MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 23 January 2003
         DOCKET NUMBER: AR2002074561


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Ms. Gail J. Wire		Member
Mr. Patrick H. McGarthy, Jr.		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 reinstating him on active duty as of 1 August 2000; by providing him back pay and allowances due as a result; by crediting him with the time served for time in grade, pay, promotion, and retirement purposes; and by expunging all documents related to his unqualified resignation from his Official Military Personnel File (OMPF); or alternatively if this relief is not granted, by granting him an early retirement as of 31 July 2000, with all back pay and allowances due as a result.

APPLICANT STATES: In effect, that in its original deliberations, the Board concluded that granting him an early retirement was not appropriate since there was no early retirement program in effect at the time of his discharge. He claims that by adopting this argument, the Board sided with the willful and malicious distortion of Total Army Personnel Command (PERSCOM) officials, who overlooked the provisions of Title 10 of the United States Code, section 1293
(10 USC 1293), which he cited to justify his request.

The applicant also claims that the Board’s argument that his outstanding issues could immediately detract from mission accomplishment is absurd. By validating PERSCOM’s speculation that he would continue to pursue his case if he were to stay on active duty, the Board agreed with the argument that a service member should be punished when he attempts to defend himself against slanderous accusations. The applicant claims that PERSCOM was retaliating against him as a whistleblower, and the Board’s current position supports this retaliation. PERSCOM is guilty of obstruction of justice and denial of due process. Unless the Army Board for Correction of Military Records (ABCMR) reverses its position, it will fall into the same category.

The applicant also indicates that since there were no facts to back up this position, the Board relied on wishful speculation. The facts are that his fight for justice in no way detracted from his duty performance. At Central Command (CENTCOM), he proposed a targeting plan that would facilitate the downfall of Saddam Hussein with a minimum of infrastructure damage and civilian deaths. His superiors agreed with his reasoning, and knew that he had the drive and dedication, and skill to accomplish the task, “so they let him at it.” He worked tirelessly on this project and was still nominating targets the day before he was forced out. He claims that as a civilian linguist supporting the Air Force, in Saudi Arabia, he was the first to identify a possible terrorist infiltrator and took steps to expose him at great personal risk to himself. Intelligence and law enforcement agencies alike have shown great interest in this individual since 9/11, indicating that his instincts were correct. He points out that he was punished as an interrogator for not obeying the interpreter, then he was punished as an interpreter for providing correction to an interrogator.
The applicant also claims that the Board should have known that the last thing he wanted to do was to submit his resignation. He loved being in the Army and enjoyed doing work he was well suited for. However, the command placed him in a position that required that he deny his faith and that he break his oath to protect the Constitution, which he could not do and in effect forced him to submit his resignation. None of the command elements involved in his resignation processing ever acknowledged the significance of Department of Defense (DOD) Directive 1300.17 (Accommodation of Religious Practices within the Military Services). He on the other hand, has consistently pointed out the troubling precedent of a gradual elimination of religious practice from the public sphere. He asks, why else would he have risked his career; and he claims that a recent court ruling on the Pledge of Allegiance bears him out on this subject.

The applicant comments that after all the heartache and hardship, both to him and his family, he deserves a clear explanation of exactly why his prayer with a fellow Christian could not be accommodated; what exactly was the harm to the mission, were bones broken or lungs blackened? He indicates that the Board has his comments on the Equal Opportunity farce in the letter he sent to The Secretary of Defense. He concludes by commenting that if the Board cannot form a coherent answer, its decision should be changed. He concludes by requesting that he be provided any correspondence from the Department of Defense (DOD) or the Office of the Secretary of Defense that directly pertains to or has a material effect on his case.

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 (AR2001057007) on 21 February 2002. The applicant’s contentions are accepted as new argument that requires consideration by the Board.

As outlined in the original Board decisional document, in November 1998, while assigned duties as the chief interpreter/translator for the CENTCOM, the applicant prayed with and gave gifts to an intelligence source during a Defense Intelligence Agency (DIA) debriefing. As a result, the applicant lost a projected DIA assignment to Europe.

In September 1999, the applicant requested an unqualified resignation based on his stated belief that he could no longer serve in an organization that failed to follow its directives on religious accommodation. PERSCOM denied this request due to strength considerations. This decision was primarily based on the fact that he had not completed his service obligation.

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In December 1999, the applicant resubmitted his request for unqualified resignation based on the same reason cited in his original request. He requested a separation date of 30 June 2000, subsequent to the completion of his military service obligation, and PERSCOM approved this request.

In May 2000, the applicant requested withdrawal of his request for unqualified resignation so that he could continue to serve his country. This request was supported by his chain of command. In June 2000, PERSCOM denied this request.

In July 2000, the applicant requested early retirement since PERSCOM denied his request to withdraw his unqualified resignation. The CENTCOM Director of Intelligence supported his request. However, he disagreed with the applicant’s stated allegations. The CENTCOM Director stated, in pertinent part, that he personally had meetings with the applicant to ensure that he understood the consequences of his unqualified resignation request. PERSCOM returned the request without action, noting that the Army had not conducted an Early Retirement Program in Fiscal Year 2000.

Between April 1999 and July 2000, the applicant submitted a series of complaints through his chain of command, the CENTCOM Inspector General (IG), and a Member of Congress, alleging religious discrimination. The CENTCOM IG found his allegation unsubstantiated, and his Member of Congress closed his case in July 2000.

The applicant’s pursuit of relief on this issue culminated with his application to this Board in March 2001. On 21 February 2002, the Board finally concluded that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. Notwithstanding the language used, the Board’s primary reason for denying relief was that the applicant’s early retirement request and unqualified resignation request had been properly and equitably processed by PERSCOM in accordance with applicable law and regulation, and that the applicant had failed to provide sufficient evidence to the contrary.

10 USC 1293 provides the legal authority for the retirement of warrant officers after twenty years or more of active military service. The law was amended to provide Temporary Early Retirement Authority (TERA) during the active force drawdown period. The law allowed The Secretary of the Army (SA) to apply the provisions of this title to a warrant officer with at least 15 but less than 20 years of service. Under the law, The SA was given the responsibility to prescribe regulations and policies regarding the criteria for eligibility of members under TERA, and for the approval of applications for such retirement.
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 Board notes applicant’s latest contentions, but it finds that they do not provide new evidence or argument that was not available to the Board during its original deliberations in this case. In the opinion of the Board, the applicant has simply restated his original claims and has expressed his strong dissatisfaction with the Board’s original decision in his case. While this is understood, it does not provide a basis for changing the Board’s original recommendations.

2. The evidence of record confirms that the applicant voluntarily requested an unqualified resignation on two separate occasions based on the fact that he could no longer serve in an organization that failed to follow its directives on religious accommodation. Notwithstanding the specific language used in the PERSCOM response to a Congressional inquiry or the language used by the Board in its original decisional document, the record reveals no error or injustice related to the PERSCOM denial of his request to withdraw his unqualified resignation.

3. The Board concludes that PERSCOM had the responsibility and obligation to determine if it would have been in the best interest of the Army to approve the applicant’s request to withdraw his request for unqualified resignation. Based on the applicant’s expressed disagreement with the various investigations conducted into his allegations of religious discrimination, PERSCOM acting within its discretionary authority determined that it would not serve the Army’s best interest to allow him to continue to serve. In its original findings, the Board concurred with this PERSCOM decision. This Board finds no new evidence or argument submitted by the applicant that would cause it to reverse the original conclusions arrived at by the Board.

4. In addition, the Board finds that the PERSCOM denial of the applicant’s early retirement request was also proper and equitable. The Board notes that the TERA law tasked the SA to publish the regulations and policy for its implementation, and in turn, the SA delegated this authority to PERSCOM. The evidence of record also makes it very clear that the Army did not conduct an Early Retirement Program in Fiscal Year 2000. Therefore, the Board finds the PERSCOM denial was appropriate at the time.

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5. The Board also concludes that approval of the applicant’s request for early retirement was not required by law, and that granting this relief as an exception to policy is not warranted at this time. The Board takes this position in the interest to all those who served and faced similar circumstances, and who were not allowed to retire in lieu of an approved unqualified resignation.

6. 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.

7. 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

__KAN__ __GJW _ __PHM __ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002074561
SUFFIX
RECON	2002/02/21
DATE BOARDED	2003/01/23
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2000/07/31
DISCHARGE AUTHORITY	AR 600-8-24
DISCHARGE REASON	Unqualified Resignation
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1. 192	110.0300
2. 338	136.0000
3.
4.
5.
6.