IN THE CASE OF:	  

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20130013760 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be allowed to appear before the Army Board for Correction of Military Records (ABCMR), that his general under honorable conditions discharge be eliminated, and that he be reinstated to active duty.  Furthermore, should the Board determine that the applicant should not be placed back on active duty, it is requested that the applicant's general discharge be upgraded to an honorable discharge. 

2.  Counsel states:

   a.  The applicant, while serving as a troop commander in Iraq, was investigated for committing adultery with a female lieutenant, First Lieutenant (1LT) AM, and impregnating her.  The applicant admits to forming a strong friendship and that some of their email exchanges were not always strictly professional; however, he denies any sexual contact.  Further, deoxyribonucleic acid (DNA) evidence provided by the U.S. Army Criminal Investigation Command (CID) to prove the applicant was the baby's father is completely inconclusive and unhelpful.  Finally, a review of the timeline of events shows the applicant and 1LT AM were not together on the date of her conception.

   b.  1LT AM is a troubled young woman who has demonstrated dishonest tendencies by initially accusing the applicant of rape, then changing her story to state the applicant offered her a job in exchange for sex, and finally stating the sexual intercourse was consensual.  1LT AM admitted to having two sexual partners in the 60 days prior to the abortion, not just one.  The applicant believes her two partners were Captain (CPT) M and Sergeant First Class (SFC) I, who were both deployed with her and on the forward operating base with her when she conceived her child, while the applicant was not.  This belief is supported by the Army Regulation 15-6 (Procedures for Investigating Officer and Board of Officers) investigating officer who determined CPT M's emails to 1LT AM were inappropriate.  Additionally, 1LT AM and SFC I were rumored to be in an inappropriate relationship during this time.  Immediately prior to leaving active duty 1LT AM and SFC I married.

   c.  The applicant believes 1LT AM began to have personal feelings for him that he did not reciprocate.  In fact, it was not until after the applicant returned from leave with his wife that 1LT AM lashed out at him by claiming he had raped her.  It is likely she was angry at him for being happily married while her own hidden marriage to an E-4 was falling apart.  At least two witnesses state they noticed her demeanor toward the applicant had changed upon his return from leave.
   
   d.  The applicant believes 1LT AM was shocked to learn she was pregnant and she panicked because she knew she may have conceived the child with SFC I, a relationship that was against Army regulations.  Then, being vengeful due to her unreciprocated feelings and the applicant's unwillingness to help her, she falsely accused the applicant of raping her.  Later, she stated the applicant offered her a job in exchange for sex.  This allegation was determined to be unfounded by CID, but the applicant's brigade commander used it as grounds for requesting relief and separation from service.  Her third statement stated the sex was consensual.  The applicant believes she continued to maintain that there was a sexual encounter during her third statement to avoid punishment for herself and SFC I.
   
   e.  After 1LT AM returned to the United States and aborted her pregnancy, a DNA test was conducted.  The applicant, having nothing to hide, immediately consented to the test.  The test concluded the applicant could not "be excluded as the father of the fetal tissue."  The results further state that, "[t]he DNA results are conservatively 499 thousand times more likely given that the fetal tissue is the offspring of [the applicant] rather than the offspring of a random man in the general population."  The results also state that it is more likely that the father was Hispanic; the applicant is Caucasian.
   
   f.  The results do not conclusively state that the applicant was the father of 1LT AM's baby.  In fact, they do not seem to say much at all.  Despite this, the command and the board used the results to declare the applicant was definitively the father.  Additionally, they used these vague results to determine the applicant was guilty of a second offense, that he lied to the Commanding General (CG), 3rd Infantry Division (3ID), when he stated that he did not have sexual intercourse with 1LT AM in his rebuttal to the memorandum of reprimand.  The results should have been seen for what they were, that is, vague and unhelpful.
   
   g.  Another piece of evidence used to support a conclusion the applicant had sexual intercourse with 1LT AM is an email from the applicant's wife offering financial help.  This email does not serve to prove the applicant's guilt.  The applicant's wife sent the email with the hope 1LT AM might admit she was making a false accusation.  It is unfortunate the email was later used against the applicant.
   
   h.  The applicant's discharge was full of significant errors.  The CG, I Corps was not provided with the complete investigation, nor was he provided the applicant's outstanding official military personnel file (OMPF) when he notified the applicant of his intent to separate him.  The CG, 3ID was presented the entire case in Iraq and decided not to send the applicant to a Board of Inquiry (BOI) and had orders published reassigning him to Korea upon redeployment to Fort Lewis, WA.  Dissatisfied with the 3ID CG's decision, the applicant's chain of command submitted a request to the CG, I Corps, and Fort Lewis to review the same case.
   
	i.  The CG, I Corps was provided only parts of the CID and Army Regulation 15-6 investigation and none of the applicant's outstanding evaluations.  The applicant's brigade also provided the draft General Officer Memorandum of Reprimand (GOMOR), not the final copy, in order to persuade the CG to authorize a separation board.  The CG was not provided with all 29 exhibits, portions of the CID report which showed 1LT AM had lied twice in her statements, and a timeline of events.  By not receiving all of the exhibits, the CG received only one side of the story.  It is likely that had the CG seen all of the evidence, he may have never required the applicant to show cause for retention.  Therefore, the initiation of the BOI was improper and unfair.

	j.  On 25 June 2010, MG C signed two different GOMORs following the false allegations made by 1LT AM.  One, before hearing the applicant's argument, stated he had committed adultery and one, issued after the applicant pleaded his case, stated that he had merely had an improper relationship with her.  It was placed in the applicant's local file.  The government argued the harsher of the two was the actual letter of reprimand and that although it was placed in the applicant's local file, MG C intended it be placed in the applicant's permanent file.  Due to the confusion of having two different signed GOMORs, the applicant's defense counsel objected to either one being considered by the board.
	k.  Additionally, when MG C issued one of the GOMORs he stated he intended to file the GOMOR in his local file and that he was going to give him a "second chance."  It is clear MG C intended to give the applicant a second chance because he allowed orders to be cut for him to go to a new unit less than 60 days after returning from deployment.

	l.  The Staff Judge Advocate (SJA) argued MG C intended to put the GOMOR in the applicant's OMPF and one of the SJA's own counsel swore under oath as a prosecution witness that this was the case.  Although the BOI went forward despite the lack of a GOMOR in the applicant's file, it seems four months after the board closed the SJA office convinced MG C that he actually intended to file it in the applicant's OMPF and had him put this corrected intent in writing.  Upon submission of the GOMOR for filing the SJA improperly attached additional evidence to the GOMOR that that was not originally there and the applicant did not have the opportunity to rebut.

	m.  When the BOI was held, the applicant was issued a certified copy of his OMPF the day prior.  The BOI found that the GOMOR was not present in his OMPF.  Therefore, based on the confusion of the two GOMORs and the fact that neither GOMOR appeared in his file at the time of the board, the board members should not have been allowed to consider either GOMOR.  The applicant's defense counsel properly objected to its consideration, but it was ignored.

	n.  Prior to the board, the applicant's counsel properly objected to the impartiality of all of the board members.  The applicant's counsel addressed the objection to the appointing authority.  Army Regulation 15-6, paragraph 5-7b states that objections regarding the board members should be presented to the appointing authority whenever possible.  Since the objection was made prior to the board, certainly this communication to the appointing authority was possible.  However, despite this the appointing authority was not informed.  Additionally, the president of the board unilaterally decided that the challenge against him and the other board members was unfounded.  This was improper.  The regulation specifically states the appointing authority could decide the challenge, but if not the appointing authority then the legal advisor must decide the challenge.  This did not occur.  Therefore, the handling of this challenge was in violation of Army Regulation 15-6.  Additionally, this challenge to the board was not noted in block 12a of the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) as required.

	o.  It is improper and unjust that the applicant was never given the opportunity to confront the witnesses against him.  The BOI was allowed to consider 1LT    AM's one-sided written statement to investigators despite the written objection from the applicant's counsel.  Because she was never cross-examined, her lies were never challenged.  It is possible upon cross examination 1LT AM would have admitted that her accusations against the applicant were false.  Because she failed to appear, the applicant's only opportunity to confront his accuser was unjustly taken from him.  Therefore, the BOI proceedings were unfair.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-6 specifically directs that, "[t]he BOI's purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army."

	p.  Two days prior to the applicant's BOI, on 19 July 2011, the applicant's counsel was informed the BOI would consider the DNA evidence as well as expert testimony pertaining to the DNA evidence.  The evening prior to the BOI the applicant's counsel was given 145 pages of testing data to support the DNA evidence as well as an expert witness's curriculum vitae.  The applicant's counsel objected to the consideration of all of the last minute evidence, saying he would need two weeks to study the material, educate himself on the contents, and properly prepare to cross-examine the expert on his qualifications and the DNA evidence.  One of the tasks of the BOI president is to ensure the respondent is granted reasonable time to prepare and present their case.  However, in this case the BOI president ignored this duty and the board proceeded on 21 July 2011 to improperly consider all of the last minute evidence.

	q.  New evidence was presented that the applicant was not properly notified of  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph     4-11 which states the BOI's specific task is to "determine whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence."  It further explains the Recorder has the responsibility to present evidence fairly and cannot present new evidence that is unrelated to the specific allegations in the notice of proposed separation, unless the applicant is re-notified of the evidence by the General Officer Show Cause Authority (GOSCA) and given proper time to prepare.  In reviewing the BOI notification and the summarized record of the BOI, it is clear the Recorder was not responsible in his presentation of evidence.  In several places, the Recorder presented evidence of additional misconduct for which the applicant was not given proper notice.

	r.  Also during the board the Recorder improperly accused the applicant of lying to his current brigade commander about the situation with 1LT AM.  The current brigade commander testified that he could not point to a situation when the applicant had ever lied to him about 1LT AM.  Conveniently, this portion of the brigade commander's testimony was left out of the summarized version of the board proceedings and the audio recording was destroyed by the SJA's office.

	s.  The Recorder presented testimonies which were not offered as a rebuttal to the applicant's evidence.  Additionally, the allegations are too substantial to be considered ordinary evidence regarding the applicant's military record.  Such false official statements required the Recorder to ensure the applicant was notified of them in his BOI letter.  These are the type of blind-siding allegations that the regulation was written to prevent.  Therefore, the applicant was not given a fair BOI.

	t.  The board did not consider the applicant's outstanding Officer Evaluation Reports (OER) documenting his service following the false allegations.  His command purposely held his OER and did not submit it for timely filing, so it was not in his records at the time of his BOI.  The BOI never got to see the applicant was working hard to rehabilitate himself following his administrative reprimand.  His command's actions were unjust and hindered the applicant's ability to fully present his case.  Based on the missing documentation the applicant's counsel requested the BOI be dismissed; however, he was once again ignored.

	u.  On advice of counsel, the applicant submitted a resignation in lieu of the BOI which the SJA's office failed to forward in a timely manner.  It seems the office may have been waiting to find out the results of the BOI prior to forwarding the resignation paperwork.  This kind of purposeful delay is inappropriate and improper and the applicant's resignation request did not receive proper consideration due to the delay.

	v.  Based on the amount of errors committed in the process, the applicant was never given a fair BOI and discharge.  In addition, the characterization of his discharge is not indicative of his service to his country.  Over the course of his career the applicant had served admirably in both staff and command positions.  He earned numerous decorations and awards and has written articles selected for publication.  During his service he has impressed all those who worked near him and he has received glowing OERs and Academic Evaluation Reports which attest to his exceptional competence and professionalism.  The applicant showed remarkable strength and dedication in facing the false allegations and a reprimand to once again being a top-rated officer who continues to out-perform his peers.

	w.  The evidence in this case is not adequate.  1LT AM found herself in a difficult spot and rather than get herself and her future husband in trouble, she chose to falsely accuse the applicant.  Her story changed twice and she did not appear at the applicant's separation hearing.  The DNA evidence states it is likely that the father of 1LT AM's baby is Hispanic and the applicant is Caucasian.  There is absolutely no one who witnessed the applicant and 1LT AM together in a sexual way.  The evidence is not there and the applicant was falsely accused.  Additionally, the applicant was not discharged in a proper manner.  His BOI and his discharge were full of errors and violations of Army regulations.  Therefore, his discharge should be extracted from his records and he should be immediately placed back on active duty.

3.  Counsel provides:

* an 18-page Brief in Support of Application for Correction of Discharge Records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Timeline
* Abortion paperwork
* Statements of record
* CID Report
* DNA laboratory results
* Electronic mail (email) correspondence
* Defense objections
* Associated BOI documents
* Several DA Forms 67-9 (Officer Evaluation Report)
* Officer Record Brief
* Military decorations and awards
* Military course completion certificates
* Articles written by the applicant
* Pictures
* Numerous letters of support
* a 2-page Supplemental Evidence Statement with additional emails, sworn statements, and associated documents 

4.  In addition to the above documents, the applicant's entire OMPF was available to include the "AUTHENTICATED EXTRACT COMPLTD INVESTIGATION RPT RESULT ELIM/DISCIP."

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned on 29 May 2004 out of the Reserve Officers’ Training Corps.  He completed various training and assignments.  

2.  On 25 June 2010, the applicant received a GOMOR while serving as a troop commander in Iraq.  The initial version of the GOMOR stated, in effect, that the applicant engaged in an adulterous relationship with a lieutenant attached to his troop.  While married to an Army officer serving in Iraq, he exchanged inappropriately familiar emails with the lieutenant.  The relationship culminated when he had sexual intercourse with the lieutenant and only came to light because she became pregnant.  Despite the lieutenant's admission to adultery and violation of General Order #1, the applicant denied any non-professional relationship.  The GOMOR further stated the applicant's adulterous relationship with a junior officer and his unwillingness to take responsibility for his actions reflected a disregard for the Army Values of duty, honor, and integrity.  His lack of self-discipline and judgment while in command caused his commander to question the applicant's fitness for continued service in the Army.

3.  On 25 June 2010, the applicant acknowledged receipt of the GOMOR and on 30 June 2010, the applicant prepared a written response to the GOMOR requesting that it be filed locally.  The applicant admitted that he made mistakes and clearly had a lapse of judgment.  He stated that although it was 1LT AM who repeatedly initiated the "flirtatious exchanges," the email exchanges alone were "highly inappropriate."  He continued to maintain that his relationship with 1LT AM did not go beyond these exchanges and that no sexual encounter ever took place between him and 1LT AM.  The applicant indicated he had some concerns and issues with the investigation and he outlined what he perceived these issues were.

4.  On 7 July 2010, the applicant and his wife, an MP captain also stationed in Iraq, personally appeared before MG C.  The Brigade Judge Advocate, MAJ P, and members of the applicant's chain of command were not physically present at the hearing but were dialed in to the hearing via conference call.  During the course of the hearing before MG C, the applicant at first maintained his denial as captured in his 30 June 2010 GOMOR response, but eventually admitted that he had, in fact, had an adulterous sexual encounter with 1LT AM.  After listening to the applicant and his wife, MG C made changes to the text of the GOMOR to reflect the applicant's initial dishonest verbal and written denials and directed that the GOMOR be filed in the applicant's OMPF.  Unfortunately, neither version of the GOMOR was filed in the applicant's OMPF until after the BOI, though both versions were available for its consideration.  

5.  On 21 July 2011, a show cause BOI convened to consider the applicant's case.  The applicant appeared with his counsel.  1LT AM, then a civilian, did not appear.  After carefully considering the evidence and hearing the case presented by the applicant's counsel the BOI found the applicant: 

   a.  While serving as a troop commander deployed in support of Operation Iraqi Freedom, engaged in an adulterous relationship with a junior officer who was attached to his troop and impregnated her.  The DNA report linking the applicant's DNA to the DNA of the junior officer's aborted fetus was compelling and supported the finding of an adulterous relationship by a preponderance of evidence.

   b.  Made false statements to MG C in his 30 June 2010 rebuttal statement after receiving a GOMOR.  Specifically, that the applicant denied having a sexual relationship with the junior officer.  The applicant's lie was exposed in the report of laboratory examination dated 2 August 2010, which matched the applicant's DNA to the fetal tissue samples provided by the junior officer.  Additionally, by a preponderance of evidence, that the applicant lied to members of his chain of command and investigators.

6.  The BOI also noted that there were two distinct signed GOMORs from         MG C and a memorandum of reprimand filing determination dated 7 July 2010 indicating an intent to file the GOMOR in the applicant's OMPF.  They further found the certified copy of the applicant's OMPF did not contain any GOMOR.  The BOI voted to involuntarily separate the applicant from military service with an Under Other than Honorable characterization of service and recommended the appropriate official coordinate with MG C to ensure his intent was met with regard to the applicant's GOMOR.

7.  On 29 July 2011, the applicant voluntarily tendered a post-board resignation in lieu of further elimination proceedings.  On 24 August 2011, the CG, having reviewed the applicant's request for resignation in lieu of elimination, recommended disapproval of the applicant's request.

8.  On 2 December 2011, after reviewing the BOI results, the applicant's rebuttal to the BOI results, the government's response to the applicant's rebuttal, and the applicant's response to the government's response, the GOSCA recommended the applicant be eliminated with an Under Other than Honorable characterization of service.

9.  On 26 January 2012, the Army Board of Review for Eliminations (ABRE) 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:

   a. While serving as a troop commander deployed in support of Operation Iraqi Freedom engaged in an adulterous relationship with a junior officer who was attached to his troop, and impregnated her.  The DNA report linking the applicant's DNA to the DNA of the junior officer's aborted fetus was compelling and supported the finding of an adulterous relationship.

   b.  The applicant made false statements to MG C in his 30 June 2010 rebuttal statement after receiving a GOMOR.  Specifically, the applicant denied having a sexual relationship with the junior officer.  Numerous pieces of evidence support a finding that the applicant lied to members of his chain of command and investigators.  Additionally, his lie was exposed in the report of laboratory examination dated 2 August 2010, which matched the applicant's DNA to the fetal tissue samples provided by the junior officer.  The applicant's dishonesty and associated misconduct in a deployed setting raised serious and lasting concerns about his integrity.
   
   c.  There are two distinct signed GOMORs from MG C and a memorandum of reprimand filing determination dated 7 July 2010 indicating intent to file the GOMOR in the applicant's OMPF.  The certified copy of the applicant's OMPF did not include any GOMORs.

10.  The board recommended the applicant's elimination from the U.S. Army with a general discharge under honorable conditions.

11.  On 2 March 2012, the Deputy Assistant Secretary of the Army for Manpower and Reserve Affairs (Review Boards) refused to accept the applicant's conditional resignation and approved the recommendation to eliminate the applicant from the U.S. Army based on misconduct and moral or professional dereliction with a general under honorable conditions characterization of service.  

12.  The applicant was discharged from active duty in the rank/grade of captain/O-3 for unacceptable conduct on 4 April 2012.  The DD Form 214 he was issued shows he completed a total of 7 years, 9 months, and 24 days of creditable active service.

13.  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 investigating officer 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.

14.  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 to determine 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.

15.  Army Regulation 600-8-24 further states 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.

16.  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.

17.  Army Regulation 600-8-24 states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer. When the separation is based solely on pre-service activities or substandard performance of duty, it will be honorable.

18.  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.  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 requests by the applicant and counsel that the applicant be allowed to appear before the ABCMR, have his general under honorable conditions discharge eliminated, be reinstated to active duty, and, should the Board determine that the applicant should not be placed back on active duty, his general discharge should be upgraded to an honorable discharge have been carefully considered.  However, there is insufficient evidence to support their requests.

2.  The evidence of record shows the BOI, after considering the evidence presented, including evidence and argument from his counsel, found the government had established by a preponderance of the evidence that the applicant:
   
   a.  While serving as a troop commander deployed in support of Operation Iraqi Freedom engaged in an adulterous relationship with a junior officer who was attached to his troop and impregnated her.  The DNA report linking the applicant's DNA to the DNA of the junior officer's aborted fetus was compelling and supported the finding of an adulterous relationship by a preponderance of evidence.
   
   b.  Made false statements to MG C in his 30 June 2010 rebuttal statement after receiving a GOMOR.  Specifically, that the applicant denied having a sexual relationship with the junior officer.  The applicant's lie was exposed in the report of laboratory examination dated 2 August 2010, which matched the applicant's DNA to the fetal tissue samples provided by the junior officer.  Additionally, by a preponderance of evidence the BOI found that the applicant lied to members of his chain of command and investigators.
   
3.  The BOI recommended his elimination from the U.S. Army with an under Other than Honorable Conditions characterization of service.  The results of the BOI were subsequently properly reviewed by the ABRE which concurred with 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.

4.  Counsel makes numerous arguments, none of which are meritorious.  The first argument essentially goes to factual sufficiency and argues that 1LT AM's allegation of having had sexual intercourse with the applicant is false.  Counsel cites to purported inconsistencies in 1LT AM's statements, characterizes her as a "troubled" woman whose advances applicant rejected and who then, upon discovering she was pregnant by another man, falsely claimed she was raped by the applicant as an act of vengeance and to avoid punishment for having had an adulterous encounter with someone else whom she sought to protect.  He cites to the applicant's continued vehement denial; explains away an incriminating email exchange between the applicant's wife and 1LT AM as a misguided attempt to get 1LT AM to withdraw her false allegation; states that the DNA results indicate the father of 1LT AM's aborted fetus was Hispanic not Caucasian like the applicant; and submits a series of emails between another officer,      CPT M, and 1LT AM, and CPT M and a senior noncommissioned officer, SFC Y, to argue that CPT M or another senior noncommissioned officer, SFC I, whom 1LT AM allegedly married after her separation, are more likely the fathers, yet the government failed to collect and test their DNA.                  

5.  Counsel's factual sufficiency argument fails to reference numerous pieces of evidence and mischaracterizes others.  Foremost among these pieces of evidence are MAJ P's testimony at the BOI where he recounted the applicant's admission to having committed adultery with 1LT AM during his 7 July 2010 personal appearance before MG C and the applicant's 13 June 2011 Article 138 Complaint regarding an attempt by his new brigade commander to revoke his security clearance.  Major P's testimony as to the applicant's admission to having had sex with 1LT AM and his characterization of 1LT AM as, according to the applicant, having thrown herself at the applicant went un-rebutted.  And, not only was it un-rebutted, but it was in fact buttressed by the applicant's Article 138 Complaint, which was also presented to the BOI.  In it the applicant stated . . . "Although I was not forthright with [MG C] in my GOMOR rebuttal statement . . . my denial of a relationship with [1LT AM] was an act of fear, not calculation, in the face of her false official statement that I raped her.  [1LT AM's] accusation of rape, which launched the investigation against me, was designed for her to avoid personal responsibility with her husband . . . and her boyfriend . . . I overcame my fear when I spoke with [MG C] in person.  When I met with him, I admitted that I had had an inappropriate relationship . . . [MG C] punished my wrongdoing by relieving me of command and with a GOMOR, he also acknowledged my history of valued and faithful service by not referring me to a BOI and instead cutting orders to reassign my wife and me."  The applicant's language and tone in his Article 138 Complaint is consistent with that of a person who engaged in a consensual adulterous relationship.  Similarly, the applicant's wife's 24 May 2010 email exchange with 1LT AM appears to be consistent with that of a woman who knows her husband has cheated on her, may have fathered a child, and who seeks some further understanding of an event that stands to significantly impact both her personal and her professional life going forward.  The notion that the applicant's wife's emails with 1LT AM were designed to trick 1LT AM into withdrawing a false rape allegation is not credible. 

6.  Counsel notes that MG C, confronted at the 7 July 2010 GOMOR hearing with a newly-repentant officer, discussed giving the applicant a second chance and that he would not himself initiate an elimination action.  However, it should be noted that on 1 November 2010, about four months after the GOMOR hearing, MG C reviewed the applicant's Relief for Cause OER, which contained references by both the rater and the senior rater to the applicant's adulterous relationship with a junior officer and his "deliberate deceit" regarding the relationship.  The applicant's only response to this referred report was to submit a list of his accomplishments in command.  He did not refute the recited misconduct in anyway.  MG C concurred with the report and found it "clear, accurate, complete, and in accordance with AR 623-3."  This fact, again, essentially confirms MAJ P's recitation of the applicant's admission to adultery at the GOMOR hearing as well as MG C's continuing understanding of the applicant's misconduct.  That MG C was moved at the GOMOR hearing to consider some degree of leniency by forbearing immediate initiation of elimination against the applicant, knowing as he did the impact his action would have on not just the applicant but on the applicant's officer wife, only makes sense in the context of MG C's knowledge that the applicant had finally admitted to his adulterous relationship with 1LT AM as he personally stood before him.

7.  Contrary to counsel's argument, the DNA evidence against the applicant is, as noted by the BOI, compelling.  An allele is an alternative form of a gene (one member of a pair) that is located at a specific position on a specific chromosome.  These DNA/gene codings determine distinctive traits that can be passed on from parent to offspring.  The applicant shared an allele with 1LT AM's aborted fetus at each of the 16 sites tested as did the mother, 1LT AM.  The DNA result does not state that the father of 1LT AM's aborted fetus was Hispanic or more likely to be Hispanic than Caucasian.  What it does state is that based on the matches between the applicant's alleles and those of 1LT AM's aborted fetus—at every locus—it is 765 thousand times more likely that the applicant was the baby's father rather than a random man pulled from the general population.  Because the laboratory tested the applicant's DNA without knowing his race, the analysis included specific figures/data across the major racial groups, African-American, Caucasian, and Hispanic, to control for statistical variations between those groups.  The laboratory's race blind result states that "The DNA results are conservatively (emphasis added) 499 thousand times more likely given that the fetal tissue is the offspring of [the applicant] rather than a random man in the general population."  This figure derives from the statistics pertaining to Hispanics not because the laboratory found that the father was likely Hispanic, but because the 499 thousand times more likely figure is the least likely figure linking the fetal tissue to the tested subject/applicant.  With the applicant's Caucasian race known, the actual result jumps to 765 thousand times more likely that the applicant was the father than a random man pulled from the general population.

8.  In addition to the compelling nature of the DNA test result itself, it is important to note that in many respects it is simply the fact that the DNA test was afoot and not the result itself that is significant when considering the factual sufficiency of the BOI's findings.  As early as 24-25 May 2010, the applicant's wife knew based on her email exchange with 1LT AM that she intended to have an abortion.  The applicant knew this as well, probably immediately, but at least as early as          26 June 2010, as reflected in his wife's letter to MG C of that date.  In the letter, she attempts to explain away the incriminating nature of the May email exchange.  Among other things, she states "I didn’t know the details of her accusation – only that she was saying my husband had seduced and impregnated her . . .  I was looking for some form of independent verification that this accusation was false . . . I thought she would admit that [the applicant] was not the father of her child if I implied [the applicant] and I would take her baby away from her. . . Instead, she took the opposite tack and informed me that she planned to terminate the pregnancy."  1LT AM did terminate her pregnancy.  But, in early June 2010 before the fetal tissue was discarded, CID was able to obtain a sample for testing.  The chain of command recommendations that the applicant receive a GOMOR and be relieved of command also reference the pending DNA test.  The applicant's guilty knowledge and the pending test were the likely catalysts behind his last minute admission of guilt at the GOMOR hearing.  But, even without the compelling nature of the DNA result, it remains true that every statement 1LT AM made asserted that she had sexual intercourse with the applicant and that the applicant admitted to the adultery at the GOMOR hearing before MG C.  Further, in the applicant's 13 June 2011 Article 138 Complaint he acknowledged that he initially lied in his written rebuttal to MG C, again admitted the relationship was inappropriate, and explained why he had lied using the terms and tone of an unfaithful husband protecting himself not from a false adultery allegation, but from a false rape allegation.  The Government presented all this evidence to the BOI.  Even without the DNA result, the evidence of applicant’s guilt, much of which is apparent in his own words, is compelling and more than satisfies the preponderance standard.

9.  Counsel next makes a number of procedural arguments, none of which have merit.  Counsel first claims that the GOSCA was only provided parts of the       Army Regulation 15-6 investigation and parts of the CID investigation and that he was never provided the complete investigation when considering whether or not to initiate an elimination action against applicant.  To the extent this may be true, it is not error.  And, if error, it was harmless.  While counsel attempts to characterize these documents as "crucial" to the applicant's defense, they were not.  The "missing" documents consist primarily of emails between CPT M and 1LT AM.  While those emails certainly show CPT M was interested in a relationship with 1LT AM and that CPT M was vulgar and crass, the fact remains that 1LT AM never stated that she had sex with CPT M.  The emails were of little, if any, relevance to the allegations against the applicant.  Counsel also states that omitted portions of the CID report showed 1LT AM twice lied in her statements.  However, 1LT AM never once wavered on the most important facts.  She unequivocally stated that she, a married officer, had sex with and became pregnant by the applicant, a married officer and commander.  Contrary to counsel's assertion, 1LT AM nowhere referred to her sexual encounter with applicant as a rape, except apparently when procuring her abortion.  Based on the file before him, the GOSCA had sufficient information to direct that applicant show cause for retention.  

10.  Counsel's second claim of procedural error is that the BOI improperly considered the two GOMORs drafted and signed by MG C, neither of which had been posted to the applicant's OMPF at the time of the BOI.  This allegation lacks merit.  First, it is important to note that the basis of elimination action in the applicant's case was not the presence of derogatory information in his file, but rather the underlying misconduct.  It was his adultery with 1LT AM and his subsequent lies that caused him to appear at the BOI.  While it is unfortunate that some confusion was generated by the existence of two signed GOMORs, MAJ P's testimony at the BOI, read in conjunction with the applicant's 30 June 2010 GOMOR Rebuttal, Relief for Cause OER, and his Article 138 Complaint, clears up that confusion.  Formal rules of evidence do not apply at BOIs and both GOMORs were relevant and provided context within which to understand the evidence in the case.  Their authenticity was never challenged.  Further, counsel's assertion that one version of the GOMOR stated the applicant committed adultery with 1LT AM and one version stated that "he had merely had an improper relationship with her" is demonstrably false.  The initial version, which contained quotes and to which the applicant specifically responded in his written rebuttal, contained the language "The relationship culminated when you had sexual intercourse with the lieutenant in your CHU, and only came to light when she became pregnant.  Despite her admission to the adultery, you denied any non-professional relationship."  The second version, which MG C changed in the course of the GOMOR hearing, contained the language "While serving as a troop commander . . . you engaged in an adulterous relationship with a lieutenant attached to your troop. . . Despite the lieutenant's admission to the adultery, you vigorously denied, verbally and in writing, having a physical relationship with her."  The above wording not only establishes the temporal sequencing of the GOMOR versions and buttresses MAJ P's recounting of the hearing, but also plainly shows that both versions reference the applicant's commission of adultery.  The GOMORs were relevant and properly before the BOI.

11.  Counsel next argues that the proper authority failed to act on the applicant's objection to the members' impartiality.  This allegation does not bear scrutiny.  The day before the BOI, the applicant's defense counsel drafted an objection to the impartiality of the board members based on their having seen the initial version of the applicant's GOMOR in the case file provided prior to the BOI and the fact that they could not "excise" it from their minds.  While it was addressed to the GOSCA, there is no indication when it was actually submitted or whether there would have been time for the GOSCA to act on it personally given that the BOI was scheduled to begin at 0900 the day following the date it was drafted.  Further, as discussed above, both versions of the GOMOR were relevant and admissible.  Accordingly, the members were not tainted and there was no substance to the objection itself.  Further, while the box on the DA Form 1574 is not checked to indicate there was a challenge, page one of the Summary of Board Proceedings notes the challenge, notes that the legal advisor was present, notes that respondent’s counsel presented a GOMOR (presumably the second version of applicant’s GOMOR), and notes that the challenge was "declined."  The failure to check the proper box on the form is a typographical error at most and there is no evidence the challenge was not acted on by the proper authority, in this case the legal advisor.                   

12.  Counsel's fourth allegation of procedural error involves 1LT AM's failure to appear and testify at his BOI.  Counsel's argument lacks merit.  As counsel accurately states, Army Regulation 600-8-24, paragraph 4-13, directs that "to the maximum extent possible, the respondent has the right to be confronted with the witnesses against him or her."  Here it simply was not possible.  The Government made reasonable efforts to get 1LT AM to appear at the applicant's BOI.  However, by that point, 1LT AM was a civilian.  Having received a referred officer evaluation report for her adulterous relationship with the applicant, she had resigned her commission.  Then Ms. AM refused to appear and the Government had no means by which to compel her to do so.  Further, in an email to the Government representative dated 20 July 2011, former 1LT AM stated in part, "In previous conversation with MAJ G (the applicant's defense counsel) he made veiled threats as well as attempted to question me on information completely unrelated to the case. . . I am requesting that he not contact me again for any further questions . . . However incriminating the defense may think my desire to be uninvolved is, is of little long-term concern to me.  Enough of my life and time has already been spent putting all things related in the past and I have no interest in readdressing any of it, particularly if I’m going to be treated as the defendant during the process.  If this means I am unavailable as a witness to both sides, then I apologize but that is my decision."  Ms. AM's refusal to appear is consistent with her behavior throughout both the Army Regulation 15-6 investigation and the CID investigation.  It is only 1LT AM's in-theater pregnancy, which demanded she explain and the command inquire, that forced her to make any statements about her sexual encounter with the applicant at all.  Ms. AM's failure to appear gave the defense an unfettered ability to highlight any lies or inconsistencies in her statements, attack her character, and argue her various motives to fabricate all without worrying that she might successfully explain herself. 
13.  Counsel's fifth allegation of procedural error is that the applicant was prejudiced because defense counsel was given insufficient time to prepare to address the DNA evidence in the case.  According to counsel, the Government only provided the 145 plus pages of testing data and the expert witness's curriculum vitae the night before the BOI.  The BOI President then refused to grant a defense request for a two-week delay.  This argument is without merit.  The existence of DNA evidence as a component of the case was something both sides were long aware of.  The defense long had the short version of the laboratory report and was long aware that the DNA result showed that the applicant was the likely father of 1LT AM's aborted baby to a great degree of probability.  There was nothing last minute about the DNA evidence and the applicant's counsel had sufficient time to prepare. 

14.  Counsel's sixth allegation of procedural error is that new evidence was presented to the BOI that the applicant was not provided notice of.  Counsel's argument fails.  The new evidence of misconduct to which counsel refers was not presented as a new or additional basis upon which to eliminate the applicant.  Accordingly, no notice was required.  It was also not packaged as information in support of a generalized finding of conduct unbecoming an officer, and indeed no such finding was made.  Duty performance is always at issue in a proceeding directing an officer to show cause why he should be retained.  What counsel casts as new evidence was either minor misconduct collateral to the noticed bases of elimination, the applicant's adultery and dishonest denial of that adultery, or it was testimony refuting the notion, proffered by counsel in the applicant's defense that his performance of duty was so exceptional that no matter the nature of the applicant's relationship with 1LT AM his value to the Army demanded he be retained as such retention was in the Army's best interest.  
  
15.   Counsel next argues that the Government improperly delayed processing the applicant's most recent OER, so that it would not post to his OMPF and BOI would not see that the applicant "was still serving impeccably even in the face of these allegations."  This argument fails.  There is no independent evidence of Government malfeasance and, more importantly, counsel ignores the fact that the applicant's rater on the OER in question personally appeared before the BOI and rendered a glowing assessment of his duty performance.  The applicant was not prejudiced by the absence of this OER and defense counsel's motion to dismiss the BOI due to its absence, which according to counsel went "ignored," was frivolous.

16.  Counsel's final specific allegation of procedural error is that the applicant submitted a resignation in lieu of the BOI and that the Government intentionally delayed forwarding the resignation to the approval authority until after the BOI was completed.  Counsel's argument fails and is once again based on a mischaracterization of the facts and a misunderstanding of Army regulations.  The applicant submitted an unqualified resignation after the GOSCA initiated elimination.  However, officers facing elimination are not authorized to submit unqualified resignations.  Accordingly, the Government's failure to forward this invalid request was proper.  In reality, it was not until after his BOI convened, found that he had engaged in adultery and lied about it, and recommended he be eliminated and issued an Other Than Honorable conditions discharge that the applicant submitted an authorized request—a conditional resignation in lieu offering to waive further administrative review of his case in exchange for no worse than a General Discharge.  Under these circumstances there was nothing improper in the Government submitting the completed BOI and the applicant's post-BOI resignation request contemporaneously.  To do otherwise would be to deprive the decision authority of the most complete understanding of the case available.  

17.  Contrary to counsel's arguments, there were no significant procedural errors present in the applicant's case.  There were no procedural errors which standing alone prejudiced the applicant or adversely impacted the result nor was there an accumulation of errors which, in their entirety operated to his detriment or denied him the process he was due.  This includes not only counsel's allegations of error, but also those submitted by the applicant after the BOI closed.

18.  Counsel concludes with a recitation of the applicant's many accomplishments and argues that his stellar performance supports an upgrade of his discharge to fully honorable.  Counsel also reiterates the applicant's contention that he is the victim of a false allegation.  That the applicant's performance of duty both before and after 1LT AM's allegation appears to have been exemplary is not disputed.  However, for the reasons previously discussed regarding the sufficiency of the evidence of the applicant's misconduct, it is concluded that MG C’s, the BOI’s, and the ABRE’s being convinced by a preponderance of the evidence that the applicant had sex with 1LT AM, that he impregnated her, and that he subsequently lied about the incident in an attempt to escape its consequences were proper findings.  As a married man, as an officer, as a commander, the applicant's misconduct adversely impacted his marriage, the Army, and his unit.  His behavior runs counter to all that is expected of an Army officer.      
            
19.  The evidence of record does not support the assertions of the applicant and counsel that the initiation of the BOI was improper and unfair or that his case was not thoroughly and impartially considered by the BOI.  The applicant and counsel failed to provide sufficient 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.
20.  Notwithstanding the arguments presented, based on the applicant's record of indiscipline his overall service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

21.  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.  

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 that 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)                                         AR20130013760



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ABCMR Record of Proceedings (cont)                                         AR20130013760



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