 60.
3.  In the alternative, counsel requests the applicant’s transfer to an active status on 30 October 2002, reinstatement to the CPT/O-3 list, satisfactory USAR annual credit and monthly/annual back pay for missed drills/annual training, and a
20-year retirement at age 60.

4.  Counsel provides a 13-page brief in which he gives a background of the applicant’s military service; chronicles the events that led to his court-martial charges, nonjudicial punishment, and GOMOR; describes his medical condition; and concludes that there are legal errors and injustices in the applicant’s case that require an appropriate and fitting remedy.  Specifically, counsel argues that:

	a.  the applicant was reluctant to seek treatment for a psychiatric illness because it would have jeopardized his registered nursing credentials; 

	b.  the applicant’s sleep disorder, sleep deprivation, anxiety, and depression, coupled with the illness and ultimate death of his mother, affected his duty performance; 

	c.  the applicant had been separated from his spouse and children since 1999 and his divorce was final in 2002; yet, the GOMOR addressed the issue of adultery despite the fact that the applicant had been separated;

	d.  the applicant had a speech impediment causing articulation difficulty and he was often improperly counseled for speaking Spanish and that he received a referred OER that referenced this condition, as well as his unresolved disciplinary issues; 

	e.  the applicant’s promotion to CPT was unnecessarily delayed pending an investigation and he was denied due process as he was not notified of the delay in promotion or given an opportunity to respond to the delay;

	f.  the Commanding General (CG) was not convinced beyond any reasonable doubt that the applicant knowingly ingested drugs; yet, he issued a GOMOR; and

	g.  the applicant submitted his BOI waiver after having had four days without sleep, thus making this waiver ineffective as it was not intelligently made.

5.  Counsel provides the following additional documentary evidence in support of the applicant’s request:

	a.  copies of the applicant’s DA Forms 1059 (Service School Academic Evaluation Report), dated 1 June 1998 and 10 July 2000; 
	b.  copies of the applicant’s DA Forms 67 (Officer Evaluation Report (OER)) from May 1998 to July 2002, with allied documents;

	c.  copies of various medical records, charts, reports, treatment, consults, and other medically-related documents, dated on miscellaneous dates throughout the applicant’s military service;

	d.  a copy of a DA Form 458 (Charge Sheet), dated 5 October 2001, and allied documents;

	e.  a copy of his memorandum, dated 7 February 2002, Subject:  Article 15 Hearing;

	f.  a copy of the GOMOR, dated 14 February 2002, and his rebuttal, dated 7 March 2002;

	g.  a copy of his separation packet, dated 11 April 2002;

	h.  a copy of his divorce decree, dated 28 March 2002;

	i.  copies of seven letters of recommendation, dated on various dates in 2002;

	j.  a copy of his request for voluntary release from active duty and waiver of Board of Inquiry, dated 9 August 2002;

	k.  a copy of the Military Personnel (MILPER) Message, dated 26 September 2002, approving his voluntary request for separation;

	l.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 October 2002; and

	m.  copies of various DA Forms 31 (Request and Authority for Leave), dated on miscellaneous dates in 2001, 2002, and 2003.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of 
limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show he enlisted in the Regular Army (RA) for a period of 5 years on 2 April 1991.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 91C (Practical Nurse).  He was assigned to the U.S. Army Medical Department Activity (MEDDAC), Fort Belvoir, VA, and he was promoted to sergeant (SGT)/
E-5 in October 1991.  He was honorably discharged on 11 March 1998 to accept a commission as an officer of the USAR.

3.  The applicant’s records also show he was appointed as an Army Nurse (AN) second lieutenant in the USAR and executed an oath of office on 12 March 1998. He appears to have entered active service in an AGR status; however, his record is void of the orders that ordered him into this program.  Nevertheless, his records show he completed the Army Medical Department (AMEDD) Officer Basic Course and he was subsequently assigned as a clinical nurse at Walter Reed Army Medical Center (WRAMC), Washington, DC.  He was later reassigned to Winn Army Community Hospital (WACH), Fort Stewart, GA, on or about 20 May 2001.

4.  On 23 July 2001, the applicant was scheduled to work at WACH commencing at 0645 hours; however, he failed to report for duty as required (he was at home instead).  When questioned by his supervisor, he indicated that he overslept due to taking Benadryl.  Additionally, when he finally reported for duty at some point during the duty day, he would disappear from the department without informing anyone of his whereabouts.

5.  On 30 July 2001, while at Fort Stewart, the applicant submitted a urine sample as part of a random unit urinalysis and his urine sample tested positive for D-methamphetamine.

6.  On 2 August 2001, the applicant was again counseled by his chain of command for leaving his place of duty without being properly relieved despite being specifically instructed not to leave his duty station without informing someone of his whereabouts.  He was contacted by the Charge Nurse, a CPT, and he was instructed again not to leave his duty station until he was properly relieved by the next shift.


7.  On 3 August 2001, the applicant exhibited erratic behavior and conduct unbecoming an officer when he was provided with discharge instructions by the hospital after having received treatment for diarrhea.  He rudely and disrespectfully gestured with his hands to the attending physician, a CPT, to "just get out of here and leave me alone."

8.  On 6 August 2001, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command or USAHRC), Alexandria, VA, published Orders 218-031 announcing the applicant's promotion to CPT with an effective date and date of rank of 30 September 2001.

9.  On 7 August 2001, the applicant was counseled by the Chief, OR Nursing services, for disrespecting a field grade officer by not calling him "Sir" and making facial expressions during the course of counseling.

10.  On 14 August 2001, the applicant submitted a sworn statement to his immediate commander in which he denied using any drugs.  He claimed that he believed a woman he had met at a nightclub might have spiked his drink because his heart began beating fast while they were drinking.

11.  On 14 August 2001, the applicant submitted a second urine sample and again tested positive for D-methamphetamine and amphetamines.

12.  On 23 August 2001, the applicant provided a sworn statement to the U.S. Army Criminal Investigation Command (USACIDC) regarding the 30 July 2001 urinalysis in which he continued to deny knowingly using illicit drugs.  He also reiterated his alibi in greater detail.  He stated that while in Kissimmee, FL, between 27 and 29 July 2001, a woman spiked his drink with illicit drugs that he innocently and unknowingly ingested.  He indicated that they were drinking beers and Crown Royal from the bottle.  He also admitted that he had sex with the woman with whom he had had no further contact and could not identify.  He also indicated that he retained the Crown Royal bottle and drank from it the next day after he returned from Florida.

13.  On 18 and 21 September 2001, the applicant failed to report at the time prescribed to his appointed place of duty in that he reported late to the physical fitness training formation.

14.  On 17 January 2002, the applicant again exhibited conduct unbecoming an officer and disrespect to a superior commissioned officer when he twice submitted a leave slip for a number of days that exceeded what his chain of command told him would be approved.  When he finally submitted a third slip with the correct number of days, he was disrespectful in language upon 
presenting the slip.  He was placed in the position of attention and he was informed of his disrespectful and unacceptable conduct; but, rather than staying in the position of attention as instructed, he began to verbally respond and complain.

15.  On 14 February 2002, the applicant received a GOMOR from the CG, 3rd Infantry Division.  The GOMOR states that he was reprimanded for committing adultery and conduct unbecoming an officer.  On two different occasions, 30 July 2001 and 14 August 2001, he tested positive for the presence of 
D-methamphetamine in his urine.  When interviewed by the USACIDC he claimed that he did not knowingly ingest drugs.  He stated that he suspected that a woman he met in Kissimmee, FL, slipped the drugs into his drink.  He later explained that he met this woman in a bar and later had sex with her in a hotel room.  He stated that he suspected the woman may have slipped something into his drink as he noticed the effects on his body.  Nonetheless, he continued to drink with the woman and later had sex with her.  After reviewing all the evidence, the CG stated that he was not convinced beyond a reasonable doubt that he (the applicant) unknowingly ingested drugs; however, there was no doubt that he (the applicant) committed adultery and acted in a manner unbecoming an officer and a gentleman.  The CG added that there was also no doubt that his (the applicant’s) conduct placed him in a position that led directly to the positive drug test results, undermining his authority as an officer, and compromising his ability to serve effectively.

16.  On 1 March 2002, the applicant acknowledged receipt of the GOMOR and on 7 March 2002, he submitted a rebuttal.  In his rebuttal, he stated that the urinalysis showed merely the presence of a controlled substance at a very low level and that this presence fails to establish how it came to be present.  Thus, there was neither direct nor circumstantial evidence to prove a criminal wrongdoing.  He added that the adultery issue was not even an investigative issue with the USACIDC, but only an afterthought despite the lack of or corroborating evidence as required by law, coupled with the fact that he had been separated from his wife for the past three years.  He concluded by acknowledging that he made a terrible mistake for which he was sorry and ashamed of, and that he did not live up to certain standards, but he did not deliberately ignore the consequences of his ingestion of any liquor.

17.  Prior to taking final action on the GOMOR, the CG sought recommendations from the applicant's chain of command.  They recommended as follows:

	a.  on 8 March 2002, the applicant’s Deputy Commander for Nursing recommended the GOMOR be filed locally and indicated that the applicant had expressed remorse for his acts of unsound judgment.  He also assessed his performance as average and adequate with noted improvement;

	b.  on 11 March 2002, the applicant’s immediate commander recommended the GOMOR be filed locally and indicated that the applicant’s performance had been average; and

	c.  on 12 March 2002, the applicant’s battalion commander recommended the GOMOR be filed in the applicant’s OMPF.  He also indicated that the applicant’s performance had been below average with a pattern of irresponsibility since his assignment to his command.

18.  On 2 April 2002, the CG reviewed the applicant’s rebuttal as well as the chain of command’s recommendations and directed the GOMOR by filed in the applicant’s OMPF.  

19.  On 11 April 2002, by memorandum, the CG notified the applicant that he initiated separation action against him and that he (the applicant) was required to show cause for retention on active duty under the provisions of paragraphs        4-2b(5), 4-2b(7), 4-2b(8), and 4-2b(11) of Army Regulation 600-8-24 (Officer Transfers and Discharges).  The CG cited the specific reasons for the elimination action as the applicant’s reprimand for committing adultery and conduct unbecoming an officer and being derelict and disrespectful to superiors on divers occasions.  He further notified the applicant that he was recommending he receive a general, under honorable conditions discharge and that as required by regulation, he intended to forward the case to the Commander, USAHRC, for submission to the Deputy Assistant Secretary of the Army (DASA) (Manpower and Reserve Affairs) who could direct a BOI that may recommend an under other than honorable conditions discharge.

20.  On 17 April 2002, the applicant acknowledged receipt of the separation memorandum.  He elected a BOI and to submit additional matters.

21.  On 10 June 2002, a suspension of favorable personnel actions (flag) was initiated against the applicant by reason of pending elimination action. 

22.  On 17 July 2002 and subsequent to the appointment of a BOI as required by chapter 4 of Army Regulation 600-8-24, by memorandum, the Board Recorder notified the applicant and his civilian counsel that a BOI would convene on
1 August 2002 (later delayed to 9 and 10 September 2002 per the applicant's counsel's request) at the WACH, Fort Stewart, to consider whether the applicant should be retained or separated from the Army.  The applicant acknowledged receipt of this memorandum on the same date.
23.  On 9 August 2002, by memorandum addressed through his chain of command to the Commander, USAHRC, the applicant submitted a waiver of the BOI.  He indicated that he understood that he was entitled to and had been pending a BOI to determine whether he should be eliminated from the service; that he was waiving his right to appear before a BOI and understood that there would be no BOI upon submission of this waiver; and that if the Department of the Army determined from the record that he should be separated, his character of service would be honorable or under honorable conditions.  He and his civilian counsel authenticated this memorandum.

24.  On 26 September 2002, the DASA (Army Review Boards) approved the applicant’s elimination from the Army by reason of misconduct, moral or professional dereliction, with the issuance of a general, under honorable conditions character of service. 

25.  The applicant was accordingly discharged on 29 October 2002.  The DD Form 214 he was issued shows he was discharged in the rank/grade of 1LT/O-2 under the provisions of paragraph 4-2b of Army Regulation 600-8-24 by reason of unacceptable conduct with a character of service of general, under honorable conditions.  He completed 4 years, 7 months, and 18 days of active service during this period with 7 years, 3 months, and 29 days of prior active service, for a total of 11 years, 11 months, and 17 days of creditable active service.  He also had 5 years, 7 months, and 25 days of inactive service.

26.  Counsel submitted the following additional documentary evidence in support of the applicant’s request:

	a.  copies of his DA Forms 1059 that show he satisfactorily completed the AMEDD Officer Basic Course and Perioperative Nursing Course; 

	b.  copies of the applicant’s OERs from May 1998 to July 2002 that essentially show a center of mass (COM) rating with the exception of his OER from May 2001 through February 2002 (A referred OER) that shows a below COM rating with a "No" rating in the "Respect" block of the "Character" portion; a "No" rating in the "Communicating" and "Decision Making" blocks of the "Actions" portion; an "Unsatisfactory Performance-Do Not Promote" rating by the rater; and a "Do Not Promote" rating by his senior rater;

	c.  copies of various medical records, charts, reports, treatment, consults, and other medically-related documents, dated on miscellaneous dates throughout the applicant’s military service, that essentially show he had trouble sleeping, insomnia, and possibly sleep apnea.  He was also treated for diarrhea and he had a vasovasostomy;  
	d.  a copy of the DA Form 458, dated 5 October 2001, wherein general court-martial charges were preferred against the applicant for one specification of making a false official statement with intent to deceive; two specifications of wrongfully using methamphetamine; one specification of wrongfully using amphetamine; two specifications of wrongfully using methamphetamine and/or amphetamine which action was conduct unbecoming an officer; and one specification of wrongfully having sexual intercourse with an unknown woman, not his wife, which action was conduct unbecoming an officer; 

	e.  a copy of the applicant’s sworn statement to the USACIDC in which he chronicled the events that led to spiking his drink; 

	f.  copies of the laboratory report, an exchange of emails, and results of a polygraph test; 

	g.  copies of the applicant’s response memorandum to the CG’s Article 15 hearing in which he reiterates his innocence and describes the events that led to his incident; 

	h.  a copy of his divorce decree, dated 28 March 2002, that also shows he was legally separated on 17 January 2002;

   i.  copies of several letters of recommendation from various officers wherein the authors describe him (the applicant) as a hard worker and a good Soldier who had learned from his mistakes and that he should be retained in the service and promoted because the Army has a shortage of his specialty; and

	j.  copies of his DA Forms 31 that shows he took emergency leave from 15 December 2001 to 1 January 2002, 18 January 2002 to 30 January 2002, and 13 August 2002 to 23 August 2002.

27.  Army Regulation 600-8-24 prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 4 of this regulation provides for the elimination of officers from the service.  Recommendations for elimination action will not be based on generalities and vague impressions.  It is necessary to document, in writing, the precise reasons an officer is considered ineffective.

28.  Paragraph 4-2 of this regulation provides for the reasons for elimination.  It states, in pertinent part, that while not all inclusive, when one of the following or similar conditions exist, elimination action may be or will be initiated as indicated below for substandard performance of duty; misconduct, moral or professional 
dereliction, or in the interests of national security; and/or derogatory information.  Examples of misconduct and/or moral or professional dereliction are discreditable or intentional failure to meet personal financial obligations; mismanagement of personal affairs that are unfavorably affecting an officer’s performance of duty; mismanagement of personal affairs to the discredit of the Army; intentional omissions or misstatement of fact in official statements or records for the purpose of misrepresentation; acts of personal misconduct (including but not limited to acts committed while in a drunken or drug intoxicated state); homosexual conduct; intentional neglect of or failure to perform duties; conduct unbecoming an officer; conduct or actions that result in the loss of a professional status, such as withdrawal, suspension, or abandonment of professional license, endorsement, or certification that is directly or indirectly connected with or is necessary for the performance of one’s military duties (for AMEDD officers, this includes the partial or complete suspension, limitations, withdrawal, or denial of clinical practice privileges); the final denial or revocation of an officer’s secret security clearance by appropriate authorities acting pursuant to Department of Defense Directives (DODD); unless precluded by paragraph
4–18d(4), elimination action will be initiated against an officer who is medically diagnosed as drug dependent or identified as having committed an act of personal misconduct involving drugs; and other reasons.

29.  Paragraph 4-6 prescribes the BOI.  It states, in pertinent part, that a BOI’s purpose is to give the officer a fair and impartial hearing to determine if the officer should be retained in the Army.  Through a formal administrative investigation conducted under Army Regulation 15-6 and this regulation, the BOI establishes 
and records the facts of the respondent’s alleged misconduct, substandard 
performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer’s disposition, consistent with this regulation.  The Government is responsible to establish, by a preponderance of the evidence, that the officer has failed to maintain the standards desired for his/her grade and branch or that the officer’s secret-level security clearance has been permanently denied or revoked by appropriate authorities.  In the absence of such a showing by the Government, the board will retain the officer.  However, the respondent is entitled to produce evidence to show cause for his retention and to refute the allegations against him.  The respondent’s complete OMPF will be entered in evidence by the Government and considered by the BOI.

30.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7

31.  Army Regulation 600-37 also states in effect that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement; or to decline, in writing, to make such a statement.  It provides, in pertinent part, that a nonpunitive letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.

32.  Army Regulation 600-37 further states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Therefore, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

33.  Army Regulation 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DOD Directive (DODD) 5200.2-R and Army Regulation 380-67 for reasons that do not involve acts of misconduct, for an officer.  When the separation is based solely on preservice activities, substandard performance of duty, or final revocation of a security clearance under DODD 5200.2–R and Army Regulation 380–67 for reasons that do not involve acts of misconduct, it will be Honorable.

34.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states a flag prohibits certain listed personnel actions, including promotions.

35.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR.  It states, in pertinent part, that an officer’s promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of promotion orders) when the officer is under undisposed court-martial charges (that is, the charges have been preferred, but not dismissed or withdrawn, nor has the officer been tried and acquitted or sentenced); under investigation that may result in disciplinary action of any kind being taken against him or her; under proceedings that may result in administrative elimination or discharge under other than honorable conditions; the recipient of a referred Academic Evaluation Report (AER), a referred OER, or a Memorandum of Reprimand (directed for filing in the official military personnel file before the date he or she would otherwise have been promoted) which was not considered by the board that selected him or her for promotion. 

36.  The promotion of any officer who is in a nonpromotable status is automatically delayed.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the delay.  The office preparing the DA Form 268 must give that officer written notice of the reason for the delay of 
promotion before its imposition or as soon thereafter as possible.  If a DA Form 268 is in effect at the time an officer’s name is announced on a promotion list, the officer’s commander will immediately notify him or her of the reason for the delay. If this is impractical, written notice will be given as soon as possible.  An officer whose promotion has been delayed may make a written statement, expeditiously forwarded through the chain of command, to the Secretary of the Army (SA).  Delays under this provision will be resolved within 6 months of the date the officer would have been promoted.  An officer’s promotion will not be delayed more than 6 months unless the SA or the Secretary’s designee grants a further delay.  USAHRC will monitor cases involving delay and designate an authority to grant a further period of delay in cases involving nonpromotable overweight officers and in extraordinary cases.  The delay in such cases extends until the SA takes final action.  In no case may an officer’s promotion be delayed more than 90 days after final action in any court-martial or criminal case against the officer in Federal or State court, or more than 18 months after the date on which the officer would otherwise have been appointed, whichever is later.  If within 6 months after the effective date of promotion, new information results in a determination by HQDA that an officer was, on the effective date of the promotion, in a nonpromotable status, that promotion will be deemed to have been automatically delayed.  In such a case, the officer’s promotion is void and the order announcing the promotion will be revoked.  The officer must be immediately notified of this fact.  Additionally, immediate steps will be taken to resolve the case or seek further delay; however, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the delay had not been imposed.

37.  When a DA Form 268 is field initiated and one or more of the following occurs, only HQDA may close the Flag (list is not all inclusive):  officer receives Article 15 (whether filed in the performance section or the restricted section) of the OMPF; officer receives a memorandum of reprimand (whether filed in the performance section or the restricted section of the OMPF); officer is court-martialed; officer has received a referred OER; or officer is flagged for any other adverse action.  Once the case has been completed, the servicing personnel office will forward a copy of the open Flag and description of action taken against the individual (to include punishment filed in the restriction portion of the fiche of the OMPF) to USAHRC.

DISCUSSION AND CONCLUSIONS:

1.  A commissioned officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.

2.  The applicant, a seasoned officer, with nearly seven years of prior active service, mostly as a noncommissioned officer and leader of Soldiers, committed various offenses including disrespecting those senior to him, missing formation, not keeping his chain of command informed of his whereabouts, and what appears to be a disregard of military discipline and authority.  His misconduct culminated in what he described as a sexual encounter with an unknown woman, not his wife, during which he alleged that his drink was spiked with a controlled substance that led to positive readings during one random and one directed unit urinalysis.

3.  The applicant’s actions, however, did not go unnoticed by his Fort Stewart chain of command that had one eye focused on an upcoming global war and the other eye on the health, welfare, and safety of its Soldiers.  Although the CG was not satisfied beyond a reasonable doubt of the applicant's drug charge in an Article 15 proceedings, he exercised his authority in issuing the applicant an administrative GOMOR, and after reviewing his rebuttal and the recommendation by the chain of command, directed the GOMOR be filed in his OMPF.

4.  On 11 June 2002, the CG initiated administrative separation action against the applicant for acts of personal misconduct and conduct unbecoming an officer involving the wrongful use of a controlled substance, committing adultery, and professional dereliction involving his intentional neglect and failure to perform duties.  The applicant acknowledged receipt of the separation action on 17 April 2002 and he subsequently elected to appear before a BOI and submit matters in his defense.   Accordingly, the CG appointed a BOI.  However, prior to convening the BOI, on 9 August 2002, the applicant unconditionally and in the presence of his counsel, waived his right to a BOI.  The CG recommended his discharge be characterized as general, under honorable conditions.  The appropriate HQDA authority ultimately approved the discharge and the applicant was accordingly discharged.

5.  The record shows that the applicant’s separation processing was accomplished in accordance with the applicable regulation, and that it was approved by the appropriate HQDA official, who considered all the arguments and factors currently being presented to this Board by the applicant and his counsel.  The record further shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not appear to be an error or an injustice.

6.  With respect to the applicant’s and his counsel’s arguments: 

	a.  on 9 August 2002, by memorandum, the applicant voluntarily and willingly submitted a waiver of the BOI.  He indicated that he understood that he was entitled to and had been pending a BOI; that he was waiving his right to appear before a BOI and understood that there would be no BOI upon submission of this waiver; and that if HQDA determined from the record that he should be separated, his character of service would be honorable or general, under honorable conditions.  He and his civilian counsel authenticated this memorandum.  There is no evidence that he made this decision under coercion, stress, pressure, or lack of sleep.  Had he been incoherent at the time, his civilian counsel, who also authenticated the memorandum, could have advised him to postpone this decision or request a delay of the BOI;

	b.  the applicant may have been geographically separated from his spouse and children on 27 March 1999; however, his divorce decree shows that his separation agreement was dated on 17 January 2002, after he allegedly had sex with an unknown woman on or about 29 July 2001.  This separation agreement was incorporated into and made a part of his divorce decree on 28 March 2002 and is in no event a defense to the adultery charge;

	c.  the illness and ultimate death of the applicant’s mother was noted and is regrettable; however, his chain of command was clearly supportive and compassionate as evidenced by their approval of several instances of emergency leave;

	d.  the applicant’s reluctance to seek treatment for a psychiatric illness because it would have jeopardized his registered nursing credentials is noted but cannot be excused.  The applicant, a Soldier and a nurse, had a responsibility not only to himself, but also to his patients to provide the best care possible under healthy and safe conditions.  His failure to seek treatment for this alleged condition is yet another indication of his failure to take responsibility for his own actions;

	e.  the applicant’s sleep deprivation, anxiety, and depression, are also noted; however, it appears that he sought medical assistance and he was prescribed the appropriate medications.  There is no evidence that his sleep deprivation caused his pattern of unprofessional conduct in the form of his incidents of disrespect, insubordination, intoxication, sexual encounter, and positive urinalyses;

	f.  as soon as he tested positive, the applicant was under investigation and thus placed in a non-promotable status.  He was non-promotable while pending court-martial charges and/or an Article 15.  He was again non-promotable when he received the GOMOR.  Additionally, he was also non-promotable when he was pending elimination action.  While the administrative processing of the flagging actions appears to have been flawed, he nevertheless remained in a non-promotable status by virtue of the investigation, court-martial charges, Article 15, referred OER, GOMOR, and separation action.  Although his record is void of any order revoking his promotion order, the applicant could not have been promoted;

	g.  an honorable discharge is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  The applicant’s service was marred with misconduct.  He was properly discharged with a general, under honorable conditions discharge, given the circumstances in his case.

7.  As an Army commissioned officer, the applicant was held to high standards and he was quite aware of his actions.  He committed certain misconduct and/or moral or professional dereliction that resulted in a GOMOR, the initiation of separation action, and an ultimate elimination from the Army.  

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

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)                                         AR20090016565



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ABCMR Record of Proceedings (cont)                                         AR20090016565



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