IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100020755 


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 the following on behalf of the applicant:

* the results of the separation board be set aside
* the separation orders be voided
* the applicant be transferred to the Retired Reserve in lieu of elimination with all back pay and allowances
* as an alternative, direct the convening of a new separation board

2.  Counsel states the applicant, a prior-service veteran, was commissioned in the U.S. Army Reserve (USAR) Judge Advocate General's Corps (JAGC) in 1997.  He was promoted to major (MAJ) in the USAR on 10 July 2007.  In 2008, he pled guilty to one count of conspiracy to commit money laundering.  Shortly thereafter, the applicant was notified he was being considered for involuntarily separation from the USAR.  He elected to appear before a separation board of officers with representation by counsel of his choice.

3.  Counsel states the applicant made two by-name requests for counsel representation on 11 December 2008 and 5 January 2009.  He states the applicant did not receive a response until the date of his separation hearing when he was informed his requested counsel was not available.  Based on the delayed notification, counsel states the applicant was not afforded adequate time to hire a civilian attorney of his choice.  A military defense attorney was detailed to represent him.  After limited communication with his appointed counsel, the applicant requested a substitute defense counsel and terminated his client relationship with the appointed defense counsel at the separation board proceedings.  The applicant was not able to personally attend the separation board proceedings due to restrictions imposed by Federal government authorities.  Therefore, he was left to represent himself by telephone during the initial board proceedings.

4.  Counsel states the applicant requested transfer to the Retired Reserve in writing via facsimile transmission when he was initially notified of his separation and before electing a board hearing.

5.  Counsel states the applicant requested a voir dire (an oath to test the competence of a board member) in March 2009 because he had an established relationship with a member of the separation board who had previously been a member of his military unit.  The board president denied the applicant's request.  During the teleconference, the applicant and board members lost connectivity and the board proceeded without the applicant being able to personally represent himself.  Therefore, counsel states proper procedures were not followed and the applicant did not receive a fair hearing because he could neither represent himself without telephone connectivity nor could he cross-examine persons offering evidence against him.  The board continued with its proceedings and recommended the applicant be separated with an other than honorable conditions discharge.

6.  Counsel states the applicant never received notification of the board's recommendation and decision until he attended annual training in September 2009 nearly 6 months after the board recessed.  The applicant attempted to appeal the separation board's decision to separate him with the assistance of another trial defense lawyer.  This request was denied.

7.  Counsel states the applicant received notification he could not be transferred to the USAR Retired Reserve because he had not completed the 1-year period required under the provisions of Title 10, U.S. Code, section 12732.

8.  Counsel concludes by stating an injustice occurred in the applicant's separation proceedings because he was not able to defend himself against the accusations.  Therefore, the applicant's separation board proceedings and findings should be set aside, his separation orders revoked, and he be allowed to retire.



9.  Counsel provides the following evidentiary documents:

* the applicant's election of options statement, dated 12 November 2008
* a memorandum, dated 11 December 2008, requesting military counsel
* a memorandum, dated 5 January 2009, requesting military counsel
* a memorandum, dated 6 March 2009, requesting cessation of involuntary administrative separation
* a memorandum, dated 15 March 2009, requesting a motion to dismiss involuntary separation due to lack of jurisdiction
* a memorandum, dated 15 March 2009, requesting a delay in administrative separation proceedings
* a memorandum, dated 18 March 2009, requesting an extension to administrative separation hearing
* a memorandum, dated 24 September 2009, requesting appeal of unfavorable personnel action and immediate deletion of separation orders
* a memorandum, dated 28 September 2009, denying the appeal and disapproving the request to revoke the separation orders

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant was commissioned by direct appointment in the JAGC on 13 January 1997.  He was promoted to the rank of MAJ/pay grade O-4 on 10 July 2007.

2.  On 27 November 2007, the Assistant Judge Advocate General of the U.S. Army suspended the applicant from performing duties as a judge advocate pending the resolution of an investigation initiated by the Federal Bureau of Investigation.

3.  On 14 August 2008, the applicant's state bar license was suspended and he was referred to the state attorney disciplinary counsel for further disciplinary proceedings.

4.  On 10 October 2008, the applicant pled guilty in a U.S. District Court to conspiracy to commit money laundering generated by unlawful activities – namely mail and wire fraud in violation of Title 18, U.S. Code, section 1956(h).

5.  On 28 October 2008, the applicant's commander submitted a request to the commanding general stating the applicant should be considered for elimination based on the aforementioned guilty plea and suspension of his license.

6.  On 15 November 2008, the applicant's commanding general notified him that he was initiating action to separate him from the USAR under the provisions of Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers), paragraph 2-12, for moral or professional dereliction and Department of Defense Instruction (DODI) 1332.40, paragraph E2.2, for acts of misconduct or moral or professional dereliction.  The reasons cited for his involuntary separation were his guilty plea to conspiracy to commit money laundering and the suspension of his license to practice law by the state and Office of the Judge Advocate General of the U.S. Army.  He also had his legal certification within the USAR suspended.  The applicant was advised he had 30 days to acknowledge receipt of this memorandum and to elect one of the following options:

* voluntarily submit his resignation in lieu of involuntary separation
* if eligible, elect transfer to the Retired Reserve
* elect to have his case heard before a board of officers

7.  In addition, the applicant was advised of his rights to consult with counsel, to receive copies of records submitted to a board of officers and to any other pertinent documents.  He was informed he could present his case before a board of officers with the understanding the board would be constituted and conducted in accordance with Army Regulation 135-175, Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), and applicable statutes.  He was advised he would be provided a reasonable period of time to prepare his case with a minimum of 30 days from date of notification.  He was advised an appointed military counsel, a military counsel of his choice, or a civilian counsel could represent him at his personal expense.  He was told he could submit statements on his own behalf and waive his rights or withdraw the waiver of his rights at any time prior to the date his case was acted upon.  Lastly, he was notified that his failure or refusal to accept or respond to the notification in a timely manner would not deter board proceedings and action in his absence.

8.  The applicant made a by-name request for counsel to represent him before the board of inquiry.  This request was denied because his requested defense counsel was not readily available.  Therefore, a defense counselor was appointed to assist him.  He consulted with his appointed military counsel and elected to have a hearing before a board of officers.  He elected to appear before the board and he indicated he wanted copies of all records that were to be submitted to the board.

9.  By email, dated 22 January 2009, the legal advisor for the 90th Regional Readiness Command, in coordination with the applicant's appointed defense counsel, established the applicant's separation board date as 21 March 2009.

10.  On 22 February 2009, the applicant was notified by memorandum that his separation board would be held on 21 March 2009 in North Little Rock, AR.  An undated copy of a certified mail envelope stamped "REFUSED" is located in his separation board packet.

11.  By memorandum, dated 6 March 2009, the applicant requested his separation board be ceased because his unit was attached to the U.S. Army Legal Services Agency for administration of military justice, not to the 22nd Legal Support Office (LSO).  Therefore, the commanding officer of the 22nd LSO did not have military justice jurisdiction or authority to convene an administrative separation board for him or members of his unit.

12.  By memorandum, dated 15 March 2009, the applicant's defense counsel requested a delay in the separation board proceedings for these reasons:

* to ensure the applicant receives a full and fair hearing
* applicant was providing "SUBSTANTIAL EVIDENCE" to the Office of the U.S. Attorney and was not available for an out-of-state military separation board hearing
* justice demands the applicant be allowed to appear in person before a separation board
* a pending motion to dismiss the administrative separation board proceedings based on the lack of subject matter experts
* the board is premature because he had not been formally convicted of any offense, he had only pled guilty

13.  By email, dated 20 March 2009, the applicant's aforementioned request was denied by the USAR legal advisor as being without merit.

14.  The applicant's record is devoid of a 20-year letter notifying him he is eligible for retirement.  As of 21 March 2009, the applicant had 19 years of qualifying service for Nonregular retirement.  A review of his USAR Personnel Command Form 249 (Chronological Statement of Retirement Points) shows he had a total of 30 inactive duty points for the period 13 January 2009 to 21 March 2009.

15.  On 21 March 2009, an officer's separation board convened.  The DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows the board convened at Camp Pike in Little Rock, AR, with three board members, a board legal advisor, a recorder, the applicant's counsel, and a board reporter.  The report states the applicant telephonically reported to the board as he was not able to travel from his home state to Arkansas by direction of a Federal court order.



16.  The separation board of officers' report states the following:

* he was appropriately notified of the board date and allowed 5 working days to respond to the board's first session
* he was notified of his right to be present during the board proceedings, to present evidence, and to call witnesses
* he was provided a copy of all unclassified case document files
* defense counsel, identified as MAJ W____ H. F____, was present at the start of the board proceedings
* without advising his appointed defense counsel, the applicant motioned to have his defense counsel removed 
* the appointed military counsel responded with a sua sponte (of one's own will) motion and withdrew, which was approved by the board president
* the applicant represented himself after his appointed defense counsel removed himself
* the applicant, as his own counsel, challenged a board member for lack of impartiality due to a previous professional acquaintance which the board member denied would influence him or hinder his abilities to perform as a board member
* the board president denied the aforementioned motion
* two additional motions concerning continuance of the board and lack of legal jurisdiction were filed by the applicant and both were denied by the board president

17.  In addition, the report of proceedings shows he sought a delay pending a separate decision based on his request to transfer to the Retired Reserve in lieu of involuntary separation proceedings.  He stated he never had considered resigning his commission and now, during the initial opening procedures, the applicant requested transfer to the Retired Reserve.  The board president denied this motion as the applicant's military personnel record confirmed he had not completed 20 years of qualifying service by the convening date of his separation board.

18.  The applicant also challenged the composition of the members of the board by stating a board member should be a member of the minority as he, himself, was a minority member of the USAR.  The board president also denied this motion.

19.  After raising the aforementioned objections, the applicant stated, "There are no grounds for the board to convene and…this board is a violation of Army Regulation 135-175."  The record shows the board president acknowledged all of the applicant's objections, then the applicant's telephone line was disconnected.  There were numerous telephone calls made to the applicant's phone in an attempt to have him telephonically present during his separation board hearing.  However, all calls placed by the board went to the applicant's voice mail and he did not rejoin the board proceedings.  The board resumed without the applicant's active participation by him or his appointed counsel.

20.  The board determined the applicant violated Army Regulation 135-175, paragraphs 2-12b, 2-12c, and 2-12f.  In addition, the board determined the applicant's conduct was unbecoming of an officer.  The board recommended the applicant be separated and issued an under other than honorable conditions discharge.

21.  On 30 March 2009, the applicant's commanding general approved the findings and recommendations of the separation board.  He recommended the applicant be issued an under other than honorable conditions discharge.

22.  On 8 June 2009, the commanding general of USAR Command directed the applicant's separation with an under other than honorable conditions discharge.  He stated that separation action was initiated based on the applicant's moral and professional dereliction of duty, to include his civil court conviction of conspiracy to commit money laundering.

23.  Accordingly, he was discharged on 28 September 2009 by Headquarters, USAR Command, Orders D-08-917399.  He was discharged under other than honorable conditions and all of his USAR and Army of the United States appointments were terminated.  As of this date, the applicant completed 19 years, 8 months, and 16 days of qualifying service toward Nonregular retirement.  During the period from 13 January 2009 to 28 September 2009, he earned 83  retirement points.

24.  On 24 September 2009 through his newly-appointed military defense counsel, the applicant appealed the separation board's recommendation and subsequent decision of the Commander, U.S. Army Human Resources Command-St. Louis (HRC-St. Louis) to involuntarily separate him from the USAR and terminate his appointment as a commissioned officer.  Counsel also requested the applicant's separation orders be revoked and that he be allowed to transfer to the Retired Reserve.

25.  On 28 September 2009, in response to the applicant's counselor's request to appeal the separation board's decision and revoke the discharge orders, the HRC-St. Louis Commander stated the applicant's appeal was without merit and he disapproved the applicant's request to vacate the separation board proceedings and revoke his discharge orders.  The commander stated the applicant was not eligible for transfer to the Retired Reserve in lieu of elimination because he had not completed the required 20 years of qualifying service as computed under the provisions of Title 10, U.S. Code, section 12732.

26.  References:

	a.  Title 10, U.S. Code, section 12732, provides that for the purpose of determining whether a person is entitled to retired pay, a qualifying year of service is credited when, for each 1-year period after 1 July 1949, the person has been credited with at least 50 points on the following basis:

* one point for each day of active service or full-time service while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned
* one point for each attendance at a drill or period of equivalent instruction that was prescribed for that year 
* membership points at 15 per year (prorated for less than 1 year)

	b.  Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  No person has an inherent right to continue service as an officer.  The privilege of service is only his or hers as long as he or she performs satisfactorily.  Chapter 2 prescribes the criteria and procedures governing the involuntary separation of Reserve officers when their retention is not in the best interest of the service.  The retention of officers whose performance of duty or conduct is substandard, deficient in character, or is otherwise unsuited for military service cannot be justified.  Paragraph 2-12 authorizes the involuntary separation of officers due to moral or professional dereliction to include:

* mismanagement of personal affairs to the discredit of the service
* mismanagement of personal affairs detrimentally affecting the performance of duty of the officer concerned
* acts of personal misconduct 
* conduct unbecoming an officer

	c.  Army Regulation 135-175 states that a proper Department of the Army Headquarters agency, a commander with respect to a member of that command, and a duly-constituted selection board may originate recommendations for involuntary separation action.  Recommendations will clearly state the reasons for the involuntary separation and will be supported by documents and physical evidence that can be reasonably included in the separation proceedings.  The evidence presented for consideration must be able to stand on its own merits, adhering to one standard, either substandard performance or moral or professional dereliction of duty. 

	d.  Army Regulation 135-175 states that an officer of the USAR JAGC whose license is terminated or is otherwise disbarred from practice will be discharged unless the circumstances warrant involuntary separation action.

	e.  Army Regulation 135-175 states that if the officer is unable to appear before the board because of confinement by civil authorities or other restriction resulting from his own misconduct, the area commander convening the board will advise him or her by certified mail of the pending board action and the fact that action has been initiated to separate him or her.

	f.  Army Regulation 135-175 states it is the responsibility of the government to establish by a preponderance of evidence that an officer has failed to maintain established standards for grade and branch or the conduct has been prejudicial to National security.  The separation board will be composed of a board president, recorder (without board vote), appointed JAG officer as legal advisor to board (without board vote), and members who should meet the following general criteria:

* commissioned officers, all of whom must be of equal or higher grade and senior in rank to the officer under consideration for involuntary separation
* a member will be Regular Army or a Reserve officer who is serving on active duty
* members of the USAR on active duty or in an active Reserve status
* one board member must be of the same sex
* one board member of the same branch of service
* if a JAG officer is being considered for involuntary separation, the JAG legal advisor must be senior in rank
* all board members will be appointed in writing
* an uneven number of officers (3 or more) will constitute a quorum

	g.  Army Regulation 135-175 states an officer being separated by a board of officers may challenge a board member for cause for any reason that indicates he or she cannot participate in the case fairly and impartially.  The senior unchallenged board member will determine the outcome of the challenge.  To assist in seating a board of officers, ineligible officers are defined as:

* a witness in the case before the board
* appeared as a witness before or sat as a member of a board of officers with respect to the respondent
* previously recommended or participated in recommending the respondent be involuntarily separated
* prepared a derogatory evaluation report on the respondent

	h.  Army Regulation 135-175, paragraph 2-3d states an office with 20 or more years of qualifying Federal service for retired pay who is being considered for involuntary separation will be given an opportunity to elect transfer to the Retired Reserve in lieu of involuntary separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's own admittance of conspiracy to commit money laundering generated by unlawful activities – namely mail and wire fraud – equates to personal acts of misconduct and shows he mismanaged his personal affairs bringing discredit to the U.S. Army.  Through his conduct, he detrimentally affected the performance of his duties as a JAGC officer with the suspension of his license by his state bar association.  Therefore, through his own actions he demonstrated his conduct was unbecoming of an officer.

2.  The applicant's by-name request for a defense counsel was denied due to the named counselor not being available.  He was provided an appointed defense counselor who, after assisting the applicant for nearly 4 months, removed himself at the start of the board after the applicant requested his dismissal.  As such, the counsel's statement to the Board that an injustice occurred because the applicant did not have adequate defense counsel is not accepted.

3.  The separation board proceedings were conducted in accordance with known regulatory guidance and established directives with counsel available to represent him.  By choice, the applicant dismissed his counsel the day of the board and elected to represent himself.  By choice, he also did not answer his telephone after connectivity was lost between him and the board members with the record showing calls rolled over to his voice mail.  After numerous attempts to reach the applicant by phone, the separation board resumed and continued its deliberations.

4.  The board's findings and recommendation to separate the applicant were based on his admittance to being a part of a conspiracy to commit money laundering generated by unlawful activities – namely mail and wire fraud, known acts of misconduct in Federal court.  This admittance led to felony charges being brought against him in a U.S. Federal District Court that resulted in the suspension his license to practice law thus rendering him unable to fulfill the duties of his military branch of service.

5.  The approval authority directed the applicant's discharge under other than honorable conditions stating the reasons for the discharge were appropriate considering all the known facts of this case.  The available record contains no evidence of procedural or other errors that would have jeopardized his rights.  Nearly 6 months transpired from the date of his separation board to his actual discharge date, allowing him ample opportunities to appeal the decision, which the record shows were denied.

6.  Since the evidence of record conclusively shows the applicant was afforded all of the rights inherent with his separation, there is no reason to have a formal hearing in this case or to direct a new separation board.

7.  While the applicant earned 83 qualifying retirement points in a 9-month period in 2009, he still did not have the 20th year of qualifying service for Nonregular retirement.  Therefore, he was ineligible for transfer to the Retired Reserve.

8.  In view of the foregoing, there is insufficient evidence to warrant the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20100020755



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ABCMR Record of Proceedings (cont)                                         AR20100020755



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