MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          3 April 2003                    
	DOCKET NUMBER:  AR2002082817

	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.

| Mr. Carl W. S. Chun | | Director
| Mr. Edmund P. Mercanti | | Analyst

  The following members, a quorum, were present:

| Mr. Samuel A. Crumpler | | Chairperson
| Mr. Roger W. Able | | Member
| Mr. Patrick H. McGann | | 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)

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to correct his  military records by changing the narrative reason for his separation from Conduct Triable by Court-Martial to Secretarial Authority.  

APPLICANT STATES:  In effect, that he had purposely withheld information when he submitted his application to the Board.  This information had been “purposely withheld until I knew exactly what the Government’s position was and possibly be able to present this at a hearing.”  Since he was not provided his “day in court” (formal hearing), he is now presenting the withheld information.  This information is that the statement he had made to the Criminal Investigation Division (CID) was not true.  He had never remarried and was going to have his former wife testify to that fact.  However, “There were extenuating circumstances why I would not reveal my marital status at the time.  Since it was documented we were not living together, I seen no harm in providing the CID a statement indicating that I was married figuring the government would not pursue any adultery charges.”  He adds that he later married the woman he was having the alleged affair with.  The applicant continues that the only reason that his request for discharge wasn’t delayed until his medical processing was complete was retaliation over a letter sent on his behalf to the Secretary of Defense by a friend of the Secretary of Defense.  The applicant also adds that his being discharged in abstentia was, in fact, detrimental to him.  It precluded him from attempting to obtain an injunction to halt his discharge, or to withdraw his request for discharge and demand trial by court-martial.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001062250) on 20 December 2001.

In support of his request for reconsideration he submits his 30 June 1986 divorce decree, a marriage certificate dated 1 April 1992, medical records, and his corrected separation document which reflected the Army Discharge Review Board action to upgrade his discharge Under Other Than Honorable Conditions (UOTHC) to a general discharge Under Honorable Conditions (UHC).

Army Regulation 635-120, paragraph 2-4, Withdrawal of resignation, states that an officer may withdraw his request for resignation or discharge at any time prior to commencing travel pursuant to orders issued for the purpose of separating him.  However, the request to withdraw a request for discharge or resignation must be approved by Headquarters, Department of the Army (HQDA).

The Manual for Court-Martial, Appendix 12, Maximum Punishment Chart, Article 92, Failure to obey general order or regulation, lists the maximum allowable punishment for this offense as a Dishonorable or Bad Conduct Discharge, 2 years confinement, and a total forfeiture of pay.
Army Regulation 15-185, Army Board for Correction of Military Records, paragraph 2-11, states “Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.”

The applicant’s contentions are new argument that requires Board consideration.

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.  The applicant has based his request for reconsideration on the previously withheld fact that he lied on the sworn statement he gave to the CID.
 
2.  The applicant is now attesting that he never remarried his wife after their divorce.

3.  Since the applicant initially said he had remarried and now says he never remarried, the Board is unable to ascertain which time he lied.  As such, the Board must discount his statement that he never remarried his wife.

4.  However, even if the applicant were to have submitted documentation to substantiate that claim, it would not result in the Board recommending it reverse it previous denial.  The applicant committed serious misconduct in the compromise and mishandling of classified documents.  That, in of itself, was sufficient to warrant trial by court-martial.

5.  As for the applicant’s statement that he would have withdrawn his request for discharge if he had not been discharged in abstentia, he could not have done that in accordance with governing Army regulations without the consent of HQDA.  There is no indication that HQDA would have allowed the applicant to withdraw his request for discharge.

6.  There is no evidence to support the applicant’s contention that the acceptance of a request for discharge that he, himself, submitted, was due to retaliation.

7.  As for being provided a “day in court,” he was offered this when court-martial charges were preferred against him, which he declined.  He is not entitled to a “day in court” (formal hearing) under the regulation which governs the Board.

8.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

9.  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

___sac__  ___rwa __  ___phm _  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID | AR2002082817
SUFFIX |
RECON |
DATE BOARDED | 20030403
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. |
2. |
3. |
4. |
5. |
6. |