IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100018055 


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 his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request to overturn the findings of the Honor Hearing that led to the applicant's disenrollment from the U.S. Military Academy (USMA) in July 2008 and readmission to USMA in August 2010 or enrollment in the Brigham Young University (BYU) Reserve Officers' Training Corps (ROTC) program.  Upon reinstatement, the applicant requests the designation of an official in the Office of the Secretary of the Army for him to report any bias or other problems he may suffer upon his entry into USMA or ROTC.  Counsel also requests a personal hearing.

2.  Counsel restates most of his previous arguments.  He also provides an overview of the history, functions, and process of the Army Board for Correction of Military Records (ABCMR) and makes several recommendations for how the ABCMR should be run.  He further describes the current ABCMR as a weak, unfair, biased, flawed, equity-locked, tainted, and failed Board that not only misunderstood and misrepresented the numerous issues raised by the applicant, but also failed to adjudicate his case lawfully and equitably.  He states, of the applicant's 25 major issues raised in his original application, the Board ignored 18 issues and erroneously resolved the remaining seven issues, thus depriving him of a fair and balanced case adjudication by violating legal and policy decision-making standards, and stripping him of an opportunity for a fair consideration process.  Specifically, he argues the following points:
* 
The USMA Military Police (MP) misinterpreted the applicant's comments
* The applicant was nervous and may have misspoken
* The applicant's oral comments to the MPs were consistent with his written statements a short time later
* The MP investigation was substandard
* There was an actual and apparent reprisal in violation of the Military Whistleblower Protection Act
* The applicant's role in assisting a sexual assault victim was ignored
* The applicant's due process was violated as there was interference with his access to the main witness prior to the Honor Hearing (HIH)
* USMA command influence existed in the applicant's administrative separation
* The USMA command influence was improper 
* The applicant's legal counsel advised him not to raise the issue of his efforts to help the cadet victim's sexual assault crisis
* The applicant's legal advisor had a conflict of interest and rendered deficient advice regarding the reprisal
* The applicant's legal advisor failed to inform him that his character witnesses were valid
* The applicant's legal advisor provided defective advice in that he advised him of the irrelevancy of his star witness, the cadet victim
* The hearing officer was biased
* The applicant's star witness was denied the opportunity to testify at the applicant's hearing
* The hearing officer failed to explain the testimony of witnesses with good character should be considered during punishment
* The hearing officer engaged in a conflict of interest
* The USMA Superintendent violated the Secretary of the Army's regulation to give the applicant 3 days to prepare his statement
* The Regimental Tactical Officer (RTO) disseminated damaging and wrong information about the applicant's character
* Unfair collateral information infected the USMA and Department of the Army (DA) process
* The USMA Superintendant's action was invalid because it was infected by improper extraneous information
* The USMA Superintendant's and the Assistant Secretary of the Army's (Manpower and Reserve Affairs (ASA (M&RA))) actions were improper because they lacked explanation
* The applicant passed a polygraph
* The ABCMR ignored affidavits by the applicant, his counsel, and the cadet sexual assault victim
* Administrative command influence infected the ABCMR proceedings

3.  Counsel also briefly re-addresses the 10 issues previously mentioned and in doing so, he incorporates law and arguments as well as other errors by the ABCMR:

* The original ABCMR Proceedings intensively used the identifying initials of a victim of a sexual assault
* The ABCMR unreasonably refuses to allow the applicant to appear at a personal hearing when it should in fact have investigated his case
* The ABCMR imposed a higher and improper evidentiary basis
* The ABCMR's opinion was erroneous
* The ABCMR's opinion violated legal standards of opinion drafting by the Boards for Correction of Military Records
* The ABCMR's opinion failed to reflect principled public policy analysis and exercise equity
* The ABCMR's opinion reflected institutional bias in favor of the Army
* The ABCMR's opinion was biased against the applicant
* The ABCMR's opinion reflected a loss of the requisite judicial temperament
* The ABCMR's opinion unfairly places pressure on the applicant to seek potentially expensive Federal litigation  

4.  Counsel provides a 106-page legal brief.  He also provides two character reference letters.

5.  On 2 August 2010, a third character reference letter was received on behalf of the applicant

6.  On 5 August 2010, by email, counsel submitted a copy of the applicant's biography, highlighting his character, achievements, travel, and extracurricular activities.

7.  On 9 August 2010, a letter was provided by the applicant's former ecclesiastical leader, who was also a former U.S. Marine Corps officer.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090014220, on 13 April 2010.

2.  The applicant is a former USMA senior cadet who was disenrolled for violating the Cadet Honor Code.  The incident that ultimately led to his disenrollment occurred on 24 July 2008.  USMA MPs responded to a call from a local hotel in Highland Falls, NY, reporting that a customer left an M-16 rifle in the front seat of a car in the hotel parking lot.  The MPs determined that the car belonged to the applicant.  The applicant spoke to the MPs who, later, claimed he told them that he had dropped off cadet NM (a freshman cadet) at the dental clinic and she left the rifle in his vehicle. 

3.  The applicant entered the Army as a USMA cadet on 27 June 2005.  He executed a contract acknowledging he could incur a financial obligation for the cost of his education or an obligation to serve in the Army in an enlisted status if he, after entering his junior year at the USMA, breached the terms of the agreement.

4.  On 24 July 2008, USMA MPs were notified of a possible government weapon located in a privately owned vehicle (POV), parked outside the facility.  In their statements, the two MPs who responded to the incident described the circumstances of this incident as follows:

	a.  Staff Sergeant (SSG) RP states on 24 July 2008, he was notified by Sergeant (SGT) MJ of a possible government weapon being located in a POV at the Econo Lodge in Highland Falls.  Upon arrival at the facility, both MPs met with the hotel employee who identified the vehicle containing the weapon.  The MPs observed a government issued M-16 rifle in the front passenger seat of an Acura sport utility vehicle belonging to the applicant.  SSG RP states during the discussion with the applicant, he (the applicant) stated "he had picked up cadet NM from her training area at Camp Buckner and drove her to building 606 for a dental appointment.  After he dropped her off, he stated he was unsure of what to do with her weapon so he took it with him to the Econo Lodge to meet his girlfriend, while he waited to pick up cadet NM from the dental clinic to take her back to training."  SGT MJ confiscated the weapon and instructed the applicant to pick up cadet NM and proceed directly to the MP station.

	b.  SGT MJ essentially states he received a phone call from a worker at the hotel in reference to a possible unsecured government weapon in a POV in their parking lot.  SGT MJ and SSG RP arrived at the hotel and made contact with hotel personnel who pointed them in the direction of the vehicle and they then made contact with the owner who was identified as the applicant.  SGT MJ further states the applicant informed him and SSG RP that "he was holding the weapon for a cadet NM" and that "he picked cadet NM up at Camp Buckner in his POV and dropped her off at the dental clinic for an appointment."  SGT MJ further states that the applicant said "he did not know what to do with the weapon so he held onto it and drove back off post in his POV with the weapon in his sole possession, to the Econo Lodge where he was waiting for her to finish her scheduled appointment."  The two MPs confiscated the weapon from the applicant and informed him to pick up cadet NM from the clinic and for both to proceed to the MP station.

5.  In connection with this incident, the applicant also submitted a sworn statement wherein he essentially stated he went to Camp Buckner because he brought a package of cookies and donuts for cadet NM from her mother and grandmother.  He added that he assumed he would just drop off the package and return to his hotel, but after talking with her, it was evident she needed to return to USMA to pick up something and he also mentioned that she needed to talk to the Dental Activity (DENTAC) about a follow-up appointment for an injury.  He also stated he volunteered to take her to USMA because she did not want to wait for the duty driver.  Cadet NM brought her "rifle," but he (the applicant) was unaware this was an issue because she maintained physical control of the weapon.  Upon "getting to" USMA, he realized he did not have his "cadet temporary decal" and could not go through the DOD gate.  He stated, as a result, he returned to his hotel room to retrieve his decal and change into his combat uniform.  While he was changing there was a knock at the door and the hotel staff and the MPs were at the door.  He stated that apparently cadet NM "had left her weapon in my car and we were both unaware of it."  He stated he turned the weapon over to the MPs and hurried over to the MP station at USMA.

6.  Subsequent to this incident, a commander's inquiry was initiated by the applicant's Company Tactical Officer (CTO).  Upon completion on 26 July 2008, the CTO recommended "Both individuals should receive a Regimental Board as a minimum."  He remarked that "It is doubtful that both individuals were ignorant of the fact that transporting a weapon in a POV is unlawful.  It is also clear that there was fraternization involved.  There also appear to be honor issues and a pattern of misconduct."

7.  On 31 July 2008, he submitted a sworn statement to his tactical officer wherein he stated the following:

	a.  When asked what he intended to accomplish when he arrived at Camp Buckner, he stated he planned to drop off cadet NM's package and make sure she was OK because she had told him she felt threatened by a "Firstie" [a first year or senior cadet] on the regimental staff.  The applicant also clarified that he told the MPs who responded to the scene she was with him at the hotel and he had planned on taking her to DENTAC.

	b.  When asked when did he discover he did not have his temporary decal, he stated he realized "right after" leaving the gate at Camp Buckner that his temporary decal was in his overnight bag at his hotel.  He further states he did not want to go through any hassles at the gate because he had his luggage and bike in the back of his car.  He states he also told her that her mom's bag was probably in the back of his car and she could go through it while she "waited in the car for him to get the decal."  He also stated it later became apparent her bag was not in his car but that he had brought it to his room when he checked in the previous night.  He states she came up to his room to look at her bag as he looked for his temporary decal in his overnight bag.

	c.  When the MPs asked who the rifle belonged to, he stated that it was a CFT (Cadet Field Training) cadet's whom he was transporting to West Point.  When the MPs further inquired where the CFT cadet was, he stated she was with him and he had planned on dropping her off at West Point to see DENTAC."

	d.  When asked where her rifle was when he picked her up, he stated it was on her person and he did not notice this fact until they started driving out of Buckner.

8.  On 28 August 2008, he accepted punishment under Article 10 of the Cadet Disciplinary Code from his Brigade Tactical Officer (BTO) for failing to comply with regulations, orders, and instructions by having cadet NM's M-16 rifle in his POV in a parking lot of an Econo Lodge Hotel on 24 July 2008 and for lying to MPs by stating she was at a dentist appointment when in fact she was with him in the hotel.  His punishment consisted of 100 hours of extra duty, 60 days of restriction, a reduction in cadet rank, and withdrawal of all privileges for 90 days. He elected not to appeal this punishment.  He also asserted that his BTO informed him that his case would have gone much smoother had he not become involved with the sexual harassment allegations made by cadet NM against cadet TG.

9.  He provided a timeline of the events as follows:

	a.  On 5 September 2008, he assisted cadet NM who was serving the walking tour imposed upon her at the Brigade Board, by carrying her weapon.  His Tactical Officer, Captain AM, warned him that helping cadet NM would cause him more trouble.

	b.  On 8 September 2008, cadet NM asked him to accompany her to the Equal Opportunity Office at USMA where she intended to file a victim complaint against cadet TG.

	c.  On 10 September 2008, the BTO issued him and cadet NM a no-contact order, which was read to him by his company commander on 12 September 2008.

10.  On 30 September 2008, SGT MJ provided an additional sworn statement to elaborate on the statement he previously provided on 24 July 2008 regarding the incident involving the applicant's possession of an M-16 rifle.  The MP indicated while talking to the applicant on 24 July 2008 he noticed cadet NM stick her head out from behind the door of their upstairs motel room.  He further stated, given the amount of time it took the applicant and cadet NM to arrive at the USMA MP station, it would have been impossible for him to have picked her up from the dental clinic where he had reportedly dropped her off for an appointment.  The MP concluded that it is from first-hand knowledge that he knows cadet NM was in the hotel room rented out to the applicant the entire time the MPs were questioning him.

11.  On 2 October 2008, the 4th Regimental Honor Representative for the USMA Cadet Honor Committee recommended the commandant convene an Honor Investigative Hearing (HIH) to review the allegation that the applicant lied to the MPs on 24 July 2008.  The Cadet Honor Code is defined as "A cadet will not lie, cheat, steal, or tolerate those who do."

12.  The USMA Corps of Cadets bears the responsibility to resolve all possible violations of the Code through detailed, independent investigations and, when required, an HIH.  If a cadet (or anyone else) suspects that a violation occurred, he/she is expected to approach the individual to clarify what happened (this step is optional).  If that approach resolves the issue; for example when the cadet making the allegation realizes no honor violation occurred; the issue is dropped. However, if the person making the allegation still believes a violation may have occurred, he/she is obligated to inform a member of the Honor Committee.  Once a suspected violation is reported to a member of the Honor Committee, it must be investigated.  The two Honor Committee members from the suspected cadet's company will conduct an initial inquiry and make a recommendation; then two members from outside the company perform an investigation and make a recommendation; then the Regimental Honor Representative reviews the case file and makes a recommendation to the Vice-Chairperson for Investigations (VCI).  The VCI has the option to drop the case.  If this decision (either forward or drop) is not in agreement with every other recommendation in the case file, then the Chairperson makes the final decision.  If the case is forwarded to a hearing, the Commandant of Cadets must approve the decision and order that a hearing be convened.

13.  On 28 October 2008, the VCI announced the Cadet Honor Committee recommended the case be forwarded to an HIH to resolve whether the applicant lied to the MPs about cadet NM's whereabouts and whether he was lying by equivocation by stating the female in his hotel room was his girlfriend, a statement that was made with the intent to deceive or mislead.

14.  On 6 November 2008, the Commandant of Cadets, Brigadier General (BG) ML, referred the first allegation to an HIH.  He did not refer the second allegation, alleging a lie by equivocation.

15.  On 9 November 2008, the applicant acknowledged notice of the HIH and in doing so, he received a "Notification of Respondent's Rights and Responsibilities" memorandum, outlining his rights in the HIH process, which includes the right to appear before the HIH, call witnesses, question witnesses, challenge board members, obtain investigative reports, and have a Cadet Advisor present.  Paragraph 4(c) notified the applicant character witnesses will not be allowed to testify on his behalf during the fact finding phase of the hearing unless they are testifying as to a particular character trait being called into question by the HIH.

16.  On 17 November 2008, subsequent to BG ML's formal appointment of the board for the applicant's HIH, the HIH convened a preliminary session to advise the applicant of his rights and receive his elections.  The allegation before the board was whether he lied to the MPs on 24 July 2008 when he stated he had dropped off cadet NM at the USMA Dental Clinic.

17.  The transcript of the proceeding shows he consulted an attorney prior to the hearing and was satisfied with her advice.  Additionally, he was represented by a Cadet Advisor throughout his hearing.  He also acknowledged he had the ability to offer information about himself for consideration by the board members, the Commandant of Cadets, and the USMA Superintendent.  The hearing advisor then advised him the HIH would reconvene on 21 November 2008 to hear testimony.  The applicant indicated he would be prepared for the hearing.  The applicant didn't express any concern about the advice he received from counsel and stated on the record he was satisfied with her advice (HIH transcript, page 105).  Additionally, he acknowledged again at the board he understood his rights, to include calling witnesses.

18.  On 21 November 2008, an HIH reconvened.  The applicant initially submitted 13 character statements from various officers and cadets.  During the HIH:

	a.  SGT MJ's testimony was consistent with his statements prepared soon after the incident at the lodge involving the M-16 rifle.  SGT MJ testified that the applicant stated he was holding on to the weapon for a friend whom he had dropped off at the USMA dental clinic.  On cross examination, the applicant attempted to show that SGT MJ was mistaken in his recollection.  SGT MJ responded that he correctly remembered and recorded the applicant's statement that cadet NM was at the dental clinic.

	b.  In his testimony, the applicant began with a narrative statement.  He pointed out several instances in his cadet career where he told the truth even though he knew it adversely affected a punishment he received or his grades.  He maintained that he told the MPs that cadet NM was with him in the hotel, which was the same claim he made in his written statements and later to his Tactical Officer.

   c.  The board members also questioned him about his interaction with the MPs and details contained in his various statements.  The applicant stated he may have been nervous so his responses to the MPs may have been confusing and misconstrued.  Additionally, the IR [Investigative Representative] informed the board president and hearing advisor that cadet NM was exercising her Article 31 rights.  The board president announced during the proceeding that cadet NM was not available to testify and won't be testifying.

19.  After hearing his closing argument, voting board members held a closed session to deliberate on the merits of the honor allegation.  The HIH transcript shows that prior to the start of deliberations, the board members received final instructions from the board president which included the standard of proof requirements.  However, the transcript was summarized and the actual instructions given were apparently not transcribed verbatim.  The board, with at least four of the six voting members concurring, found that the applicant violated the honor code by lying.  Specifically, the board found he lied to the MPs, by stating he had dropped cadet NM off at the dental clinic knowing the statement was false and with the intent to deceive or mislead another person.  All HIH panels – including the applicant's – receive standard instructions before deliberating on the issue of whether an honor violation occurred, to include:

	a.  Standard of proof:  

		(1)  "The standard of proof is whether the evidence is sufficient to support a conclusion that is more likely than not that cadet AP violated the Honor Code.  In other words, is there more evidence supporting a conclusion that the Respondent violated the Code than evidence supporting a conclusion he/she did not?...[T]his is a preponderance of the evidence standard; it does not require proof beyond a reasonable doubt."

		(2)  "Only matters properly before the hearing as evidence may be considered in your deliberations, but in weighing the evidence, we are expected to utilize our common sense and your knowledge of human nature."

		(3)  "The determination as to the weight of the evidence in the case rests solely with us.  If we find that any of the elements, or parts, of the allegation is more likely untrue rather than true, then we must find that a violation did not occur.  Similarly, if we find that the evidence is evenly balanced, so that it cannot be determined whether an element, or part, is true or untrue, we must find that a violation did not occur."

	b.  Credibility of Witnesses:

		(1)  "You have the duty to determine the credibility, or believability, of the witnesses.  In performing this duty we must consider each witness' intelligence, and ability to observe and accurately remember relevant details, in addition to the witness' sincerity and conduct in the hearing, (and) (prejudices) (and) (character for truthfulness).  Consider also the extent to which each witness is either supported or contradicted by other evidence; the relationship each witness may have with Cadet ___ or anyone else involved in this case; and how each witness might be affected by the finding."

		(2)  "(In weighing discrepancies by or between witnesses, we should consider whether the discrepancies resulted from innocent mistakes or deliberate lies.)"

		(3)  "Taking all these matters into account, we should then consider the probability of each witness' testimony and the inclination of the witness to tell the truth."

		(4)  "The believability of each witness' testimony should be our guide in evaluating the testimony and not the number of witnesses called."

		(5)  "These rules apply equally to the testimony given by cadet ___." [ABCMR note: this last part of this instruction applies to testimony by the Respondent.]

20.  The six voting board members recommended the Superintendent grant discretion in this case by allowing the applicant to remain a cadet at West Point and either be allowed to graduate with his class or with a delayed graduation by 1 year with a full year turn back.

21.  On 21 November 2008, following the HIH, the applicant acknowledged receipt of chapter 4 of U.S. Cadet Command (USCC) Pamphlet 15-1 (Honor Committee Procedures) concerning Post-Hearing Procedures and the Review Process.

22.  On or about 1 December 2008, he received a copy of the HIH board transcript with the exhibits considered during the board.  It is unknown how much time he was given to provide a statement to the Superintendent; however, he claimed he had less than 24 hours to provide a statement to the USMA Superintendant to consider in taking final action on his case.

23.  On 12 January 2009, the USMA Superintendant approved the findings of the HIH and the applicant's disenrollment from USMA.  The Superintendant recommended that the Secretary of the Army transfer the applicant to the Army Reserve in the rank/grade of specialist (SPC)/E-4 for 3 years and order him to active duty for a period of 3 years.

24.  On 10 July 2009, the ASA (M&RA) approved the Superintendant's recommendations and transferred the applicant to the U.S. Army Reserve in the grade of E-4 for 3 years and immediately ordered him to active duty for a period of 3 years.

25.  On 5 August 2009, he was ordered to active duty effective 24 August 2009 for a period of 3 years.

26.  Counsel previously submitted a report of polygraph examination, dated 15 August 2009, which shows in the opinion of the polygraph examiner, the applicant was truthful when asked the following questions:

	a.  In reference to the allegations that you lied to the MPs on 24 July 2008, do you intend to answer truthfully each question about that?  Answer:  Yes.

	b.  On 24 July 2008 at the MP station did you lie to any MPs during that interview?  Answer:  No.

	c.  During the interview on 24 July 2008 did you lie to any of the questions asked by the MPs?  Answer:  No.

27.  Previously, the ABCMR requested an advisory opinion from the Department of the Army, Office of the Deputy Chief of Staff, G1 (G-1), in the processing of this case.  In the opinion, dated 9 September 2009, the Chief, Officer Division concluded the applicant was properly disenrolled from USMA and ordered to active duty in accordance with applicable policy, regulation, and law.

28.  Counsel commented on the G-1's advisory opinion on 9 October 2009.  He contended the ABCMR did not properly comply with the ex-parte provisions of Title 10, U.S. Code, section 1556, because they did not provide the applicant all of the requests from the ABCMR to the G-1.  He also contended the G-1 advisory opinion had no value because it did not provide a meaningful analysis of the applicant's disenrollment from USMA.

29.  On 29 January 2010, the ABCMR requested an additional narrowly focused advisory opinion from the G-1 and USMA addressing whether the honor board members, who found that the applicant committed an honor violation, applied the proper standard of proof in assessing the evidence presented during the HIH held on 17 and 21 November 2008.  In its opinion, dated 8 February 2010, the USMA cites instances within the HIH transcript where standard of proof instructions were presented by the hearing advisor and/or the board president to the applicant, the board president and the honor board members.  In addition to its opinion, the USMA provided a standard script used during any HIH and it articulates and requires the preponderance of evidence standard to be read during several portions of the proceedings.  As a result, USMA concluded, it is clear that during the HIH, the proper standard of proof in assessing the evidence was used and a clerical error on a findings worksheet does not mean the honor board members used a lower level of proof during its deliberations of the applicant's case.  The G-1, in its response, supported the USMA's advisory opinion indicating USMA presented numerous examples to illustrate the preponderance of evidence standard was used during the applicant's HIH.

30.  Counsel again provided comments on the USMA's and G-1's advisory opinion on 26 February 2010.  He stated that relying on the photocopied script provided by USMA with its advisory opinion, as proof the honor board was provided and understood the standard of proof required for finding the applicant committed an honors violation, was unfair.  He further stated there is no way to determine whether the hearing advisor properly communicated all the matters to the applicant, the board president and ultimately the honor board members or that they understood the instructions.  He further argued the advisory opinion failed to rebut the clearly-stated finding by the HIH of an honor violation based on a substantial evidence standard.  Counsel rejected USMA's assertion that the hearing advisor used a standard script or instructed the members of the proper evidentiary standard and as a result, concludes that relief is warranted as a matter of equity in this case.

31.  Three character reference letters or letters of recommendation in support of the applicant's request were submitted as follows:

	a.  An undated letter from a bishop who has known the applicant for over 10 years and knows of his character.  The bishop recommends the applicant be allowed to return to West Point.

	b.  A letter, dated 26 July 2010, from a former foreign service officer, Utah State legislator, and division officer aboard a ship.  The author comments on the applicant's uncommon intellectual qualities and leadership skills.  He recommends the applicant be given the opportunity to serve as an officer in the Army.

	c.  A letter of recommendation, dated 28 July 2010, from another bishop who has known the applicant and his family for some time.  He describes him as an extremely motivated and a tremendously competitive person whose character is comprised of what made and makes America great.

32.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the applicant's active duty orders as a result of his disenrollment from the USMA should be canceled and a provision be allowed for his readmission to USMA in August 2010 or enrollment in the BYU ROTC program was carefully considered but found to be without merit.

2.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant and his counsel is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  With respect to his claim that the ABCMR improperly processed the applicant's case, his argument is without merit.  ABCMR analysts may not effectively co-opt the role of Board members in deciding cases.  While the ABCMR, on average, may only spend minutes on a case, this calculation ignores several important facts:

	a.  Analysts do not dictate the outcome of a particular case.  Analysts act much like a law clerk for a judge in synthesizing the law and pertinent facts in a draft decision that the Board is free to reject.  The Board does, in many cases, concur with the analyst because the decision whether to grant relief involves a straightforward application of the facts in the record and applicable law and regulation.  These cases require no more than a few minutes of the Board's attention.  However, it is not unusual for the Board, after considering the entire record, to disagree with the analyst by rendering a decision contrary to the analyst's recommendation.  More complicated cases are given significantly more time during Board review.

	b.  Most importantly, the applicant in this case has failed to provide any particular proof the ABCMR failed to give his case a fair and complete adjudication.  If anything, the record suggests the exact opposite given the ABCMR's thorough consideration of his earlier request.  

	c.  Counsel's suggestions related to how cases should be handled by the ABCMR are not relevant to the applicant's request.  While alternate procedures may be available, counsel does not establish that the Board's current procedures are flawed or deprived the applicant of a fair and complete review.

4.  With respect to the 25 issues raised by counsel, the original application raised several issues that were interchangeable, unclear, and subject to varied interpretation.  In an attempt to further clarify and address those specific issues, as well as the 10 points he added, the following is noted:

	a.  There is no evidence in the available records and neither the applicant nor his counsel provided any evidence that the MPs misinterpreted the applicant's comments.  The HIH, applying the instructions to the evidence presented, had a sufficient basis to conclude the MPs did not misinterpret the applicant's comments.  The ABCMR will not overturn the HIH's finding the applicant lied if the available record contains properly admitted evidence supporting the finding by a preponderance of the evidence:

* The HIH considered statements and/or testimony of the three witnesses present in the parking lot when the disputed oral statement was made (applicant, SGT MJ, and SGT RP) and weighed it with all other evidence presented
* The instructions gave the members of the HIH panel the duty of assessing the weight, if any, to give to the evidence provided and determine the credibility of the witnesses who testified
* The HIH found the statement of SGT RP and statements/testimony of SGT MJ more credible than the applicant in finding the applicant lied
* This finding was permissible and supported with the evidence of record

	b.  The analysis in the preceding paragraph also covers counsel's contention a nervous applicant may have misspoke when he spoke to the MPs in the parking lot.  The applicant at his HIH did testify he was nervous when speaking to the MPs and admitted he "might have been confusing."  The HIH considered this in light of other evidence in the case in concluding the applicant lied to the MPs.
	c.  The analysis of paragraphs 5a and 5b also applies to the counsel's contention the applicant's written statement to the MPs was consistent with the actual or intended comments.  This applicant testified to this topic.  The HIH considered it in light of all other evidence and – applying the instructions for the weight to be given all evidence and credibility of witnesses – did not find the applicant's testimony credible.

	d.  There is no evidence in the available records and neither the applicant nor his counsel provided any evidence that the MP investigation was substandard.  Even if it was, it has no bearing on this case.  

* The MPs set out to investigate why an M-16 was left in a POV in a hotel parking lot, not to conduct an honor investigation (that task is left for the Cadet Honor process)
* The "owner" of the weapon (cadet NM) accompanied the applicant to the police station, so the MPs had no reason to obtain information from DENTAC
* The applicant (or his counsel) could have obtained evidence (e.g. a DENTAC patient log) and presented it to the HIH if he believed it relevant at the time

	e.  The Military Whistleblower Protection Act (MWPA) did not apply to the applicant.  The ABCMR acknowledges a communication about a sexual assault by cadet NM to the EEO office may well have been a protected communication under the MWPA, but: 

* Counsel misreads Army Regulation 600-20 (and DODD 7050.06, Paragraph E2.10) prohibiting reprisal against a person for making or preparing a protected communication.  This section applies to the person who makes the protected communication or while she is preparing the communication
* The applicant offers no proof (other than his assertion) that he prepared anything for cadet NM's complaint
* Even if he gave her advice on pursuing the EEO complaint, he did not make the communication

Counsel's arguments the ABCMR should equitably expand the protections of the MBWPA to the applicant were noted and found to lack merit:

* Application of the MWPA is a question of law – it applies or it doesn't
* ABCMR may consider, on equitable grounds, whether unfair actions were taken against an applicant even if not formally covered by the MWPA
* Equity, by its nature, is a matter left for the discretion of the ABCMR to apply

The evidence of record clearly shows the applicant's statement to the MPs would have been reviewed in the Honor process regardless of any effort to make a report to the EEO office.

* Cadets and USMA staff are obligated to inform the Honor Committee if they believe a cadet violated the Honor Code
* The Honor Committee must (and, in this case did) investigate the allegation and recommended referral to the HIH process
* A Commander's Inquiry (26 July 2008) initiated by the CTO noted there appeared to be honor issues associated with the incident at the hotel (which was before any alleged involvement by applicant in asking cadet NM to report the alleged assault)
* The BTO's action (28 August 2008) under Article 10 of the Cadet Disciplinary Code sanctioned the applicant for having the M-16 in his car and for lying to the MPs about cadet NM's location
* Applicant accompanied cadet NM to the EEO office on 8 September 2008, well after the honor allegation was recognized by two officers required to raise it to the Honor Committee

	f.  The ABCMR is sensitive to the DOD Sexual Assault policy and efforts to assist victims in reporting and addressing abuses.  However, this brings no relief to the applicant's Honor sanction.

* As previously noted, at least two officers suspected an honor violation prior to the attempts to report the alleged sexual assault to the EEO office
* These officers were required to report the suspected honor violation to the Honor Committee
* The Honor Committee, finding a basis for the allegation, was required to refer the matter to the Commandant of Cadets who, since he believed an honor violation occurred, had to refer it to the HIH
* The HIH found a violation of the honor code
* The Superintendent exercised his discretion in disenrolling applicant
* The issue of sexual assault had no bearing upon whether the applicant violated the honor code and by so doing subjected himself to the normal sanction of disenrollment

	g.  USMA did not interfere with the applicant's due process rights before the HIH by earlier imposing a 90-day no-contact order against the applicant.

* Applicant offers no evidence he requested an exception to the order to confer with her as a witness, obtain statements, or interview her for possible testimony
* No evidence he asked his counsel to interview her or that his counsel didn't interview her
* Cadet NM invoked her Article 31 rights – as was her right – rather than testify at the HIH, a decision rendering her unavailable and one the HIH was not free to overturn 
* The HIH considered her written statement concerning the incident at the hotel, including her observations – a permissible form of presenting evidence at the HIH when a witness is not reasonably available
* To the degree cadet NM's statement offered information, it provided no information on the key issue of what applicant said to the MPs because she was not present for the conversation

	h.  There is no evidence officials at USMA engaged in unlawful command influence:

* The opinion of applicant's roommate concerning the handling of the case by the CTO ignores the fact a full honor process considered the case and found a violation
* Numerous character letters submitted by the applicant showed the appearance created by the no-contact order did not chill the environment such that the applicant could not prepare and present his case to the HIH
* As discussed elsewhere, no evidence he sought an exemption from the no contact order – or had his counsel obtain one – to consult with cadet NM concerning the no-contact order

	i.  There is no evidence of an improper administrative command influence in the form of a pressure for the applicant's tactical officer to not raise the claim that he was being sanctioned for the purpose of reprisal.  The fact is there was no reprisal.  As discussed elsewhere in this section, the honor allegation was raised, referred, and conducted consistent with USMA policy.  Once the allegation was raised, it had to proceed until a determination was made through the honor process that the case did not raise an honor issue or a finding by the HIH.  Neither this process nor the Superintendent's decision to disenroll the applicant was a product of reprisal.

	j.  Concerning counsel's assertion the applicant's legal advisor advised him not to raise matters before the HIH about efforts to aid cadet NM:

* The honor issue arose separate, apart, and before any efforts were made by cadet NM to report the alleged assault to the EEO office
* His efforts have no relevance to the issue of whether he lied to the MPs in the hotel parking lot (the HA found as much when redacting information from the applicant's statement that cadet NM felt threatened by another cadet during training)
* Even if the legal counselor provided this advice, it was sound because the allegation concerning the alleged assault was not relevant to the question whether applicant lied to the MPs 

	k.  Counsel failed to provide any evidence the legal advisor had a conflict of interest preventing her from advising the applicant:

* Working in the SJA's office did not preclude her from advising the applicant as long as she was not working on issues contrary to his interests
* Applicant fails to provide any evidence the legal advisor had any involvement in advising the Superintendent or other Academy officials about applicant's honor case or no contact order
* No evidence of record shows the legal advisor counseled cadet NM to invoke her Article 31 rights
* No evidence the legal advisor acted under any improper influence in advising the applicant

	l.  Counsel's contention that legal counsel failed to inform the applicant his character witnesses on punishment were valid witnesses on the merits also lacks merit.  The evidence of record shows the HIH followed proper procedures in handling the applicant's case.  He was given due process throughout the proceeding, was given the opportunity to speak and present evidence, and was provided an opportunity to provide a rebuttal.  The applicant was informed in his notification letter he could call character witnesses in findings if they would testify to a character trait pertinent to an issue before the HIH.  At the hearing, he acknowledged he understood his rights for calling witnesses.  The applicant knew or should have known of his right to call these witnesses if they could testify to a pertinent trait and elected not to.

	m.  Counsel's contention that the applicant's counsel gave defective advice by telling him his vital witness, cadet NM, was not relevant, also lacks merit.  The evidence of record shows cadet NM invoked her Article 31 rights.  She was therefore not available.  To the degree her statement was relevant it was admitted and considered.  Anything else she may have testified about – including the alleged sexual assault and efforts to report it – were not relevant on the issue of whether the applicant lied to the MPs.  On that issue, her relevant testimony would have been of limited use because she did not hear the applicant's conversation with the MPs.  Any error caused by her not appearing to testify is therefore harmless.

	n.  Counsel's contention that the hearing officer was biased lacks merit.  The comment referenced by counsel occurred in the preliminary portion of the HIH, outside of the presence of voting members, where the applicant was given an opportunity to object to evidence to be presented.  Applicant sought to redact a portion of his written statement concerning his understanding of USMA rules involving his relationship with cadet NM.  The HA, as was his charge, made a ruling and simply provided an explanation to the applicant why he believed this information was relevant.  It reflected no bias.

	o.  Counsel's contention that the USMA chain of command, the hearing officer and the legal advisor acted in concert or individually to preclude cadet NM from testifying during the hearing also lacks merit.  As explained earlier, cadet NM invoked her Article 31 rights.  It appears cadet NM fully understood that no person subject to military justice may compel any person to incriminate himself/herself or to answer any questions the answer to which may tend to incriminate him/her.

	p.  The redundant issue of a conflict of interest by the hearing officer also lacks merit.  As explained earlier, the evidence of record shows the HIH followed proper procedures in handling the applicant's case and his rights were fully protected throughout the process.  There is no evidence of a procedural error.

	q.  Counsel's contention that the "Superintendent gave the applicant 24 hours to prepare a statement" is misleading and faulty.  From the time his HIH ended, he had ample opportunity to consider the nature of his rebuttal to the Superintendant.  He submitted a 9-page rebuttal describing the facts leading to the honor allegation, reasserting he did not lie, and alleging a series of events, to include the HIH was taken in retaliation, due to his support of cadet NM in her attempts to report a sexual assault by another senior cadet.  The Superintendant considered the very claims the applicant now makes before the ABCMR.  Assuming the applicant did receive less than 24 hours notice to provide rebuttal, he has not shown any material and identifiable prejudice.

	r.  Counsel's contention that the applicant's regimental tactical officer disseminated damaging and inflammatory claims against the applicant and thus showed bias in favor of the USMA has no bearing here.  The evidence counsel alludes to is an e-mail from the RTO to cadet NM's father (which – incidentally – shows a desire to help cadet NM continue as a cadet) stating the applicant was a bad influence.  There is no evidence the comments were any part of the advice provided to the HIH or the Superintendent in rendering a decision in the case.

	s.  Counsel's contention that there was unfair collateral information that infected the USMA and DA process also lacks merit.  The applicant has failed to show the Superintendent or the ASA (M&RA) were tainted or considered improper materials in deciding to disenroll the applicant.

	t.  Counsel's allegation that the Superintendent's actions were invalid lacks merit.  The HIH is empowered to make a recommendation but the final decision rests with the Superintendent.  The fact that the Superintendent exercises his powers by not accepting the HIH recommendation to retain the applicant does not invalidate his decision.   His action was consistent with the normal sanction for an honor violation (disenrollment) and is particularly appropriate in a case of a senior cadet who, with three years of USMA service, should have understood the importance of the honor code and serious consequences for lying in any form. 

	u.  Counsel's contention the Superintendent and the ASA (M&RA) should have provided a written explanation for their decision is noted.  To summarize the ABCMR's original decision on this point, it was not required and that rationale is again adopted.  Counsel's reprisal claims do not warrant an additional explanation by the Superintendent or the ASA (M&RA) that is not provided to any other cadet disenrolled for an honor violation.

	v.  Concerning the polygraph, the original ABCMR considered counsel's arguments and the polygraph itself.  The point of the Board's analysis is that polygraphs by nature are not an exact science.  For this and other reasons cited in the first case, Military Courts and administrative boards that rely upon a panel of members to decide issues of credibility and fact with the benefit of live testimony do not allow polygraphs.  This, of course, does not prevent the ABCMR from considering a polygraph and assigning it the weight it deserves when considering all of the other evidence presented in the case.  In this regard, the ABCMR did not believe it outweighed the judgment of 6 cadets who heard all of the evidence, assessed the credibility of the witnesses (to include the applicant), and nonetheless concluded the applicant violated the honor code.

	w.  The original ABCMR considered the affidavits of counsel (incorporating the statements of cadent NM) and the applicant.  The issue of whether cadet NM was the victim of a sexual assault is not relevant to the determination whether or not the applicant lied to the MPs.  The ABCMR does not find the applicant suffered from reprisal for making a protected communication under the MWPA (even applying an equitable analysis suggested by counsel).  The applicant faced the honor process because, after the incident at the hotel, an officer identified potential honor issues which required referral to the Honor Committee and the HIH.  Concerning the ultimate issue of whether the applicant lied, the original ABCMR independently considered the evidence presented on this issue and believes the evidence supported the HIH's findings.

	x.  The Board considered the information in the draft affidavit for cadet NM and this claim presents no issue of administrative command influence.

* The HIH considered cadet NM's statement concerning the M-16
* Any testimony she would have offered at the HIH concerning the sexual assault allegations was not relevant
* Counsel failed to provide any evidence the alleged efforts by a USMA official to send information to Cadet NM's college occurred because the applicant filed or intended to file a request with the ABCMR

	y.  With respect to the ABCMR's process being infected, tainted, and unfaithful, counsel has offered no evidence even hinting that the members of the ABCMR are biased, unable to remain impartial, operating under undue influence by the ASA (M&RA) or are otherwise incapable of rendering a fair decision based solely upon the evidence of record.

	z.  The original Record of Proceedings did not identify the applicant, cadet NM, or any other names.  In an effort to protect personal identifying information, the ABCMR uses initials, characters, numbers, or other non-identifying information when referring to applicants.  The bits of information such as initials are neither sufficient by themselves to make an identification nor can they be combined with other information to identify persons and expose them to harm.

	aa.  The ABCMR decides cases on the evidence of record.  Contrary to counsel's assertion, the ABCMR is not an investigative agency.  This is not a whistleblower case where the ABCMR has authority to conduct a hearing to gather facts.  This is a case involving a violation of the honor code.  In this regard, counsel has provided arguments and documents in support of the claim for relief.  The ABCMR has sufficient information on which to consider the merits of this case.

	ab.  The applicant has the right to seek relief through a civil court of his choice. 


	ac.  Many of the various issues raised in section 3 through 10 of counsel's memorandum alleging errors appear to have been covered one way or another in the discussion of the first 25 issues.  Although some of his claims (e.g. the ABCMR lacks judicial temperament or reflected an institutional bias against the applicant) do not warrant a response, it appears his argument simply boils down to the simple fact the Board does not see things his way.

6.  Having reconsidered the evidence and arguments from the original Board, along with counsel's new arguments, it still appears the HIH and USMA followed proper procedures in handling the applicant's case.

* Reprisal and sexual assault allegations have no bearing on the issue of the honor violation
* The errors alleged in the processing of the case were either not an error or were harmless:  The advisory opinion and transcript from USMA show the HIH was not instructed on and did not apply the wrong standard of proof
* The alleged failure to give applicant 72 hours notice in responding to the Superintendent was, adopting the analysis from the original case, a harmless error
7.  The evidence of record is insufficient to overturn the findings of the applicant's HIH, the recommendations of USMA officials, and the final decision of the ASA (M&RA) to disenroll the applicant and order him to active duty in an enlisted status in accordance with the agreement the applicant signed when he entered USMA.

8.  The ABCMR has no authority to direct BYU to enroll the applicant.  However, even assuming this condition is or could be met, the ABCMR does not find that granting the applicant a discharge from his current status and entry into ROTC is a warranted remedy as a matter of equity.

BOARD VOTE:

___X____  ___X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 AR20090014220, dated 13 April 2010.



      __________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)                                         AR20100018055



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ABCMR Record of Proceedings (cont)                                         AR20100018055



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