IN THE CASE OF:	  

		BOARD DATE:	 27 June 2013 

		DOCKET NUMBER:  AR20120019102 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests voidance of his administrative discharge in lieu of trial by court-martial and reinstatement in the U.S. Army.

2.  The applicant states the court-martial charges that caused him to resign in lieu of trial by court-martial were preferred as a result of unlawful command influence.  He states the preferring commander later admitted he was directed to prefer charges even though he believed the applicant's misconduct warranted no more than a general officer memorandum of reprimand (GOMOR).  However, the commander was told by the Staff Judge Advocate (SJA) to prefer charges.

3.  The applicant provides copies of:

* appeal memorandum, dated 1 October 2012 (Tab 2)
* email and memorandum for reviewing authorities, dated 24 September 2012 (Tab 3)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) (Member Copy 4) (Tab 4)
* DD Form 458 (Charge Sheet), dated 30 April 2010, with referral memoranda (Tab 5)
* DA Form 67-9 (Officer Evaluation Report (OER)), relief for cause, unsigned, for the period ending 31 May 2009 (Tab 6)
* memorandum in rebuttal to the relief-for-cause OER, dated 23 July 2009; and memorandum for a commander's inquiry concerning the OER, dated 23 July 2009 (Tab 7)
* DA Form 67-9, annual, signed by all parties, for the period ending 31 May 2009 (Tab 8)
* Freedom of Information Act (FOIA) requests from the applicant to various FOIA Officers, dated between 21 December 2011and 30 January 2012 (Tab 9)
* FOIA response to the applicant from U.S. Army Medical Command, Fort Sam Houston, TX, dated 31 January 2012, with a 25-page enclosure (Tab 10)
* FOIA response to the applicant from U.S. Army Criminal Investigation Command, Quantico, VA, dated 21 March 2012, with 23 pages of enclosures (Tab 11)
* record of trial with associated memoranda, charge sheets, Court-Martial Convening Order Number 1, and memoranda pertaining to the applicant's resignation in lieu of trial by court-martial, 57 pages (Tab 12)
* Army Discharge Review Board (ADRB) Case Report and Directive AR20100019901, dated 12 May 2011 (Tab 13)
* five memoranda of support, dated January 2012 (Tab 14 through Tab 18)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests repeal of the applicant's administrative discharge.

2.  Counsel states the applicant should be reinstated in the U.S. Army because the court-martial process was fatally poisoned by unlawful command influence.  He contends that the applicant suspected unlawful command influence at the time of the investigation and preferral and referral of court-martial charges but did not have proof and could not have prevailed on a trial motion based on his hunches.  He now has the proof in the form of a letter from his former company commander.

3.  Counsel further states:

	a.  "According to R.C.M. [Rules of Court-Martial] 307 (Discussion), 'No person may be ordered to prefer charges to which that person is unable to make truthfully the required oath.'  R.C.M. 307(b)(2) requires the preferring officer to state that he has personal knowledge of the matters set forth in the charges/
specifications and that they are true in fact to the best of the officer's knowledge and belief.  Consistent with that rule, the first page of the court-martial charge sheet includes an affidavit attesting to the preferring officer's compliance with R.C.M. 307(b)(2)."

	b.  "Article 37(a), UCMJ [Uniform Code of Military Justice] states, in relevant part:  '…No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts…'"

	c.  "Unlawful command influence prejudices a court-martial whether it's actual UCI [unlawful command influence] or the appearance of UCI.  As set forth in United States v. Lewis, 63 M.J. 405 at 406 (CAAF [Court of Appeals for the Armed Forces] 2006):

Unlawful command influence is 'the mortal enemy of military justice.'  (United States v. Gore, 60 M.J. 178, 178 (C.A.A.F. 2004) (quoting United States v. Thomas, 22 M.J. 388, 393 (C.M.A. [Court of Military Appeals] 1986)).  Where it is found to exist, judicial authorities must take those steps necessary to preserve both the actual and apparent fairness of the criminal proceeding.  (United States v. Rivers, 49 M.J. 434,443 (C.A.A.F. 1998); United States v. Sullivan, 26 M.J. 442, 444 (C.A.A.F. 1988).  The 'appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial.'  (United States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003) (quoting United States v. Stoneman, 57 M.J. 35, 42-43 (C.A.A.F. 2002)).

4.  Counsel further argues that while judge advocates generally do not possess command authority themselves, they nevertheless speak/act with the "mantle of command authority."  He refers to United States v. Argo, 46 MJ 454 (CAAF 1997); United States v. Allen, 33 MJ 209 (CMA 1991); United States v. Thomas, 22 MJ 388 (CMA 1986); and United States v. Kitts, 23 MJ 105, 108 (CMA 1986).  Thus, an SJA, such as the one at Fort Polk, LA, can exert unlawful command influence.  It is sometimes difficult for a subordinate to ascertain the actual influence a superior has on that subordinate (United States v. Gerlich, 45 MJ 309, 313 (1996).  In this case, the unlawful command influence was so blatant that the company commander had no problem ascertaining that he had been subjected to it.  He knew the SJA was the legal advisor for the commanding general and he knew the SJA had spoken with his commander and senior rater who was a victim in the case.  Despite believing the case did not warrant anything more serious than a GOMOR, and despite having seen no evidence, the company commander was directed to prefer court-martial charges against the applicant.  The company commander did as he was told.  Given the pressures on subordinate officers and the power superior commanders have over career progression, and given the oppressive command climate at the U.S. Army Medical Command, Fort Polk, the company commander is not faulted for doing what he did.  Counsel and the applicant sincerely appreciate his candor now.  Counsel argues that had the applicant possessed this information at the time of his court-martial charges, he would not have submitted his resignation.  Rather, he would have filed a motion to dismiss the case due to unlawful command influence.  Now that this information is available, the whole process should be unraveled and the applicant should be reinstated in the U.S. Army.

5.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  On 13 March 2007, the applicant was commissioned in the rank of captain/
pay grade O-3 in the Regular Army Medical Service Corps.

2.  A DD Form 458, dated 30 April 2010, shows the applicant's company commander preferred the following charges and specifications against the applicant:

	a.  charge I (two specifications) for behaving with disrespect toward his superior commissioned officer in violation of Article 89, UCMJ; and

	b.  charge II (seven specifications) for intentionally accessing a computer on divers occasions exceeding his authority to obtain information from a department of the United States and from a protected computer and to knowingly obtain individually identifiable health information relating to five different persons in violation of Article 134, UCMJ.

3.  The affidavit on the charge sheet signed by the trial counsel states the commander had personally appeared as the applicant's accuser on 30 April 2010.  He signed under oath that he had personal knowledge of the foregoing charges and specifications or had investigated the matters set forth therein and that the same were true to the best of his knowledge and belief.

4.  In a memorandum, dated 30 April 2010, the applicant's company commander stated he had reviewed the evidence pertaining to the alleged misconduct committed by the applicant.  The company commander recommended a trial by general court-martial.

5.  In a memorandum, dated 7 June 2010, the SJA stated he had reviewed the charge sheet, the Article 32 investigating officer's report, and allied documents pertaining to the case against the applicant.  The SJA concluded that the specifications charged alleged offenses under the UCMJ, that the allegations in the offenses were warranted by the evidence, and that there was court-martial jurisdiction over the accused.  The SJA recommended referral of the charges and specifications to the general court-martial convened by Court-Martial Convening Order Number 1, dated 24 March, 2010.

6.  On 7 June 2010, the Commander, Joint Readiness Training Center, Fort Polk, LA, approved the SJA's recommendation.

7.  At 0847 hours on 22 June 2010, the military judge called the Article 39(a) session to order at Fort Polk.  This session of the applicant's general court-martial consisted of verifying that the charges were properly preferred and referred and that the prosecution was ready to proceed with the arraignment.  Present were the accused, the military judge, trial counsel, and defense counsel.  The qualifications of trial and defense counsels as well as the military judge were stated.  A trial date was established for 1 September 2010.  The applicant's rights were explained to him.  The general nature of the charges was stated.  The applicant's commander had preferred the charges which were then forwarded without recommendation.  The applicant requested to defer selection of a court forum (trial by court members or by a military judge) which was approved by the military judge.  The applicant waived reading of the charges and requested to defer motions and pleas.  Both were approved by the military judge.  The military judge explained the legal consequences of the arraignment to the applicant and the importance of keeping his chain of command and his defense counsel informed of his whereabouts.  The session was recessed at 0854 hours that same day.

8.  In a memorandum, dated 1 July 2010, the Deputy Assistant Secretary of the Army (DASA) (Review Boards) stated the Department of the Army Ad Hoc Review Board had reviewed the applicant's resignation for the good of the service in lieu of general court-martial.  The DASA accepted the resignation and stated the applicant would be discharged from the U.S. Army with a general under honorable conditions characterization of service.  The DASA further directed the entire court-martial proceedings, both findings and sentence, if any, be vacated.

9.  The applicant's DD Form 214 shows he was discharged under honorable conditions (general) in lieu of trial by court-martial on 30 July 2010.  He completed 3 years, 4 months, and 16 days of creditable active duty service during this period.

10.  On 4 May 2011, the ADRB considered the applicant's request for an upgrade of his discharge.  The applicant stated he had been recently selected for a fellowship and given a significant promise of Federal employment.  He argued that new supporting information needed to be considered.  The applicant's additional evidence was considered.  However, it was not sufficiently mitigating to recommend an upgrade of his discharge to fully honorable.  The ADRB determined that his discharge was both proper and equitable.

11.  In a memorandum, dated 24 September 2012, the applicant's former company commander stated the following concerning the propriety of the adverse actions taken against the applicant:

	a.  In December 2010, he was discharged from the U.S. Army.  He was the person who had preferred court-martial charges against the applicant.

	b.  When he was informed of the allegations against the applicant, he recommended the issuance of a GOMOR.  He believed such was the appropriate action to discipline and to motivate rehabilitation.

	c.  When he recommended a GOMOR, the SJA confronted him and questioned the appropriateness of the recommendation.  The former company commander understood that the hospital commander had discussed the issue with the SJA.

	d.  He was aware that the SJA was the legal advisor for the hospital commander and the commanding general.

	e.  He was selected to take initial action in the case because the hospital commander was one of the alleged victims.  Based on his confrontation with the SJA, he preferred court-martial charges despite his belief that a GOMOR was more appropriate.

	f.  He contends that he has not seen any evidence supporting the allegations, even to the date of this memorandum.  Essentially, he was told that the applicant was going to be court-martialed and, as the company commander, he would be the one who preferred the court-martial charges.

	g.  He viewed the SJA's actions as being unlawful command influence because he was speaking for the command, telling him he was wrong, and telling him to prefer court-martial charges.  He did as he was told, but now he wants to be honest about how it occurred.

	h.  He thinks the case should have been handled outside of their chain of command because there seemed to be an inherent conflict of interest given that the hospital commander was an alleged victim.

12.  The five memoranda of support provided by the applicant were written by current and retired commissioned officers in the ranks of brigadier general, colonel, lieutenant colonel, and major.  In essence, these memoranda clearly identify the applicant as being an accomplished professional who works well with others and is a tireless officer who puts Soldiers first.  The applicant is an extremely talented social worker who is totally committed to the mission of taking care of active duty Soldiers and their families.  He embodies high character and integrity.  He has achieved his Doctor of Philosophy in counseling psychology.

13.  RCM 306(a) states, "Each commander has discretion to dispose of offenses by members of that command.  Ordinarily the immediate commander of a person accused or suspected of committing an offense triable by court-martial initially determines how to dispose of that offense.  A superior commander may withhold the authority to dispose of offenses in individual cases, types of cases, or generally.  A superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld."

14.  RCM 307(a) states, "Any person subject to the code may prefer charges."

15.  RCM 308(a) states, "The immediate commander of the accused shall cause the accused to be informed of the charges preferred against the accused, and the name of the person who preferred the charges and of any person who ordered the charges to be preferred, if known, as soon as practicable."

16.  RCM 403(a) states, "Immediately upon receipt of sworn charges, an officer exercising summary court-martial jurisdiction over the command shall cause the hour and date of receipt to be entered on the charge sheet."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his administrative discharge in lieu of trial by court-martial should be voided because of unlawful command influence and he should be reinstated in the Regular Army.

2.  The applicant was charged with offenses and referred to a general court-martial.  He was arraigned and scheduled for trial.  However, he submitted his resignation in lieu of trial by court-martial.  His resignation was accepted and he was discharged with an under honorable conditions (general) characterization of service.

3.  The applicant now appeals to this Board with the contention that unlawful command influence was used to change the former company commander's mind resulting in his being brought before a court-martial instead of receiving only a GOMOR.  In support of this contention, the applicant provides a memorandum from the former company commander wherein he states he viewed the SJA's actions as unlawful command influence.

4.  The applicant argues that he suspected unlawful command influence but had no proof until obtaining the former commander's memorandum.  Had he had such proof at the time, he contends that he would have made a motion for dismissal of the charges and would never have submitted his resignation.

5.  The former commander's actions at the time were very clear and deliberate.  He stated under oath that he had personal knowledge of or had investigated the matters set forth therein and that the same were true to the best of his knowledge and belief.  That he did indeed have personal knowledge of the facts is consistent with his explanation of his "confrontation" with the SJA.  He clearly felt he had sufficient knowledge of the facts at the time given his statement that he believed the appropriate way to address applicant's misconduct was by issuance of a GOMOR rather than the court-martial process.  Yet, he now states that he has not seen any evidence supporting the allegations.  His current contention raises the question, if he has not yet seen any evidence to support the allegations how could he have believed at the time that a GOMOR was the appropriate way to address the applicant’s misconduct.

6.  The former company commander simply lacks an understanding of the military justice process.  He was not chosen to initiate the action or prefer the charges because the hospital commander was one of the victims.  Anyone subject to the UCMJ can serve as the accuser (RCM 307).  Preferral is a ministerial act.  It is the commander of the accused who normally does so, simply because it is the immediate commander who is tasked to notify the accused of the charges (RCM 308).  Further, though the former commander seems to feel that his opinion of the proper level of disposition should somehow control, he had no authority or ability to prevent the general court-martial convening authority from acting in this case.  Even his proposed disposition via GOMOR would have required action by the commanding general.  His statement that the case should have been handled outside the chain of command because there was a conflict of interest due to the hospital commander being an alleged victim also belies his ignorance.  The only person in the chain of command with a conflict of interest was the hospital commander/alleged victim.  The hospital commander's only involvement in the case was to perform the ministerial act of signing for receipt of the charges in order to toll the statute of limitations (RCM 403).  The hospital commander made no recommendation as to the disposition of the charges.

7.  No issue with the general propositions expounded in the cases on unlawful command influence cited by applicant and his counsel should be taken.  However, they simply do not apply in this case because applicant has not established that an act of unlawful command influence occurred.  The duties of the SJA include making legal conclusions and recommendations pertaining to the appropriate action regarding misconduct and criminal actions.  Simply discussing such issues with commanders, even junior commanders, does not in and of itself constitute unlawful command influence.  "Essentially" being told is not the same as "actually" being told.  There was no need for the SJA to compel the former commander to do anything.  Not only was the former commander not required to serve as the accuser, but had he chosen to recommend what he says he believed to be the proper disposition, the SJA still needed only have advised the general court-martial convening authority to refer applicant to trial notwithstanding the company commander's recommendation or to entirely withhold the authority to act to his own level (RCM 306).  The applicant waived any contention of unlawful command influence when he submitted his resignation in lieu of trial by court-martial.  For the sake of argument, even had applicant known of the supposed unlawful command influence and raised the contention at trial, he would not likely have been successful.  However, had he been successful, the remedy would have been dismissal without prejudice, leaving the government free to re-prefer the case without the former commander's involvement.

8.  The charges against the applicant were preferred by his former commander, a person subject to the UCMJ, who at the time swore he had personal knowledge of the charges.  The charges were properly investigated under Article 32, UCMJ, and forwarded for disposition to the officer with general court-martial convening authority over him.  The charges were properly referred to a general court-martial.  The applicant was represented by a member of the U.S. Army Trial Defense Service.  Rather than risk a federal conviction and potential punishment, he chose to submit his resignation.  There is no convincing evidence of unlawful command influence in this case nor is there evidence of any failure of due process.  Therefore, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120019102



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ABCMR Record of Proceedings (cont)                                         AR20120019102



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