IN THE CASE OF:	

		BOARD DATE:	19 November 2009

		DOCKET NUMBER:  AR20090016850 


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.  This case is being reconsidered as the result of a remand from the United States District Court for the District of Columbia.  The Army requested this remand to provide further analysis and discussion of the applicant’s contention that the Board of Officers that recommended his elimination failed to follow proper procedure in dealing with his challenge for cause.  This is the second remand from the Court.  Previously, an Order and Memorandum Opinion issued by the Court, both dated 27 March 2007, remanded the applicant's case to the Army Board for Correction of Military Records (ABCMR) for further proceedings.  The ABCMR considered the issues presented on remand in Docket Number AR20070006398, dated 30 August 2007.  The ABCMR in that case determined the evidence presented did not demonstrate the existence of a probable error or injustice.  

2.  The applicant’s counsel essentially contends that the ABCMR failed to address in a substantive manner specific arguments of partiality, bias, undue and improper command influence, professional conduct violations, and violation of Army regulations.  In factual support of these contentions, counsel cites:

a.  Colonel (COL) E. M.’s appointment and initial participation as Board President and legal advisor; 

b.  COL E. M.’s correspondence to defense counsel prior to the Board hearing; 

c.  during voir dire [formal examination to determine qualification], COL E. M. spoke for all Board members and made it clear there was no basis to challenge for cause any member and kept interjecting his opinion;

d.  the Board’s refusal to allow the applicant to present evidence regarding the alleged misconduct;

e.  in response to questions during voir dire, COL E. M. assured the applicant that his tenure as a Staff Judge Advocate (SJA) and in the U.S. Army Reserve (USAR) was limited to February 2000, but later investigation disclosed that COL E. M. applied for a waiver to remain as SJA in the USAR and that this was endorsed and approved by Major General (MG) W. C., which, if known at the time of the hearing, would have supported a challenge for cause.  

f.  two Board members, COL F. K. and COL N. C., received their legal advice from the SJA Board President, COL E. M.;

g.  all three Board members were in the rating chain of the appointing authority, MG W. C.;

h.  COL E. M.’s presence on the Board despite his serving as advisor and chief legal officer of the Regional Support Command (RSC), where he supervised and rated the recorder and interacted daily with the Command;

i.  the presence of COL E. M. on the Board despite his position as a Judge Advocate General (JAG) officer who was tasked with advising Command and other Board members, which was analogous to placing a JAG officer on a court-martial, which would be improper; 

j.  the legal office that conducted the legal review of the Board action included the Recorder and Board President; and

k.  the failure of COL E. M. and MG W. C. to provide the applicant and his counsel the summarized record of proceedings or the tape recording of the hearing and the ABCMR’s failure to address why this was not a violation of due process regulations.




CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2003087268, on 9 October 2003, and Docket Number AR20070006398, on 30 August 2007.

2.  While attending the Military Intelligence Officer Advanced Course at Fort Huachuca, Arizona, the applicant was accused of shoplifting a knife from the main exchange on 29 July 1998.  As a result, on 4 August 1998, the Fort Huachuca Commanding General initiated non-judicial punishment (NJP) for this offense which the applicant accepted on 7 August 1998.  As punishment for this offense, the Fort Huachuca Commanding General further directed that a memorandum of reprimand be placed, as an attachment to his NJP, on the restricted fiche of his Official Military Personnel File (OMPF).  In addition, the applicant was subsequently relieved from the Military Intelligence Officer Advanced Course for misconduct and was returned to his parent organization.

3.   Upon return to his parent organization and after considering the applicant's written explanation of the events surrounding the larceny charge at Fort Huachuca, the Deputy Commander, 77th RSC, Fort Totten, Flushing, New York, on 11 August 1998, also admonished the applicant for his actions and directed that his administrative letter of reprimand be filed in the performance fiche of the applicant's OMPF.

4.  On 1 July 1999, the applicant was provided notification of Board proceedings to consider his elimination from the Army Reserve in accordance with the provisions of Army Regulation 135-175 (Army National Guard and Army Reserve, Separation of Officers), dated 28 February 1987, based upon acts of personal misconduct (paragraph 2-12(f)), failure to meet standards of a course of instruction (paragraph 2-12(n)), and administrative unfitness due to the revocation of his Article 27(b), UCMJ, certification to serve as a Judge Advocate (paragraph 4-4(b)(7)).

5.  On 3 August 1999, the Commanding General of the 77th RSC, MG W. C., appointed a Board of Officers to determine if the applicant should be separated from the Army.  He appointed COL E. M., the 77th RSC SJA, as the legal advisor and President of the Board.  This letter also appointed COL F. K., COL R.C., and COL W. J. to serve as Board members.

6.  On 14 August 1999, the Board of Officers convened.  The voting members then sitting were COL E. M., as President and Legal Advisor, COL F. K., and COL W. J.  The applicant and his counsel failed to appear before the hearing.  The Recorder introduced eight exhibits to the Board and argued that the applicant’s absence constituted waiver of his right to appear and that the Board should proceed.  The transcript of the Board proceedings shows that the Board rejected the Recorder’s appeal and rescheduled the hearing for 25 September 1999.  The Board also agreed not to consider the evidence received until the applicant was given an opportunity to respond.

7.  The applicant's records contain a 24 August 1999 memorandum from the applicant's counsel to the Board President.  In the letter, counsel expressed apologies for the non-appearance at the administrative separation board proceedings of the applicant and stated he was under the impression that the case had been adjourned.  Counsel requested that the President of the Board recuse himself based on the appearance of impropriety and potential conflict of interest stemming from his dual role as President and Legal Advisor to the Board and his position as the SJA for the 77th RSC.  COL E. M.’s position placed him in the rating chain of the convening authority and made him privy to endorsements for separation, letters of reprimand, and the opinion of peers, superiors, and raters as they pertained to the action against the applicant.  

8.  On 2 September 1999, COL E. M. sent a fax to one of applicant’s counsel, MAJ P. B.  The fax cover page stated "Memo to MAJ [B.]:  It is always good to get data about a Board President.  The enclosed is from N.Y. Judges Review."  The fax included three pages from the New York Judges review, including an entry concerning COL E.M., who was identified as a Justice, Tenth Judicial Supreme Court, Nassau County.  The review provided biographical data concerning COL E. M., as well as attorney’s comments addressing his demeanor and tendencies when presiding over cases.  

9.  The applicant's records contain a 22 September 1999 memorandum from his counsel to the Commanding General, MG W. C.  This memorandum requested that the President of the Board be removed from the applicant's Board of Officers based on his appointment as the SJA of the 77th RSC.  The applicant's counsel further requested that a new board be appointed and assured the convening authority that no additional requests for adjournment would be made.

10.  In conducting this review, the ABCMR had access to and considered the report of proceedings by the Board of Officers [referred to as "transcript" from here forward] contained in the applicant's OMPF.  A review of the transcript shows the following:

	a.  the appointing authority issued an amendment to the original Memorandum of Appointment on 23 September 1999.  This amendment removed COL W. J. and substituted in his place COL N. C. as a voting Board member.  Additionally, the amendment appointed a legal advisor, COL E. R. vice COL E. M.  The record shows that COL F. K. and COL N. C., the other voting members on the Board, were also assigned to the 77th RSC, presumably in senior positions that would place them in the rating chain of MG W. C. and Brigadier General (BG) G. D.  The appointed legal advisor, COL E. R., and the Recorder, Captain (CPT) D. S., served in the same legal office as COL E.M.

	b.  the Board again met on 26 September 1999.  One of applicant's counsel, Major (MAJ) C. M. was absent because of a court proceeding he was attending in California.  As a result, the applicant's other counsel, MAJ P. B., requested and received another continuance of the proceedings.  The Board President, COL E.M., announced that the Board would reconvene on 2 October 1999.  

	c.  the Board reconvened on 2 October 1999 with both of the applicant's counsel, MAJ C. M. and MAJ P. B., present.  Applicant's counsel declined an opportunity to voir dire the Legal Advisor.  MAJ C. M. conducted voir dire of the Board's voting members.  CPT D. S., the Recorder, objected to MAJ C. M.'s questions because they did not directly address the issue of whether the Board could impartially decide the applicant's case but instead addressed defense counsel's failure to appear before the Board on 14 August 1999.  MAJ C. M. explained that the questions were asked to determine whether the Board’s impartiality would be hindered by the applicant’s failure to appear at the earlier session.  The Legal Advisor overruled the objection and permitted the Board members to answer.  The transcript shows that neither the Recorder nor the applicant’s counsel raised a challenge for cause to any of the Board members.  The transcript does not reveal any comments by COL E. M. to limit the applicant’s counsel in conducting voir dire, prevent any of the voting members from answering questions, or dissuade counsel for either side from making a challenge for cause to any member.  

	d.  the applicant testified under oath before the Board, in part, concerning the larceny allegation.  The Recorder objected twice to this testimony, arguing that the Article 15 did not need to be re-litigated.  The Legal Advisor overruled both objections and permitted the applicant to continue.  The applicant testified he did not intend to keep the pocket knife in question and provided the Board as an exhibit a receipt showing he legally purchased a similar knife from the same Post Exchange on 25 July 1998.

	e.  the Board, after deliberations, found sufficient evidence to support a conclusion that the applicant had committed larceny and recommended that he be discharged from the service with a general under honorable conditions discharge.

11.  On 2 November 1999, an Assistant SJA in the 77th RSC legal office reviewed the applicant's administrative separation board for legal sufficiency.  After reviewing the administrative separation board procedures, findings, recommendations, and all attachments, the Assistant SJA found the file legally sufficient for further processing.  The legal review shows that the separation board convened on three occasions, that the board was properly appointed, consisted of officers senior to the applicant, and that there were two JAG officers included as members of the board.  The Assistant SJA recommended approval of the findings and recommendation of the board.  The appointing authority, MG W. C., approved the findings and recommendations and forwarded the administrative separation packet through the U.S. Army Reserve Command to Headquarters, Department of the Army (HQDA), for final action and approval.

12.  On 4 January 2000, the applicant's counsel demanded that the Commanding General of the 77th RSC provide copies of the tapes of the separation board hearing.  Counsel continued that neither he nor the applicant was given the opportunity to respond to the summarized transcript and the recordings in the case because they were never provided to him or the applicant.  On 1 February 2000, the applicant's counsel sent a second notice demanding copies of the transcript and the tapes of the proceedings.

13.  On 13 January 2000, the applicant was discharged under the provisions of Army Regulation 135-175 for misconduct, moral or professional dereliction.  The character of his discharge was general under honorable conditions.

14.  On 23 June 2000, the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.

15.  On 4 May 2001, the applicant was notified by the ADRB that his request for upgrade of his discharge was granted.  The ADRB voted 3-2 to upgrade his discharge to honorable but unanimously voted not to change his reason for separation.  The ADRB did not relieve the applicant of his responsibility for his actions; it merely found that the punishment was too harsh given his overall record of service and the act that he had committed.

16.  The applicant's records have been amended to show that he was honorably discharged on 13 January 2000.
17.  Army Regulation 135-175, paragraph 1-12.1 provides that an officer has the right to appeal an unfavorable action under this regulation which affects his military status except if action was taken under the provisions of chapter 2 of this regulation or where the officer presented his case before a Board of Officers.

18.  Army Regulation 135-175, paragraph 2-12, provides for the involuntary separation of an officer due to moral or professional dereliction, to include acts of personal misconduct.  Officers discharged may be furnished an Honorable or General Discharge Certificate, or an other than honorable conditions discharge.  Paragraph 2-22 states that, except as otherwise noted in this regulation, Boards of Officers will follow the procedures in, and be governed by the provisions of, Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).

19.  Army Regulation 135-175, paragraph 2-20, sets forth the actions that may be taken by an area commander on the recommendations of a Board of Officers acting on an involuntary separation case.  If the Board committed an error that materially prejudiced a substantial right of the officer, he may close the case favorably to the respondent (paragraph 2-20.1a(2)) or 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.

20.  Paragraph 2-25 of Army Regulation 135-175 addresses the composition of the Board.  Paragraph 2-25 (a)(5) states that one member of the Board must be of the same sex, and, if reasonably available, branch of service as the officer being considered.  Paragraph 2-25 (c) provides that Chaplains, Medical, Dental, Veterinary, or Army Nurse Corps officers normally will not serve as Board members, except when officers of their corps are the respondents.  This regulation does not prohibit JAG Corps officers from serving as members of a Board.  

21.  Paragraph 2-25 (a)(6) of Army Regulation 135-175 permits the appointing authority to assign a Judge Advocate to serve as the legal advisor to the Board.  However, that Judge Advocate legal advisor may not serve as a member or vote, and will serve as an advisor only.  

22.  Army Regulation 135-175, paragraphs 2-25(c) and (d) address factors that render an officer ineligible to sit as a Board member.  Paragraph 2-25(c) states an officer is ineligible if he is a witness in the case before the Board; appeared as a witness or sat as a member of any previous Boards of Officers with respect to the respondent; previously recommended or participated in recommendation for involuntary separation from an active status of the respondent; prepared a derogatory evaluation report of the respondent; or otherwise has considered the case of the respondent.  Paragraph 2-25(d) also provides that a member may be challenged for cause for any reason that indicates that he or she cannot participate in the case fairly or impartially.  Pursuant to Army Regulation 135-175, paragraph 2-25(c)(3)(f), a determination of a challenge for cause will be made by the senior unchallenged member on the Board.

23.  Army Regulation 135-175, paragraph 2-27(b)(8) provides that a respondent will be given a copy of the proceedings, less classified documents, if requested. 

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR considered the contentions raised by the applicant’s counsel concerning the alleged partiality, bias, undue and improper command influence, and professional conduct violations and also allegations related to violation of Army regulations in the conduct of the Board proceedings.  In weighing these claims, the ABCMR considered all of the evidence of record, including the transcript of the Board proceedings, which was contained in the applicant’s OMPF.  

2.  The record does not contain evidence supporting the applicant's contention that it was improper for COL E. M. to serve as the President of the Board.  While a sitting SJA may not, for appearance purposes, be the ideal person to serve as a panel member in a case pending before a command, it is not prohibited.  Army Regulation 135-175 does not prohibit members of the JAG Corps from sitting as voting members on an administrative board of officers.  In fact, Army Regulation 135-175 specifically states that one member of the board must be, if reasonably available, from the same branch of service as the officer being considered.  The record does not contain any evidence that COL E. M. was otherwise disqualified from serving because he appeared as a witness before or sat as a member of a previous Board of Officers with respect to the applicant; previously recommended or participated in a recommendation for the involuntary separation of the applicant; prepared a derogatory evaluation of the applicant; or otherwise had prior knowledge of or considered the case of the applicant.  Although COL E. M. served as the command JAG, the record contains no evidence showing that COL E. M. discussed this case, the desired outcome, or any other matter of consequence to the final resolution of the administrative Board with MG W. C., BG D. G., members of the legal staff, or anyone else.  Further, the record is void of any evidence showing that COL E. M. provided advice concerning the applicant’s NJP or memoranda of reprimand.  Lacking evidence to the contrary, the ABCMR presumes that COL E. M. properly executed his duties as a Board member without partiality, bias, or favoritism.  

3.  COL E. M.'s initial appointment as both the legal advisor and Board president was not proper and was prohibited by the applicable regulation which specifically provides that a legal advisor, if appointed, shall not act as a voting member.  However, this error was harmless and did not prejudice the applicant's case before the Board or otherwise render the proceedings improper.  COL E. M. served as the legal advisor during the initial board sessions in August and September 1999.  The evidence of record shows that both of these sessions resulted in a continuance, so no deliberations or consideration of the merits of the case occurred.  The procedural matters that were considered were resolved in the applicant’s favor.  Although the government introduced eight exhibits during the 24 August 1999 session, the Board agreed on the record that they would not consider the exhibits or evidence until the applicant was present and had the opportunity to respond.  Further, the Board overruled the Recorder’s request to proceed in the absence of the applicant and his counsel.   It is further noted that the appointment of a legal advisor is not mandated under Army Regulation 135-175 or Army Regulation 15-6.  In cases where a legal advisor is not appointed, the President of the Board rules on evidentiary and procedural matters.  COL E. M.'s actions in granting a continuance and instructing the members not to consider the exhibits admitted by the government until the applicant could respond, fell within the duties of a President serving in the absence of a legal advisor.  In short, COL E. M.'s appointment as a legal advisor did not provide him with any additional authority over the two sessions for which he presided.  As a result, any error caused by his dual appointment was determined to be harmless.  Any taint, although none has been shown in the evidence of record, was removed by the appointment of a different legal advisor prior to 2 October 1999, when the Board considered the applicant’s case on the merits and deliberated.

4.  COL E. M. did not disqualify himself from participating on the Board by sending the applicant’s counsel a printout showing his judicial qualifications.  Usually, ex parte communications serve to prejudice one of the opposing parties to a case because the complaining party is left out of the communication.  Here, the communication was made to the party complaining of the ex-parte communication.  Furthermore, COL E. M.'s civilian judicial rating was published in book form and available to the general public.  Therefore, both the government and the applicant’s counsel could have obtained this information in researching the background of the Board members.  The information was not confidential information that would give one party an advantage over another party.  Finally, the applicant's counsel failed to raise this particular issue to the appointing authority in his 24 September 1999 letter seeking removal of COL E. M. from the panel.  The transcript from the administrative separation board further shows that the applicant's counsel did not raise this issue as a basis to challenge COL E. M. for cause during its 2 October 1999 session.  As a result, to the degree that this communication was an issue, the applicant waived the issue by not raising it as a basis for challenge at the Board.  

5.  The applicant's claim that COL E. M. spoke for the Board and advised counsel that voir dire was a waste of time is not supported by the transcript or any other available evidence.  The evidence of record shows the Board's Legal Advisor controlled the voir dire process and allowed the applicant’s counsel, over the objection of the Recorder, to question the members as to their ability to remain impartial in light of the applicant's failure to appear before the Board on 14 August 2009.  The record does not reveal questioning or a single objection concerning command influence or improper bias of the members based upon any pressure applied by command.  The available evidence reveals no questions pertaining to the Board member's rating relationship to M.G. W. C. or BG G. D.  The applicant's counsel, after voir dire, elected not to exercise a single challenge for cause.  Given the applicant has not provided any evidence that his counsel was unable to make challenges for cause or present evidence which was not then available to show a basis for granting a challenge for cause, government regularity is presumed as it relates to the composition of the Board and its proceedings.

6.  The applicant contends that it was improper for the two Board members, COL F. K. and COL N. C., who received their legal advice from the Board President, COL E. M., to sit as Board members.  However, the mere fact that COL E. M., in his capacity as a JAG, may have advised COL F. K. and COL N. C. on day-to-day legal matters did not disqualify him or them as potential members.  If this alone were a basis for challenge, most commanders or senior officers in a command – who regularly seek legal advice from or interact with legal personnel at staff functions – would be disqualified from serving on a board.  Such a rule would deprive boards of the very officers who, by virtue of their age, education, experience, and judicial temperament, are most qualified to decide the merits of an officer discharge case.  Furthermore, and most importantly, the applicable regulations do not impose such a limitation on Board membership.

7.  The applicant's argument that the three Board members were in the rating chain of the appointing authority, MG W. C., similarly lacks merit.  Army Regulation 135-175 and Army Regulation 15-6 do not operate to disqualify members from serving on the basis that they are in the chain of command or rating chain of the appointing authority.  If the fact that a panel member is in the rating chain of the convening or appointing authority or otherwise falls under his or her command is sufficient to disqualify that individual, every panel would be disqualified.  It is normal practice in the realm of administrative boards that members are selected from the convening authority’s command.  The record does not contain any evidence that these voting members were otherwise disqualified from serving because they appeared as a witness before or sat as a member of a previous board of officers with respect to the applicant; previously recommended or participated in a recommendation for the involuntary separation of the applicant; prepared a derogatory evaluation of the applicant; or otherwise had prior knowledge of or considered the case of the applicant.  The applicant has provided no evidence, outside of a general contention of an appearance of bias, that any of these Board members were unable to fairly or impartially hear the applicant’s case.  The record contains no evidence that the appointing authority, MG W. C., or any member of his command attempted to influence or direct the decision of these Board members or dictate a particular outcome in this case.

8.  The applicant’s contention (in Docket Number AR2003087268) that "numerous credible insiders” told him that MG W. C. and BG G. C. wanted to discharge him from the USAR and that the Board members were predisposed to comply with their wishes was carefully considered.  However, the applicant has provided no evidence of undue or unlawful command influence of the Board members by the appointing authority nor does the record contain any evidence to corroborate his contention of unlawful command influence.  Further, the actual transcript of the Board proceeding does not disclose any motion or challenge by the applicant's counsel based upon the bias of the members or unlawful command influence.

9.  The applicant's contention of potential bias or unlawful command influence by virtue of the fact that COL E. M. served as the SJA of the office conducting the post-Board review and also rated the Recorder lacks merit.  As it relates to the Recorder, the transcript does not disclose any particular favoritism shown towards the Recorder during the course of the Board.  To the contrary, the Legal Advisor regularly sustained objections by applicant’s counsel concerning lines of questioning by the Recorder and, on numerous other occasions, overruled objections raised by the Recorder.  The record contains absolutely no evidence that COL E. M. influenced the Recorder to act in a manner he would not have otherwise pursued.  Further, the applicant offers no evidence that the Board President in his capacity as the 77th RSC SJA, gave the Recorder a poor rating or took some other adverse action based upon his performance at the Board or his actions in processing the applicant’s Board.  

10.  The mere fact that COL E. M. was the SJA of the office that conducted the post-Board review does not provide a basis for the requested relief.  Neither Army Regulation 135-175 nor Army Regulation 15-6 prohibits a review by a member of the legal office in this type of situation.  The key to considering this issue is whether the SJA recused himself in all facets from the post-Board processing of this case.  In this respect, the applicant has provided no proof that the SJA was involved with or attempted to influence the legal sufficiency review prepared by MAJ T. O., the Assistant SJA of the 77th RSC.  Further, there is no evidence that COL E. M. discussed the Board’s findings or this legal sufficiency review with MG W. C. before he forwarded the case for final action and approval.

11.  The Army did not follow Army Regulation 135-175, paragraph 2-27(b)(8) in processing the applicant's discharge in that it failed to provide the applicant a transcript of the proceedings despite two requests from applicant’s counsel for the transcripts and the tapes of the proceedings.  In his letters to MG W. C. after the Board, the applicant essentially claimed he was deprived of the right to respond to the transcript before a final decision was made on the case.  The Board found, as its sole basis for discharge, that the applicant committed an act of personal misconduct – larceny – as defined by Army Regulation 135-175, paragraph 2-12(f).  Army Regulation 135-175 does not give an officer pending a recommended separation the right to appeal an unfavorable action if that action was taken under the provisions of chapter 2 of the same regulation.  Since the applicant did not have the right to file an appeal to the discharge approving authority, the lack of the Board transcript was harmless as far as a direct appeal was concerned.

12.  However, the applicant would have needed the administrative separation board record of proceedings to effectively, or at least more effectively, appeal his case to the ABCMR.  At the time of his 2003 ABCMR case, it is true the Army had not yet provided the record of proceedings to him.  The applicant received the transcript in 2005 and had it in preparing his submission to the ABCMR in Docket Number AR20070006398 and again on this remand.  The ABCMR has carefully considered this transcript in light of the various arguments raised by the applicant's counsel that the administrative Board failed to follow proper procedures in determining challenges for cause.  However, the ABCMR finds that these arguments are not supported by the record and, if anything, the transcript serves to disprove some of the applicant’s arguments.  Therefore, the delay in the applicant's receipt of the transcript caused him no material harm.  The last - and only - remaining, administrative avenue for appeal, the ABCMR, finds nothing in the transcript to show the Board of Officers violated Army procedures in a way that materially prejudiced the applicant’s rights to a fair proceeding.

13.  The applicant's separation was conducted in substantial compliance with all policies and procedures and there is no evidence that the applicant's due process rights were violated.

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 to amend the decision of the ABCMR set forth in Docket Number AR2003087268, dated 9 October 2003 and AR20070006398, on 20 August 2007.  



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                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20090016850



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