IN THE CASE OF:	   

		BOARD DATE:	  8 October 2014

		DOCKET NUMBER:  AR20140002707 


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, in effect, that his discharge be voided and that he be restored to active duty as if he was never discharged.  As an alternative in the event his request is denied, he requests his general discharge be upgraded to a fully honorable discharge.  Lastly, he requests the removal of his last three Officer Evaluation Reports (OERs), his Board of Inquiry (BOI) results, and his Memorandum of Reprimand (MOR) from his official records.

2.  The applicant states, in effect, that he never harassed anyone, that the Commander’s Inquiry (CI) was an abuse of discretion that did not prove he harassed anyone, that the constant delays and resubmissions of his discharge packet, without his being able to rebut the allegations due to all of the evidence not being provided, was a violation of his due process rights and denied him an opportunity to successfully appeal the actions taken against him. 

3.  The applicant provides a 20-page brief explaining his application and a table of contents of documents submitted with his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a U.S. Army Reserve officer serving in the rank of major (MAJ) and attending the Psychological Operations Officer Qualification Course (POQC) at Fort Bragg, North Carolina, when an officer was appointed to conduct a CI into allegations he had harassed female officers in his class, in which he was the class leader. 

3.  On 30 January 2004, his commander submitted a request to the commander, 3rd Battalion, 1st Special Forces Warfare Training Group, wherein he requested to relieve the applicant from the POQC for misconduct.  The request was approved on the same date. 

4.  On 1 February 2004, the investigating officer (IO) determined that there was sufficient evidence to show his conduct was inappropriate and opined that administrative action against the applicant was warranted.  

5.  On 3 February 2004, the commander of the 3rd Battalion, 1st Special Forces Warfare Training Group issued him an MOR for inappropriate and unprofessional behavior.

6.  He appealed the MOR and apologized for his conduct.  The record is silent as to the commander’s response.

7.  Although the actual dismissal is not present in the available records, on          5 February 2004, the applicant submitted a seven-page appeal to his dismissal from the POQC.

8.  On 1 April 2004, his USAR battalion commander issued him an MOR.  He appealed the MOR and on 9 June 2004, the commanding general of the Civil Affairs and Psychological Operations Command (a major general) directed that the MOR be filed in his official records. 

9.  On 13 July 2004, he was notified that he was required to appear before a show-cause board for retention.

10.  On 6 November 2004, he appeared before a show-cause board with counsel at Fort Lewis, Washington.  The board found that he did sexually harass two female officers and that he did submit a false official statement on his application for appointment in the USAR.  The board recommended he be discharged under other than honorable conditions.

11.  For reasons not adequately explained in the available records, the results of his board proceedings were not forwarded to the U.S. Army Human Resources Command (HRC) until 29 November 2005.

12.  On 2 February 2007, he was transferred to the USAR Control Group (Reinforcement).  On 8 February 2007, orders were published ordering him to active duty on 3 March 2007 in support of Operation Enduring Freedom.

13.  On 11 October 2007, HRC approved the findings and recommendations of the show-cause board and directed that he discharged under other than honorable conditions.

14.  On 12 November 2007, he was discharged under the provisions of Army Regulation 135-175, with an under other than honorable conditions characterization of service.

15.  The three OERs contested by the applicant cover the periods 20030831 – 20040312, 20040313 – 20041106, and 20061112 – 20071111.  The first and last OERs were referred reports; however, there is no evidence in the available records showing that he ever appealed the reports to the Department of the Army Suitability Evaluation Board (DASEB) or the Officer Special Review Board (OSRB).

16.  On 24 August 2009, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and was granted a personal appearance before that board with counsel on 5 April 2010.

17.  After reviewing the evidence and hearing testimony, the ADRB determined that his discharge was too harsh and was inequitable given the circumstances in his case.  The ADRB voted in a 3/2 vote to upgrade his discharge to a general discharge.  

18.  Army Regulation 135-175 sets forth the basic authority for the separation of USAR officers.  Chapters 2 and 3 of this regulation provides the basis for involuntary separation of USAR officers for substandard performance of duty, moral or professional dereliction, in the interest of National Security, as a result of trial by court-martial, pattern of misconduct, commission of a serious offense, abuse of illegal drugs, homosexual conduct, conviction by civil authorities, desertion and absence without proper authority.  While a discharge under other than honorable conditions is normally considered appropriate, a general or honorable discharge may be granted.

DISCUSSION AND CONCLUSIONS:

1.  His contentions and supporting documents have been carefully considered and appear to lack merit.

2.  Notwithstanding the actions of the ADRB to upgrade his discharge, it appears his administrative discharge was correct and in conformance with applicable regulations with no indication of any violations of his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.  

3.  While the delay in processing his administrative separation is not fully explained in the available records, it appears they were administrative in nature and served to ensure that his rights were not violated.

4.  Given the available facts in this case, he has not provided sufficient evidence to overcome the evidence used in his administrative separation.

5.  Additionally, he has provided no evidence to show that the three contested OERs do not represent the rating officials considered opinion of his potential and performance during the periods in question.  He has also not shown that the reports were prepared by individuals who were not designated as his rating officials.

6.  Therefore, in the absence of evidence to show that he was denied due process, 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)                                         AR20140002707





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ABCMR Record of Proceedings (cont)                                         AR20140002707



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