MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 February 2002
         DOCKET NUMBER: AR2001057007

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Melvin H. Meyer		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)

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APPLICANT REQUESTS: That he be reinstated on active duty as of 1 August 2000; that he be paid back pay and allowances from 1 August 2000 to the present; that he receive credit for time in grade for pay, promotion and retirement purposes from 1 August 2000 to the present; and that his unqualified resignation be expunged from his record. In the event that this relief is not granted, he requests early retirement as of 31 July 2000 with back retired pay from that date.

APPLICANT STATES: The applicant defers to counsel. By letter dated 7 January 2002, he provided additional evidence including a 7 March 2001 letter of support from a former Executive Director of the Armed Forces Chaplains Board in the Office of the Secretary of Defense who was the command chaplain for the U. S. Army Central Command (USCENTCOM) during the time the applicant was there.

Counsel states that the applicant was an intelligence gatherer with particular expertise in Arab countries. On one occasion the applicant debriefed an Arab source. The applicant was the debriefer; a U. S. Air Force Staff Sergeant was also present as an interpreter. During the debriefing the applicant prayed with (or for) the source, who was a fellow Christian. The U. S. Air Force Staff Sergeant, who was not a Christian, did not participate in the prayer. “Someone” sent a letter to USCENTCOM, for whom the applicant worked, that the applicant prayed with a source. Upon receipt of the letter, a Navy Captain with the Joint Intelligence Center Central (JICCENT) accused the applicant of using the debriefing to proselytize a Muslim, even though the source was an Arab-speaking Christian. The applicant’s permanent change of station move to a Defense HUMINT (Human Intelligence) Service (DHS) position in Munich, Germany was revoked because of this “incident.” The applicant believed his religious freedoms were being infringed and sought redress through a congressional inquiry followed by an Equal Opportunity complaint grounded in Freedom of Religion terms. The net result of these actions was no action and some fairly silly posturing by senior people. One Navy Captain said “It would never be appropriate for a debriefer to pray with a source, even if the source requested it,” leading one to wonder if strategic intelligence information would be rejected if the condition of its release were a simple prayer. A Vice Admiral said the prayer “could have resulted in the loss of a valuable intelligence source” although there was no showing that it could have.

Counsel continued by stating that, unsatisfied with the above explanations and believing his right to religious freedom was being violated, the applicant submitted his unqualified resignation on 1 September 1999 because he could no longer serve in an organization which did not enforce its Accommodation of Religious Practices within the Military Services Directive, DOD Directive 1300.17. After consulting with counsel (himself), it became immediately obvious that the applicant’s resignation, though perhaps a noble gesture from his perspective, had no utilitarian purpose and he advised the applicant to withdraw his resignation. Counsel and the applicant understood this withdrawal was not a matter of right but was grounded in some common sense considerations, including the facts that his critical skill could best be utilized on active duty and ending his career with over 16 years of service was not a good economic choice. On 8 May 2000, the applicant submitted a request to withdraw his unqualified resignation. His request was supported by his entire chain of command to include a general officer. On 9 June 2000, the U. S. Total Army Personnel Command (PERSCOM) denied the request for withdrawal without providing a rationale. On 6 July 2000, PERSCOM responded to a congressional inquiry by stating that if the applicant were allowed to remain on active duty, he would continue the pursuit of his grievance. Accordingly, his request to withdraw the approved unqualified resignation was disapproved. This is an arbitrary and capricious abuse of discretion and contrary to law and regulation which allows for the pursuit of grievances without fear of redress. The applicant then sought early retirement. This, too, was supported by his entire chain of command and this, too, was disapproved by PERSCOM.

The applicant’s military records show that he enlisted in the Regular Army on 4 October 1983. He was discharged on 15 July 1990 (for which he received a Certificate of Release or Discharge from Active Duty, DD Form 214) for the purpose of entering active duty on 16 July 1990 as a Military Intelligence Warrant Officer. He was promoted to Chief Warrant Officer Three (CW3) on 1 July 1998 in military occupational specialty (MOS) 351E (Interrogation Technician). He also held additional skill identifier 9N (Strategic Debriefer/Interrogator). He was an Arabic linguist.

In November 1998, while assigned duties as the chief interpreter/translator for the Commander-in-Chief, CENTCOM (CINCCENT), an incident occurred as outlined in counsel’s statement above.

On 27 April 1999, the applicant filed an Inspector General (IG) complaint alleging violation of DOD Directive 1300.17 concerning the revocation of his assignment to the Munich, Germany position. The IG responded by stating that his allegation was not substantiated. The IG stated that the spontaneous nature of his actions while conducting a sensitive assignment did not permit command consideration of his decision to pray and exchange gifts during that evolution. Therefore, the issue of whether there was a failure to accommodate his beliefs never arose.

On 12 July 1999, the applicant requested that his Congressman investigate his case. His Congressman corresponded with Department of Defense officials between August 1999 and April 2000. His Congressman summarized the applicant’s case and closed it when it was clear his case would not be resolved through correspondence with the Pentagon.

On 1 September 1999, the applicant submitted a request for an unqualified resignation to be effective 30 November 1999. He stated that he could no longer serve in an organization which did not enforce its directives on religious accommodation. His assignment to Germany was revoked and he was on orders to the XVIII Airborne Corps, Fort Bragg, NC. He could not accept this assignment since he would be just as much a “risk” (of praying with a source) at Fort Bragg as he would be in Germany working for DHS. Were he to stay in the service, it would be saying that it was alright to discriminate against Christians. He refused to drop this issue because of the wider implications for the U. S. military. He stated that regardless of the treatment he received over the past 10 months, he was glad he served his country. The applicant was counseled by the Director of Intelligence, J2, USCENTCOM, who recommended approval of his request, concerning the impact of this action on his military career and future benefits. It was not favorably considered by PERSCOM. The disapproval memorandum noted that the applicant had an active duty service obligation through 30 June 2000 as a result of his promotion to CW3. It also stated that during the current manning challenge, maintaining strength through the retention of officers and enlisted soldiers was absolutely paramount. Only in the most exceptional circumstances should an officer or a soldier be allowed to voluntarily separate before the completion of his or her obligation.

On 23 December 1999, the applicant resubmitted his request for unqualified resignation with a requested separation date after 30 June 2000. He stated that all comments made in his previous request for resignation applied. His request was approved.

On 8 May 2000, the applicant requested withdrawal of his request for an unqualified resignation so he could “continue to serve his country as an Army Warrant Officer, HUMINT Collection Technician and “DLPT 3/3 Arabic Linguist.” He stated that he trusted that any outstanding issues could be amicably resolved if he continued on active duty. His senior rater, the Director of Intelligence, USCENTCOM strongly recommended favorable consideration of his request. The Director noted that the applicant’s unique combination of critical low-density linguistic ability and proven analytical skills were a rare and coveted asset throughout the Department of Defense and that he had made positive progress in coming to terms with his grievance.

On 9 June 2000, PERSCOM disapproved the applicant’s request for withdrawal of his request for an unqualified resignation, noting that although his request merited review and consideration, approval at that time was not considered to be the appropriate course of action.

On 9 June 2000, the PERSCOM Warrant Officer Division Web Page contained a notice that the Army was currently experiencing a critical shortage of Military Intelligence warrant officers in MOSs 351B and 351E.
On 6 July 2000, PERSCOM responded to a congressional inquiry on behalf of the applicant. PERSCOM noted that the applicant had pursued claims of religious discrimination through his chain of command, his command’s IG, and through congressional complaints. He submitted his resignation after his complaints were investigated and determined to be unfounded. PERSCOM stated there was no evidence in his withdrawal request to indicate he accepted the results of the above investigations and if he were allowed to remain on active duty he would continue the pursuit of his grievance.

On 24 July 2000, the applicant requested an early retirement since PERSCOM refused to allow him to withdraw his unqualified resignation. The Director of Intelligence, USCENTCOM supported his request. On an unknown date, PERSCOM returned the request without action, noting that the Army did not conduct an Early Retirement Program in fiscal year 2000.

On 31 July 2000, the applicant was discharged after completing 16 years, 9 months, and 27 days of creditable active service. (His DD Form 214 contains administrative errors in item 12. He had received a DD Form 214 upon his discharge from an enlisted status on 15 July 1990 so item 12a should have shown he entered active duty this period on 16 July 1990 and item 12c should have shown he completed 10 years and 16 days of net active service this period.)

Army Regulation 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. Paragraph 3-5 provides that any officer on active duty for more than 90 calendar days may tender an unqualified resignation except when certain conditions exist. Paragraph 3-2 provides that an officer may request withdrawal of his or her resignation at any time prior to commencing travel pursuant to orders issued for the purpose of separating the officer. An unqualified resignation, once forwarded to PERSCOM, may be withdrawn only with the approval of Headquarters, Department of the Army.

In the processing of this case, advisory opinions were obtained from the Office of the Deputy Chief of Staff for Intelligence (ODCSINT) and from PERSCOM. On 1 August 2001 ODCSINT, while noting that it was given only one side of the issue and that office was not involved in any aspect of the action, interposed no objection to the reinstatement of the applicant on active duty due to the support of his chain of command, the shortage status of his MOS, and his language skills. On 17 September 2001, PERSCOM stood firm on its earlier denial of his request with no further explanation.

Copies of the advisory opinions were provided to the applicant for comment or rebuttal. Applicant’s counsel responded (at least to PERSCOM’s advisory opinion) that the Army made it clear that there would be no reconciliation and believed the best remedy was early retirement. He does not believe rejoining the Army would be the best course of action after the Army’s response. They would ensure the applicant was “marked” and he would not be able to contribute to his fullest.

A clarifying advisory opinion was requested from PERSCOM. In an undated advisory opinion (but received on 22 January 2002), PERSCOM provided the sequence of events concerning the applicant’s requests for unqualified resignation, withdrawal of unqualified resignation, and early retirement. PERSCOM noted that after the applicant’s second request for unqualified resignation, his adamant desire to resign was approved. PERSCOM felt that with his lengthy explanation of why he felt he could not continue to serve in the Army that it was clear it was in the best interest of the Army to allow him to separate.

A copy of PERSCOM’s clarifying advisory opinion and a copy of the ODSCINT advisory opinion were provided to the applicant for comment or rebuttal. Also provided was a copy of a record of conversations between PERSCOM and the Board’s analyst concerning their advisory opinions. The applicant responded that he was very encouraged by the well-reasoned, dispassionate response from ODSCINT. As to PERSCOM’s advisory opinion, they still had not responded to the central allegation in his original application. “Adamant” to one man may be conviction to another. From PERSCOM’s inability to refute his arguments, the supporting statement from ODSCINT, the supporting statement of Chaplain R___ provided on 7 January 2002, and the consistent support of Representative C___, it appears PERSCOM’s is the minority position. From the perspective that the obstruction comes from one office within PERSCOM, and with the knowledge that his fellow soldiers in the intelligence field do not object to his reinstatement, both his wife and he believe the best place for him is in uniform.

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

1. The Board notes that ODCSINT made a qualified endorsement in favor of the applicant’s in its advisory opinion, recognizing that the application, as provided to ODSCINT, contained only one side of the issue. PERSCOM denied the applicant’s request to withdraw his unqualified resignation based upon speculation (that if he were allowed to remain on active duty he would continue the pursuit of his grievance). The Board notes that even though the Director of Intelligence, USCENTCOM strongly recommended favorable consideration of the applicant’s request and indicated the applicant had made “positive progress in coming to terms with his grievance,” the applicant himself had stated that he trusted that any outstanding issues could be amicably resolved if he continued on active duty. This leads the Board to conclude that PERSCOM’s speculation was based on reasonable grounds. Despite the fact the Army was critically short the applicant’s skills, it would not have been prudent for PERSCOM to retain an officer on active duty, after his passionate and twice-considered avowal of why he could no longer stay in the service, knowing that officer was returning to duty with “outstanding issues” that could immediately detract from mission accomplishment. The applicant’s understanding now that his request for unqualified resignation, ending his career with over 16 years of service, was not a good economic choice is insufficient reason to grant the relief requested.

2. The Board concludes that granting early retirement to the applicant is not appropriate. Again, the applicant had over three months to consider the consequences of his request for unqualified resignation between the dates of his first, disapproved request and his second, approved request. He was, or should have been, aware that there was no early retirement program in effect.

3. The Board notes that the applicant’s DD Form 214 for the period ending 31 July 2000, items 12a and 12c, is in error an should be administratively corrected.

4. 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.

NOTE: The Army Review Board Agency’s Support Division will be directed to administratively correct the applicant’s DD Form 214 for the period ending 31 July 2000, item 12a to show he entered active duty this period on 16 July 1990 and item 12c to show he completed 10 years and 16 days of net active service this period.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__gdp___ __tap___ __mhm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057007
SUFFIX
RECON
DATE BOARDED	20020221
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.03
2.
3.
4.
5.
6.