MEMORANDUM OF CONSIDERATION


IN THE CASE OF:


         BOARD DATE: 04 MARCH 2003
         DOCKET NUMBER: AR2001062254

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Williams D. Powers		Member
Ms. Linda M. Barker		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: Correction of his military records by revocation of Orders 311-00200, dated 6 November 2000, dropping him from the rolls of the Army effective 3 November 2000; by revocation of his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 3 November 2000; and by referral of his case to the Army Grade Determination Review Board (AGDRB). He also requests, in effect, length of service retirement at a rank decided by the AGDRB.
APPLICANT STATES: “I was dropped from the rolls [DFR] of the U.S. Army without the benefit of due process and stigmatized with an Under Other Than Honorable [C]onditions [UOTHC] separation without the benefit of due process. Dropping me from the rolls was an unjust action in light of all circumstances, including the understanding of the parties to my Federal trial that I would retire from the Army; my exemplary service to the U.S. Army for more than 24 years; the injuries I sustained while a soldier; and, the limited nature of the criminal activity I engaged in that formed the basis for Orders 311-00200 and the DD Form 214.”The applicant further states the documents were issued in error and created an injustice. He was not given written notice or opportunity to be heard before he was dropped from the rolls. His request for redress and Article 138 complaint were denied because he then had no military status. He states that the Commanding General of the Training and Doctrine Command (TRADOC) recommendation that he be dropped from the rolls was based on the seriousness of his offense and the devastating impact of his offense upon public perception and trust of the military, in that he pled guilty to misprision of a felony on 18 April 2000 and was sentenced to 5 months confinement, 1 year probation, and ordered to pay $100 in court costs, and that action was not precluded by any plea agreement negotiated by the Department of Justice. The applicant states that he did plead guilty to the offense, that having knowledge of the actual commission of a felony, i.e., money laundering, he concealed and did not as soon as possible make known the commission of the felony. He states that in other words, he concealed the crimes of his wife.The applicant provides information from the 9 June 2000 Presentence Investigation Report, prepared by a probation officer, adequately detailed in his request. He states that paragraph 1 of the plea agreement, which listed possible penalties, listed other penalties as “possible reduction of pension and benefits from the United States Army.” He states that at the time of the execution of the plea agreement and at the time of sentencing on 13 July 2000, his retirement, which was effective on 30 November 2000, was approved on 6 April 2000. Neither the plea agreement nor the pre-sentence investigation report informed the sentencing judge that he would be dropped from the rolls if sentenced to confinement. Rather, the sentencing judge was aware only that his retirement had been approved and that there was a possible one-grade reduction in pension benefits. The sentencing judge did not consider the possible collateral consequences of dropping him from the rolls. He states that despite the TRADOC commander’s conclusion that dropping him from the rolls was not precluded by any plea agreement negotiated by the Department of Justice, the discussions which led to the plea agreement turned, in part, on his anticipated retirement. He cites as an example a 13 March 2000 letter from the U.S. Attorney's office to his defense attorney. He states that he entered a guilty plea on 17 April 2000 after his retirement was approved on 6 April 2000, and that was part of the basis for his plea agreement. Dropping him from the rolls (DFR) was not part of the agreement. While Title 10, United States Code permits DFR of active duty officers, it is not mandated.The applicant states that the Commander of the Army Combined Arms Center and Fort Leavenworth reviewed the CID report, and stated that the investigation disclosed no evidence that implicated him in his wife’s misconduct other than the after-the-fact concealment and expenditure of the tainted money that his wife received for her efforts. That commander recommended various options, to include DFR, which apparently produced the TRADOC commander’s recommendation to drop him from the rolls. The TRADOC commander recommended, however, that if he was not DFR, to refer his case to the AGDRB for a determination. The TRADOC commander recommended the one option that denied him due process, dropping him from the rolls. The denial of due process was unlawful and unconstitutional even though predicated upon statutory and regulatory authority. Although Army Regulation 600-8-24 provides the procedures whereby officers may be DFR, those procedures do not provide for notice to the officer or an opportunity to be heard.The TRADOC commander, in making his recommendation, knew that he would receive an under other than honorable conditions characterization of service, without being afforded due process, and that his recommendation would seriously damage his standing and associations in the community or impose a stigma on him, which would hamper his employment opportunities. The TRADOC commander suggested that he recommended that action in order to stigmatize him and to communicate that stigma to the public. He states, in effect, that characterization of his 24 year career as under other than honorable based on the nature of the single, isolated incident, is unfair and unjust. The applicant provides information concerning the highlights of his career, which needs no clarification.
He states that although he was sentenced to confinement, he did not begin serving his sentence until 8 January 2001. The TRADOC commander’s recommendation that he be dropped from the rolls was premature. He states that the statute requires that the sentence become final prior to dropping from the rolls, and that the statute’s rationale was to authorize dropping a commissioned officer from the rolls when he is was longer available to perform military duties. He was able to perform military duties when the TRADOC commander made his recommendation and when he was dropped from the rolls on 3 November 2000. The TRADOC commander’s recommendation prior to start of his incarceration was designed to prevent, and prevented his retirement from becoming effective on 30 November 2000. The TRADOC commander’s recommendation was arbitrary, capricious, an abuse of discretion, and unlawful.The commander of the Army Combined Arms Center and Fort Leavenworthdetermined that he engaged in no criminal conduct other than that for which he was convicted in Federal court. The proceedings in Federal court indicated that his criminal conduct was limited to laundering money that he did not know was the result of his wife’s illegal drug activity. Records of the proceedings indicate that the sentencing judge thought his retirement pay would be reduced to that of an 0-5. Taking away his retirement pay and medical benefits without due process of law was materially unfair.Dropping him from the rolls was inconsistent with the consequences to other senior Army officers who engaged in misconduct. He cites the case of a major general who was convicted by a court-martial of misconduct, and subsequently reduced one grade by the Secretary of the Army. He cites two other cases involving general officers, indicating that all three of those officers were permitted to retire. He states that is materially unfair for those general officers to receive retirement pay, and for him to receive no retirement pay at all. Moreover, his service of a sentence to confinement should mitigate, rather than aggravate, any additional collateral punishment resulting from his conviction.Applicant submits a comprehensive application of 82 enclosures in support of his request, including his own statements, statements of others, documents from his Official Military Personnel File, including his military history, his medical records, US District Court judgments, and newspaper articles.He submits seven news articles from various major newspapers and a cable television news station concerning his arrest, dismissal, and DFR.

One news article concerned a reported trend in the military that a male charged with sexual harassment must prove his innocence or face discipline, citing a specific military case involving a general officer.

One news article concerned an ex-FBI agent pleading guilty to spying, indicating that in pleading guilty his wife would be able to keep their home and receive part of his Federal retired pay.

Two articles concern the sentencing of a retired major general, and the subsequent demotion of that officer by the Secretary of the Army, while yet allowing that officer to receive retired pay.

One article concerns the reduction of a major general to colonel, with retirement in the grade of colonel.

The applicant submits copies of his evaluation reports beginning in 1975, the last report shown ending in 1999. These reports show that the applicant was an outstanding officer throughout his military career. He submits copies of certificates attesting to the numerous awards that he has received during his military service. His awards include the Defense Meritorious Service Medal, the Meritorious Service Medal (5^th Award), the Army Commendation Medal (2^nd Award), the Joint Service Achievement Medal, the Army Achievement Medal, the Joint Meritorious Unit Award (2^nd Award), the National Defense Service Medal, the Armed Forces Reserve Medal, the Army Service Ribbon, the Overseas Service Ribbon (4^th Award), the Master Parachutist Badge, the Pathfinder Badge, the Ranger Tab, the Special Forces Tab, the Scuba Diver Badge, the Canadian Parachutist Badge, and the Korean Basic Parachutist Badge.

Statements of support from others include letters from seven senior officers, a certificate of faithful and honorable service for retirement from the Chief of Staff, a certificate of appreciation from the President based on retirement, and a certificate of appreciation from the Chief of Staff for the wife of the applicant based upon the applicant’s projected retirement.

COUNSEL CONTENDS: Counsel did not provide evidence beyond that of record or that provided by the applicant.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was commissioned a Reserve second lieutenant in the Field Artillery, from the Reserve Officer Training Corps, Florida Institute of Technology, effective 21 March 1975. He had prior enlisted Reserve service. He entered active duty effective 14 May 1975 for a 2-year obligation. He attained the rank of first lieutenant effective 14 May 1977, and was voluntarily extended on active duty for an indefinite period. He was promoted to temporary captain effective 2 November 1979, and to permanent captain effective 15 April 1981. He was voluntarily transferred to Infantry. He was voluntarily and honorably released from active duty effective 15 August 1981, and transferred to the Reserve Control Group (Reinforcement).

He was voluntarily ordered to active duty effective 5 July 1982 for a 3-year obligation. He subsequently requested and was extended on active duty for an indefinite period.
He was promoted to major effective 1 April 1986 and appointed in the Regular Army effective 24 July 1986. He was promoted to lieutenant colonel effective
1 May 1992, and to colonel effective 1 November 1997. He successfully completed the Army War College.

The applicant served in Colombia from March 1998 to March 1999 where he commanded the U. S. Military Group at the U. S. Embassy in Bogotá, concerning American anti-drug efforts in Colombia.

The applicant was assigned to TRADOC from September 1999 to November 2000.

In a 13 March 2000 facsimile to Abraham L. Clott, Esq., The Legal Aid Society, Federal Defender Division [applicant’s attorney], the Assistant U.S. Attorney Dunst (United States Attorney, Eastern District of New York) forwarded a revised plea agreement which modified the coverage section and inserted a paragraph regarding the government’s position on two of the defendant’s proposed downward departure motions; and stated that he was still waiting for additional information from him [Clott] or from military officials regarding the expected date when the military would advise the applicant of his approved retirement date, and assuming that the notification date was within the next few weeks, the government expected the applicant to enter a guilty plea soon thereafter.

In a 15 September 2000 facsimile to TRADOC, an Assistant U.S. Attorney, Eastern District of New York, affirmed that the plea agreement attached was a true and accurate copy of the original plea agreement entered into between the United States and the applicant on 13 March 2000. That attorney stated that on 13 March 2000 the applicant entered a guilty plea to misprision of a felony. Paragraph 1 of that 13 March 2000 plea agreement states that the defendant will waive indictment and venue and plead guilty to a one-count information, charging him with misprision of a felony, to wit, money laundering. Paragraph 1 states that the count carries the following statutory penalties –

                  a. Maximum term of imprisonment: 3 years
                  b. Minimum term of imprisonment: 0 years
         c. Maximum supervised release term: 1 year, to follow any term of imprisonment
         d. Maximum fine: $250,000
         e. Restitution: Not applicable
         f. $100 special assessment
                  g. Other penalties: Possible reduction of pension and benefits from the United States Army

Paragraph 2 of the plea agreement states, “The defendant’s sentence is governed by the United States Sentencing Guidelines. The Office will advise the Court and the Probation Department of information relevant to sentencing, including criminal activity engaged in by the defendant, and such information may be used in determining the defendant’s sentence. The Office estimates the likely adjusted offense level under the Sentencing Guidelines to be level 13, … This level carries a range of imprisonment of 12-18 months assuming that the defendant has no prior convictions.”

Paragraph 3 states that the guideline estimate set forth in paragraph 2 was not binding on the Office, the Probation Department or the Court. If the Guidelines offense level advocated by the Office, or determined by the Probation Department or the Court, is different from the estimate, the applicant will not be entitled to withdraw the plea.

Paragraph 4 states in part that the applicant will not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence within or below the range of imprisonment set forth in paragraph 2. It goes on to state that the applicant waives any right to additional disclosure from the government in connection with the guilty plea.

Paragraph 5 states that the Office agrees that no further criminal charges will be brought against the applicant for “the importation of heroin and/or cocaine into the United States…failure to report the transportation of more than $10,000 in cash out of the United States … and money laundering in or about and between April 1999 and July 1999; it being understood that this agreement does not bar the use of such conduct as a predicate act or as the basis for a sentencing enhancement in a subsequent prosecution including, but not limited to, a prosecution pursuant to 18 U.S.C, section 1961…..” It went on to say that the Office would take no position concerning where within the Guidelines range determined by the Court the sentence should fall, make no motion for an upward departure under the Sentencing Guidelines, and take no position concerning the applicant’s downward departure motions on the basis of his participation in the offense out of loyalty to his wife, and his aberrant behavior. It stated that if information relevant to sentencing, as determined by the Office, becomes known to the Office after the date of this agreement, the Office will not be bound by the latter three subparagraphs of paragraph 5.

The plea agreement was dated 13 March 2000, signed by an Assistant U.S. Attorney for the Eastern District of New York, agreed and consented to by the applicant, approved by the counsel to the applicant, and the supervising Assistant U.S. Attorney.

On 21 March 2000, the applicant applied for retirement to be effective
30 November 2000.

On 6 April 2000, Orders 097-0102 were published by Headquarters, Fort Monroe, Virginia, releasing the applicant from active duty for length of service retirement, effective 30 November 2000, and for placement of the Retired List effective 1 December 2000 in the rank of colonel.

A DD Form 214 was prepared for retirement of the applicant effective
30 November 2000 for sufficient service for retirement. His service characterization was shown as honorable. He and his wife were issued retirement certificates from the President and Chief of Staff.

According to an 8 June 2000 Presentence Investigation Report, on 17 April 2000 the applicant pled guilty to misprision of a felony.

In an 8 May 2000 memorandum, the TRADOC Staff Judge Advocate requested that the commander of the Army Combined Arms Center and Fort Leavenworth review the CID report of investigation to determine if disciplinary action under the UCMJ was warranted in light of the applicant’s Federal conviction.

An 8 June 2000 Presentence Investigation Report prepared for the Chief United States District Judge for the United States District Court, Eastern District of New York, by Cheryl M. Fiorillo, United States Probation Officer, revealed the following:

         Sentence date was 23 June 2000 for misprision of a felony, a class E felony.

         Arrest date was 17 April 2000 – The applicant surrendered to federal authorities and released on his own recognizance on that date with no pretrial supervision requirements.

         Wife was previously sentenced to 5 years custody, 3 years supervised release, and a $100 special assessment.

         The applicant pled guilty on 17 April 2000.

         The applicant received a substantial portion of money from his wife upon her return from New York in April 1999 and May 1999, reportedly did not question his wife regarding how or where she obtained the cash, but engaged in a series of transactions to disburse the money, obtaining 12 money orders on four occasions in April and May 1999.

         The applicant was interviewed by investigators of the Army CID on 1 June and 3 June 1999, and by an official of the U.S. Embassy. He denied knowing that his wife mailed packages containing narcotics from Bogotá, Colombia to the United States. He never advised the investigators or the Embassy official that his wife transported cash from New York to Bogotá or that he purchased over $12,960.66 worth of money orders with the cash she gave him. Additionally, at the time of the interviews he had several thousands dollars that his wife gave to him and he never disclosed that he had that money. After meeting with the CID investigators, in an effort to dispose of the money, the applicant engaged in a series of cash transactions, purchasing nine money orders in various amounts to various entities. The applicant's transactions, dates, amounts, and recipients –

                  Money orders

         4/26/99  $1400/Pentagon Federal Credit Union
         4/26/99  $2598.91/Haverty's Credit Service
         4/26/99  $1000/Nations Bank
         5/4/99            $1000/Bank of America Visa

         5/25/99  $$2000/Bank of America
         5/25/99  $587.62/Nations Bank Visa
         5/25/99  $494.58/Chase Gold Visa
         5/25/99  $562/Mark S. Ozier (a Texas-based family dentist)
         5/26/99  $1000/Capital One Bank
         5/26/99  $1000/Pentagon Federal Credit Union Visa
         5/26/99  $316.95/Army-Air Force Exchange Service
         5/26/99  $1000/United Services Automobile Association Federal Savings Bank

                           Twelve money orders/$12960.66
        
                  Cash expenditures post CID interview

         6/12/99  $109.88/Marriott Hotel
         6/14/99  $900/Pentagon Federal Credit Union
         6/14/99  $1000/Nations Bank
         6/15/99  $1000/Nations Bank
         6/18/99  $700/Capital One
         6/18/99  $225/Capital One
         6/19/99  $690/Unspecified hotel in Myrtle Beach, SC
         7/12/99  $1190/Banco Union Colombiano money order
         8/5/99            $500/United Services Automobile Association Federal Savings Bank

                           Nine cash transactions/$6314.88

                                             Total $19275.54


         The presentencing report provided a computation for the applicant’s offense based on guidelines contained in the U.S. Code, and other factors; and provided information concerning the applicant’s background and characteristics, and included the statement, “The defendant stated that his November 30, 2000 retirement from the military has been approved, and he intends to provide his family with a stable home life.” The report provided information concerning the applicant’s military service, and stated, “His approved retirement date is November 30, 2000. It is noted that the Army CID re-opened its investigation of the defendant in June 2000. According to the defendant (emphasis added), further military sanctions are pending, subsequent to his sentence in the instant offense. Possible collateral consequences include a one-grade reduction in pension, which would amount to a $1,000 per month decrease in his expected $4,137 pension if he is allowed to retire as a full colonel. Additional charges may be brought against the defendant under the Uniform Code of Military Justice.”

         The report detailed his financial condition, his assets and liabilities, and stated, “The defendant reported an average monthly income of $6,150. His monthly expenses total approximately $4,547; therefore, the defendant has a positive monthly cash flow of $1,603. It is noted that as of December 2000, subsequent to his retirement from the U.S. Army, the defendant’s monthly income will decrease significantly (to approximately $4,137 or less), resulting in a reduced monthly cash flow.”

         The report provided the sentencing options available to the court, stated that the guideline imprisonment range was 10 to 16 months; however, the court as an alternative could impose a term of imprisonment of 5 months followed by a term of supervised release with a special condition requiring 5 months of community confinement or home detention. It stated that if a term of imprisonment was imposed, a term of supervised release of not more than 1 year could be imposed. It also stated that since the minimum term in the guideline imprisonment range was greater than six months, the applicant was ineligible for probation.
        
         The report referred to the plea agreement, stating that paragraph 1(g) of the plea agreement indicated that an additional financial penalty was the possible reduction of pension and benefits from the U.S. Army.

         The report provided factors that warrant departure from the sentencing guidelines, to include a downward departure from the imprisonment range on the ground that the instant offense, money laundering, was a single act of aberrant behavior, and his first offense; a downward departure based on his stellar military record; a downward departure because the applicant is a single parent and the sole financial and emotional support for two minor children due to his wife’s incarceration, and a downward departure because, “The defendant may incur substantial collateral penalties in addition to the punishment he faces before this Court. He may be sanctioned by the U.S. Army with an additional financial penalty in the form of a reduction of his military service pension and benefits. In addition, charges may be brought against the defendant under the Uniform Code of Military Justice. These collateral consequences represent, in our view, mitigating factors not adequately considered by the Sentencing Commission. According to Policy Statement 5K2.0, Your Honor may consider this as a basis for downward departure.”

There is no evidence in the file that the Army was consulted or provided any information concerning the applicant's retirement or the possible consequences of his conviction or sentence.

On 13 July 2000 the applicant was sentenced to imprisonment for 5 months, supervised release for one year upon release from confinement, 5 months home confinement, and a special assessment of $100.00. He was ordered to surrender at the institution designated by the Bureau of Prisons by 8 January 2001. The court adopted the factual findings and guideline application in the presentence report, determining that the imprisonment range was 10-16 months and the fine range from $3,000.00 to $30,000.00. The fine was waived because of the applicant’s inability to pay. The court determined that the sentence was within the guideline range, that range did not exceed 24 months, and the court found no reasons to depart from the sentence called for by the application of the guideline.

On 19 July 2000 the applicant was determined to be medically qualified for retirement by appropriate military medical authority.

In a 14 September 2000 memorandum to TRADOC, the Commander, U.S. Army Combined Arms Center and Fort Leavenworth stated that UCMJ action was not appropriate in the applicant’s case. He also stated that the investigation disclosed no evidence that implicated the applicant in his wife’s misconduct other than the after-the-fact concealment and expenditure of the tainted money she received for her efforts. This was the same criminal activity for which the U.S. Attorney for the Eastern District of New York had already obtained a criminal conviction. He recommended administrative action to consider against the applicant – dropping him from the rolls, ordering him to appear before a Board of Inquiry, issuing a general officer reprimand, referring his retirement application to the AGDRB, amending his OER covering the period in which the misconduct occurred.

On 25 October 2000, the TRADOC commander at Fort Monroe advised the commander of the Total Army Personnel Command (PERSCOM), that after consideration of the case of the applicant, he recommended that “he be dropped from the rolls of the U.S. Army in accordance with 10 United States Code, §1161 and Army Regulation 600-8-24.” He stated, “My recommendation is based on the seriousness of [the applicant’s] offense and the devastating impact of the offense upon public perception and trust of the U.S. military.” He also stated “This action is not precluded by any plea agreement negotiated by Department of Justice.” He further stated “If [the applicant] is not dropped from the rolls, recommend you refer his case to the Army Grade Determination Review Board for determination of the highest grade in which he served satisfactorily for computation of retired pay and other benefits.”

In an undated memorandum to the Chief, Officer Retirement and Separations Branch of PERSCOM, the PERSCOM Commander directed that the applicant be dropped from the rolls of the Army in accordance with Title 10, U.S.C., section 1161, and Army Regulation 600-8-24, chapter 5. In a 3 November 2000 memorandum to Headquarters, Fort Monroe, the Chief, Officer Retirement and Separations Branch of PERSCOM directed that the applicant be dropped from the rolls effective 3 November 2000, that orders be published, and that a DD Form 214 be issued.

On 6 November 2000, Orders 311-00200 were published by Headquarters, Fort Monroe to drop the applicant from the rolls of the Army effective 3 November 2000.

The applicant’s DD Form 214 shows that he was dropped from the rolls for misconduct on 3 November 2000 under the provisions of Army Regulation 600-8-24, paragraph 5-15a(2), under other than honorable conditions.

On 14 November 2000, the applicant requested redress to the TRADOC commander under Article 138, Uniform Code of Military Justice (UCMJ), stating he was not given the opportunity to respond to any of the actions, which was materially unfair. As redress, the applicant requested that the TRADOC commander recommend that PERSCOM revoke the action to remove him from the rolls, and that he would accept retirement in the lower grade of lieutenant colonel.

On 12 December 2000, the Adjutant General, TRADOC advised the applicant that since he had no military status at the time that he initiated his action under Article 138, he was statutorily excluded from pursuing a remedy under that article. He also advised the applicant that he could appeal to this Board.

On 2 January 2001, the applicant submitted a ”Complaint of Wrong (Article 138, UCMJ)” to the Chief of Staff of TRADOC. He stated, among other things, that there were other options in lieu of being dropped from the rolls; that he deserved consideration of his request for redress; that there was a lack of due process, i.e., a lack of notice and a lack of an opportunity to be heard; that the plea agreement mentioned the possible reduction of retirement benefits; that neither the plea agreement nor the Presentence Investigation Report informed the sentencing judge that he would be dropped from the rolls; that he will not begin to serve his prison sentence until 8 January 2001; and that for all of these reasons the TRADOC commander’s recommendation was arbitrary, capricious, and an abuse of discretion, in addition to being unlawful.

On 24 January 2001, the applicant’s complaint was returned to him without action because of his lack of military status at the time he made his request for redress.

Pertinent law and regulation provides that individuals without military status, as in this case, are precluded from redress, action under the UCMJ, and retired pay and benefits.

On 1 July 2002, the Command Judge Advocate (CJA), Total Army Personnel Command (PERSCOM) provided an advisory opinion in this case. He opined that the Army Secretary properly used his authority to act for the President and specifically designated the PERSCOM Commander as the final determination authority in this regard; that the PERSCOM Commander had the authority to drop an officer from the rolls; and that given the requirement that the officer concerned be convicted of a criminal offense and sentenced to confinement before being dropped from the rolls of the Army, the Secretary of the Army’s delegation appeared both lawful and reasonable. He stated that the applicant had not submitted any evidence that his written plea agreement incorporated any condition relating to military retirement or that any promise or inducement was made in that regard.

He stated that the U.S. Attorney’s Office confirmed to the TRADOC Staff Judge Advocate that the Department of Justice made no promise or inducement relating to military retirement and received no commitment from military officials in that regard. He stated that the applicant’s guilty plea was made voluntarily and without any promise or inducement of the type that he now alleges; and that the commander’s decision was just and equitable based on the applicant's criminal conviction of a serious offense and the devastating impact of his offense upon public perception of and trust in the United States military. He further opined that the applicant's claim of error or inequity in the guilty plea or sentence should be addressed through the criminal court system.

On 1 August 2002, the applicant acknowledged the opinion and submitted a rebuttal, received on 7 August 2002. He was assisted by counsel. He stated that there was no clear delegation of authority from the President to the PERSCOM commander, and that this was a presumption on the part of the CJA. He stated that his application relies on equity and not law; and that his position is that one of the factors making it unfair for him to be dropped from the rolls was his receipt of retirement orders almost immediately prior to the entry of his plea of guilty; the U.S. Attorney’s willingness to wait on his receipt of retirement orders prior to requiring him to enter his plea of guilty; and the knowledge of all the parties, including the U.S. Attorney, the District Court Judge, the Probation Officer, and the TRADOC commander, that his retirement orders were in place before he entered his plea of guilty.

His request for relief did not quote law. He immediately entered his guilty plea only after he received his retirement orders, implying that his misconduct would be finally resolved by his plea and that he would be allowed to retire. The UCMJ is irrelevant in his case since he was not dropped from the rolls under the UCMJ, and that his misconduct was resolved before the Federal District Court, and the Constitution's Double Jeopardy Clause prohibited any further prosecution under the UCMJ. The Board should ignore the CJA's opinion that correction is not required as a matter of law, but that he deserves the opportunity to be heard and have due process. He further stated that all of his concerns have not been addressed by the opinion, and that the price he had paid for his misconduct is severe when compared with other senior Army officers and by ex-FBI agent Robert Hanssen. He respectfully and humbly asked that the Board exercise its own considerable judgment in determining whether dropping him from the Army's rolls served the broader interests of justice and equity.

In a 20 December 2002 memorandum, the Chief, Military Personnel Law Branch, Administrative Law Division, Office of The Judge Advocate General, reviewed the action to drop the applicant from the Army rolls, and his request to be retired from the Army. That office concluded that the action to drop him from the rolls on 3 November 2000 was legally sufficient.

In his rebuttal, the applicant stated that the legal opinion was not supported by any legal rationale or theory; that he was not provided a constitutionally-required opportunity to be heard before he was dropped from the rolls, an action that was both unlawful and fundamentally unfair. He stated that neither the TRADOC commander’s recommendation that he be dropped from the rolls, nor his response to his complaint under Article 138, UCMJ, articulated how he could be dropped from the rolls without due process. He stated that the PERSCOM
commander, in his advisory opinion, also advanced no legal theory how dropping him from the rolls comported with due process requirements. He continued in this sense, stating that because of the Board’s two requests to Army lawyers for opinions, it appeared that the Board would like the Army to articulate a basis why dropping him from the rolls was legal and fair. He would like the Army to state why its actions were legal and fair.

He stated that he had no problem that the view advanced by the Army that the action dropping him from the rolls with an Under Other Than Honorable discharge under the provisions of 10 U.S.C., Section 1161 and Army Regulation 600-8-24 was legally sufficient because it comported with both the statue and regulation; however, he contended that the lack of due process did not comport with the constitutional mandate for notice and an opportunity to be heard. No competent lawyer would suggest that he should not have been afforded an opportunity to be heard before his 24-year career was ended with a stigmatizing discharge. He could have been provided due process, but was not, because there was not time to hear him out before his retirement would become effective on 30 November 2000.

He stated that any theory on the Army’s part that he was afforded due process during the criminal proceedings is rebutted because the criminal proceedings did not provide him an opportunity to be heard whether he should be dropped from the rolls or how his service should be characterized; that during the criminal proceedings he did not knowingly and intelligently waive an opportunity to be heard regarding whether he should be dropped from the rolls; and that no other soldier is presumed to have waived an opportunity to be heard regarding separation from the Army and characterization of service by virtue of conviction in a criminal court proceeding.

He stated that the Federal District Court had no jurisdiction whether he should be dropped from the rolls, and the matter was not addressed in any of the court documents, the Pre-sentence investigation report, or by any of the parties of the trial. Consequently, he had no occasion during the trial to gather or present evidence related to a potential action dropping him from the rolls or characterizing his service.

He stated that parties to his trial proceedings did not discuss a potential action dropping him from the rolls, because they were aware that days before he entered a plea of guilty, the Army approved his retirement. No one discussed the matter with him. He stated that it appeared unfair to presume that he had knowledge of 10 USC 1161 when few Army lawyers were aware of it and the Army lawyer he consulted was not aware.

He stated that were he an Army private with more than 180 days of service whose service the Army sought to characterize as Under Other Than Honorable conditions, he would be entitled to a due process hearing before a board of officers. He stated that should the Army seek to separate him as an officer for any reason other than dropping him from the rolls and also seek to characterize his service as Under Other Than Honorable conditions, he would be entitled to a due process hearing.

He stated that any due process afforded him after being dropped from the rolls, is fundamentally unfair, in that he was entitled to an opportunity to be heard prior to being dropped from the rolls.

He stated that the views of lawyers in the Office of The Judge Advocate General, like those of the PERSCOM Judge Advocate, might be prejudiced by their own advice given prior to the action dropping him from the Army’s rolls. All those lawyers might now be commenting on their own previous work, and, if so, they were unlikely to admit now that their previous advice was incomplete or in error. He requested that the Board conclude the Army could not or would not articulate its [position] and that its lawyers had been of little or no help to the Board in deciding this matter.

U.S.C. Section 1161 states that the President may drop from the rolls of any armed force any commissioned officer who is sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a court other than a court-martial or other military court, and whose sentence has become final.

Army Regulation 600-8-24, chapter 5, provides procedures whereby officers on active duty or retired may be dropped from the rolls of the Army. The final decision concerning acceptance of all requests for separation under chapter 5 will be made by PERSCOM or ARPERCEN (as appropriate).

An officer on active duty or a retired officer may be dropped from the Army rolls when the officer is not entitled to receive retired pay and has been found guilty by civil authorities of any offense and sentenced to confinement in a Federal or State penitentiary or correctional institution and his or her sentence has become final.

The commander, when information is received that indicates an officer warrants being dropped from the rolls of the Army, forwards such recommendation through channels to Commander, PERSCOM for final determination, including a detailed statement (including documentary evidence) why the officer may be dropped from the rolls, and when appropriate, a certified copy of the court order conviction or letter from the warden of the penitentiary or correctional institution verifying the officer’s confinement.

Financial institutions are required by federal law and Treasury Department regulations to file currency transaction reports on all cash transactions of over $10,000. Under the Money Laundering Control Act of 1986, it is a federal crime for an individual or entity to structure or assist in structuring a transaction for the purpose of evading reporting requirements.

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

1. The applicant contends that the Army was precluded from dropping him from the rolls as a result of his pretrial agreement or understanding with the Department of Justice. While the matter of the applicant’s military status is clearly within the ambit of the Board’s authority, the question of enforcement of his plea agreement is better left to the District Court. Resolution of the question of whether the guilty plea agreement between the applicant and the Government encompassed the question of whether the applicant would be permitted to retire from the service would be more properly resolved in the courts. In short, as a matter of prudence and of comity, the Board will not decide this matter until the court has had the opportunity to review whether the plea agreement has been fulfilled.

2. In his final rebuttal to the advisory opinion of the Office of The Judge Advocate General, the applicant contends that the Army violated constitutional Due Process protections by dropping him from the rolls after his retirement was approved. This is without merit. Unless the court decides that his plea agreement was violated, he had no property right in his retirement at the time he was dropped from the rolls. Retirement orders could have been revoked for any number of reasons prior to his November retirement date without requiring notice or opportunity to respond. Had he gone absent without leave for 30 days prior to his retirement date he could have been dropped from the rolls without notice or opportunity to respond. In short, prior to his retirement date he had no property right in retirement warranting due process.

3. The applicant’s contention that he was deprived of “administrative due process,” that is, that the TRADOC Commander’s recommendation that he be dropped from the rolls was premature, arbitrary, capricious, an abuse of discretion, and unlawful, is without merit. The decision of the TRADOC commander was based upon his judgment of the seriousness of the applicant’s offense. The TRADOC commander made a subjective decision in making his recommendation to PERSCOM. That recommendation was not made, however, until 25 October 2000, after receipt of the report and the recommendation of the
commander of the Army Combined Arms Center, a report based upon a review that was four months in the making. The TRADOC commander did not make his recommendation in a vacuum, but only did so after receiving that report, and then only after a month long review on his part. It would appear to this Board that the TRADOC commander prior to making his recommendation proceeded methodically and thoughtfully. His recommendation was not premature, but made only after the applicant pled guilty, and subsequently sentenced to confinement. A recommendation to drop an officer from the rolls of the Army, or for that matter dropping an officer from the rolls of the Army, does not rest upon an officer’s actual confinement. A sentence to confinement only is necessary to effect the above actions.

4. The newspaper articles do not support the applicant’s request by showing he was treated unfairly, unlawfully or inequitably. The military individuals cited in his references were not convicted of a felony and incarcerated in a Federal prison, nor were they dropped from the rolls of the Army. The FBI official did not hold a military status and could not be dropped from the rolls of the Army. He has also not shown his case similar to others or that his treatment was unjust, unfair or inequitable.

5. The Board has taken cognizance of the applicant’s exemplary 24 years of service to the Army. It has taken note of his evaluation reports, his difficult assignments, and the numerous awards that he has received. The Board also is aware of the numerous injuries that he sustained while on active duty. The applicant's dedication, his professionalism, his sacrifices, and his contributions to the Army, are well noted, as evidenced by the numerous laudatory remarks on his evaluation reports, e.g., unlimited potential, dedicated, judgmental abilities unsurpassed, superb leader, will advance to highest levels of command, best lieutenant colonel in the command, multi-star potential, best of the best, and so on. It has considered all the documents submitted by the applicant, to include the professions of support from senior officers. Those avowals of support are indeed impressive, the officers clearly depicting that the applicant was an outstanding officer, who had already paid a price for trying to protect his wife – that is the judgment by a civil court. All those officers in their statements urge that the applicant be reinstated in the Army, and if necessary, be retired at a reduced grade.

6. The Board does not arbitrarily discount any of these statements, evaluation reports, awards, or the numerous other documents that he submits with his request. The Board, however, does not wholly accept the applicant’s contention that he acted only to conceal the crimes of his wife. The evidence suggests that he was proactive in this matter – not in dealing with narcotics, but in laundering the money that his wife gave him. The evidence shows that he purchased four money orders, totaling almost $6,000.00 on 26 April (the day after his wife returned from New York) and on 4 May 1999, payable to credit unions and banks; that he did so again on 25 May and 26 May 1999 in the amount of almost $7,000.00 to various institutions, and to one individual, after her return from New York on 23 May 1999. During interviews on 1 and 3 June 1999, he never advised the Army CID investigators or an Embassy official that his wife had transported cash from New York to Bogotá on two occasions, nor that he had purchased over $12,000.00 worth of money orders from that cash. He had several thousand dollars previously given to him from his wife after her trips to New York at the time of the interviews that he never disclosed. After the interviews, he engaged in a series of transactions involving over $6,000 in cash, whereby he disbursed the remainder of the cash that his wife had previously given to him. Although the applicant’s wife transferred over $10,000 to him, the applicant took significant pains to ensure that he never engaged in a bank transaction that reached that reporting threshold. The evidence suggests that he was not only aware of his wife's activities, but that he also benefited from those activities and actively concealed them.

7. The applicant is a well-educated, highly intelligent individual, a former colonel with high expectations. His deliberate actions show that he knew exactly what he was doing. Notwithstanding his protestations to the contrary, he was no innocent bystander. The applicant knowingly violated his trust as an officer of the United States Army, and by doing so disgraced himself and his office. In view of the circumstances surrounding his case, dropping him from the rolls of the Army was neither too harsh nor unfair. He is not entitled to correction of his military records by revocation of the orders dropping him from the rolls of the Army, and by revocation of his DD Form 214; nor, is he entitled to length of service retirement, with or without a rank decided by the AGDRB. He has not convincingly shown error, injustice or inequity for the relief he is requesting.

8. 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 this requirement.

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

__RJW___ __WDP_ ___LMB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002062254
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030304
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.