IN THE CASE OF:	  

		BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20120001914 


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's request, statements, and supporting documents are submitted through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the actions of the show-cause board of inquiry (BOI) held in the applicant's case be set aside as well as all adverse personnel actions resulting from the BOI decision and for such other relief as the Board deems just and proper.  Counsel also requests that the applicant be allowed to appear before the Army Board for Correction of Military Records (ABCMR).

2.  Counsel states it is axiomatic that the primary function of a formal Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) board of officers is to ascertain and consider the evidence on all sides of each issue thoroughly and impartially and this is a fundamental right of every respondent before a formal Army Regulation 15-6 board.  He claims the applicant was denied this right.  He claims the applicant had almost 18 years of service when he appeared before the BOI and no witnesses testified against him.  He further states the reprimand that triggered the BOI was nearly 2 years old and the battalion chaplain, battalion executive officer, and battalion commander testified in his behalf.  The applicant's wife of 14 years testified by telephone and the applicant testified under oath.

3.  Counsel claims the evidence establishing the applicant's fitness for duty was compelling yet the applicant was confronted by an openly hostile board president who repeatedly expressed his unwillingness to consider relevant evidence in extenuation and mitigation.  Counsel claims the imprudent and inappropriate comments of the board president poisoned the entire board process and denied the applicant the opportunity to a fair hearing.

4.  Counsel provides a 6-page memorandum containing his argument and the 12 exhibits identified in the list of exhibits included with the application packet in support of the request.

CONSIDERATION OF EVIDENCE:

1.  After completing more than 9 years of enlisted active duty service, the applicant was appointed as a second lieutenant on 14 December 2001.  He was promoted to first lieutenant on 14 June 2003 and to captain on 1 April 2005.

2.  On 8 August 2008, the applicant received a general officer memorandum of reprimand (GOMOR) while serving in Iraq.  The GOMOR stated an Army Regulation 15-6 investigation revealed the applicant engaged in fraternization by sending several personal e-mail messages to a female enlisted Soldier with whom he desired a personal relationship.  It further stated the applicant had requested that a noncommissioned officer (NCO) convey his interest in pursuing a personal relationship with other female enlisted Soldiers assigned to his command.  The issuing GO stated the applicant's conduct had undermined the good order, discipline, authority and morale within the applicant's unit.  Specifically, the applicant's inappropriate comments, gestures, and actions towards other female Soldiers created a hostile climate that adversely impacted the morale within the applicant's command.  The GO stated the applicant's actions were unbecoming an officer, compromised the applicant's ability to lead Soldiers, and would not be tolerated within the command.  The GO thereby reprimanded the applicant for his unprofessional conduct.

3.  On 15 August 2008, the applicant responded to the GOMOR requesting that it be filed locally instead of in his official military personnel file (OMPF).  The applicant stated he regretted putting the command and himself in this position and apologized for his inappropriate conduct.  He accepted responsibility for his actions.  The applicant did indicate he had some concerns and issues with the investigation and interviews conducted by the investigating officer (IO) and outlined what he perceived these issues were.

4.  The applicant concluded his filing request by stating he did not deny or excuse any inappropriate conduct.  He stated as an officer he was expected to conduct himself as one.  However, he claimed he had shown many of the allegations against him were exaggerated or false.  He concluded by accepting full responsibility for his inappropriate conduct where warranted and stating he would not excuse or attempt to make excuses for his faults or lack of judgment.

5.  On 25 August 2008, after considering the circumstances surrounding the GOMOR and the recommendations of the chain of command, the issuing GO directed the GOMOR be filed in the applicant's OMPF.

6.  On 19 April 2010, a show cause BOI convened to consider the applicant's case.  The applicant and his counsel were present along with four supporting witnesses that included the applicant's wife, battalion chaplain, battalion executive officer, and battalion commander.  After hearing the testimony of the applicant and the supporting witnesses, the BOI voted unanimously to eliminate the applicant from military service with a general discharge under honorable conditions.

7.  On 29 July 2010, the Army Board of Review for Eliminations convened to review the action of the BOI that recommended the applicant's elimination.  The board found the government had established by a preponderance of the evidence that the applicant engaged in fraternization by sending several personal e-mails to a female enlisted Soldier with whom he desired a personal relationship.  It also found the applicant had asked an NCO to convey his interest in pursuing a personal relationship with other female enlisted Soldiers assigned to the applicant's command.  It finally found the applicant's inappropriate comments, gestures, and actions towards other female Soldiers created a hostile climate that adversely impacted the morale within his command.  The board recommended the applicant's elimination from the U.S. Army with a general discharge under honorable conditions.

8.  On 25 August 2010, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved the recommendation to eliminate the applicant from the U.S. Army based on misconduct and moral or professional dereliction with a general discharge under honorable conditions; however, the execution of the separation until the applicant was eligible for Regular retirement was suspended, at which time the involuntary elimination would convert to retirement in lieu of elimination.

9.  The applicant currently has pending applications for a grade determination and GOMOR removal before the Army Grade Determination Board and Department of the Army Suitability Evaluation Board (DASEB), respectively.

10.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.  In case of a conflict between the provisions of this regulation, when made applicable, and the provisions of the specific directive authorizing the investigation or board, the latter will govern.  Even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case its provisions are not mandatory.  The primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority.  It is the duty of the IO or board to ascertain and consider the evidence on all sides of each issue thoroughly and impartially and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority.

11.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.

12.  Paragraph 4-6 of Army Regulation 600-8-24 contains guidance on BOI's and states the purpose of a BOI is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army.  Through a formal administrative investigation conducted under Army Regulation 15-6 and this regulation, the BOI establishes and records the facts of the respondent's alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer's disposition consistent with this regulation.

13.  Army Regulation 600-8-24 further stipulates that the government is responsible to establish, by preponderance of the evidence, that the officer has failed to maintain the standards desired for his or her grade and branch.  In the absence of such a showing by the government, the board will retain the officer.  However, the respondent is entitled to produce evidence to show cause for his or her retention and to refute the allegations against him.  The respondent's complete OMPF will be entered in evidence by the government and considered by the BOI.  Except as modified by this regulation, the board will conform to the provisions of Army Regulation 15-6 applicable to formal proceedings with respondents.

14.  Paragraph 4-17 of Army Regulation 600-8-24 contains guidance on the board of review.  It states an officer recommended for elimination by a BOI will have his or her case referred to a board of review.  The board of review is appointed by the Secretary of the Army or his designee and has the same board composition as the BOI.  After thorough review of the records of the case, the board of review will make recommendations to the Secretary of the Army or his designee as to whether the officer should be retained in the Army.

15.  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.  Section IV contains guidance on hearings and dispositions of applications.  It states 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.  The request by the applicant and counsel that the actions of the show-cause BOI in question be set aside as well as all adverse personnel actions resulting from the BOI because the applicant was denied the fundamental right that his case be thoroughly and impartially considered by the BOI has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record shows the BOI, after hearing from all supporting witnesses and from the applicant and his counsel, found the government had established by a preponderance of the evidence that the applicant engaged in fraternization and that his inappropriate actions created a hostile climate that adversely impacted the morale within his command.  The BOI recommended his elimination from the U.S. Army with a general discharge under honorable conditions by unanimous vote.  The results of the BOI were properly reviewed by the Army Board of Review for Eliminations which confirmed the BOI's findings.  As a result, it appears the applicant's case was properly processed and reviewed in accordance with applicable laws and regulations.  There is no evidence of record indicating the applicant's rights were jeopardized during this process.

3.  The evidence of record does not support the assertions of the applicant and counsel that his case was not thoroughly and impartially considered by the BOI.  Although the board president's remarks referred to by the applicant and counsel may be viewed by some as having been articulated in an unartful manner, there is no indication they were prejudicial to the outcome of the BOI.  The applicant and counsel failed to provide evidence that the findings and recommendations of the BOI were not supported by a preponderance of the evidence.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

4.  Applicants do not have the right to a formal (personal appearance) hearing before the ABCMR.  The Director or the ABCMR panel may grant a formal hearing whenever justice requires.  In this case, the evidence of record and evidence submitted by the applicant is more than sufficient to arrive at a just and impartial decision.  As a result, justice does not require the applicant to personally appear before the ABCMR.  Therefore, there is no evidentiary basis to support granting the applicant's request to personally appear before the Board.

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)                                         AR20120001914



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ABCMR Record of Proceedings (cont)                                         AR20120001914



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