IN THE CASE OF:  

		BOARD DATE: 3 December 2014

		DOCKET NUMBER:  AR20140000551 


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 correction of his record by removal of the documents showing he was disenrolled from the Senior Army Reserve Officers’ Training Corps (ROTC). 

2.  The applicant states he was unlawfully disenrolled from ROTC effective 
24 December 2010.  The procedural mandates of the governing regulations were not properly followed by the Professor of Military Science (PMS), the investigating officer (IO), or by the U.S. Army Cadet Command. 

3.  The applicant defers submission of supporting documents to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states, in effect, that the applicant was denied due process during the ROTC disenrollment process.

	a.  In May 2008, the applicant (then an ROTC Cadet) was recommended for disenrollment from the ROTC Program by the PMS for the University of Louisville ROTC Battalion.

	b.  The disenrollment action was not legally sufficient and should be removed from the applicant's record and declared void.  The matter was procedurally botched at both the ROTC Detachment and U.S. Army Cadet Command level.  Immediate action to correct these records is necessary to restore the rights of the applicant and he should be allowed to immediately apply for a commission under the provisions of Army Regulation (AR) 135-100 (Appointment of Commissioned and Warrant Officers of the Army).

	c.  The procedural mandates of the governing regulations, specifically Army Regulation (AR) 145-1 (Senior Reserve Officers' Training Program:  Organization, Administration, and Training), Cadet Command (CC) Pamphlet 145-4 (Army ROTC Scholarship Policy, Administration, and Procedural Instructions), and Department of Defense Directive (DoDD) 1215.8 (Senior Reserve Officers’ Training Corps (ROTC) Programs), were not followed by the PMS, the IO, or by Cadet Command.  

	d.  In the IO appointment memorandum the appointing authority presumed there existed evidence to support the applicant's disenrollment.  In essence, the appointing authority recommended specific findings in the very memorandum which was supposed to bring about the completion of a neutral and detached investigation.

	e.  The PMS should have recused himself from acting as the appointing authority because of his "past involvement with the Cadet."  (See CC Pamphlet 145-4, paragraph 6-4a.)  He clearly had prior dealings and known bias against the applicant.  He was actually a de facto potential witness in any disenrollment action.  The PMS should have recognized this and sought Brigade or Region Commander oversight/assistance at the outset.

	f.  The PMS appointed an internal officer who was biased in favor of the Detachment Commander.  Additionally, the PMS failed to appoint a field grade officer as the board president (See CC Pamphlet 145-4, paragraph 6-4d).  No alternate determination appears to have been made based on "military exigencies," as nothing is found in the file.

	g.  The PMS specifically ordered the IO to use "formal procedures."  Yet the IO apparently disregarded this directive and employed the most informal manner of procedures imaginable and he failed to apply the governing regulations' procedural safeguards.

	h.  The IO failed to provide a notification memorandum informing the applicant of the time, place, and exact purpose of the board of investigation as required by CC Pamphlet 145-04, paragraph 6-5a.

	i.  The IO failed to accommodate the applicant's timely request for delay to ensure the presence of his legal counsel, yet the IO noted in his report that the applicant had a military advisor, but he was on leave.  In sum, despite a timely request for a reasonable delay, the applicant was denied the right to have his military advisor present, and he was not afforded sufficient opportunity to consult with his advisor.

	j.  The IO (and the PMS) committed additional procedural errors by failing to ensure the applicant was provided "a copy of all documentary evidence."  Specifically, the applicant, before the disenrollment action, requested a complete copy of the AR 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation which specifically related to the allegation that he drank excessively on an occasion which allegedly led to his being accused of rape.  Aside from the fact that a 10 October 2007 counseling statement issued by the PMS clearly indicated the applicant was absolved of the rape allegation, the applicant's request for a copy of the 15-6 investigation pertaining to the alleged rape was denied by the PMS and despite the applicant's request to the IO for a copy of all evidence, it was never provided.  Stated differently, the applicant was denied a copy of evidence alleged to form a basis for disenrollment.

	k.  Then, there was the IO's overall ineptitude and apparent lack of concern or regard for the seriousness of the matter.  This is evidenced by the IO's email wherein he admitted that he could not locate the "email" notification he supposedly sent the applicant before their "initial interview."

	l.  The board was conducted without a university representative present, although CC Pamphlet 145-4, paragraph 6-5e, clearly requires that the disenrollment action must include the "invitation and acceptance/declination" to the university itself.

	m.  The IO called no witnesses for the board, which the applicant believed was simply a meeting with the IO.  The IO did not even call one witness to appear and testify under oath, and there were virtually no sworn statements or affidavits obtained from witnesses.

	n.  The IO completed the investigation and the applicant submitted a rebuttal.  There is no documented indication the rebuttal was ever received or considered by the PMS or Cadet Command.  In fact, the PMS' Disenrollment Recommendation to the 7th Brigade Commander is devoid of any mention of the applicant's timely submitted rebuttal, and the indications are that it was never considered.

	o.  After the action was sent to Cadet Command, the applicant called and spoke with the named point of contact (POC) and inquired about his opportunity to respond the disenrollment action after Cadet Command consideration.  The POC informed him that there was/is no appeal right; the matter was over.  Yet this statement by the Cadet Command's POC is in direct contravention to the 
PMS notification memorandum, where in it states in pertinent part, in paragraph 6, "If the Commander, U.S. Army Cadet Command disenrolls you, you will be given an opportunity to appeal."

	p.  ROTC Orders 049-1, dated 18 February 2010, reflect an effective date of discharge of 24 December 2010.  No amended orders were ever sent to the applicant, so from May 2008 to 24 December 2010 he was left in absolute "flux" regarding his ROTC issue.

	q.  The disenrollment action lacks a sufficient factual basis.  Cadet Command's disenrollment memorandum asserted that disenrollment was due to the applicant's "misconduct as demonstrated by disobeying directions by the Professor of Military Science not to contact a former Cadet and wearing a headset during a ruck march despite instructions not to do so."  Yet, there was insufficient evidence to support the allegations, and no "evidence" was apparently considered.  The IO called no witnesses for his "meeting" with the applicant and the applicant was not afforded an opportunity to cross examine witnesses, or otherwise confront his primary accuser.

	r.  Concerning the alleged lying about the use of a headset during a ruck march, most of the statements obtained were not sworn statements, several are merely copies of emails, and there was simply insufficient evidence as that term is defined in AR 15-6 and the Manual for Courts-Martial.  Several of the statements corroborate the fact the applicant was not present during the initial portion of the pre-road march briefing.  Of particular note is the fact that it was not an official ROTC event.  Rather, it was a wholly voluntary event conducted outside of academic requirements when class was not in session.

	s.  Concerning the no-contact order, the PMS' loose assertion that the applicant disobeyed a "no contact" order fails to note that, when that matter was addressed by him in a 5 December 2007 written counseling statement, only the applicant's future actions were cited as a potential basis for disenrollment.

2.  Counsel provides:

	a.  DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 20 June 2008.

	b.  U.S. Army ROTC Battalion, University of Louisville, memorandum, Subject:  Disenrollment of Scholarship/Nonscholarship Cadet B---- A----, dated 20 May 2008.  

	c.  Applicant's memorandum, Subject:  U.S. Army ROTC-Disenrollment, dated 5 June 2009.

	d.  Headquarters, U.S. Army Cadet Command, memorandum, Subject:  Disenrollment from the ROTC Program - Cadet B---- E. A----, dated 24 December 2009.

	e.  Headquarters, U.S. Army Cadet Command letter to applicant's counsel, dated 24 April 2012.

CONSIDERATION OF EVIDENCE:

1.  On 21 August 2006, the applicant entered into an Army Senior ROTC nonscholarship contract.  

2.  On 20 May 2008, he was notified by his PMS that action was being initiated to disenroll him from the ROTC program due to his misconduct as demonstrated by his dishonesty, disobeying a direct order, and poor judgment and excessive alcohol consumption leading to allegations of rape.  He was also advised of his rights in regard to legal counsel and his right to submit a statement in his own behalf.  The applicant elected to request a personal appearance at a hearing and indicated that he declined a call to active duty. 

3.  In a 2 June 2008 memorandum, the University of Louisville, ROTC Battalion, PMS appointed an IO pursuant to AR 15-6, AR 145-1, and CC Pamphlet 145-4 to hear evidence and determine if the applicant should be disenrolled for misconduct and whether he should be ordered to active duty in his Reserve enlisted grade. 

4.   In a DA Form 2823 (Sworn Statement), dated 18 June 2008, the IO states that:

	a.  He met with the applicant on 18 June 2008, as arranged the week earlier,  concerning the disenrollment from ROTC.  He informed the applicant that he had been appointed as the IO by the PMS.  The applicant was accompanied by Mr. John S----, a professor to the applicant who was providing legal advice concerning the disenrollment.

	b.  During the course of the interview they discussed each incident that the PMS was using as grounds to disenroll him from the ROTC program.  

		(1)  The first incident involved the alcohol-related allegation of rape made by a former cadet, Ms. L-----.  Although the incident was officially determined to be an unfounded allegation, it did have a direct affect on the ROTC program and staff.  The applicant admitted he used poor judgment on the night in question.  

		(2)  The second incident stems from the first in that the PMS had given, in writing, the applicant a "No Contact" order for the former cadet.  The applicant admitted breaking this order and contacting Ms. L-------.  

		(3)  The third incident involved the applicant wearing headphones while conducting an official road march that was for the German Efficiency Badge.  The applicant admitted wearing an earpiece for use with his cell phone while conducting the road march.  The applicant did not associate the cell phone ear piece to be same as headphones for an MP3 player.

	c.  At the end of the interview, the IO asked the applicant that, if he was the IO in this case, what he would recommend to the PMS.  The applicant indicated he would recommend he be allowed to prove himself by participating in the ROTC program for the fall semester and reevaluating him after that.

5.  A DA Form 1574, completed 18 June 2008, shows:

	a.  The applicant entered in to a valid Army Senior ROTC contract,  

	b.  Due to misconduct the applicant failed to complete the requirements of the ROTC contract and he no longer remained eligible for enrollment in the required training.

	c.  The IO found:

		(1)  The applicant exhibited the following behavior that constitutes misconduct:  dishonesty, disobeying a direct order, conduct unbecoming an officer and a gentleman, excessive consumption of alcoholic beverages that impaired his judgment and led to allegations of rape against him; and

		(2)  The behavior described above does qualify as misconduct under Title 10, U.S. Code, section 2005(a)(3) (Advanced education assistance: active duty agreement; reimbursement requirements).

	d.  The IO recommended the applicant:

		(1)  Should not be retained in ROTC as a nonscholarship cadet.

		(2)  Should be disenrolled from ROTC IAW AR 145-1, paragraph 3-43(a)(12).
		(3)  Should be released from ROTC contractual obligations.

		(4)  Should be ordered to continue his service at his reserve enlisted grade.

6.  In a 20 May 2008 memorandum the PMS notified the applicant that disenrollment proceedings were being initiated.  The applicant was advised of his right to request a hearing, and to provide a written statement on his own behalf.  The applicant acknowledged receipt and requested a hearing.  

7.  On 24 July 2008, the applicant requested reconsideration of the disenrollment decision.  In his request he states, "Over the past four years I have dedicated 
myself to commissioning into the United States Army, I have changed my degree to follow the commissioning timeline, as well as dedicating unprecedented amounts of time assisting the ROTC department in completing its numerous missions.  I have taken time out of my own day to assist other cadets who may have been having issues with either school, ROTC, or their personal life.  I do not feel that I am owed a commission, but more like I owe my country, by being allowed to serve as an officer.  I know that I am capable, mature, and responsible enough to handle the commitment associated with a commission, and I feel it is time for me to take the next step.  Through the past months I have made some mistakes.  I admit that, and I am willing [to] take responsibility for those actions.  I understand your concern, as far as my values being questionable.  Even before joining the military I would not lie, steal, or cheat; and to this day I will not tolerate those who do.  My integrity is intact and will remain that way.  I ask that you reconsider my disenrollment, and afford me the opportunity to show you what I am truly capable of by allowing me to serve my country in the manner for which I have been trained."   

8.  In a 5 June 2009 memorandum the applicant provided a rebuttal to the disenrollment proceedings.  In his rebuttal he:

	a.  Acknowledged he used poor judgment on the night of 15 September 2007.  He took full responsibility for his actions and was regretful.  He further stated there was never any criminal intent regarding any of the allegations made against him.  He never intended to hurt, disobey, or lie to anyone.  

	b.  Stated that the allegation of rape was determined to be unfounded by proper authority, and he believes it to be unfair to refer specifically to that allegation in any way.  It should not be used as a basis for his disenrollment (i.e., "…exercised poor judgment by allowing himself to get involved in an alleged rape.")  

	c.  The copy of the disenrollment proceedings he was provided is missing a page from one of the statements.  He understands that the person who made the statement has been asked to prepare a new statement.  The applicant reserved the right to receive a copy of any subsequent statement submitted by that person.

	d.  For the past several years he has been employed by the U.S. Army Corps of Engineers where he is a Safety and Occupational Health Specialist.  He spent 6 months working for the Bureau of Alcohol, Tobacco, Firearms, and Explosives as a student intern.  He performed the duties of an Investigative Assistant to the Special Agents.  

	e.  He is a member of High View Church and tries to regularly participate in mission trips.  He is a graduate of the University of Louisville Justice Administration Department (Criminal Justice) and is working on a Master's of Science on Computer Science through DePaul University.

	f.  He feels his past performance and service far outweighs any negative aspects presented and reviewed.  His life and career encompass more than just the issues subject to his disenrollment.  He has submitted character letters to demonstrate this.

	g.  He wishes to have all documents related to the disenrollment destroyed and that he be placed in the Cadet Command Control Group Individual Ready Reserve in order to finish his time in the Kentucky Army National Guard as a Cadet until his separation in October 2011.

9.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the Kentucky Army National Guard effective 24 October 2011 due to expiration of active status commitment in the Selected Reserve.

10.  AR 145-1 (Senior Reserve Officers’ Training Corps Program Organization, Administration and Training) provides, in part, that a nonscholarship cadet may be disenrolled by the PMS.  Scholarship cadets may only be disenrolled by the Commanding General, U.S. Army Cadet Command.  Disenrollment authority does not include the discharge authority for SMP participants.  Non-scholarship and scholarship cadets may be disenrolled for misconduct demonstrated by disorderly or disrespectful conduct in the ROTC classroom or during training and indifferent attitude or lack of interest in military training as evidence by frequent absences.



DISCUSSION AND CONCLUSIONS:

1.  Applicant's counsel did not provide sufficient evidence to substantiate his assertion that the investigation leading the applicant's disenrollment from ROTC was not legally sufficient and that the applicant was denied due process.  For example, counsel asserts that:

	a.  The IO appointment memorandum presumed there existed evidence to support the applicant's disenrollment.  In essence, the appointing authority recommended specific findings in the very memorandum which was supposed to bring about the completion of a neutral and detached investigation.  –  In the memorandum the IO was appointed to determine whether the applicant exhibited behavior that "constitutes misconduct."  There is no evidence showing that "the appointing authority presumed there existed evidence to support the applicant's disenrollment."  The appointing authority simply provided the IO the areas to investigate.  There is also no evidence to show that an IO should be appointed to conduct an investigation without any guidance as to what information is sought.

	b.  The PMS should have recused himself from acting as the appointing authority because of his "past involvement with the Cadet."  (See CC Pamphlet 145-4, paragraph 6-4a.)  He was actually a de facto potential witness in any disenrollment action.  Paragraph 6-41 states, in part, "The Battalion Commander/PMS is normally the appointing authority, unless the Battalion Commander/PMS may be called as a witness or is impartial due to past involvement with the Cadet."  While the PMS did have past involvement with the applicant, he apparently did not feel the involvement affected his partiality in the matter, and the applicant provides no evidence to show otherwise.

	c.  The PMS appointed an internal officer who was biased in favor of the detachment commander.  Additionally, the PMS failed to appoint a field grade officer as the board president (See CC Pamphlet 145-4, paragraph 6-4d).  No alternate determination appears to have been made based on "military exigencies," as nothing is found in the file.  –  Paragraph 6-4d states, "Board president.  The board president shall be a field grade officer unless the appointing authority determines that this is not practical due to military exigencies."  In this case a board of officers was not appointed, only an IO was appointed.  The governing publication does not require the IO be a field grade officer.  There is no evidence showing the IO was biased in favor of the detachment commander.

	d.  The PMS specifically ordered the IO to use "formal procedures."  Yet the IO apparently disregarded this directive and employed the most informal manner of procedures imaginable and he failed to apply the governing regulations' procedural safeguards.  –  The DA Form 1574 serves as the record of proceedings.  

	e.  The IO failed to provide a notification memorandum informing the applicant of the time, place, and exact purpose of the board of investigation as required by CC Pamphlet 145-04, paragraph 6-5a.  –  Again, there was no board.  Furthermore, the record clearly shows the applicant knew the time and purpose of the meeting.  While there is no record available of the notification memorandum informing the applicant of the time, place and exact purpose of the meeting, in the 16 June 2008 DA Form 2823, the IO states,  "At approximately 1300 hours today, I met with CDT (A____) about his disenrollment in the ROTC Dept.  This was a schedule(d) interview with him that we had set up last week."

	f.  The IO (and the PMS) committed additional procedural errors by failing to ensure the applicant was provided "a copy of all documentary evidence."  Aside from the fact that a 10 October 2007 counseling statement issued by the PMS clearly indicated the applicant was absolved of the rape allegation, the applicant's request for a copy of the 15-6 investigation pertaining to the alleged rape was denied by the PMS.  Stated differently, the applicant was denied a copy of evidence alleged to form a basis for disenrollment.  –  There is no evidence to support this assertion.  In fact, the applicant's counsel provided a copy of the AR 15-6 investigation, which presumably came from the applicant.  Even if he was provided the AR 15-6 after the fact, he provides insufficient evidence now to show he was not fully informed of the documentary evidence.

2.  The available evidence shows the applicant did have representation from the University when he was interviewed by the IO.  He admitted to using poor judgment the night of the alcohol-related incident that resulted in an allegation, later unfounded, of rape.  He also admitted to receiving a "No Contact" order for the former cadet from his PMS and disobeying that order.  Additionally, the applicant admitted wearing an earpiece for use with his cell phone while conducting the road march.  

3.  It is also apparent that based on the evidence provided in this case that the applicant was aware of the reasons for his disenrollment.

4.  Notwithstanding any alleged administrative errors, it is noted that the PMS had the authority to disenroll the applicant because he was a non-scholarship 



cadet; however, the case was forwarded to the U.S. Army Cadet Command for review and approval and, after the applicant rebutted, the U.S. Army Cadet Command directed his disenrollment.

5.  There is insufficient evidence to show that the applicant was not afforded due process or that he was unjustly disenrolled from the ROTC program.

6.  Accordingly, there appears to be no basis to grant his request.

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)                                         AR20130011586



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ABCMR Record of Proceedings (cont)                                         AR20140000551



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