BOARD DATE:	 6 October 2015 

		DOCKET NUMBER:  AR20140020917 


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 reconsideration of his previous request that his elimination from the Signal Basic Officer Leadership Course (SBOLC) and his discharge from the United States Army Reserve (USAR) be set aside and that he be restored back into the USAR as a signal officer with credit for completion of the SBOLC. 

2.  The applicant states that the evidence does not support elimination from the SBOLC.  The Army Regulation (AR) 15-6 report also indicates that the evidence does not support his elimination and the punishment he received (elimination from the SBOLC) was too harsh.  Additionally, he was denied the service of a trial defense attorney (TDS) and instead was provided a new legal assistance attorney who did not represent him effectively.

3.  The applicant provides a brief from his attorney, an affidavit, a copy of the 
AR 15-6 investigation, an excerpt from AR 27-10 (Military Justice) and his initial appeal brief to the Board. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted reconsideration of his initial appeal and that he be reinstated to the USAR as a signal officer with credit for completion of the SBOLC.

2.  Counsel states in a seven-page brief, in effect, that the applicant was notified on graduation day (14 March 2011) that he would not be graduating with his class and would not be participating in the graduation ceremony.  On 21 March 2011, he was denied the opportunity to submit his appeal of the removal action within 7 days and was instead told he would have to wait until the battalion commander had made a decision.  He goes on to state that the applicant was denied the assistance of a TDS attorney and instead was provided a junior attorney from the legal assistance office who failed to provide zealous defense representation leaving the applicant to fend for himself.  He also states that the AR15-6 investigating officer erred in his conduct of the investigation because he did not recognize the fact that he did not receive effective legal representation, that he was denied the right to submit his appeal within 7 duty days, and that there was insufficient basis to warrant the applicant’s dismissal from the course.

3.  Counsel provides a seven-page brief explaining his position.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120012647, on 26 February 2013.

2.  The applicant was commissioned as a U.S. Army Reserve (USAR) second lieutenant (2LT) on 15 August 2009 and was issued his 20-Year letter on the same date.  He was ordered to active duty training on 31 October 2010 to attend the SBOLC at Fort Gordon, Georgia.

3.  On the day of graduation, 14 March 2011, approximately 2 hours before graduation, the applicant was called into his commanding officer's office and presented with a "Proposed Elimination from Training" memorandum.  The applicant was being considered for elimination based on "disciplinary reasons IAW [in accordance with] AR 350-1, paragraph 3-14b(1)."  Further, the notification stated the action was based on "your continued pattern of misconduct throughout the course culminating with you physically striking another student with the butt-end of your rifle during the Capstone FTX."  He was not permitted to participate in graduation events with his class and was given 7 days to appeal.

4.  On 29 March 2011, the applicant appealed the proposed elimination.  The Chief, Administrative and Civil Law issued a memorandum, dated 4 May 2011, in which he stated that he had no legal objection to the continued processing of the proposed dismissal action.



5.  On 4 May 2011, the applicant signed a memorandum acknowledging that he had been granted the necessary time to prepare his appeals to the chain of command.

6.  A DA Form 1059 (Academic Evaluation Report) shows he failed to graduate from the SBOLC for not meeting leadership and professional standards.  He signed the DA Form 1059 on 21 June 2011. 

7.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty training effective 24 June 2011, as a 2LT.  He had completed 7 months and 24 days of active duty for the period; 6 years, 10 months, and 10 days of prior active service; and 16 years, 7 months, and 21 days of prior inactive service.  He was subsequently discharged from the USAR.

8.  The available records show that an investigating officer (IO) was subsequently appointed under the provisions of AR 15-6 (Procedures for Investigating Officers and Boards of Officers) to conduct an investigation into the facts and circumstances surrounding the applicant's dismissal from the SBOLC.  The IO (a lieutenant colonel) determined the circumstances surrounding the applicant's dismissal were warranted.  The specific misconduct was plagiarism and striking a fellow student with the butt of his weapon.  The IO recommended the decision to dismiss the applicant from SBOLC be upheld.  The IO also opined that the applicant had received adequate legal services and had made no complaints during the process.  A legal review by an administrative law attorney dated 23 October 2012 opined that the investigation complied with the requirements of the appointment order, that there was sufficient evidence to support the findings, that the recommendation was consistent with the findings and that the report did not include errors that would have a material or adverse effect on the applicant’s rights.

9.  Additionally, a legal review conducted by the Chief, Administrative and Civil Law Division of the Fort Gordon Staff Judge Advocate’s office opined that the applicant had been accorded the due process to which he was entitled.  

10.  AR 350-1 (Army Training and Leader Development), paragraph 3-14b (1), a student may be dismissed from courses when personal conduct is such that continuance in the course is not appropriate (for example, if a student violates regulations, policies, or established discipline standards).  No formal adjudication of guilt by a military or civilian court or by a commander under Article 15 of the Uniform Code of Military Justice (UCMJ) is necessary to support dismissal under this paragraph.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through counsel, that his removal from the SBOLC should be declared void, thereby allowing him to be a signal officer and reinstatement as an officer in the USAR.  Counsel essentially contends that there were processing and procedural errors in the applicant's dismissal from the course resulting in the applicant not receiving due process.  These are essentially the same arguments reviewed by the previous Board.

2.  While the applicant and counsel have continued with the same arguments, the available evidence shows the applicant was dismissed from the SBOLC for not meeting leadership and professional standards.  A legal review by the Chief, Administrative and Civil Law Division of the Fort Gordon Staff Judge Advocate’s Office supports the fact that he did receive adequate due process during his elimination proceedings from the SBOLC.  A subsequent investigation conducted under the provisions of Army Regulation 15-6 by the applicant’s USAR command upheld the dismissal and it appears that all requirements of law and regulation were met and his rights were fully protected throughout the dismissal process.  
 
3.  The applicant’s contentions and supporting documents have been again carefully considered and they are insufficient as a basis for changing the previous recommendation of the Board.  Therefore, it appears that there was sufficient evidence for his dismissal and there appears to be no reason to void his dismissal from the SBOLC or his discharge from the USAR.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20120012647, dated 26 February 2013.



      _______ 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)                                         AR20140020917



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ABCMR Record of Proceedings (cont)                                         AR20140020917



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