IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100010673 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s commission date to second lieutenant (2LT), O-1 to reflect 26 May 2007 instead of 21 December 2007.  

2.  Counsel states:

   a.  The applicant graduated from the U.S. Military Academy (USMA), New York, was commissioned as a 2LT in December 2007, and was promoted to first lieutenant (1LT) on 21 June 2009.

	b.  In April 2007, Miss L. sent a letter to the Dean’s Office at USMA and alleged the applicant raped her on 1 January 2005.  The U.S. Army Criminal Investigative Command (USACIDC, also known as CID) investigated the allegations and the applicant was placed on legal hold.  He was not able to graduate with his class because he was placed in a non-pay status and withheld from commission until the investigation was completed.  

	c.  The applicant was commissioned on 21 December 2007 and returned to a full pay status.  He was reassigned to Fort Rucker, AL to continue his military training and he attended flight school.  

   d.  The investigation was officially closed on 15 January 2008.  The CID determined that there was insufficient evidence to substantiate Miss L.’s allegations.  

3.  Counsel contends the applicant:

* was denied the opportunity to graduate and be commissioned with his fellow classmates based on an unsubstantiated complaint
* was left with a life of uncertainty based on allegations of an incident that occurred years before being reported
* was punished without an investigation or legal proceeding

4.  In regard to the applicant’s service, counsel contends the applicant:

a.  served honorably throughout his 6-year career;

	b.  earned the Master of Sword award all 4 years at the USMA.  He was on the Dean’s list four semesters, and earned the Army Physical Fitness Badge every semester; and

	c.  demonstrated good character as a Soldier and leader which is contrary to the allegations that were used to support the withholding of his promotion and pay.

5.  Counsel provides the following documents:

* Officer Record Brief
* Officer Evaluation Reports
* Letter from Miss L.
* Photograph
* Report of Investigation
* Character references

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of 1LT.  

2.  He enlisted in the U.S. Army Reserve on 12 July 2002 with a concurrent call to active duty.  He was released from active duty on 29 June 2003 to enter a service academy.  

3.  He entered USMA in West Point, NY as a cadet on 30 June 2003.

4.  On 19 April 2007, Miss L. submitted a letter to the Dean’s Office at USMA and stated the applicant raped her on 1 January 2005 in her hometown of Pasadena, CA.  She cited an excerpt from the USMA Mission Statement in regard to the character and moral-ethical codes of a commissioned leader.  Miss L. also stated:

* she informed West Point [USMA] because it was part of her healing process
* she didn’t want anything from the applicant, but she wanted to prevent him from raping again
* the applicant’s violation of her body and blatant disregard for her fundamental rights as a human did not live up to the USMA’s Code
* the rape affected her whole life to include her academics and relationships with her father and others

5.  The CID Report, dated 15 January 2008, revealed the applicant:

* was investigated for the allegation of raping Miss L. due to forced sexual intercourse against her will on 1 January 2005 in Arcadia, CA
* denied he raped Miss L., stating the sexual intercourse was consensual
* was cleared of allegations because interviews and physical evidence could not corroborate Miss L.’s report whether he did or did not commit the offense of rape

6.  He was promoted to 1LT with an effective date and date of rank of 21 June 2009.  

7.  He provided several character references from friends and former fellow Soldiers who stated he:

* behaved with integrity, honor, and respect at all times
* emulated Army values in all aspects of his life
* displayed courage during graduation activities of his classmates by maintaining a positive attitude
* is dedicated to his family and friends and courteous to others
* is well-liked by people of all ages.  
* is intelligent, conscientious, dependable, and thoughtful

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1 in Washington, DC.  This office opined that the applicant’s date of rank of 21 December 2007 was appropriate and he was not entitled to back pay.  The opinion stated:

   a.  Army Regulation 210-26 (USMA), paragraph 5-3e(1) authorized the Superintendent to defer the graduation of any cadet under investigation for serious misconduct.
   
   b.  The applicant was flagged based on Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS)), paragraph 1-12a(1) pending the CID investigation.  This action rendered him ineligible for appointment as a 2LT prior to 21 December 2007 (except as may otherwise be provided by the Secretary of the Army).
   
   c.  Title 37, U.S. Code, section 204(f) and Army Regulation 210-26, paragraph 5-5c, state that a cadet is entitled to receive pay as a 2LT beginning upon the date of graduation from USMA.
   
   d.  The applicant did not graduate from USMA until 21 December 2007; therefore, he was not entitled to receive pay prior to that date.

9.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments.  On 1 October 2010, he submitted a rebuttal to the advisory opinion and stated:

   a.  He was qualified to have a date of rank of 26 May 2007 instead of 21 December 2007 based on the favorable outcome of the investigation.

   b.  The investigation determined there was insufficient evidence to substantiate that he did or did not commit the offense.
   
   c.  The West Point CID office issued a memorandum, dated 15 January 2008, which stated “STATUS:  This is a Final (C) Report.  Commander’s Report of Disciplinary or Administrative Action Taken (DA Form 4833) is not required.”

   d.  Army Regulation 600-8-29 (Officer Promotions), paragraph 1-21d stated “when an officer’s promotion suspension is ended favorably and he or she is exonerated of any wrongdoing…."

   e.  The previous paragraph only addressed his qualification and not his eligibility in determining his active date of rank and effective date for pay and allowances. 

10.  References:

	a.  Army Regulation 210-26 provides existing direction and guidance from the Secretary of the Army for the general governance and operating policies of the USMA.  Paragraph 5-3e(2) of this regulation states the Secretary of the Army has delegated to the Superintendent the authority to defer graduation of any cadet for good cause, to include cases where a cadet is under investigation for violation of the Honor Code, serious misconduct, or immorality or is the subject of an administrative action that could result in separation, or the award of extended punishment.  

   b.  Army Regulation 600-8-2, paragraph 1-12 covers circumstances requiring a non-transferrable flag.  The specific actions and investigations listed in this regulation require a non-transferable flag, such as adverse actions, charges, restraints, or investigation.  Remove the flag when Soldier is released without charges, charges are dropped, or punishment is completed.  

	c.  Army Regulation 600-8-29, paragraph 1-21d states that when an officer's promotion suspension is ended favorably and he or she is exonerated of any wrongdoing, or a determination is otherwise made that the officer was qualified for promotion during the entire period of delay, the officer will be promoted with the active date of rank (ADOR), effective date (for pay and allowances), and position on the active duty list he or she would have received had there been no delay.  However, the ADOR and effective date will be adjusted as follows if promotion was delayed because of several reasons listed.  

   d.  Title 37, U.S. Code, section 204(f) states a cadet of the USMA or the 
U.S. Air Force Academy, or a midshipman of the U.S. Naval Academy, who, upon graduation from one of those academies, is appointed as a 2LT of the Army or the Air Force is entitled to the basic pay of pay grade O-1 beginning upon the date of his graduation.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not indicate an error or injustice exists in this case.  Therefore, there is no basis for changing his commission date to 2LT from 21 December 2007 to 26 May 2007.  

2.  The applicant’s service record shows he entered USMA on 30 June 2003.

3.  The evidence of record shows he was flagged in April 2007 because he was under investigation for rape.  By regulation, the Superintendent is authorized to 
defer graduation where a cadet is under investigation for violation of the Honor 


Code, serious misconduct, or immorality or is the subject of an administrative action that could result in separation.  Therefore, his graduation from USMA was deferred until the CID investigation was completed.  

4.  Although the CID determined there was insufficient evidence to substantiate whether the applicant did or did not commit the offense, he was properly flagged pending the outcome of the CID investigation.  Therefore, he was ineligible to graduate with his classmates on 26 May 2007 and to have his date of rank changed to 2LT as 26 May 2007.  

5.  The evidence of record does not support counsel’s contention in regard to the applicant being left with a life of uncertainty because of allegations which occurred years before being reported.   

6.  Counsel contends the applicant was punished without an investigation or legal proceeding; however, no evidence of record is available which supports this contention.  His allegations were investigated by the CID and the delay in his graduation was an authorized, legitimate, and reasonable action by USMA authorities to ensure a full examination of allegations of serious misconduct by the applicant.  

7.  The advisory opinion revealed the applicant did not graduate from USMA until 21 December 2007; therefore, he was ineligible for appointment as a 2LT or basic pay of pay grade O-1 prior to this date.  

8.  The applicant cited Army Regulation 600-8-29, paragraph 1-21d in regard to his delay of promotion.  However, this regulation governs the officer promotion system for officers on the active duty list.  At the time in question, he was a cadet; therefore, this regulation does not apply in this case concerning his appointment date and date of rank as a 2LT.  

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)                                         AR20100010673



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ABCMR Record of Proceedings (cont)                                         AR20100010673



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