IN THE CASE OF:	  

		BOARD DATE:	    8 February 2011

		DOCKET NUMBER:  AR20100011912 


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 upgrade of his general discharge to an honorable discharge and change of his narrative reason for separation from unacceptable conduct to miscellaneous.  He also requests, in the alternative, a review of his case for unlawful termination of employment with reinstatement, back pay, and any equitable remedies, if approved.

2.  The applicant states:

	a.  his narrative reason for discharge and the DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]) charges violate the Military Whistleblower Protection Act;

	b.  an error or injustice occurred, making a discharge upgrade as well as other equitable remedies proper and appropriate;

	c.  he was a captain (CPT)/O-3 serving in the capacity of a legal assistance and claims attorney when he formed an attorney-client relationship with a private first class (PFC)/E-3 who was seeking counsel regarding her pending divorce and custody issues;

	d.  he met with the PFC several times throughout the next several months and in December 2007 the PFC sought advice from him in regards to accepting a field grade Article 15 for making a false official statement to the U.S. Army Criminal Investigation Command (USACIDC, also known as CID);

	e.  after listening to the PFC's version of the events and examining some factual records, he became convinced that the PFC did not deserve the Article 15 as it lacked evidence.  He spoke with her a number of times regarding all of her various legal issues and provided her with his personal cell phone number so she could reach him after duty hours;

	f.  he spoke with the PFC via text messaging several times in an effort to calm her down, met with the PFC at locations outside of the legal office by happenstance and sometimes at the urging of the PFC, and all of his interactions with the PFC centered around her legal issues and mental health because he was concerned over the way she was being treated by her command;

	g.  he contacted her chain of command regarding her Article 15 and this action was brought to the attention of the Deputy Staff Judge Advocate (DSJA) who discussed with him the fine line between a legal assistance attorney and a trial defense attorney;

	h.  he believed it was appropriate for him to continue his attorney-client relationship with the PFC regarding her Article 15 issues, and the Article 15 action against her was dismissed in January 2008 due to a lack of evidence;

	i.  the following month another trainee was facing adverse action because of misconduct and in an effort to reduce his own punishment, the trainee provided a false and fabricated statement alleging that he (the applicant) and the PFC were having an inappropriate relationship;

	j.  he was investigated, which resulted in a recommendation for punishment under the UCMJ and the same legal advisor who oversaw the PFC's Article 15 proceedings oversaw the investigation and administered Article 15 proceedings against him;

	k.  he was issued a written reprimand on 26 March 2008 and on the following day he was notified that he was required to show cause as to why he should be retained on active duty;

	l.  he was recommended for elimination based on alleged fraternization with the PFC and for contacting her chain of command;

	m.  the major general recommended a fully honorable discharge and he chose to submit his resignation in lieu of elimination;

	n.  the Deputy Assistant Secretary (Army Review Boards) did not accept the recommendation for a fully honorable discharge, and he directed the issuance of a general discharge;

	o.  he was illegally punished and reprised against because he discovered the Article 15 proceedings against the PFC lacked merit;

	p.  the charge of conduct unbecoming lacked legal basis, the fraternization charge based on the perjured statement of the trainee lacked legal basis, and the statements made by the trainee were not substantiated;

	q.  prior to all of the allegations and charges against him, he was denied adequate training; and

	r.  the legal advisor operated under a conflict of interest when he was involved in his Article 15 proceedings and his administrative discharge, and he lost his job only because he cared for other Soldiers who were faced with legal problems.

3.  The applicant provides:

* a self-authored "Brief in Support of Application for Discharge Upgrade"
* a memorandum for the 111th Military Intelligence Brigade Commander, subject:  Second Result of the 303 Investigation Regarding an Alleged Inappropriate Relationship Between an Officer and an AIT (advanced individual training) Soldier, dated 10 March 2008, by the Brigade Adjutant

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army (RA), the applicant accepted an appointment as a Reserve commissioned officer in the rank/grade of first lieutenant (1LT)/O-2, effective 11 April 2005.  He took his RA Oath of Office as a 1LT in the Judge Advocate General's Corps on 31 May 2005.

2.  He was promoted to CPT, effective 28 September 2005.

3.  On 12 February 2008, an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was initiated into the circumstances of an alleged inappropriate relationship between the applicant and an AIT PFC.  The investigation revealed the following determinations and recommendations:

	a.  both the applicant and the PFC were aware of their officer and enlisted status at their first meeting and the applicant was derelict in his performance as 

an officer in that he willfully engaged in a personal relationship with a PFC by meeting her after work around his apartment complex, and probably meeting with her at a tattoo parlor, Sonic, and other locations;

	b.  three witnesses stated they saw text messages from the applicant sent to the PFC that had nothing to do with her legal matters and the relationship between the applicant and the PFC caused other Soldiers to perceive that he had shown partiality towards the PFC;

	c.  the applicant's behavior while acting in his official capacity as a lawyer and officer seriously detracted from his character as a gentleman, and his conduct with the PFC was morally unfitting and unworthy since he met her after work, off-post, around his apartment complex, and other locations;

	d.  the applicant knowingly fraternized with the PFC and such fraternization violates the customs of the Army that officers shall not fraternize with enlisted members on terms of military equality;

	e.  his conduct was to the prejudice, good order, and discipline of the armed forces and his conduct was of a nature to bring discredit upon the armed forces;

	f.  punishment under the UCMJ should be considered for fraternization because Judge Advocates hold a commission as an officer in the U.S. Army and assume legal responsibilities going beyond those of other citizens;

	g.  a judge advocate's abuse of his commission status can suggest an inability to fulfill the professional role of a judge advocate and a lawyer;

	h.  the applicant spoke directly with the PFC's company commander, battalion commander, and battalion command sergeant major regarding the dropping of a field grade Article 15 and it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice;

	i.  offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are conduct prejudicial to the administration of justice;

	j.  the applicant was not a trial defense lawyer and he should not have been involved in the PFC's field grade Article 15 proceedings;


	k.  the SJA office should consider disciplinary action against the applicant and if his actions constituted more than a minor or technical violation, a report should be made to The Judge Advocate for further action; and

	l.  the applicant should receive training on how to work with an enlisted Soldier.

4.  The Army Regulation 15-6 Investigation was legally reviewed on 27 February 2008 and the appropriate authority determined that the investigating officer's recommendations were consistent with the findings.

5.  The second results of the investigation regarding the alleged inappropriate relationship between the applicant and the PFC were completed on 10 March 2008.  This report included factual findings from the testimony of the PFC.  The report included findings that the PFC and the applicant went to dinner and a movie in Tucson, AZ.  They met at Sonic and a tattoo parlor.

6.  The applicant was assigned to Fort Huachuca, AZ, on 26 March 2008, when nonjudicial punishment (NJP) was imposed against him for the following:

* wrongfully engaging in a prohibited relationship with a PFC
* wrongfully engaging in a relationship not required by the training mission with a PFC, an initial entry training Soldier
* with intent to deceive, making a false official statement to the investigating officer (his relationship with the PFC was a legal relationship and he was merely friendly with her as a client)
* wrongfully contacting multiple members of the PFC's chain of command for reasons of personal gain, which constituted conduct unbecoming an officer and a gentleman

7.  Having been afforded the opportunity to consult with counsel, the applicant elected not to demand trial by court-martial.  He elected to present, in person, matters in his defense, mitigation, and/or extenuation.

8.  The applicant's commanding general (CG) administered a DA Form 2627 (Record of Proceedings under Article 15, UCMJ).  After considering all matters, the punishment imposed was a forfeiture of $2,370.00 pay per month for 2 months and a written reprimand.  The CG also directed the DA Form 2627 be filed in the performance section of the applicant's Official Military Personnel File.  The applicant did not appeal the punishment.

9.  As a result of the NJP, he was furnished a General Officer Memorandum of Reprimand (GOMOR) for engaging in improper fraternization with a female junior enlisted AIT Soldier who was married at the time, and for improperly contacting multiple members of her command regarding the processing of her Article 15.

10.  On 27 March 2008, the applicant was notified that he was required to show cause why he should be retained on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2(b)(5), acts of personal misconduct; and paragraph 4-2(b)(8), conduct unbecoming a commissioned officer.  His commander cited his engagement in improper fraternization with a female junior enlisted AIT Soldier, and improper contact with multiple members of the AIT Soldier's command, which constituted conduct unbecoming an officer and a gentlemen, as the basis for the notification.  In the notification, the applicant was told that he was being recommended for discharge with a characterization of service as honorable.

11.  He acknowledged receipt of the notification and, on 28 March 2008, he voluntarily tendered his resignation, under the provisions of Army Regulation 600-8-24, chapter 4, in lieu of elimination proceedings.

12.  The Army Human Resources Command notified the Commander, U.S. Army Intelligence Center that the Acting Deputy Assistant Secretary (Army Review Boards) reviewed the applicant's resignation in lieu of elimination and did not accept the resignation conditioned on his receiving an honorable discharge.  The Acting Deputy Assistant Secretary directed the applicant be discharged from the U.S. Army with a general characterization of service, based on misconduct.  He further directed that a DD Form 214 be prepared with Army Regulation 600-8-24, chapter 4, cited as the authority for separation.

13.  Accordingly, on 2 June 2008, the applicant was discharged under the provisions of Army Regulation 600-8-24, chapter 4-2b, by reason of unacceptable conduct, with a general discharge.  He had completed 5 years, 1 month, and 24 days of net active service this period.

14.  On 5 October 2009, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and a change to his narrative reason for separation.

15.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of officer personnel.  Chapter 4 of this regulation prescribes the tasks, rules, and steps for eliminating officers of the Active Army for substandard performance of duty, misconduct, moral or professional 

dereliction, and in the interests of national security.  Paragraph 4-2 pertains to reasons for eliminations.  Subparagraph 4-2b covers misconduct, moral or professional dereliction, in the interest of national security, and conduct unbecoming an officer.

16.  Army Regulation 600-8-24, paragraph 1-22a, provides that the honorable characterization 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.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his support documents have been carefully considered.  However, there is no evidence in the available record, nor has he submitted sufficient evidence, showing that the actions that led to his discharge were protected under the Military Whistleblower Protection Act and that he was reprised against for making a protected communication. 

2.  The records show that the applicant carried on a lengthy personal relationship with a trainee.  He met with her at civilian eating establishments and some of these meeting were witnessed by other trainees.  Additionally, the applicant drove her to Tucson so they could attend a movie and have dinner.  It was not until the improper relationship was brought to light that adverse actions were initiated.

3.  Investigations were conducted into the allegations of improper fraternization with an AIT Soldier and improper contact with her command.  The results of the investigation determined that the allegations were substantiated.  His relationship with the AIT Soldier was improper and, although he was assisting her during the process of her divorce, he had no authority to interfere in her Article 15 process.  He was properly punished as a result of his actions.

4.  He was discharged as a result of engaging in improper fraternization with a female junior enlisted AIT Soldier and for improper contact with multiple members of the AIT Soldier's command, which constituted conduct unbecoming an officer and a gentleman.

5.  It is noted that the evidence of record does not show that he appealed or disputed any of the actions taken against him while he was on active duty.  He received an Article 15 and a GOMOR as result of his acts of misconduct.  He has not shown error or injustice in his narrative reason for separation or the characterization of his service.  Based on his records and the available evidence, his conduct was unacceptable and his service was not totally honorable.

6.  The evidence of record does not support the applicant's contentions of unlawful termination of employment or support reinstatement to active duty, back pay, or any other remedies.  In accordance with the applicable regulation, he has the burden of proving an error or injustice by a preponderance of the evidence.  

7.  In view of the foregoing, is request should be denied.


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 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)                                         AR20100011912



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011912



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1