Case Result

Case Result

October 2013 Officer Retained After Board of Inquiry

October 2013 Officer Retained After Board of Inquiry

Report:

An Army Officer was referred for an elimination (aka: separation) action by the U.S. Army Human Resource Command. This elimination action was based on the Officer having a written reprimand known as a General Officer Memorandum of Reprimand (GOMOR) in his Official Military Personnel File (OMPF). Based on a full review of the evidence a Board of Officers consisting of one Colonel and two Lieutenant Colonels voted to retain the Officer for further military service.

In the summer of 2010 the Officer engaged in an inappropriate relationship with the wife of a senior Noncommissioned Officer (NCO). The Officer family and the NCO family were friends and neighbors. While the Officer was deployed to Afghanistan the NCO suddenly passed away under circumstances the Army characterized as a suicide. During an investigation into the man suspicious death criminal investigators uncovered online chat logs between the deceased NCO’s spouse and the Officer.

The substance of the logs consisted of romantic and sexually explicit conversations. Investigators concluded that no link existed between the chat log and the NCO death and there was no evidence to suggest the NCO was aware of his spouse’s indiscretions with the Officer. Notwithstanding based on the discovery of the logs criminal investigators provided them to the Officer chain of command for review and potential adverse action.

The Officer received a GOMOR in the spring of 2011 that cited his inappropriate communications and relationship with the NCO spouse. The reprimand concluded that based on the chat logs the Officer maintained an inappropriate relationship with a married woman. The reprimand further characterized the Officer conduct as unbecoming. By regulation recipients of GOMORs are afforded an opportunity to file a written reply to the reprimand.

The Officer availed himself of this opportunity by filing a timely reply. The substance of his reply was a prompt admission to the misconduct an acceptance of responsibility and an apology. The written response demonstrated the Officer remorse contrition and commitment to self improvement and rehabilitation in order to regain the trust and respect of his subordinates and leaders alike. Notwithstanding the Officer reply the Commanding General (CG) who issued the GOMOR ordered that it be filed in the Officer OMPF in late spring of 2011.

In 2013 more than two years after his admitted misconduct HRC instructed the Officer Command to initiate elimination proceedings against him. HRC’s directive was part of a recent trend Army-wide to scrutinize OMPFs for derogatory information that may serve as the basis for elimination actions. There has been a spike in both Officer eliminations and Enlisted separations in recent years following the end of military conflicts in Iraq and Afghanistan and the Army’s effort to downsize its forces.

The Officer in this case was likely a victim of this downsizing effort. The Officer Command did not initiate elimination proceedings against him when it issued the GOMOR an option certainly within the Command discretion at the time. Now that elimination was directed by HRC the Command no longer had a choice. As a result it provided the Officer with notice of elimination and advised him of his rights: resign in lieu of resignation submit a retirement request if eligible or demand a Board of Inquiry which is an adversarial proceeding where the Officer may be represented by counsel and fight to keep his Army career.

The Officer had 19 years of military service and was one year from becoming eligible for retirement. Based on this circumstance the Officer smartly exercised his right to a Board of Inquiry. He then retained military defense attorney John L. Calcagni III as civilian counsel to represent him in connection with this important event.

The Officer Board of Inquiry (BOI) commenced in the fall of 2013 more than three years after his admitted misconduct and nearly two and one half years since he received and replied to the GOMOR. BOI proceedings are similar to but less formal than a trial. The government has the burden of proving by a preponderance of the evidence (more likely than not) that the Officer referred in the BOI as Respondent engaged in the charged misconduct.

In this case the charged misconduct was that described in the previously received GOMOR: maintaining an inappropriate relationship with a married woman and conduct unbecoming. The government also has the burden of convincing the appointed Board of Officers if they concur the Respondent committed the charged misconduct that he should be eliminated from military service and if so how his discharge should be characterized: Honorable General Under Honorable Conditions or Other Than Honorable Conditions.

In this case the government had very little evidence to present against the Officer. Essentially all it presented to the appointed board members was the issued GOMOR the Officer reply and the chain of command OMPF filing recommendations dating back to the time period when the GOMOR was issued. The government also presented a certified copy of the Officer OMPF which contained a referred or negative Officer Evaluation Report (OER) given to the Officer for the rating period he was under investigation and received the reprimand for his inappropriate relationship with the deceased NCO wife. The government did not call any witnesses or offer any further evidence. It simply rested its case after offering this limited documentation.

Attorney Calcagni on the Officer behalf responded to the government case with a well developed and established defense. He opened the Defense case by admitting and acknowledging again the Officer misconduct. In his opening remarks Attorney Calcagni emphasized to the appointed Officers that there was no question or doubt about this client prior commission of the alleged misconduct. The Officer admitted it then and stands by his acceptance of responsibility now. The real focus of the BOI proceedings according to the Defense was simply whether or not the Respondent should be retained for further service. Attorney Calcagni said unequivocally because of evidence the Defense intended to offer which would prove that the Respondent both earned and deserved a second chance warranting his retention in the Army.

The Defense presented several types of evidence in support of the Respondent retention. First the Defense presented evidence that the Respondent had already been more than adequately punished for his admitted actions. For instance he initially received the GOMOR and referred OER which tarnished his OMPF and military reputation. These adverse filings in his OMPF also directly precluded him being denied promotion to the next rank on two separate occasions forever barring his promotion to Major.

The first time the Officer had been selected for promotion and named on the promotion list but later removed due to the OMPF-filed GOMOR. The second time the Officer was not selected for promotion for the same reason. After being passed over twice the Army issued the Officer a mandatory retirement date which forever barred him from being promoted again. In addition to these prior forms of punishment the Officer most recently received notice of elimination action. Evidence of these prior forms of adverse action truly underscored the price in punishment already paid by the Officer for his misconduct. The Defense argued that to now eliminate him due to actions for which he had been previously punished was unjust unfair and over kill.

The Defense next presented mitigation evidence on Respondent behalf. This included evidence of his extensive military awards education and training history; deployments and evaluation reports. The Defense also presented photographs of the Respondent and his family to include his young son. The Respondent is a single father actively involved in his son’s life to include many extracurricular activities. The Defense presented evidence that the Respondent life boiled down to two categories: his young boy and his Army career. The Defense sought to present this humble message with a Good Soldier Book containing voluminous documents representative of the Respondent personal and professional lives.

The Defense also presented a total of 65 witnesses who provided testimony in support of the Respondent retention. The witnesses provided their testimony in different ways: live testimony before the BOI telephonic testimony before the BOI or in written form through statements or letters of support. In preparation for the hearing Attorney Calcagni interviewed each witness to ascertain their anticipated testimony and to assist them with presenting it on the Respondent behalf. The witnesses consisted of military members Enlisted and Officers; government civilian employees and contractors; and civilians. Collectively the Defense witnesses had more than 850 years of government service.

Each and every witness fully supported the Respondent and endorsed his continued military service. The witnesses testified to the Respondent stellar duty performance commitment to mission and duty and adherence to Army Values and ethics. They individually and collectively established that the Respondent is a man of character who did wrong admitted his wrong and rebounded from it. Each witness testified that the Respondent former inappropriate relationship did not change their opinion of him.

Everyone agreed that people make mistakes the Respondent made a mistake for which he had both received adequate punishment and accepted responsibility earned a second chance and did not deserve to be eliminated. These individuals opined that the Respondent was among the best Officers with whom they had ever worked or served and that if given a choice they would serve with again in a heartbeat.

Those currently working with him expressed a strong interest to continuing to do so. Among the witnesses who testified were the Respondent former Battalion Commander from the time period when the GOMOR was issued and both the Rater and Senior Rater named on the Responden referred OER for the same misconduct upon which the GOMOR was based. These particular witnesses who once favored the Respondent punishment now opined he had recovered from his mistake which led to the GOMOR was appropriately punished at the time and deserved to continue on with military service in order to attain retirement. These witnesses also indicated that the previously issued GOMOR had served its purpose and that the Respondent seized the opportunity specifically envisioned by the GOMOR in that he had regained the trust and confidence of his leaders.

The Respondent was the last witness to testify for the Defense. He reiterated his acceptance of responsibility for his actions and made a public apology. He also talked of how ashamed and embarrassed he was by his past mistake and that to date though others may have forgive him he has still not forgiven himself. The Respondent also talked about his military career. He first enlisted after high school onto active duty and into the Infantry. After attaining the rank of Staff Sergeant and completing college he went to Officer Candidate School and Infantry Officer Basic School. He described many of the service schools he attended such as Airborne School Air Assault School and Pathfinder School.

He also discussed his deployments to both Bosnia and Afghanistan. The Respondent then described the importance of his military career. Though passed over for promotion to Major on two occasions he had still achieved 19 years of service and had a mandatory retirement date. He asked the Board to retain him until then claiming he had been punished for his actions apologized for his mistakes and had done everything within his power to redeem himself.

He also informed the Board of his current job assignment and its duties within the Information Operations community to include the many months of temporary duty he performed in past years along with the many months he was already scheduled to perform in the coming fiscal year. He respectfully asked for the opportunity to perform this assigned duty in order to finish out his military career. The Defense then rested.

After the presentation of evidence the government and Defense presented closing remarks. The government focused its closing on reminding the Board members that the Respondent had admittedly engaged in an inappropriate relationship with the spouse of a Senior NCO for which he received the reprimand. The government further emphasized that based upon Respondent admission and supporting evidence the Board members needed to use their experience common sense and best judgment to recommend to the separation authority whether or not the Respondent should be retained or eliminated and if eliminated how his military service should be characterized (Honorable General Under Honorable Conditions or Other Than Honorable Conditions). The government failed to argue in favor of either retention or separation. It also failed to recommend a characterization of service if the Board voted to recommend elimination.

The Defense presented its closing argument by referencing the second change envisioned by the GOMOR which actually triggered the elimination action. The specific language in the issued GOMOR provided the Officer with a one-time second chance to redeem himself. Attorney Calcagni argued that the Officer did just that and then some. In support the Attorney Calcagni focused the Board on the number and quality of character witnesses who supported the Respondent professionally and specifically endorsed his retention. The Defense also pointed out the wide breadth of witnesses from junior Enlisted Soldiers to General Officers high ranking civilian employees and contractors to family and members of Respondent single community.

Attorney Calcagni asked the Board to trust and rely upon the collective and common judgment of these many witnesses all of whom had placed their credibility on the line in support of the Officer retention. He also asked the Board members to compare that with the complete lack of evidence and absence of witnesses offered by the government to the contrary. Attorney Calcagni also asked the Board to consider the passage of time since the admitted misconduct and BOI. He argued that if the Army really didn’t think the Officer was suited for further service it would not have allowed him to wear the uniform for the past three years to continuously enjoy the privilege and benefit of a Top Secret security clearance during this time and place him in a sensitive job within the Information Operations community.

Attorney Calcagni implied that the Officer who had been more appropriately punished for his actions and who had clearly redeemed himself especially in the eyes of his former punishers was the victim of the politically motivated efforts by Army HRC politics effort to downsize the size of its forces. In closing Attorney Calcagni urged the Board to remember that the military system is founded on fairness and justice and that these idyllic ends could only be served in this case via the Officer retention.

The Board members deliberated for approximately 15 minutes at the close of the proceedings. At the conclusion of deliberations they returned to deliver a unanimous recommendation that the Officer be retained for further military service. Congratulations to this much deserving Officer!

Criminal Case Result:

  • Board of Inquiry: Officer Retained