MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 March 2002
         DOCKET NUMBER: AR2001058549

         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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: In effect, reconsideration of his earlier appeal to correct his military records by showing that he was separated with an honorable discharge and is eligible to return to the Tennessee Army National Guard (ARNG).

APPLICANT STATES: In effect, he defers to his counsel.

COUNSEL CONTENDS: That the Board’s original decision did not adequately address the applicant’s contentions and erroneously assumed that the proceedings were fair and impartial. The case should have been handled at the lowest possible level. It was not handled fairly and that the applicant was not permitted to confront his accuser. The Board ignored a favorable polygraph test and that the applicant suffered from a medical condition when interviewed by the Criminal Investigation Division (CID).

Counsel believes the Board misinterpreted the facts by demonstrating unfamiliarity with the facts and their consequences. The Board believed a woman who lied under oath and it ignored her attempt to extort money for telling the truth. The rightful Uniform Code of Military Justice (UCMJ) authority was the Commander, Military District of Washington not the Commander of Fort Campbell, Kentucky.

The Board is not in a position to speak about coercion or duress. The applicant was backed into a corner by fear of a Federal conviction by a system with a 95 percent conviction rate. The Staff Judge Advocate (SJA) has a history of making minor matters into general court martial cases. The applicant was coerced by the threat of having the military police come to his home, and the SJA asked the alleged victim what manner of punishment she preferred. The applicant had a documented medical condition and was impaired when interviewed by the CID. He was not afforded the same “open door” policy as others were.

Counsel also contends, in effect, that the applicant’s overall record of service warrants an honorable discharge and that the ABCMR did not properly evaluate the character references, and that new letters challenge the basic fairness of the process that led to the applicant’s discharge.

Counsel further contends that the Board’s observation that the applicant “should not be allowed to change his mind at this late date” is an unfair reference to the applicant’s decision in “separating and electing to fight the case at the ABCMR level.” Counsel denies that the applicant or his attorney admitted any guilt.

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NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a Memorandum of Consideration prepared to reflect the Board's previous consideration of the case (AR2000039107) on 25 January 2001.

Counsel’s submissions are new evidence and argument that require Board consideration.

The following letters of support were submitted with the original application or with this request for reconsideration or both:

         • A Tennessee ARNG colonel, the Commander, 278^th Armored Cavalry Regiment reports, in a 15 April 1997 memorandum, that the applicant is the victim of a wrong action that should never have been taken. He reports that “…a number of witness who could sustain the facts in favor of Captain [the applicant] who were never interviewed or given the opportunity to testify….” He recommends “in the strongest terms” that the applicant be re-appointed as a captain with longevity and all benefits.

• A 31 December 1996 letter from another colonel, the Tennessee ARNG counter-drug coordinator, reports that the applicant’s performance of duty, leadership and judgment have been exemplary. He opines that the truth is known only to the applicant and his accuser, but that guilt or innocence is immaterial. “What is important is that his punishment has been extreme.” He recommends that the applicant be reappointed and reports that he would “gladly accept him into my command.”

         • The applicant’s squadron commander at the time of the incident, a Tennessee ARNG lieutenant colonel, writes, in an 11 December 1996 memorandum, that the applicant was forced to resign due to the failure of Fort Campbell, Kentucky to conduct a fair and impartial investigation. He reports that he is “extremely knowledgeable” of the situation and recommends that the applicant be reappointed.

         • A Tennessee ARNG major, the Tennessee Military Academy logistics officer, reports in an undated memorandum that he has known the applicant , both professionally and personally, for over 15 years. He reports that the applicant was forced to resign. The action taken against the applicant violated basic principles of leadership in that neither the squadron nor the regimental commander was given an opportunity to resolve the problem. The disposition was “shifted to FT Campbell, KY, a command to which CPT [the applicant] had never been assigned.” His guilt seemed to have been established simply by the accusation from an ambiguous source. The applicant should be cleared and reinstated.

         • A 26 June 1997 memorandum from another Tennessee ARNG lieutenant colonel states that the applicant’s performance as a commander was exemplary and that he “…resigned his commission rather than allow the actions of misinformed civilians to smear his otherwise perfect career….” He recommends he be reappointed without loss of rank or privileges.

• An Army Reserve captain writes, in a 13 January 1997 memorandum, that she has known the applicant professionally and personally since 1993 and that, “…He has treated me and my female colleagues with great respect.…” It is her opinion that, “the past record of CPT [the applicant’s] accuser that he is the “victim of unfair practices and procedures” and that the charges were pursued in an unfair manner. He should be reinstated and reappointed to his former rank.

• In a 26 November 1996 letter to the Army Discharge Review Board, a civilian attorney writes that she has known the applicant to be a “perfect gentleman” and “very conservative in his approach to all matters both personal and moral.” She “was disappointed that the Army did not afford [the applicant] the same due process to which he would be entitled in a Civilian Court under the United States Constitution.” She recommends that he be reinstated.

• A personal acquaintance of 23 years states that she has witnessed his ability and dedication to serve in the military. She believes that the steps taken against him “were completely unreasonable and should never have been allowed to take place.” She recommends, in the strongest terms, that he be reinstated.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered

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contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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 opinions of the applicant’s supporters are noted but they did not describe how they obtained their claimed intimate knowledge of the case nor did they share any of the supporting evidence with the Board. Their opinions and recommendations have been considered but they do not outweigh the offenses for which the applicant, with benefit of legal counsel, chose to resign rather than face trial by court-martial.

2. The assertion that the evidence against the applicant was not credible completely ignores the outcome of the Article 31, Uniform Code of Military Justice (UCMJ) probable cause investigation.

3. In light of the Article 32 investigation, the assertions about the polygraph and claimed deficiencies in the investigative process do nothing to demonstrate an error or an injustice in the outcome of the case.

4. The fact that the applicant had to choose between unpleasant alternatives does not necessarily mean that he was coerced or under duress.

5. There is no principle of military justice for disposing of disciplinary infractions at the lowest possible level. The principle is to handle cases at the lowest practicable level consistent with justice. Given all the circumstances of the case this Board considers that the case was handled properly and at the proper level. Furthermore, any military person on an installation is subject to the UCMJ authority of the installation commander and serious misconduct involving persons from various organizations are usually handled at the installation commander level.

6. There is no evidence to show that the applicant was led to believe that the outcome of his request for resignation would be reversed and there is nothing prejudicial in the Board’s observation that he “should not be allowed to change his mind.”

7. Aside from the letters of support there is no available evidence to substantiate any of counsel’s contentions.

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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

__RVO__ __JPI ___ ___RKS_ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058549
SUFFIX
DATE BOARDED	20020307
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19960712
DISCHARGE AUTHORITY	AR600-8-24 . . . . .
DISCHARGE REASON	GOS
BOARD DECISION	NC
REVIEW AUTHORITY
ISSUES 1.	110.02
2.
3.
4.
5.
6.