PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2002077554


         I certify that hereinafter is recorded the true and complete record of the proceedings 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 L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas B. Redfern		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his discharge date be changed to 1 May 2002.

3. The applicant states, in effect, that the board of inquiry (BOI) recommended that he be retained until he completed 20 qualifying years of service for a non-regular retirement. He submitted a portion of his separation packet and a 19 June 2002 memorandum from his defense counsel to the Commander, U. S. Army Reserve Personnel Command (AR-PERSCOM) as supporting evidence.

4. The applicant’s military records show that he was born on 22 April 1942. He was commissioned a Dental Corps second lieutenant in the U. S. Army Reserve (USAR) on 22 April 1982. He was promoted to major on 20 April 1989.

5. On 19 May 2000, while at annual training, the applicant underwent urinalysis screening and tested positive for marijuana. On 5 August 2000, he was informed by his brigade-level commander of the results of the urinalysis. A flagging action for a field-initiated elimination was prepared on 5 August 2000 with an effective date of 19 May 2000. He was referred for drug abuse counseling.

6. On 5 August 2000, the applicant received a memorandum of reprimand (dated 18 June 2000) for testing positive for marijuana. The memorandum was forwarded to the applicant for comment. He indicated on 8 August 2000 that he intended to contest the allegation.

7. On 5 August 2000, the applicant received notification that he was being considered for separation under the provisions of Army Regulation 135-178, chapter 7. (This was a pre-printed form that was in error. Army Regulation 135-178 pertains to the separation of enlisted personnel. Army Regulation 135-175 pertains to the separation of officers.) He was advised of the basis for the contemplated separation by counsel. He requested consideration of his case by an administrative separation board and personal appearance before such a board.

8. By letter dated 12 August 2000 to the Commander, 139th Medical Group and the Commander, 35th Field Hospital, the applicant stated that he realized his thoughtless actions on or about 15 May 2000 were done without consideration of the trust and confidence entrusted in him as an officer. He offered no other excuse other than to say he was deeply sorry for the blight he may have caused his unit. He took full responsibility for his actions.

9. On 1 September 2000, a licensed clinical social worker and licensed professional counselor with Midwest Psychiatric Consultants, P.C., indicated the applicant was evaluated and no existing problem with marijuana addiction was found. It was felt there was no need for the applicant to continue therapy.

10. On 21 December 2000, the applicant was notified by the Commander, 89th Regional Support Command (RSC) that involuntary separation action against him was being initiated for acts of personal misconduct.

11. On 28 December 2000, the applicant consulted with counsel and requested a hearing before a board of officers and elected to appear before the board at his expense.

12. On 5 February 2001, the Commander, U. S. Army 89th RSC appointed a BOI with a suspense date of 5 April 2001. The letter noted that cases would be heard on 8th Legal Support Organization (LSO) drill dates and the next drill date was 10 - 11 March 2001.

13. By memorandum dated 28 July 2001, the Commander, 89th RSC amended the 5 February 2001 BOI appointment letter to change board members.

14. The BOI convened on 25 August 2001. Defense counsel objected to the show cause notification of 21 December 2000 as it was not in compliance with Army Regulation 135-175 in that it did not notify the applicant of the requirement for him to show cause for retention. The objection was overruled. Defense counsel objected to parts of the separation packet. Specifically, he objected to a 4 January 2001 letter signed by the applicant, contending it was attorney-client work product and to the memorandum of reprimand dated 18 June 2000. Both objections were overruled.

15. The applicant testified in his own behalf. He acknowledged that there was marijuana in his system at the time [of the urinalysis] and he accepted full responsibility. He got the substance from an associate of his in Kansas City. He did not ask his associate for it. His associate observed that his skin was broken out, he was nervous, and his associate thought he needed to go chill out. He was having a lot of stress at the time and he did not have the strength to cast it away.

16. Several witnesses testified that the applicant should be retained in the USAR. The unit administrator testified that he had served with the applicant for about 19 years and, except for a recent flag for Army Physical Fitness Test failure, the applicant had never had any other disciplinary problems. The applicant's senior rater testified that he concurred that drug use was not something to be condoned but he fully agreed that it was in the best interest of the USAR to retain the applicant despite the positive test result. The senior rater stated that it was one act that tarnished the applicant's 19-plus year career. The senior rater stated that, in spite of that act, the applicant continued to lead by example.


17. On 25 August 2001, the BOI found that the applicant committed an act of personal misconduct by using marijuana and recommended he be separated from the USAR, that he receive an honorable discharge, and, apparently because the applicant was so close to completing 20 qualifying years for a non-Regular retirement (19 years of service as of April 2001), that such separation be suspended for a period of up to one year.

18. The Commander, 89th RSC approved the findings of the BOI. He approved the recommendation to discharge the applicant with an honorable discharge. He disapproved the recommendation to suspend the applicant's discharge.

19. On 20 December 2001, the Deputy Staff Judge Advocate (SJA), U. S. Army Reserve Command (USARC) reviewed the board proceedings and recommendations. The Deputy SJA noted that the applicant's three objections, made during the course of the proceedings, were properly overruled. The Deputy SJA then noted, in considering the option whether to approve the BOI's finding, that there was no reason to believe the BOI erred in that regard and there was no reason to disapprove their finding. In considering the option whether to approve the BOI's recommendation for discharge and their more specific recommendation for an honorable discharge, the question was really whether to forward the case recommending approval of an honorable discharge or retention. The recommendation for a suspended discharge was not an available option. The evidence showed the applicant had generally given the Army solid, faithful service; however, it was countered by the fact he was an officer and should have known to avoid acts of personal misconduct. The Deputy SJA recommended the findings and recommendations of the BOI be approved except for the recommendation for a suspended discharge and that the case be forwarded to Headquarters, Department of the Army.

20. By letter dated 9 January 2002, the applicant was notified that he was promoted to lieutenant colonel effective 23 October 2001.

21. On 8 March 2002, the involuntary separation action was forwarded to AR-PERSCOM for approval.

22. On 28 March 2002, the Chief, Military Law, AR-PERSCOM reviewed the Report of Proceedings by the BOI held on 25 August 2001. It was noted that the BOI found the applicant committed an act of personal misconduct by using marijuana and recommended separation with an honorable discharge with a suspension for a period of up to one year. It was noted the recommendation for a suspended discharge was not an available option. The only options were retention or separation with an honorable discharge. The Chief, Military Law recommended the commander approve separation with an honorable discharge.

23. The Chief, Military Law also noted that the applicant was promoted to lieutenant colonel with a date of rank of 23 October 2001 and that, despite the on-going involuntary separation action, there was no flag on the applicant at the time of promotion. It was noted that the applicant would obtain 20 good years on 21 April 2002.

24. On 1 April 2002, the Commander, AR-PERSCOM approved the findings and recommendations of the BOI that the applicant be discharged and directed he be issued an Honorable Discharge from the USAR.

25. Orders D-04-214043, AR-PERSCOM dated 1 April 2002 discharged the applicant in the rank of lieutenant colonel from the USAR effective 1 April 2002. On that date he had completed 19 years, 11 months, and 22 days of qualifying service for a non-regular retirement.

26. On 19 June 2002, the applicant's defense counsel forwarded a memorandum to the Commander, AR-PERSCOM requesting AR-PERSCOM amend the applicant's discharge orders to reflect an effective date of 1 May 2002. Such an amendment would enable the applicant to be credited with a full 20 qualifying years for a non-regular retirement. Counsel contended that the Commander's only option under Army Regulation 135-175, paragraph 2-20 and 2-20.1 was to either accept the BOI's recommendation, which would have included the recommendation for suspension of the discharge, or resubmit the matter to the BOI. Discharging the applicant 20 days short of completing his 20th year was not accepting the BOI's findings as required. The BOI's recommendation to suspend the applicant's discharge was tantamount to its recommending his retention. There is no evidence to show that AR-PERSCOM responded to this request.

27. Army Regulation 135-175 provides policy, criteria, and procedures governing for the separation of officers of the Army National Guard of the United States and the USAR. Paragraph 2-12 lists several conditions, not all-inclusive, which authorize involuntary separation of an officer due to moral or professional dereliction. Paragraph 2-12f lists acts of personal misconduct.

28. Army Regulation 135-175, paragraph 2-20a(1) states that if the board has failed to make findings and recommendations as required by this regulation, the area commander will return the case to the same board for compliance with the regulation. Paragraph 2-34b(f) states that, when the findings have been determined, the recommendations will be limited to the following: retention or involuntary separation.

29. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.

30. Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

31. Army Regulation 600-8-2 prescribes policies governing the suspension of favorable personnel actions as a function. It states that flags will be submitted when an unfavorable action or investigation is started against a soldier by military or civilian authorities. It states that a field-initiated elimination requires a non-transferable flag. It states that a flag prohibits promotion.

32. Title 10, U. S. Code, section 14905(b)(2), states that an officer removed from an active status under section 14903 (Boards of Inquiry) of this title shall be transferred to the Retired Reserve if eligible for transfer to the Retired Reserve and has completed the years of service required for retired pay.

CONCLUSIONS:

1. The Board concludes there was a Government error in this case.

2. Army Regulation 135-175 clearly states that a BOI may make only two recommendations: retention or involuntary separation. In the applicant's case, the BOI recommended involuntary separation; however, it was with the proviso that the separation be suspended for up to one year. It therefore appears clear that the BOI was insufficiently briefed on just what recommendations it could make.

3. There is reasonable doubt as to what recommendation the BOI would have made had it understood it could only make an "either/or" recommendation. The Board notes the applicant's records and testimony given at his separation board which indicated he had no prior disciplinary problems. The Board notes that witnesses for the applicant, including his senior rater, testified that the applicant should be retained in the USAR. It is reasonable to presume that the BOI's intent in making its recommendation that the applicant's separation be suspended for up to one year was to afford the applicant the opportunity to qualify for a non-regular retirement. Considering the applicant's age (59) at the time the BOI convened, the Board concludes that the BOI most likely would have recommended the applicant's retention had it been properly briefed.

4. Since the BOI clearly failed to make findings and recommendations as specified by Army Regulation 135-175, paragraph 2-20a(1) of that regulation required the area commander to return the case to the same board for compliance with the regulation. The 89th RSC commander instead "read the mind" of the BOI and made his own recommendation.

5. It appears that had the case been returned for compliance with the regulation, sufficient time would have elapsed to make the applicant eligible for retired pay by the time his discharge would have been approved. As it was, he lacked only 8 days at the time of his discharge on 1 April 2002 to give him 20 qualifying years for retirement. In accordance with Title 10, U. S. Code, he then would have been eligible for transfer to the Retired Reserve.

6. It appears that Government error also allowed the applicant to be promoted to lieutenant colonel at a time he should have been flagged and prohibited from being promoted. AR-PERSCOM made a decision to discharge him in the rank of lieutenant colonel.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That Orders D-04-214043, AR-PERSCOM, dated 1 April 2002, discharging the applicant from the USAR be revoked.

2. That orders be issued to show the applicant was transferred to the Retired Reserve effective 1 May 2002, after completing 20 qualifying years of service.

3. That the applicant be issued a notification of eligibility for retired pay at age 60 (a 20-year letter).

BOARD VOTE:

__ao____ __kh____ __tr____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Arthur A. Omartian__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077554
SUFFIX
RECON
DATE BOARDED	20030605
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	135.00
2.	136.00
3.
4.
5.
6.