MEMORANDUM OF CONSIDERATION by WhurS7

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									                        MEMORANDUM OF CONSIDERATION


       IN THE CASE OF:



       BOARD DATE:               19 April 2000
       DOCKET NUMBER:          AR1999033488

       I certify that hereinafter is recorded the record of consideration of the Army Board
for Correction of Military Records in the case of the above-named individual.

       Mrs. Nancy Amos                     Analyst


  The following members, a quorum, were present:

       Mr. James P. Huber                                   Chairperson
       Mr. Elzey J. Arledge, Jr.                            Member
       Mr. Van B. Cunningham                                Member

        The Board, established pursuant to authority contained in 10 U.S.C. 1552,
convened at the call of the Chairperson on the above date. In accordance with Army
Regulation 15-185, the application and the available military records pertinent to the
corrective action requested were reviewed to determine whether to authorize a formal
hearing, recommend that the records be corrected without a formal hearing, or to deny
the application without a formal hearing if it is determined that insufficient relevant
evidence has been presented to demonstrate the existence of probable material error
or injustice.

       The applicant requests correction of military records as stated in the application
to the Board and as restated herein.

       The Board considered the following evidence:

       Exhibit A - Application for correction of military
                records
       Exhibit B - Military Personnel Records (including
                    advisory opinion, if any)
ABCMR                                    Memorandum                                     of
AR1999033488
Consideration (cont)

APPLICANT REQUESTS: Reappointment in the active duty in the grade of first
lieutenant, O-2; retroactive pay and allowances; orders to attend the schools and
training he would have attended had he been in service ; award of the Expert
Infantryman Badge; expungement of the Army Regulation (AR) 15-6 investigation;
expungement of his Officer Evaluation Reports (OERs) for the periods 14 October 1995
through 13 October 1996 and 14 October 1996 through 9 May 1997; and payment of
attorney’s fees and costs. As alternative, he requests reappointment in the Individual
Ready Reserve as an E-5. As a further alternative, he requests that his discharge be
upgraded to honorable.

APPLICANT STATES: That the record discloses unfair treatment by superiors and
reliance on unreliable statements of his former girlfriend. It also shows perjury by
officers in statements against him. It was suggested it might be a good idea if he
obtained permissive jump orders but it was also stated that his participation in the jump
would not be hindered if he was unable to obtain those orders. He inquired of his
commander what would need to be done to obtain orders and was told it would take
about a week. A non-commissioned officer (NCO) at the 1st Special Forces Group
(SFG) told him the particular regulation could not be located. Since his commander did
not inquire about his obtaining orders, he assumed that his commander’s signature on
his DA Form 31, Leave and Pass Request Form, clearly represented approval from his
chain of command. Supporting evidence is as listed on counsel’s statement.

COUNSEL CONTENDS: That the applicant’s discharge was unfair and unjust. It was
not fair to place his 12 years of total service at risk without a board proceeding.
Prejudicial allegations of harassment, vandalism and making a false statement were
never proven to be linked to the applicant. He should have been named a respondent
in accordance with AR 15-6. The investigating officer (IO) failed to read him his rights.
The investigation was legally insufficient. Conduct of two separate investigations
violated his rights. The 19th SFG IO lacked impartiality and his entire investigation
should have been thrown out as biased. The 1st Battalion, 24th Infantry (1/24th Infantry)
IO incorporated the whole 19th SFG investigation and failed to investigate whether
Captain A___ had given him permission on DA Form 31 to jump with his former unit,
thus showing that the IO was not fair and impartial. The Report of Investigation, DA
Form 1574, section IV, block e was not redacted to drop the Article 107, false official
statement and so was highly prejudicial. The copy of the investigation provided to him
was not highlighted, as the original was, and so it was different and not a copy. The IO
failed to make detailed findings as required. The 19th SFG IO recommended a letter of
reprimand and the 1/24th Infantry IO recommended a general discharge. These
recommendations are radically different and disproportionate. The 1/24 th Infantry IO
failed to determine if sufficient evidence existed to substantiate the alleged Article 107
violation. The DA Form 1574 states that he violated Article 107 when he stated he had
permission from his chain of command to jump. He did have permission from his
commander, who had signed the DA Form 31. This negates the allegation that he
made a false statement. The 1/24th Infantry IO was appointed by his (the IO’s) rater.
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ABCMR                                    Memorandum                                      of
AR1999033488
Consideration (cont)

This was a conflict of interest that rendered him unqualified to conduct the investigation.
  The separation authority considered unlawful information. Statements concerning the
alleged vandalism were obtained as a result of the illegal release of his official photo.
Suit has been brought against the Department of the Army for this violation of the
Privacy Act. The OERs presented contained untrue information. The “harassment
packet” should not have been considered. An investigation was not done on the
alleged vandalism charges. The police report states that there was “no suspect and no
evidence.” Although the “harassment packet” was not mentioned in the DA Form 1574,
it was a factor in the recommendation for general discharge.

EVIDENCE OF RECORD: The applicant's military records for his enlisted service
show:

He enlisted in the U. S. Army Reserve (USAR) on 9 March 1985. He completed basic
training and advanced individual training and was awarded military occupational
specialty 31C (Single Channel Radio Operator). He completed airborne training and
was awarded special qualification identifier “P,” parachute qualified.

In 1990, the applicant was assigned to the 12th SFG (USAR). On 1 September 1994,
he was assigned to Headquarters and Headquarters Company, U. S. Army CAPOC
(Civil Affairs and Psychological Operations Command), Fort Bragg, NC. On 28 October
1994, the applicant was released from the USAR and enlisted in the Utah Army National
Guard. He was assigned to the 19th SFG (Airborne), Salt Lake City, UT. He was
honorably discharged from the Army National Guard in May 1995.

Except for a partial fiche, the applicant’s records from his commissioned service are not
available. The information below was obtained from documents provided by the
applicant or from the fiche.

The applicant was a member of the Reserve Officer Training Corps (ROTC) at Arizona
State University where he met and dated D___ M____, an Air Force ROTC cadet. He
entered active duty as a second lieutenant on 25 June 1995 as a Signal Corps officer
branch-detailed to Infantry.

By 15 October 1995, the applicant had apparently broken up with D___ M___. On that
date, he wrote a 6-page, single-spaced typewritten letter to the Cadet Commander
excoriating D___ M___’s conduct as it affected their personal relationship and how such
conduct indicated she did not possess the character ethic needed to be an effective
officer.

In January 1996, the applicant was assigned to the 1/24th Infantry, Fort Lewis, WA.
While there, he requested permission to jump with his former reserve unit. He
apparently prepared a DA Form 31 (for a pass, not a leave) and in block 17 added
“Purpose: Traveling to Arizona to participate in an airborne operation with 19 th SFG,
                                           3
ABCMR                                    Memorandum                                        of
AR1999033488
Consideration (cont)

my old reserve unit.” His commander apparently signed the DA Form 31. The DA
Form 31 is not available. Apparently the applicant left his copy in his desk drawer and
it was not there when he returned from his trip.

After the applicant completed the jump, the 19th SFG questioned his authority to
participate in the exercise and investigated the incident. On or about
26 February 1996, the IO apparently contacted the applicant telephonically and
apparently failed to read the applicant his rights at that time and also may have misled
him as to the reason for his questions.

On 28 February 1996, the applicant wrote a letter to the IO. In it, he states “I had
contacted both SFC ___ and SFC ___ concerning the possibility of my participating in
the jump. My request to jump was neither accepted nor denied by SFC ___ or SFC
___. Prior to the jump, I had attempted to locate a copy of the Regulation outlining the
procedures for obtaining permissive jump status, but was unable to locate a copy.”

On 11 March 1996, the applicant wrote a letter to the Deputy Group Commander, (19 th
SFG). In it, he states “I had contacted both SFC ___ and SFC ___ about the jump. I
was asked to inquire about obtaining permissive jump orders. I was unable to find a
copy of the regulation outlining the procedure for obtaining such orders. SFC ___ and
SFC ___ both said that such orders would cover any bases should anyone inquire
about my being present at the jump…I was aware that such orders were recommended,
but I was never told that having permissive orders was mandatory for my participation in
the operation. SFC ___ and SFC ___ had suggested that I look into having permissive
orders cut, but I was never told that these orders were a requirement for my
participation in the airborne operation…”

On 20 March 1996, the 19th SFG sent a memorandum to the Commander,
Headquarters I Corps acknowledging that while some procedural oversights involved in
the applicant’s unauthorized participation in airborne operations were the responsibility
of that headquarters, the individual actions of the applicant may require further
investigation by his chain of command.

On 20 March 1996, the Commander, Air Force ROTC Detachment 25 informed the
applicant’s commander of the 15 October 1995 letter the applicant wrote and also of two
occasions of harassment against D___ M___, during one of which witnesses identified
the applicant as being the rock thrower. A letter from D___ M___ was included along
with the police report.

On 25 April 1996, when the IO from the 1/24th Infantry conducted his investigation into
the applicant’s unauthorized participation in airborne operations, the applicant was read
his rights and he elected not to give up those rights.


                                            4
ABCMR                                     Memorandum                                         of
AR1999033488
Consideration (cont)

The applicant’s commander provided a sworn statement for the IO. He stated he told
the applicant that the I Corps G-3 (Plans and Operations) had to approve requests for
permissive jump orders and he probably did not have enough time to get them
approved prior to his departure on pass, but, if he still wanted to “hang out” with his
buddies it was OK with him and he approved the pass.

The 1/24th Infantry IO completed his investigation on 2 May 1996. He found that the
applicant violated Article 92, Failure to Obey Order or Regulation. Specifically, he was
derelict in the performance of his duties in that he did possess the knowledge of his duty
to acquire permissive jump orders but that he jumped without those orders. The IO
also found him in violation of Article 107, False Official Statement. Specifically, he told
the 19th SFG IO that he had the approval of his chain of command to make the jump
when what transpired in his conversation with his commander prior to and after the jump
did not address him seeking approval or obtaining approval. The IO recommended the
applicant receive a general discharge.

As a result of the investigation, separation action was started. Before the matter was
referred to the applicant, a “harassment packet” was added to the packet. The packet
was comprised of the above-mentioned 15 October 1995 letter and a complaint from
D___ M___ that the applicant vandalized her car and threw rocks through her window.
An investigation into the alleged vandalism was apparently not conducted by the IO.

On 12 July 1996, the applicant’s chain of command recommended elimination action be
initiated against the applicant for misconduct.

The legal review of the elimination packet found the packet legally sufficient to support
initiation of elimination action. The review did note that the 19 th SFG IO’s questioning
of the applicant was in violation of Article 31(b) of the Uniform Code of Military Justice
and may have rendered his statements inadmissible in the elimination action.
However, there was sufficient independent evidence to support initiation of elimination
action.

On 9 October 1996, elimination action was initiated by the Commander, I Corps and the
applicant was required to show cause for retention on active duty because of
misconduct. The action was based on the applicant’s dereliction of duty in jumping
without permissive jump orders and his vandalism of D___ M ___’s property. It was
recommended he be discharged with a general discharge.

On 9 October 1996, the applicant acknowledged receipt of the memorandum
recommending his involuntary separation and elected not to make a statement or
submit a rebuttal.

The applicant received an annual OER for the period 14 October 1995 through 13
October 1996. The OER contains a “3” in part IVa8, Professional Competence,
                                          5
ABCMR                                    Memorandum                                        of
AR1999033488
Consideration (cont)

displays sound judgement (“1” to the highest degree and “5” to the lowest). Part IVb
contained the comment “Displays judgement unbecoming an officer.” Part Vc
contained the comment “___is currently being separated from the Army for conduct
unbecoming an officer both on and off duty.” There is no evidence that it was referred
to the applicant. There is no evidence to show he appealed it although on 6 December
1996 he did address a 7-page memorandum to the “Commander, Officer Evaluation
Report Section” concerning it.

The commanding general’s recommendation is not available.

On 6 December 1996, the applicant addressed a rebuttal to the elimination action
through his chain of command to Headquarters, Department of the Army (HQDA), U. S.
Army Total Personnel Command (PERSCOM). He stated the investigation was flawed
and legally insufficient, that the DA Form 1574 was not redacted to drop the Article 107
false official statement charge, and that he did not vandalize D___ M___’s car.

The applicant’s OER for the period 15 October 1996 through 9 May 1997 contains all
“1s” in part IVa and all favorable comments except where the rater noted he had been
approved for separation (part Ve) and the senior rater stated “Do not promote or retain
for future service (part VIIb).

On 31 December 1996, the Deputy Assistant Secretary (DA Review Boards and Equal
Employment Opportunity Compliance and Complaints Review) approved the elimination
action and directed the applicant’s discharge with a general under honorable conditions
discharge.

On 24 January 1997, the applicant requested the “conditional waiver” regarding his
pending separation be revoked and requested that a Board of Review be convened.
On 6 May 1997, he forwarded a request to PERSCOM requesting his separation orders
be revoked in order to allow a board to be convened to review his involuntary separation
action.

On 9 May 1997, the applicant was discharged, with a general under honorable
conditions discharge, under the provisions of AR 600-8-24, paragraph 4-2B for
unacceptable conduct. He had completed 1 year, 10 months and 15 days of active
service for that period and a total of 11 years and 11 months of active and inactive
service.
On an unknown date, the applicant filed suit in U. S. District Court against the Army for
wrongful release of his official photograph.

AR 15-6 establishes procedures for investigations or boards of officers not specifically
authorized by other regulations. Paragraph 1-4Aa states that an administrative
fact-finding procedure under this regulation may be designated an investigation or a
board of officers. Procedures that involve a single IO using informal procedures are
                                             6
ABCMR                                    Memorandum                                      of
AR1999033488
Consideration (cont)

designated investigations. Procedures that involve more than one IO using formal or
informal procedures or a single IO using formal procedures are designated a board of
officers. Paragraph 1-4Bb(2) states that regardless of the purpose of the investigation,
even if it is to inquire into the conduct or performance of a particular individual, formal
procedures are not mandatory unless required by other applicable regulations or
directed by higher authority. Paragraph 1-4Bb(3) states that unless formal procedures
are expressly required, either by directive authorizing the board or by the memorandum
of appointment, all cases to which this regulation applies will use informal procedures.
Paragraph 1-7 states that in formal investigations, the appointing authority may
designate one or more persons as respondents in the investigation. Respondents may
not be designated in informal investigations. Paragraph 2.1Aa(5) states that when
more than one appointing authority has an interest in the matter requiring investigation,
a single investigation or board should be conducted whenever practicable. Paragraph
2.1Aa(2)(b) states that a commander at any level may appoint an informal investigation
or board. Paragraph 2.1Aa(6) states that appointing authorities may request, through
channels, that persons from outside their organizations conduct investigations under
their jurisdiction. Paragraph 2.1.Aa(3) states that an IO will be senior to any person
whose conduct or performance of duty may be investigated except when the appointing
authority determines it is impracticable because of military exigencies.

U. S. Army Special Operations Command (USASOC) Regulation 350-2, chapter 25
outlines the command policy and procedures for requests to conduct permissive static
line or permissive military free fall parachute jumping. It states that Army policy states
that individual permissive static line parachute jumping may be authorized at the
discretion of the major command (MACOM) commander with authority delegated to the
commander exercising general court-martial convening authority. The first O-6
commander in the individual’s chain of command is the approval authority for
permissive military free fall parachuting. The approved request returned by the
individual soldier’s GCMA will be the only document accepted by the manifesting
officer/NCO and airborne commander to establish eligibility for permissive jumping with
units of USASOC.

AR 600-8-24 prescribes the officer transfers from active duty to the Reserve Component
and discharge functions for all officers on active duty for 30 days or more. Chapter 4
defines a probationary officer as a Regular Army commissioned office with fewer than 5
years of active commissioned service or a Reserve Component officer who has fewer
than 3 years commissioned service. Processing an officer’s recommendation for
elimination does not require referral to a Board of Inquiry or a Board of Review unless
the officer declines to elect resignation in lieu of discharge and if an Other Than
Honorable Discharge is recommended. If the officer declines to elect resignation in lieu
of discharge and if an Honorable or General Discharge is recommended, the
commanding general, PERSCOM will forward the case to the Secretary of the Army for
final decision.

                                             7
ABCMR                                     Memorandum                                       of
AR1999033488
Consideration (cont)

AR 601-210 covers eligibility criteria, policies and procedures for enlistment and
processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 3 of that
regulation prescribes basic eligibility for prior service applicants for enlistment.

AR 15-185 sets forth the procedures under which the Board operates. Paragraph 28 of
that regulation provides that no expenses of any nature whatsoever voluntarily incurred
by the applicant, his/her counsel, his/her witnesses, or by any other person in his/her
behalf will be paid by the Government.

DISCUSSION: Considering all the evidence, allegations, and information presented by
the applicant, together with the evidence of record, applicable law and regulations, it is
concluded:

1. In order to justify correction of a military record the applicant must show to the
satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in
error or unjust. The applicant has failed to submit evidence that would satisfy the
aforementioned requirement.

2. The applicant’s administrative separation was accomplished in compliance with
applicable regulations with no indication of gross procedural errors which would tend to
jeopardize his rights.

3. AR 15-6 states that a single investigation or board should be conducted whenever
practicable. The Board concludes it was not practicable to have a single IO when the
incident occurred in Arizona under the auspices of the 19th SFG and the witnesses and
applicant were located in Utah and/or Washington under that command and the 1/24 th
Infantry. The Board concludes there was no violation of the regulation.

4. AR 15-6 states that formal procedures are not mandatory unless required by other
applicable regulations and that respondents may not be designated in informal
investigations. AR 600-8-24 states that unless an Other Than Honorable Discharge is
recommended then the processing an officer’s recommendation for elimination does not
require referral to a Board of Inquiry or a Board of Review. Therefore, informal
procedures were appropriate.

5. AR 15-6 states that a commander at any level may appoint an informal investigation
or board. This of necessity may mean that the IO is a subordinate of the appointing
authority but this is not prima facie evidence of a conflict of interest. Appointing
authorities may request, through channels, that persons from outside their organizations
conduct investigations under their jurisdiction. The Board concludes that this option
would be used only in unusual circumstances. The Board does not find this case
unusual. The Board concludes that there is no evidence of partiality on the part of the
19th SFG. To the contrary, as a result of that investigation the 19th SFG acknowledged

                                              8
ABCMR                                     Memorandum                                      of
AR1999033488
Consideration (cont)

that some procedural oversights involved in the applicant’s’ unauthorized participation in
airborne operations were the responsibility of that headquarters.

6. The Board finds no conflict with the 19th SFG IO recommending a letter of
reprimand and the 1/24th Infantry IO recommending a general discharge. The 1/24th
Infantry IO had more information on which to base his recommendation and the 19th
SFG IO may have felt constrained in recommending too harsh a penalty for a member
outside his command. The Board also sees no conflict with the1/24th Infantry IO
incorporating the 19th SFG’s investigation into its investigation as two investigations are
not prohibited by AR 15-6. The fact that D___ M____ may have obtained the
applicant’s official photograph in a wrongful manner is an issue for the courts to
consider.

7. The Board concludes that it is a moot point to consider why the 19 th SFG IO failed to
investigate whether Captain A___ had given him permission on DA Form 31 to jump
with his former unit. Captain A____ gave his statement to the 1/24th Infantry IO.
While the Board believes it fair not to consider the applicant’s statements to the 19 th
SFG IO, since that IO failed to read him his rights, the Board also believes his
commander’s statement was sufficient evidence to show that the applicant knew what
he had to do to obtain permissive jump orders. The applicant’s statement to this Board
corroborates the fact that he knew there were certain procedures to follow in obtaining
permission to jump, at a level higher than his company commander, and that he was
derelict in the performance of his duties in failing to follow those procedures. His
company commander signed a Leave and Pass Request Form; not permissive jump
orders. The Board concludes the 1/24th IO and the chain of command appropriately
believed it was irresponsible of a commissioned officer to rely on the fact this “particular
regulation could not be located” to fail to get the proper documentation required to make
his jump.

8. While the 1/24th Infantry IO may not have investigated the alleged vandalism
charges and the police report states that there was “no suspect and no evidence,” the
Board concludes the “harassment packet” was a proper factor for the chain of command
to consider in determining the type of discharge to recommend. This was an
administrative separation, not a judicial hearing. The Board concludes the chain of
command considered the applicant’s 15 October 1995 somewhat threatening and
obsessive-sounding letter made D___ M___’s accusations against the applicant
believable.

9. Since the Board does not have the commanding general’s recommendation nor the
record copy of the investigation, it will not comment on counsel’s contention that “The
Report of Investigation, DA Form 1574, section IV, block e was not redacted to drop the
Article 107, false official statement and so was highly prejudicial.”


                                             9
ABCMR                                     Memorandum                                       of
AR1999033488
Consideration (cont)

10. The Board agrees with the legal review’ finding that the elimination packet was
legally sufficient to support initiation of elimination action based upon independent
evidence aside from the applicant’s statements. The Board concludes the fact that the
applicant’s copy of the investigation was not highlighted, as the original was, was not a
material error. The Board concludes the IO made sufficiently detailed findings.

11. The Board notes that there is no evidence to show the applicant ever appealed his
OERs. Since his records and the record copies of his OERs are not available, the
Board will not comment on his contention that the OERs were not properly referred to
him.

12. The Board does not agree with counsel’s contention that the applicant’s discharge
was unfair and unjust and that it was not fair to place his 12 years of total service at risk
without a board proceeding. The applicant was a probationary officer and was not
entitled to a board hearing. His prior enlisted service was appropriately characterized
as honorable at the time of his discharge. His general under honorable conditions
characterization of service was given for his commissioned officer service and his prior
service was appropriately not considered in giving him this characterization.

13. Payment of the applicant’s attorney’s fees and costs is prohibited by regulation.

14. Recruiting personnel have the responsibility for initially determining whether an
individual meets current enlistment criteria. They are required to process a request for
waiver under the provisions of Chapter 4, Army Regulation 601-210, Regular Army and
Army Reserve Enlistment Program. The applicant should contact his nearest recruiting
station for assistance in enlisting in the Individual Ready Reserve.

15. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to
demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jph___ __eja___ __vbc___ DENY APPLICATION




                                     Karl F. Schneider
                                             10
ABCMR                               Memorandum               of
AR1999033488
Consideration (cont)

                       Director, Army Review Boards Agency




                                       11
ABCMR                           Memorandum   of
AR1999033488
Consideration (cont)


                                  INDEX

CASE ID                AR1999033488
SUFFIX
RECON
DATE BOARDED           20000419
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION         (DENY)
REVIEW AUTHORITY
ISSUES        1.       110.03
           2.
           3.
           4.
           5.
           6.




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