RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 28 OCTOBER 2005
DOCKET NUMBER: AR20040007338
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 |
| |Ms. Deborah L. Brantley | |Senior Analyst |
The following members, a quorum, were present:
| |Mr. Melvin Meyer | |Chairperson |
| |Mr. Allen Raub | |Member |
| |Ms. Linda Simmons | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. In effect, the applicant requests that:
a. The 1 October 2002 DD Form 214 (Certificate of Release or
Discharge from Active Duty) be declared null and void, of no force or
effect, and be expunged from his official military personnel file (OMPF);
b. A DD Form 214 be reissued showing he was discharged on
14 September 2001 because of a medical disability, with an honorable
characterization of service;
c. The Defense Finance and Accounting Service’s (DFAS) efforts to
recoup his severance pay be stopped, and that funds thus far recouped by
DFAS be restored to him;
d. A General Officer Memorandum of Reprimand (GOMOR) be expunged
from his OMPF;
e. An Officer Evaluation Report (OER) be expunged from his OMPF; and
f. All references to his resignation in lieu of trial by court-
martial be expunged from his OMPF.
2. The applicant made no statement but deferred to counsel.
3. The applicant and counsel provide the documents depicted herein and as
indicated in the list of exhibits attached to the application provided by
counsel in the applicant’s first amendment to his application, dated 30
December 2004, and his second amendment to his application dated 27 April
2005. The lists, with names of individuals redacted, are an integral part
of the case file.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel’s request is as indicated above. In addition, as reflected in
the applicant’s first amendment to his application, counsel requests two
alternative actions by the Board:
a. If the Board members conclude that the application does not show
material error in the applicant’s military record, then the Board should
grant the requested relief on the grounds that the combination of punitive
and adverse actions taken against the applicant amounted to manifest
injustice. Also the manner of handling the applicant’s case created an
appearance of unlawful command influence and vindictiveness that can be
cured only by granting the applicant some measure of relief.
b. The applicant’s characterization of service should be upgraded to
Honorable and any DD Form 214 in his military record should be recoded to
indicate a voluntary and honorable discharge, to undo an injustice that
resulted from the unreasonable multiplication of adverse actions taken
against the applicant.
2. Counsel states that the applicant was improperly returned to duty after
being discharged because of his physical disability and after he was issued
a DD Form 214. Upon his return to active duty, he was
improperly court-martialed for fraudulent separation under the provisions
of Article 83, Uniform Code of Military Justice (UCMJ); was improperly
given a GOMOR and an adverse OER; was improperly deprived of his rightful
separation pay; and was improperly given a DD Form 214 showing a general
discharge and separation in lieu of trial by court-martial. All of this
occurred because the Army wrongfully applied the provisions of Article
3(b), UCMJ, to the applicant.
3. Counsel gives an account of the applicant’s military service. He
states that the applicant, a West Point graduate, after being selected for
participation in the Army’s Funded Legal Education Program, attended the
University of Virginia School of Law at government expense, graduated in
1996, and was serving a 6-year active duty service obligation as a Judge
Advocate General’s Corps officer at Fort Benning, Georgia, until his
discharge on 14 September 2001.
a. While serving as an infantry officer, the applicant had problems
with his knees, underwent surgery to both knees, and underwent treatment,
to include physical therapy, to no avail. The applicant, and his treating
physicians, felt that he would never again be able to engage in activities
that would impact upon his knees.
b. The applicant’s physician referred him to an MOS (military
occupational specialty)/Medical Retention Board (MMRB). On 20 September
2000, the MMRB recommended that he be referred into the Army’s Physical
Disability Evaluation System (PDES). The MMRB convening authority approved
the recommendation and referred the applicant into the PDES.
c. Counsel defines the PDES, the authority for its establishment,
and the policies, responsibilities, and functions contained therein. He
states that in the first step of the PDES, an MEB (Medical Evaluation
Board), the three members of the MEB unanimously referred the applicant to
the second step in the PDES, the PEB (Physical Evaluation Board). The
Physical Evaluation Boards, of which there are three, are supervised by the
Commanding General, United States Army Physical Disability Agency (USAPDA).
In June 2001, the PEB in Texas determined that the applicant was unfit for
duty and recommended that he be discharged from the Army with severance
pay.
d. The applicant was counseled by the Fort Benning PEB Liaison
Officer (PEBLO) alternate, who informed him of the PEB results, his rights,
and counseled him as required by Army Regulation 635-40. She advised him
that the PEB findings and recommendations were not final until approved for
the Secretary of the Army, and that his case would still be subject to
review and modification by the USAPDA. She stated that if the USAPDA made
no changes, it would forward his case to the Total Army Personnel Command
(PERSCOM), since renamed the Human Resources Command (HRC), for issuance of
discharge orders.
e. The PEB forwards its cases to the USAPDA, which screens them
before sending them to PERSCOM. In the applicant’s case, USAPDA review was
not mandatory, but discretionary.
f. On 3 July 2001, the Fort Benning transition center informed the
applicant that his discharge orders were ready for pick-up. The orders
were dated 2 July 2001. The applicant informed his technical branch
supervisor, Colonel “Q,” on 5 July 2001 of his pending separation. The
orders specifically stated that after processing, he would be discharged,
and the date of discharge, unless changed or rescinded, was 14 September
2001. Thus, by their express terms, the orders automatically discharged
the applicant on that date. The orders were issued by the Commanding
General, Fort Benning, who had the authority to issue discharge orders on
behalf of the Commander, PERSCOM. Orders were not issued by the USAPDA,
nor could they be, because it was not an orders issuing authority.
g. The applicant told Colonel “Q” that he had reservations about
telling Colonel “G,” the Fort Benning Staff Judge Advocate, about the
nature of his pending discharge. Colonel “Q” informed him that the only
person he had to inform was Lieutenant Colonel (LTC) “D,” the JAG (Judge
Advocate General) Corps company-grade assignments officer located at the
JAG Corps Personnel, Plans and Training Office (PPTO). They notified LTC
“D” on 13 July 2001.
h. The following week, PPTO advertised the upcoming September
vacancy at the Fort Benning Trial Defense Service (TDS) field office (the
applicant’s office), so it became apparent to the applicant’s fellow TDS
captains that the applicant was leaving in September. That same week, PPTO
individuals began secretly to take actions that might cause a reversal of
his disability discharge. Colonel “T,” the Chief of PPTO, informed Colonel
“Q” to keep the matter secret from the applicant.
i. The applicant began job hunting. The new acting Regional Defense
Counsel discussed with the applicant in July an award recommendation for
the applicant that she was preparing on Colonel “Q’s” behalf. Colonel “Q”
talked with the applicant in late July to see how he was doing. In early
August, the applicant informed his new Regional Defense Counsel, LTC “Z,”
that he would be gone on 14 September 2001. LTC “Z,” misunderstanding the
guidance given him regarding the applicant, told the applicant that he
might not be discharged, because PPTO was trying to get a re-look board.
j. The applicant then received several telephone calls and was told
several different things, which conveyed to him the secrecy, deception, and
misdirection on the part of those speaking with him. The applicant learned
that PPTO was unhappy that the applicant went through the PDES without
informing them, and that the PPTO was seeking to get his discharge
reversed.
k. The applicant was promoted to major on 29 August 2001.
Unbeknownst to the applicant, between 10 August and 31 August 2001, the
PPTO and the USAPDA legal advisor had worked in concert to develop
substantial new evidence that was then used to substantiate their return of
his disability case to the Texas PEB with a proposed modification. The new
evidence was non-medical evidence, the applicant’s performance data.
l. In the absence of any revocation order and because of complete
silence from PPTO and other involved persons, the applicant continued to
out-process. On 5 September 2001, the applicant was furnished with new PEB
proceedings, which found him fit for duty. The proceedings did not purport
to revoke his discharge order. He was granted 10 days to respond to the
new PEB proceedings, 17 September 2001, subsequent to the date of his
ordered separation. On 14 September 2001, the applicant was discharged.
There was no revocation of his separation orders on that date. He received
about $80,000.00 in severance pay.
m. On 18 September 2001, the applicant’s separation orders were
revoked. On 29 October 2001, he was ordered back to active duty.
n. On 1 November 2001, the applicant was charged with a violation of
Article 83, fraudulent discharge. An Article 32 investigation determined
that the charge should be dismissed and no court-martial convened.
Nevertheless, a court-martial was convened. The issue was resolved by the
applicant receiving approval of his requested resignation in lieu of a
trial by court-martial and a general discharge. He was given a GOMOR and
an adverse OER.
4. Counsel states that the applicant was separated pursuant to lawful,
self-executing orders, which were not revoked by any competent authority
prior to the date of his discharge; that the second PEB was not the final
agency action as of the date of his discharge, and did not form a basis for
revocation of the separation orders or serve as a revocation of the orders;
that nothing that the applicant did was fraudulent with respect to his
eligibility to separate, and the allegations of misconduct made by the
government were irrelevant to the charge; and that the applicant had no
duty to say anything to the separation personnel at the separation point on
14 September 2001 – it was not fraud to appear pursuant to lawful orders.
a. Counsel quotes from Article 83, UCMJ, Manual for Courts-Martial
(MCM), section 7.a.2, and states that the article does not speak to false
representation about staying in the Army or remaining silent about a
medical board, or about having an affirmative duty to say anything, but
speaks to “false representation or deliberate concealment” of eligibility
for separation. The applicant did not do anything to misrepresent or
conceal his eligibility for medical separation.
b. The first PEB had the authority to seek other evidence if it so
chose. They chose not to do so. It determined that there was sufficient
evidence to render a decision. There was no hint that any evidence before
them was a false representation by the applicant or that he concealed any
evidence before the PEB. From the date of the PEB until his separation, he
did nothing overt to misrepresent or conceal his eligibility for separation
during the entire period.
c. Counsel states that the government’s suggestion that the
applicant was not functioning under validly existing orders to separate is
specious. There was no de facto revocation of his separation orders. He
was required, as are all military personnel, to obey a lawful order.
Counsel quotes from Army Regulation 600-8-105, paragraph 1-15, “The
requirement for orders and permanent orders and their contents as described
in this regulation take precedence over conflicting instruction in other
directives or regulations.”
d. Counsel states that the orders issued at Fort Benning were on
behalf of the Commander, PERSCOM, and that there is no Army regulation
which makes the USAPDA an orders issuing authority. In fact, the
regulation expressly states that the issuance of orders is the
responsibility of PERSCOM and not the USAPDA. Therefore, only the Adjutant
General of Fort Benning could revoke the applicant’s discharge order.
Valid orders remain effective and enforceable unless revoked. The
government’s exhortations that a verbal revocation was issued are
erroneous. Oral recitations by anyone at the USAPDA mean nothing.
e. The government cannot rely upon the second PEB as a basis to
suggest that the applicant’s orders were de facto revoked. That PEB only
created an obligation for the applicant to respond by 17 September 2001, a
date after his discharge. That PEB was conditional, interlocutory and not
final agency action, and had no binding effect upon the applicant. The
first PEB, however, was approved by the Secretary of the Army, and was
therefore final agency action. Final disposition of the second PEB could
not have occurred until after the applicant was allowed 10 days to prepare
a rebuttal, after receipt and consideration by the PEB of his rebuttal, and
then after receipt and consideration of all matters by the USAPDA.
Consequently, there was no final agency determination that the applicant
was fit for duty on 14 September 2001. In this respect, counsel makes
reference to court cases defining final agency action.
f. In addressing the concept of finality, counsel then provides,
from Army Regulation 635-40, information concerning the administrative
procedures of the PDES, to include briefly citing the functions of each
entity – the MEB, PEB, USAPDA, and PERSCOM. He states that the functions
of PERSCOM and the USAPDA are separate and distinct, with USAPDA falling
under control of PERSCOM. The PEB has some authority to approve PEB
findings for the Secretary of the Army; however, that authority is limited.
It cannot approve findings on any case previously forwarded to USAPDA for
review and approval and later returned to the PEB for reconsideration or
rehearing. The PEB had the authority to act on the first PEB, but not the
second. After a case is forwarded to PERSCOM for final disposition, it
cannot be reconsidered by a PEB President or by the USAPDA, until after
they get it back from PERSCOM or recall it. A case physically moves from
the PEB to the USAPDA then to the PERSCOM, and jurisdiction transfers as it
moves through these channels. In this respect, counsel quotes from
applicable paragraphs in Army Regulation 635-40.
g. Counsel talks about the distinction between medical evidence and
non-medical evidence, stating that the applicant’s case was returned to the
PEB [from the USAPDA] for reconsideration on or about 10 August 2001 with
additional non-medical evidence. However, once the USAPDA review was
completed, it was required to forward the case to PERSCOM for disposition;
and then based upon the final decision of USAPDA, PERSCOM would issue
necessary disposition instructions. Once orders were issued, PERSCOM had
taken final disposition on behalf of the Secretary of the Army in the
applicant’s case, and neither the USAPDA nor the PEB President had
jurisdiction.
h. After the issuance of orders, a fitness determination is subject
to modification only pursuant to an extraordinary recall procedure, which
requires the USAPDA to request from PERSCOM that a case be returned, as
required by Army Regulation 635-40. The USAPDA, however, acted on its own
volition. The applicant’s first PEB was not administratively defective
like the second PEB was.
i. The PEB President had plenary authority to stop the proceedings
and obtain further evidence. The board members were well aware of what a
“JAG” does. If the board members thought his OER and input from his JAG
supervisor were necessary to make a fitness determination, they would have
asked for additional information.
j. While it could be said that the applicant took advantage of the
Army’s administrative blunders and bureaucratic ineptitude, it could not be
said that he committed a fraud upon the government when he followed valid
orders. Nor did he have any duty to say anything about the second PEB.
The notion that merely presenting himself to the separation point was fraud
is farcical.
5. Counsel states that Article 3(b), UCMJ, is unconstitutional on its
face, as violating Article III and amendments IV, V, and VI of the United
States Constitution. It is unconstitutional as applied to the applicant,
as being in violation of Article III and amendments IV, V, and VI of the
United States Constitution. Counsel provides 20 pages of argument, citing
court cases, and in effect stating that the Army has no jurisdiction to try
an individual who has been discharged from the service. In the applicant’s
case, in order to exercise jurisdiction over him, a court-martial must
necessarily presume that he is a serviceman, and the Army made exactly that
contention in his case. However, he would only be a serviceman if he is
guilty of the very offense for which the Army wished to try him –
fraudulent separation from service. Neither the common law nor military
law authorizes such a presumption of guilt. Counsel’s argument in this
respect is contained in pages 29 through 45 of his brief.
6. In pages 46 through 48 of his brief, counsel provides information from
a court case about a Soldier who had fraudulently procured her discharge
and was ordered back to active duty in the Army for court-martial. Counsel
noted, as did the court, that this Soldier was not a full fledged civilian
because she remained a member of the Army Reserve for the remainder of her
contract enlistment period; however, regarding the applicant, he had no
Reserve obligation once he left active duty. Once he received his
discharge, he was a full fledged civilian.
7. Counsel states that the Army could have presented its case to the
United States attorney, who could then have taken it to a grand jury for
indictment under the appropriate fraud statutes, or the Army could have
filed a civil action for fraud against the applicant seeking to prove that
his discharge was fraudulently obtained. Counsel states that the Army
still contends that it should be allowed to pursue its mere allegation of
fraudulent discharge; however, the complete lack of a gatekeeper function
in the statute should render such military proceedings
unconstitutional under the jurisdictional provision of Article 3(b), UCMJ,
as applied to the facts of this case.
8. In the applicant’s first amendment to his application, dated 30
December 2004, counsel argues:
a. The applicant was validly discharged on 14 September 2001, and
thereafter his discharge was not void, but it was voidable. The government
tried to render his discharge voidable when it tried to convict the
applicant of procuring the discharge through fraud. It failed to do so,
and if the government tries but fails to convict a dischargee of a
violation of Article 83, then the government has failed to render the
discharge voidable; consequently, the discharge stands and the dischargee
remains a civilian.
b. The applicant’s 1 October 2002 general discharge is erroneous and
void ab initio because the Army lacked jurisdiction to take any personnel
action other than to court-martial the applicant under Article 3(b), UCMJ.
c. The applicant’s military record was littered with adverse filings
after 14 September 2001, in violation of his rights under the Privacy
Act.
d. Department of the Army personnel acted on their own subjective
belief that the applicant’s original discharge orders and his original
disability finding had been revoked. Their actions were not in good faith,
and were erroneous and unreasonable because they failed to follow their own
regulations. The second PEB was improperly constituted and the purported
cancellation of the applicant’s discharge order was without regulatory
authority and thus was void ab initio. The Agency (PDA) acted arbitrarily
and capriciously in violation of the Administrative Procedure Act.
e. The adverse OER filed in the applicant’s military record after
14 September 2001 should be removed because the senior rater had
too great a conflict-of-interest with the applicant to act as senior rater
for any duration of the rating period. In addition, the fact that the
senior rater rated him during a rating period that was substantially “TDS
time” (time when the applicant was the senior defense counsel of Fort
Benning opposing then-SJA Colonel “G’s” office on all criminal and
disciplinary actions) contradicts everything that the Army TDS organization
stands for. The adverse OER was an unreasonable and unjust “piling on” of
penalties against the applicant by a group of JAG colonels who made it
their mission to punish the applicant.
f. The GOMOR should be removed because the government misrepresented
to the applicant’s military defense counsel that a GOMOR would not be
issued in addition to a resignation providing for a general discharge. The
government improperly used the applicant’s 10 November 2001 deposition
transcript as supporting evidence in the proposed adverse administrative
action against him. The convening authority committed substantial error
when he based his filing decision in part upon a document throughout which
the applicant invoked his right to remain silent.
CONSIDERATION OF EVIDENCE:
1. Other than the information obtained from the applicant’s OMPF, as
indicated herein, the evidence in this case is wholly supplied by the
applicant or by his counsel. The facts in this case are generally as
indicated by counsel and as enumerated herein.
2. The applicant was a West Point graduate who was commissioned a second
lieutenant on 31 May 1990. He completed infantry officer basic course
(IOBC) in November 1990. His assignments thereafter included duty as a
rifle platoon leader on the Army Drill Team of the Army’s Presidential
Honor Guard at Fort Myer, Virginia.
3. The applicant’s OER for the period 30 July 1994 to 18 July 1995 shows
that he was assigned to the Army Student Detachment at Fort Jackson, South
Carolina with duty at the Office of the Staff Judge Advocate at Fort Lee,
Virginia. That report indicates that he was a full-time active duty student
attending law school at government expense.
4. The applicant completed the JAG Officer Basic Course in December 1996.
5. The applicant’s assignments thereafter were at Fort Benning, Georgia,
first as an administrative law attorney, and then as a trial counsel,
senior trial counsel, trial defense counsel, and finally as a senior
defense counsel. His last four OERS, the last one ending on 15 May 2001,
show that his rating officials considered him an outstanding officer. All
four reports show that he was above center of mass.
6. On 27 September 2000, the applicant’s commanding officer and the
applicant were informed that the MOS (Military Occupational
Specialty)/Medical Retention Board (MMRB) that met on 20 September 2000 had
determined that the limitations imposed by his permanent profile were so
prohibitive they precluded retraining (the applicant) in any other
specialty, and directed that the applicant be scheduled for a MEB. Part
of the MMRB proceedings included a statement by the applicant requesting
that his case be referred to an MEB.
7. On 29 May 2001, an MEB determined that he did not meet the physical
standards for retention in the Army because of his condition, chronic
bilateral anterior knee pain syndrome, and recommended that he be referred
to a PEB. The applicant agreed and stated that he did not desire to
continue on active duty.
8. On 11 June 2001, a PEB considered his medical condition, chronic
bilateral anterior knee pain syndrome, rated as slight/occasional, and
determined that he was physically unfit and recommended that he be
separated from the Army with severance pay with a zero percent disability
rating. The applicant concurred. The President of the PEB, Colonel “W,”
signed the proceedings. The applicant was counseled by “Ms. K,” the acting
PEBLO.
9. Orders were published by Headquarters, United States Infantry Center at
Fort Benning on 2 July 2001, discharging the applicant from the Army
effective on 14 September 2001. A DD Form 214, which the applicant
signed, shows he was honorably discharged because of his disability on 14
September 2001 with severance pay in excess of $97,000.00. A pay voucher
for September 2001 shows that the applicant received over $78,000.00 in
separation pay.
10. On 30 August 2001, a PEB again looked at this case and stated that the
applicant was fit for duty within the limitations of his profile. The PEB
stated, “Officer has carried out his duties with the exception of organized
PT (physical training) despite his chronic knee pain. His OERs indicate
outstanding performance and do not mention any physical limitations; on his
last OER, his senior rater stated that he is a top 5% officer who embodies
each and every one of the Army’s values in all that he does.” The PEB also
stated, “This case was informally reconsidered based on Memorandum for
Record AJA USAPDA dated 10 August 2001; Memorandum, subject: Physical
Evaluation Board 10 August 2001, Chief Personnel Plans and Training Office,
Office of The Judge Advocate General; and OERs –October 98-July 99 and July
99-July 2000. The PEB finds that the soldier’s current impairment is best
described and rated as above. The DA Form 199 dated 11 June 2001 is hereby
superseded.” The applicant did not concur and indicated that he had
attached his written appeal.
11. At the bottom of those proceedings is a note by the PEBLO, Ms. “S,”
dated 18 September 2001, stating that she had counseled the applicant on
his reconsideration on the afternoon of 5 September 2001. He was advised
that he had 10 days to submit a written appeal with his nonconcurrence, and
that it was agreed that he would return on Monday, 17 September 2001, with
his written appeal. She had the applicant sign and make the above election
to ensure that he would know he was to return with his written appeal.
Subsequently, she indicated that since he never returned with his written
appeal, his case was waived on to the PEB.
12. The applicant was promoted to major with an effective date and rank of
1 September 2001.
13. On 18 September 2001, Headquarters, United States Infantry Center
revoked the orders that effected the applicant’s 14 September 2001
discharge.
14. On 20 September 2001, the United States Army Legal Services Agency
appointed LTC “C,” Chief, Litigation Branch-West, Procurement Fraud
Division, Army Legal Services Agency, to conduct a preliminary inquiry into
the circumstances surrounding the departure from duty of the applicant. He
was appointed pursuant to Rule for Courts-Martial (R.C.M.) 303. The
investigation revealed:
a. Colonel “T,” Chief, Personnel, Plans, and Training Officer,
stated that on 8 August 2001, Mr. “F,” a civilian assigned to PPTO,
informed him that the applicant was pending separation as a result of the
PEB. He stated that he contacted Mr. “B,” legal officer at the USAPDA, who
informed him that there was no input in the PEB process from the JAGC on
whether the applicant could continue to perform his duties. Colonel “T”
stated that he then prepared a memorandum to the USAPDA, dated 10 August
2001, on behalf of the JAGC. He stated that the applicant called him,
perhaps on 9 August 2001, at which time he informed the applicant that he
was providing the JAGC input to the USAPDA. He also asked Major “M,” the
company grade assignment officer to call the applicant, which he did
thereafter. He stated that he had no further contact with the applicant.
b. Lieutenant Colonel “D,” then the captains’ assignment officer at
PPTO, stated that the applicant notified him sometime in July 2001 that he
was the subject of a medical board and would be leaving active duty in
September 2001. He stated he told the applicant that the JAGC would
support him if he wanted to fight the results of the board; however, the
applicant stated that he and his wife decided not to oppose the board, but
to leave the results “up to God.” He stated he asked the applicant if
anyone in his supervisory chain had known that he was undergoing a medical
board, and the applicant stated that he had kept it strictly private from
everyone, because he felt that people would look down of him if they knew
he was being medically discharged.
c. Captain “S,” the commanding officer of the Fort Benning unit to
which the applicant was attached, stated on 26 September 2001, that in late
January or February 2001 he reviewed and signed a commander’s letter of
evaluation prepared by the applicant for the MMRB relating to his physical
condition. He stated that the applicant drafted a letter for presentation
to the MEB in March 2001, which he also reviewed and signed. He stated
that in June 2001, the applicant informed him that the MEB results were
such that he would be discharged from the Army, and requested that his
medical situation be kept confidential because he believed that if the SJA
were made aware, his duties as senior defense counsel would be hindered.
The commanding officer stated that he consented to the request. He stated
that the applicant also requested that the applicant personally be allowed
to pick up his orders from the company when they were ready so as to keep
his medical situation confidential. He stated that the applicant also told
him that he (the applicant) himself would inform the SJA about the medical
board results and his pending ETS (expiration of term of service).
d. Statement from Mrs. “B,”, Technician-Supervisory, Physical
Disability Agency – TRANSPROC (a computer program) system. On 14 August
2001, the system was operating properly and she entered information into
the system recalling/revoking the orders that were issued by the first PEB.
She removed the “JFL,” the code that authorized separation.
e. Statement from LTC “Z,” Regional Defense Counsel, Region II, who
on 19 September 2001, after learning that the applicant had cleaned out his
office, and after checking with the company to determine if he was on
leave, made numerous attempts to contact him. He left a voice mail message
on the applicant’s wife’s cell phone. When the applicant returned his
call, the applicant stated that he was no longer in the military, that he
was a civilian, and that if he had any questions to contact his attorney.
LTC “Z” stated that in August the applicant had informed him that the
disability board results had been voided, and he expressed his plan to go
to the 2002 JAG Graduate Course and to carry on with his present duties.
He stated that since the applicant’s departure, he learned that the
applicant left several important actions uncompleted, to include
evaluation reports, and representation of a client. He stated that he also
learned that the applicant had not detailed himself to any new cases since
approximately April 2001, and that he was studying for the Georgia bar exam
during the period. He indicated that he arrived as RDC on 30 July 2001 and
learned of the applicant’s disability separation sometime in August. He
stated that he had occasions to talk with the applicant and asked the
applicant why he had kept the information from his supervisors and the JAG
leadership. He stated that the applicant said it was a very personal
decision and he and his wife concluded they would put the decision in God’s
hands, and let the disability board determine which course they should
take. He stated that the applicant gave him the distinct impression that
the disability board was not something the applicant had initiated, and the
applicant appeared not to be advocating for separation or otherwise.
f. Statement from Colonel “Q,” Chief of the Army Trial Defense
Service (TDS), who stated that the applicant notified him in early July
2001 that a separation board had taken place and that he would be separated
on 14 September 2001. He also stated that the applicant
said no one knew about it. He stated that the applicant asked him to wait
before he contacted PPTO. On 13 July 2001, he had not yet notified PPTO;
consequently, he (Colonel “Q”) called them that day. Next week he heard
from PPTO that they were going to contest the findings. Sometime in early
August, he informed LTC “Z” that the applicant might not be leaving but not
to tell him because PPTO was working the issue. LTC ”Z” misunderstood and
notified the applicant, who called Colonel”Q,” stating that he (the
applicant) feared retribution. He stated that he informed the applicant
that he should contact Mr. “B,” the USAPDA legal advisor to discuss the
status of his case.
15. Notes prepared by LTC “C,” the investigating officer, include:
a. Information from the PEBLO, who stated that she made the
assumption that the 14 September 2001 orders were no good, that the 10 day
response time to the PEB findings became an issue with the applicant, and
that she relented to the applicant providing a response on 17 September
2001.
b. Information from Major “C,” the applicant’s replacement, who
stated that the applicant was evasive; that the applicant led people to
believe that the JAG Corps was making him leave; that when he left, files
were missing, that the applicant took the old files; that he left her
without training on how to take over; that he left without informing her or
anyone else; and that he dumped all his cases on her. She stated at his
promotion ceremony on 3 September 2001, he made statements that he was
going to the graduate course. He called to tell her to stay home on Friday
(14 September 2001), calling her from the law firm of “P” and “S” (the
first initial of the applicant’s last name), which indicated that he had
already set up a law firm. She stated he did not complete post-trial
responsibilities in a case, and that he failed to complete an NCOER.
c. Information from Ms. “N”, Fort Benning transition office, who
stated that he called her at home on Thursday (13 September 2001) to ensure
there would be someone there on Friday (14 September 2001). Ms. “H,”
another employee at the transition office, stated she would not have
processed him had she known about the recall notice.
d. Information from Mr. “B,” legal advisor, USAPDA, who stated that
a JAG officer had to be on the MMRB and that if a JAG officer had been on
the applicant’s MMRB, he would have never made it into the system (PDES).
e. Information from Major “M,” PPTO assignments officer, who
indicated that the applicant never informed the chain of command that he
was going to a PEB. The applicant still had an active duty service
obligation because of his Funded Legal Education Program (FLEP), so he
could not get out. Major “M” stated that he told LTC “Z” that the
applicant was not going anywhere. He stated that he received a call from
the applicant on 6 August 2001 regarding his discharge date. On 8 August
2001, he told applicant that the JAG position was that he was fit for duty.
He told the applicant that he would not be assigned to Korea, but that he
was on schedule to go the graduate course.
f. Information from Ms. “K,” acting PEBLO, who stated that she
counseled the applicant and his wife on 13 June 2001 upon the initial PEB
finding, and that the applicant asked her if she could drag her feet on his
paperwork so he could get more money upon his promotion to major. He asked
her if she would keep the PEB very quiet and that the JAG Corps would try
to keep him in. She stated that he asked her twice to keep things quiet.
16. In an executive summary Colonel “P,” United States Army Legal Services
Agency (USALSA) Executive Officer, stated that the investigating officer
found that the applicant’s medical separation and discharge were invalid;
that the applicant knowingly and fraudulently used revoked separation
orders to obtain a discharge; and although revocation orders were not
published until 18 September 2001, the applicant had
been advised by personnel officials that his medical separation orders were
invalid. He found that the applicant fraudulently obtained $97,000 in
disability separation pay. He found that the applicant departed his office
without advising his superiors or subordinates, and left critical client
and personnel actions undone. The executive officer stated that based on
the investigation, the Commander of the USALSA directed that the applicant
report for duty at the Fort Benning legal office on 5 November 2001, which
order was delivered to the applicant and to his attorney. The order also
removed the applicant from the TDS. The USALSA provided a copy of the
investigation to the Staff Judge Advocate, Military District of Washington
(MDW), for review and advice concerning potential disciplinary action.
Colonel “P” indicated that the commander, MDW, is the General Court-Martial
Convening Authority for the USALSA. He indicated that he anticipated civil
litigation in federal court in the form of a request for a temporary
restraining order, and stated that the USALSA with advice from MDW planned
to prefer charges for fraudulent separation and related violations of the
UCMJ.
17. On 29 October 2001, the USALSA in Arlington, Virginia, ordered the
applicant to return to duty at Fort Benning on 5 November 2001, informing
him that he had obtained an invalid separation and discharge and had not
been released from active duty. He was advised that he would be considered
AWOL (absent without leave) if he failed to report as ordered.
18. On 1 November 2001, charges were preferred against the applicant for
procuring his separation from the Army by knowingly presenting orders
authorizing his release from active duty, when in fact he knew those orders
were void.
19. On 1 November 2001, the applicant filed a complaint for declaratory
and injunctive relief, as well as a motion for a temporary restraining
order, asking the United States District Court for the Middle District of
Georgia, Columbus Division, to restrain and enjoin the Secretary of the
Army from enforcing the orders to active duty and further restrain and
enjoin the Secretary of the Army from issuing any other orders to the
applicant by entering declaratory judgment in the applicant’s favor stating
that he was a civilian and not subject to any military control.
20. Submitted is an affidavit, dated 1 November 2001, prepared by the
applicant for the United States District Court, Middle District of Georgia,
Columbus Division, in which the applicant comments on his military service,
his medical condition, his disability processing, and the events that led
to his discharge from the Army and his pending recall to the Army.
21. Submitted by counsel are transcripts of the videotaped dispositions of
Colonel “Be,” the Deputy Commander, USAPDA; Mr. “B,” the legal advisor to
the USAPDA; and Colonel “T,” Chief of PPTO, OTJAG, before the United States
District Court for the Middle District of Georgia, taken on 9 November
2001. Counsel for the applicant posed questions and the witnesses answered
as follows:
a. Colonel “Be” testified as to the relationship between the USAPDA,
the Physical Disability Branch (PDB), and PERSCOM, stating in effect that
the USAPDA, a subordinate entity of PERSCOM, has the authority to direct
reconsideration of PEB findings. The PDB is a part of the USAPDA and is
responsible for issuing orders as instructed by himself. He stated that
the functions of PERSCOM regarding the PDES as indicated in Army Regulation
635-40 have been subsumed by the USAPDA. He stated that he made the
decision to send the applicant’s case back to the PEB, and that he gave a
lawful order to revoke the applicant’s discharge orders.
b. Mr. “B” testified that he received information from an individual
at the JAG PPTO concerning the applicant’s case. That office was concerned
about the applicant’s medical discharge in that they knew nothing about it.
He stated that he reviewed the case and got back to the individual in the
PPTO, requesting performance data on the applicant. He stated that he
received officer evaluation reports and also received a letter from Colonel
“T,” the gist of which was that the applicant could perform his duties. He
informed Colonel “Be” of the new evidence, faxed the evidence to the
President of the PEB in Texas, who when asked, agreed to reconsider the
case. The PEB reconsidered and found the applicant fit. Authorization was
given to revoke the order. The means to do so was through a computer
system, TRANSPROC. Between 2 August and 14 August 2001, there
were several attempts either by TRANSPROC, fax, or voice communication to
Fort Benning to revoke the authorization for the applicant’s separation,
but he believed that by 14 August 2001 Fort Benning had received the
instructions to revoke the order. Describing TRANSPROC, he stated that a
Soldier could not be separated from the Army unless there is a special code
in the system, and that at their (USAPDA) request to withdraw the
authorization for the applicant to separate, a different code is used. He
also stated that he talked with the applicant on three occasions in July
and August 2001, but did not tell him that his orders had been
revoked. He stated that Colonel “Be” authorized the reconsideration of the
applicant’s first PEB and also authorized revocation of his discharge
orders. He stated that the USAPDA instructed the Physical Disability
Branch to revoke the authorization through the TRANSPROC system.
c. Colonel “T,” Chief, PPTO, testified that he became aware of the
applicant’s pending separation at the end of July 2001 or the first week in
August of 2001. He called Mr. “B,” the Physical Disability Agency legal
advisor, and after receiving instructions from the acting The Judge
Advocate General, provided information to Mr. “B” on the applicant’s duty
performance. He stated that he informed the applicant around 9 August 2001
that he had provided input to the Physical Disability Agency. He also
stated that he advised the applicant’s supervisor, Colonel “Q,” not to tell
the applicant that his case was being reconsidered because it was premature
to do so. He stated that he was informed by Mr. “B” that a second PEB had
found the applicant fit for duty, but he believed it was not until after
the applicant left the Army. He stated that he believed that a lawyer with
a P-3 profile on his knees could represent persons in a combat specialty.
In response to a question by counsel for defendant, he stated that he had
reviewed the applicant’s evaluation reports and it was his opinion that the
applicant could perform his duties even with his physical limitations. He
also stated that he was aware that the applicant had an active duty service
obligation until August of 2003.
22. On 14 November 2001, the above-mentioned district court denied the
applicant’s motion for a temporary restraining order and preliminary
injunction. The court did not find Article 3(b) unconstitutional, and
because of that finding, the court acknowledged that Article 3(b) gave the
military courts jurisdiction to try the applicant for the charge. The
court stated that “[t]he legislative history of Article 3(b) as well as the
way it has been applied by Federal Civil Courts and Military Courts
indicate that if the Army charges Plaintiff with fraudulently obtaining his
discharge then the Plaintiff will be subject to military control. The
Court declines to follow Plaintiff’s request to find Article 3(b)
unconstitutional and will not declare Plaintiff to be immune from its
reach.”
23. On 10 December 2001, Headquarters, United States Army Garrison, Fort
Myer, appointed LTC “G” as an Article 32 investigating officer (IO) for the
court-martial charge preferred against the applicant. The applicant was
present and represented by counsel during all open sessions of the
investigation. The IO obtained testimony from witnesses and considered
numerous statements and documents. The Article 32 hearing was conducted on
15 January 2002 and 23 January 2002. Testifying were:
a. Colonel “Q,” Chief of the Army Trial Defense Service (TDS), who
discussed his conversations with Colonel “T,” Chief, PPTO, OTJAG, and was
aware that PPTO was attempting to overturn the results of the applicant’s
first PEB. He stated that the TDS did not provide input (to the Physical
Disability Agency) on the applicant’s physical condition, but that the
applicant’s administrative company commander provided that input to the
first PEB. He stated that he felt that he was deceived by the applicant
concerning his separation.
b. Ms. “B,” a supervisor in the Physical Disability Branch, Physical
Disability Agency, who discussed the actions regarding the recall of the
applicant’s separation, the procedures used to effect the recall, the
problems with the computer system, and her actions in overcoming the
problems. She stated that the Fort Benning transition office was notified
not to separate the applicant.
c. LTC “D,” then the captains’ assignment officer at PPTO, who
stated that he did not know the applicant was being discharged because of
his physical disability, and had he known he would have fought the action,
and that he had past good luck in challenging PEB separations. He stated
that the applicant told him that he would leave the results of the PEB up
to God. He stated that he would have had no problem assigning the
applicant even with his disability.
d. Major “M,” PPTO assignment officer, who stated that a Mr. “F,” a
civilian working with the PPTO, initiated an inquiry to the PDA regarding
the applicant’s PEB, and implied that the PEB was improperly convened in
that there was no JAG input. Major “M” stated that he told the applicant
on 8 August 2001 that he would not be separated, that another PEB would be
convened, and that his separation orders were going to be revoked. He
stated that the applicant told him that he feared that he would be
vindictively assigned to Korea.
e. LTC “Z,” Regional Defense Counsel, Region II, who stated that
Colonel “Q” indicated that he was shocked after finding out that the
applicant did not inform his rating officials of his pending separation.
He stated that once the applicant became aware that he was not going to be
separated, the applicant informed him that he was planning to attend the
JAG “grad” school, that he told LTC “Z” that he kept the board proceedings
to himself because it was a personal decision, and that he did not want the
command to have a negative view of him. He stated that the applicant told
him that he would leave the decision up to God and let fate take its
course. He stated that once the board’s previous decision had been
revoked, the applicant told him that he was planning for his future in the
Army. He stated that he felt that the applicant had misrepresented
himself.
f. LTC “T,” an adjudicator of the PEB at Fort Sam Houston, who
indicated that the applicant had waived the appearance of a JAG officer on
his MMRB. He stated that the applicant’s condition essentially was sore
knees, and that the first PEB recommended that he be separated with a zero
percent disability rating. He stated that he received a call from Mr. “B,”
the PDA legal advisor, who indicated that he had new information concerning
the applicant. He stated that he passed that information on to Colonel
“W,” the President of the PEB, and that based on that new evidence, on 30
August 2001 a new PEB convened and found the applicant fit for duty. He
stated that the applicant had 10 days to appeal those findings, and that
the findings had to go to the PDA for a decision.
g. Colonel “W,” President of the PEB at Fort Sam Houston, who
testified that he did not have any discussion with anyone from either the
TJAG’s office or the PDA regarding the applicant’s case; that LTC “T”
received calls from Mr. “B,” the PDA legal advisor, about additional
information; and that after those conversations, he was informed of the
status of that new information.
h. Ms. “N,” Chief of the Transition Center at Fort Benning, who
discussed the administrative errors that resulted in the improper code in
the computer system. She stated that she was aware that there was a recall
notice on the applicant and that his separation orders should be revoked;
however, the recall notice “slipped through the crack,” and he was
discharged. She stated that the applicant was aware that he received a
recall notice and that he was trying to beat the system.
i. Ms. “H,” who worked for Ms. “N” at the Fort Benning Transition
Center, who stated that when changing the applicant’s rank (he had been
promoted to major) in the computer system, she inadvertently entered the
(improper) code in the system, allowing him to be discharged.
j. Ms. “S,” the PEBLO (Physical Evaluation Board Liaison Officer),
Martin Army Hospital Medical Board at Fort Benning, who stated that she
notified the applicant of the reconsideration in his finding, that she
informed him on 4 or 5 September 2001 that he had 10 days to
submit a written appeal, and that he stated that he wanted to non-concur
with the findings and would submit a written appeal.
k. Colonel “G,” Staff Judge Advocate at Fort Benning, who recalled
his conversation with Colonel “T,” Chief of PPTO, TJAG, about what to do
with the applicant after he left on 14 September 2001.
l. Colonel “T,” Chief of PPTO, TJAG, who stated that he discussed
the applicant’s case with the acting TJAG, and who stated that he submitted
input to Mr. “B,” the PDA legal advisor.
m. Captain “T,” who worked for the applicant at Fort Benning, who
stated that he did not know the results of the first PEB until early August
2001, and who stated that at the applicant’s promotion ceremony on 1
September 2001, the applicant stated he was going to “grad” school, and
that on 11 September 2001 the applicant told him that he was staying (in
the Army).
24. The investigating officer’s report is divided into four sections for
item 21, Remarks, of DD Form 457 (Investigating Officer’s Report) – Facts,
Discussion, Conclusion, and Recommendation.
a. In his Facts, the IO stated, in pertinent part –
(1) that the investigation did not reveal any act of fraud or
misrepresentation by the applicant in connection with the 27 September 2000
MMRB, the 29 May 2001 MEB, or the 11 June 2001 PEB, nor did it reveal any
irregularity in the processing of the applicant’s case by those boards.
(2) that there was no reason to believe that his separation
orders were not valid or were tainted by any fraud.
(3) that after learning that the applicant was pending
disability separation, Colonel “T,” Chief, PPTO, submitted a letter to the
PDA regarding the applicant’s fitness for continued military service.
(4) that on 14 August 2001, the PDA issued a recall notice to
the Fort Benning Transition Center that should have caused the applicant’s
orders to be revoked; however, due to an administrative error, the recall
notice was not processed when received.
(5) that on 30 August 2001, a second PEB found the
applicant fit for duty based on Colonel “T’s” letter and the applicant’s
most recent two OERs.
(6) that on 5 September 2001, the PEBLO at Fort Benning
informed
the applicant of the findings of the second PEB and told him that his case
was on hold. He indicated that he nonconcurred and intended to submit a
written appeal. The PEBLO advised him to submit his appeal not later than
17 September 2001.
(7) that on 13 September 2001, the applicant’s legal counsel
informed the PEB (by letter) that he had advised the applicant to report
for separation on 14 September 2001 and that the applicant intended to do
so.
(8) that the applicant reported for separation on 14 September
2001, was issued a DD Form 214, and did not make any verbal representation
during his separation processing regarding his eligibility for separation.
(9) that orders were issued on 18 September 2001 revoking the
applicant’s 2 July 2001 separation orders.
(10) that during the period leading up to his separation, the
applicant repeatedly acted to prevent the fact that he was being processed
for medical discharge from becoming widely known, particularly within the
Judge Advocate General’s Corps, and that he also sought to foster the false
impression that his processing for medical separation was something beyond
his control, when, in fact, he had facilitated his prospective separation
at every opportunity.
b. In his Discussion, the IO stated in pertinent part -
(1) that the government alleged that the applicant violated
the provisions of Article 83, UCMJ, by procuring a separation from the Army
by means of a knowingly false representation that he was eligible for
discharge, when he knew that the basis for his discharge orders had been
overturned.
(2) that the applicant was separated from the Army on
14 September 2001 and the Army’s attempted revocation of his
separation orders on 18 September 2001 was a legal nullity.
(3) that there were no reasonable grounds to believe that the
applicant knowingly misrepresented or deliberately concealed a certain
material fact or facts about his eligibility for separation: (a) The
government asserted that the applicant’s conduct in reporting for
separation processing constituted an implicit representation that he was
eligible for separation, and that his representation was false because he
knew that the basis for those orders had been overturned. (b) When told on
5 September 2001 that his case was on hold, he was not told that his
separation orders had been revoked, because they in fact had not been
revoked. (c) The specification’s allegation that at the time the applicant
presented himself for separation, he knew that the basis for his separation
orders had been overturned, was inaccurate. (d) When the PDA approved the
finding of the first PEB and authorized Fort Benning to issue orders, final
disposition of his case had occurred. The finding of fitness by the 30
August 2001 PEB did not overturn the earlier action by the PDA because the
finding of the second PEB did not constitute a final disposition of his
case. (e) The final disposition of the fitness determination of the second
PEB could not have occurred until after receipt of the applicant’s appeal,
or the expiration of ten days if he did not appeal, and the forwarding of
the case to the PDA. Not until the finding of the second PEB was approved
or disapproved by the PDA would there have been final disposition of his
case. Because these things had not occurred as of 14 September 2001, there
was no final agency determination that he was fit for duty on that date.
The allegation that he knew that the basis for his separation orders had
been overturned at the time that he presented himself for separation was
unsupported as a matter of both law and fact.
c. In his Conclusion, the IO stated –
(1) the applicant’s duplicitous actions leading up to his
separation constituted conduct unbecoming an officer and a gentleman and
his failure to fulfill his professional obligations prior to his separation
constituted dereliction of duty; however, the law is clear – the applicant
may not be tried for those offenses after having been discharged unless he
is first convicted under Article 83 of having obtained the discharge
through fraud.
(2) the applicant should not have been separated on 14
September 2001, and had the Fort Benning Transition Center processed the
recall notice the PDA had issued on 14 August 2001 and revoked his orders,
he would not have been; however, the blame for the failure rests on the
Army, not the accused.
(3) the applicant’s act of reporting for separation on 14
September 2001 did not constitute a fraudulent act.
(4) the applicant was not under a legal duty to inform the
separation official on 14 September 2001 that the applicant had been
informed that his case was on hold.
(5) reasonable grounds did not exist to believe that the
applicant committed the alleged offense.
d. In his recommendation, the IO stated – (1) that the charge
against the applicant be dismissed; (2) that the applicant’s pre-separation
conduct be reviewed for possible referral to his state bars for
disciplinary action; (3) that the Army determine whether the applicant is
required to repay the government a pro-rata portion of the cost of his
funded legal education due to his separation from active duty prior to the
fulfillment of his service obligation.
25. Testimony elicited from witnesses as shown in the IO’s report revealed
that: (1) A major in the OTJAG PPTO office informed the applicant on or
about 6 or 8 August 2001 that he would not be released and that
his case would be reconsidered by the PEB. (2) A lieutenant colonel, the
regional defense counsel, Region II, Trial Defense Service at Fort Gordon,
Georgia, stated that at the applicant’s promotion ceremony, the applicant
stated his plans for the future were to continue in the Army. (3) An
official in the PDA stated that on 14 August 2001 the TRANSPROC was
operating properly and an analyst in the PDB was able to enter information
into the system recalling/revoking the orders that were issued by the first
PEB, removing the JFL code that authorized separation. (4) The code
revoking the orders was inadvertently not processed at Fort Benning, and
the code showing that he was authorized to be discharged was inadvertently
reentered into the system. (5) The applicant made a request to the MMRB
that his case be referred to an MEB because of his knee conditions. (6) The
PEB considered his knee pain syndrome as slight and occasional, recommended
that he be separated with a zero percent disability rating, to which the
applicant concurred, stating that he did not desire to continue on active
duty. (7) Colonel “T,” Chief, PPTO, in a 10 August 2001 memorandum to the
PDA, stated in effect that the applicant could satisfactorily perform his
duties and should remain on active duty and enclosed copies of the
applicant’s last two OERs. (8) Applicant’s counsel submitted a supplemental
memorandum for consideration by the IO, stating in effect that the PDA had
arrogated to itself the functions of the PERSCOM defined in Army Regulation
635-40, without any change in the regulation having been promulgated. The
PDA usurped the PERSCOM function and answered to no one, and the failure to
follow the regulatory scheme upon which the applicant was entitled to rely,
rendered the revocation of his orders void. (9) Applicant’s counsel
informed the President of the PEB at Fort Sam Houston that he had advised
the applicant that the PEB reconsideration was a legal nullity and for him
to proceed with his separation. (10) The acting Senior Defense Counsel at
Fort Benning stated that on 17 September 2001, she discovered that the
applicant had cleaned out his office and cleared post and was out of the
Army, a complete shock to her. She stated that she remembered that at some
point in August, he stated that his name was mud in the JAGC, that PPTO was
not going to let him leave, and that he would probably be sent to Korea.
She stated that at his promotion ceremony, he said that he would be going
to the graduate course. She stated that on 12 September 2001, he called
her and told her to stay home on Friday, 14 September 2001, because they
were nonessential personnel. She noticed that he was calling from “P and
S” (the “S” being the initial of the applicant’s last name), and thought it
odd that he had set up the law firm already when he was no longer getting
out.
26. The applicant on five separate occasions, 20 November 2001, 3 December
2001, 12 December 2001, 31 January 2002, and 16 March 2002, with an amended
request on 25 March 2002, requested individual military counsel be assigned
to his case. In each instance, his request was denied because counsel was
not reasonably available, e.g., instructor at Naval War College, only
officer available to handle workload of cases, Air Force officers requested
not reasonably available, and request denied by the Air Force, etc.
27. The applicant’s petitions to the United States Court of Appeals for
the Armed Forces and the Army Court of Criminal Appeals for a writ of
habeas corpus, injunctive relief or other extraordinary relief, were denied
in January and February 2002, respectively.
28. On 21 February 2002, the applicant’s civilian counsel advised the
Commander, United States Army Garrison, Fort Myer, that the applicant would
no longer report to Fort Benning or any other installation for duty, but
that he would honor any orders ordering him to a court-martial or matters
associated with a court-martial. He stated that the applicant was a
civilian who had been charged with a crime for which there was no probable
cause. On 22 February 2002, the applicant’s civilian counsel was informed
that should the applicant not return to his place of duty, he would be AWOL
(absent without leave), apprehended and placed in pretrial confinement. On
24 February 2002, the applicant’s civilian counsel stated that because the
case was now moving forward, the applicant would involuntarily report to
Fort Benning to avoid the false arrest with which he had been threatened.
29. In a 26 February 2002 memorandum to the Commanding General, MDW, the
applicant’s civilian counsel stated that the most senior members of the
JAGC took the view before the Article 32 hearing that this was a case to
“send a message” to the JAG Corps, in effect, implying improper influence
in the case.
30. In a 1 March 2002 memorandum, the Commanding General, United States
Army Garrison, Fort Myer, approved the recommendation of the Staff Judge
Advocate pertaining to the applicant, and stated that the charge and its
specification were referred a general court-martial.
31. On 13 March 2002, the applicant was arraigned before a military judge
at Fort McNair, Washington, on the charge of fraudulent separation.
Because of issues that could later arise, the military judge stated that he
intended to disqualify himself from any proceedings other than the
arraignment. The applicant’s defense counsel voiced his objection to the
applicant’s case being tried before a Marine Corps military judge, who
would hear the applicant’s case if the Army military judge recused himself.
Defense counsel made a motion to dismiss based on unlawful command
influence and the potential for a vindictive prosecution, and deferred
making a plea. The military judge granted his request for deferral of
motions and pleas.
32. From March 2002 through May 2002, the applicant’s counsel submitted
various motions to the First Judicial Court at Fort McNair, e.g., on 11
March 2002, a motion to dismiss the case on the grounds of unlawful command
influence and/or vindictive prosecution; on 27 March 2002, a request that
the court order oral deposition of certain witnesses; on 27 March 2002, a
motion to dismiss the case for failure to charge an offense under the UCMJ;
on 30 April 2002, a motion in limine to declare that the reconsideration of
the applicant’s informal physical evaluation board of 11 June 2001 was not
the final agency action on 30 August 2001; a motion on 1 May 2002 to compel
production of relevant statements made by e-mail and to order the
government to conduct a search of applicable “file servers” or other
electronic data storage systems; on 7 May 2002, a motion in limine to
exclude irrelevant evidence, due to lack of relevancy and/or danger of
unfair prejudice, and to exclude mention of certain allegations of conduct
by the applicant.
33. On 5 April 2002, MDW requested from TJAG that a non-TDS (Trial Defense
Service) non-USALSA (United States Army Legal Services Agency) detailed
military defense counsel be appointed to represent the applicant at his
court-martial. MDW indicated that the applicant made the request because
he refused to accept the detail of any counsel presently assigned to the
TDS or the USALSA. MDW indicated that because of the potential appearance
of conflict of interest due to all Army trial judges being rated by the
USALSA commander, the Chief Judge for the Army Trial Judiciary requested a
military judge be detailed from another service, which was done. MDW
indicated that the case was being presided over by a military judge from
the Marine Corps, who had been detailed by the Navy TJAG .
34. A 17 April 2002 e-mail indicates that an Air Force attorney, with the
rank of lieutenant colonel was detailed to represent the applicant.
35. On 29 March 2002, the Article 39(a) session (arraignment) was called
to order. The military judge at that time heard motions from the defense,
to include the defense request for recusal of the Marine Corps Military
Judge. Defense counsel suggested that there was a quid pro quo between the
Marine Corps and Army because of a prior Army/Navy case involving the
dependent of a Marine and an Army anesthesiologist, and that the Chief
Judge of the Army “drove train through Navy service may well have been a
sense of accommodation.” He requested that the Marine Corps Military Judge
recuse himself, in that the Army Chief Judge in effect acted improperly in
requesting a military judge from the Navy, and that her calling the Navy
service was an action borne out of inherent conflict on her part. The
Marine Corps Military Judge denied defense counsel’s request, finding no
conflict of interest. The Military Judge considered defense counsel’s
request for deposition of witnesses and denied his request. He advised
defense counsel to request his desired witnesses for the upcoming court-
martial from the trial counsel. He advised defense counsel that he would
not yet rule on defense counsel’s request to dismiss the case.
36. On 7 May 2002, the applicant, by counsel, petitioned the United States
Court of Appeals for the Armed Forces for an order declaring Article 3(b),
Uniform Code of Military Justice, unconstitutional on jurisdictional
grounds, ordering the applicant released from military control, and
ordering a stay of current general court-martial proceedings.
37. On 31 May 2002, the petition for extraordinary relief in the nature of
a writ of habeas corpus was denied by the Court of Appeals for the Armed
Forces without prejudice to the applicant’s right to raise the matters
asserted in the petition during the course of appellate review if he was
convicted. On 24 May 2002, the applicant, by counsel, petitioned the
United States Court of Appeals for the Armed Forces for an order staying
the general court-martial proceedings, prohibiting the Marine Corps
Military Judge from presiding over the general court-martial, and directing
the Secretary of Defense or his designee to appoint a military judge to
preside over the general court-martial. In his petition, he stated that
the Army Chief Trial Judge was conflicted when she recused all Army Trial
Judges and sought a detailed military judge from the Naval Service, denying
the applicant an opportunity for a fair trial. He included with his
petition a copy of the record of the 13 March 2002 arraignment and a copy
of the record of the 29 March 2002 arraignment before a Marine
Corps Military Judge, in which he requested that the Marine Corps Military
Judge recuse himself. The military judge denied counsel’s challenge and
refused to recuse himself.
38. On 27 May 2002, the applicant requested resignation for the good of
the service, stating that although he had submitted the request contingent
upon a general discharge, he requested that his resignation be approved
with an honorable discharge. He stated that from the beginning of the
physical disability evaluation process until his separation, he continued
to seek advice from attorneys with experience in military and disability
cases, and that when he separated on 14 September 2001, he did so upon
their advice. He stated that he always believed that his discharge orders
remained valid through 14 September 2001. He stated that he understood
that a court action was risky and that his neglect in keeping his chain of
supervision informed could be interpreted as inappropriate conduct. He
stated that he understood that the Army intended to pursue the matter in
civil court even after a finding of not guilty at a court-martial.
39. Submitted with his requested resignation is a memorandum from an Air
Force officer, his detailed military defense counsel, in which she provided
a synopsis of the applicant’s military career, and the facts concerning his
case, and stated that the applicant honestly believed that his discharge on
14 September 2001 was valid. Even though she believed the applicant had a
viable defense, because she had been informed that even if the applicant
was found not guilty at the court-martial the Army would pursue a civil
action case against him to overturn his separation and return him to Army
control, she consequently advised him that settling the case would be in
his best interests and that separation with an honorable discharge was an
appropriate resolution to the case. She stated that his resignation was in
the best interests of the Army, and that even though he elected to request
resignation contingent upon receipt of a general discharge, she requested
that his entire record be considered and the Army allow him to separate
with an honorable discharge. She included with her memorandum copies of
photographs of the applicant and his family, a statement by the applicant,
letters of support from his mother, sister, and his pastor, a copy of his
officer record brief, copies of his evaluation reports, a note from a major
general, a copy of documents from his Article 32 hearing, and a copy of a
memorandum to the President of the PEB from his civilian defense counsel.
40. An OER for the period 16 May 2001 through 3 May 2002 showed that the
applicant was then a legal assistance attorney at Fort Benning, Georgia,
whose duties included advising clients on divorce/separation issues,
reports of survey, wills, and consumer complaints. His rater stated that
the legal work that the applicant did perform was legally sufficient and
generally satisfactory; however, he did not perform at a level that one
would expect of a major. His rater stated that throughout the rating
period the applicant continued to assert he was a civilian. He stated that
the applicant did not display any leadership skills nor Army values, as he
was self-serving and put himself before the mission. His rater stated that
the applicant had no potential for future service in the Army. His senior
rater, the Fort Benning SJA, stated that he agreed with the rater’s
comments. He stated that his performance at the CONUS Replacement Center
and in the Legal Assistance Division was commendable. He also stated that
the applicant had absolutely no potential for promotion or future service
to the Army and that he should not be retained or recalled to active duty
under any circumstances. He stated that he strongly believed that the
applicant would desert his fellow soldiers in combat. He stated that the
applicant should not be promoted. Headquarters, Department of the Army,
indicated at the time the applicant’s OER was processed, that the applicant
was “below center of mass – do not retain.”
41. On 3 June 2002, the Commanding General, Military District of
Washington, recommended that the applicant’s resignation for the good of
the service be approved, and that he receive a General, Under Honorable
Conditions discharge.
42. On 3 June 2002, the Commanding General, United States Army Garrison,
Fort Myer, issued the applicant a memorandum of reprimand for wrongfully
obtaining a DD Form 214 on 14 September 2001 when he knew that the basis
for his separation orders had been overturned. The commanding general
stated that the applicant lied about his pending separation and that he
engaged in reprehensible conduct calculated to cover his intentions. He
stated that the applicant failed to detail other defense counsels to the
clients he was representing at that time, and that he failed to complete a
required evaluation report for his NCOIC (noncommissioned officer in
charge). He informed the applicant that his conduct was dishonest and
selfish, and that he intentionally attempted to manipulate the system for
his own personal gain. The applicant stated on 7 June 2002 that he
intended to rebut the memorandum of reprimand. He also stated that he was
a civilian and not a service member.
43. In a 7 June 2002 memorandum for record, the applicant’s detailed
military defense counsel stated that she had numerous conversations with
the trial counsel, Captain “E,” and the MDW SJA, Colonel “S,” regarding the
applicant’s case. Her conversations included negotiations to determine the
conditions under which the MDW would allow the applicant to resign from the
Army. The applicant consented to submit a resignation for the good of the
service upon receipt of a general under honorable conditions discharge;
however, both she and the applicant understood that a letter of reprimand
would not be issued. In a 10 June 2002 e-mail, trial counsel took
exception to the information in the above-mentioned memorandum for record
and stated that there was never an agreement not to issue a general officer
memorandum of reprimand (GOMOR), that there was always a possibility that a
GOMOR would be issued, that the content of the GOMOR was appropriate, and
that at no time did he or anyone else state that a GOMOR would not be
issued.
44. On 10 June 2002, the applicant’s detailed military defense counsel
requested a delay to the due date for the applicant’s response to the
GOMOR. On 11 June 2002 the request for delay was denied.
45. On 14 June 2002, the applicant’s military defense counsel renewed her
request for a delay in order to allow the applicant the opportunity to
respond to the allegations without compromising his right to remain silent
in the face of a general court-martial, and in order to obtain a listing of
the documents to be considered. She stated that because the applicant
faced the possibility of a court-martial if his resignation was not
accepted, the timing of the reprimand forced an unreasonable dilemma upon
the applicant, in that any information he provided could be used at a
subsequent court-martial. She also requested that the reprimand be
withdrawn entirely because it was improper. She stated that not more than
two months ago, the MDW SJA agreed to a settlement in the case whereby the
applicant would continue on active duty as a judge advocate until August
2003, which indicated that the Judge Advocate General’s Corps believed that
he was fit to continue as an attorney. Given the willingness to allow him
to continue to act as an attorney for more than a year, the
characterization of him in the reprimand was not warranted. Additionally,
the use of the applicant’s deposition statement as evidence against him was
improper. At the time he gave the statement, he faced the court-martial
charge preferred against him on 1 November 2001. His assertion
of his right to remain silent at the deposition directly related to the
court-martial charge. She also started that because the applicant still
faced court-martial, she reaffirmed that providing the response [to the
GOMOR] in no way implied a submission to jurisdiction of the Army by the
applicant. She requested that the GOMOR be withdrawn.
46. On 19 June 2002, the Commanding General, MDW, directed that the GOMOR
be filed in the applicant’s official military personnel file (OMPF).
47. In a 6 June 2002 memorandum for the Command Judge Advocate, PERSCOM,
the Chief, Litigation Division, USALSA, stated that his office had
successfully defended the Army in the civil litigation that had followed
the applicant’s separation. The applicant had filed suit in federal
district court alleging he was properly discharged on 14 September 2001 and
challenged the Army’s continued jurisdiction over him. The Chief,
Litigation Division, stated that the district court ruled in favor of the
government on the grounds of comity, allowing the military courts to
adjudicate the validity of the applicant’s discharge at his pending court-
martial. He stated that the applicant then voluntarily dismissed the civil
case without prejudice, which allowed him to re-file it at a later date.
He stated that the applicant’s resignation posed numerous problems from a
civil litigation perspective:
a. There are no provisions which authorize a conditional
resignation in lieu of a court-martial. The regulation specifies that
officers resigning for the good of the service will normally receive a
characterization of service of other than honorable.
b. The applicant’s resignation, if approved, could easily spark
another round of civil litigation, and would create significant obstacles
in any later civil suit challenging his separation, resignation, or
characterization of service. It would also handicap their efforts to
obtain reimbursement in a civil lawsuit of the money owed the government.
The resignation also did not resolve the legal issue concerning the
validity of the applicant’s 14 September 2001 disability discharge.
c. The likely consequence of approving the resignation was that the
applicant would again file suit in federal court, this time challenging the
lawfulness of the discharge that he would obtain as a result of his
resignation request; and, if successful, the resignation in lieu of court-
martial would be void, and the previous disability discharge validated.
This would erase his active duty service obligation, all indebtedness to
the government, and any recoupment issues for his education at government
expense.
48. On 24 June 2002, civilian counsel made his request to the Deputy
Assistant Secretary of the Army for Army Review Boards that the applicant’s
separation on 14 September 2001 be declared legal and binding upon the
Army. Counsel provided a litany of complaints against the Army JAGC,
stated that the only reason that the applicant resigned for the good of the
service was that he could not endure the never ending litigation threatened
by the JAGC, and that when it became clear that gaining an acquittal would
not deter the zealots within the JAGC with unlimited resources from a
course geared only to harm the applicant, he reluctantly sought a
compromise.
49. On 8 July 2002 in a memorandum for all reviewing officials, the
applicant’s detailed military defense counsel requested a delay to the 8
July 2002 due date for the applicant’s response to the OER; and if the
delay was denied, that the memorandum be considered as the applicant’s
response. She stated that the delay should be granted until his court-
martial case was resolved and that the applicant should have the
opportunity to adequately respond to the OER without compromising his right
to remain silent in the face of a general court-martial. Requiring a
response to the OER would provide the government with an unfair advantage.
She stated that the applicant was innocent of the charge against him and
had pleaded so at his court-martial. She also requested that the report be
withdrawn because it was improper, in that the rating officials for the
report had a conflict of interest that made a report by them unfair. She
stated that allowing the Staff Judge Advocate and his deputy to rate the
applicant circumvented the benefits of an independent defense program, and
that placing the applicant under them created the appearance of a conflict
of interest.
50. In a memorandum to the Officer Records Evaluations at Fort Benning,
the Legal Administrator of the Office of the Staff Judge Advocate requested
that the applicant’s OER be processed, that it was a referred OER,
and that the rated officer had wanted to meet with his defense attorney
prior to declining to sign. She stated that the evaluation was forwarded
as quickly as possible after the rebuttal was received from the defense
attorney.
51. On 19 July 2002, the Deputy Assistant Secretary of the Army (Review
Boards Agency) approved the applicant’s request for resignation and
directed that he receive a General (Under Honorable Conditions) Discharge.
He also directed that recoupment action be conducted in accordance with the
provisions of Army Regulation 600-8-24, paragraph 1-15, and Title 10,
United States Code, Section 2005.
52. The applicant was discharged on 1 October 2002 under the provisions of
Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-
martial. His character of service was under honorable conditions
(general). He refused to sign his DD Form 214. The orders effecting his
discharge show that the total amount spent on the applicant’s education was
$88,193.00, and that amount should be prorated and he should be required to
reimburse the government for that portion of his education not satisfied by
active service.
53. On 10 January 2003, DFAS (Defense Finance and Accounting Service)
informed the applicant that he owed the government $54,907.44, the
uncollected balance of a $74,568.30 debt brought forward from his September
2001 LES (leave and earnings statement).
54. Army Regulation 635-40, dated 15 August 1990, establishes the Army
Physical Disability System, and sets forth the policies, responsibilities,
and procedures that apply in determining whether a Soldier is unfit because
of physical disability. The objectives of the regulation include providing
prompt disability processing, while ensuring that the rights and interests
of the government and the Soldier are protected.
55. It prescribes the responsibilities and functions of various agencies,
to include PERSCOM and USAPDA –
a. The Commander, PERSCOM, will operate the Army Physical Disability
Evaluation System under the general staff supervision of the DCSPER (Deputy
Chief of Staff for Personnel); accomplish final administrative actions in
processing physical disability cases; issue orders or other instructions
for the Secretary of the Army, based on decisions of the Commanding
General, USAPDA or higher authority; notify the Department of Veterans
Affairs of all individuals being separated or retired from the Army for
physical disability; and coordinate, control, and manage all Soldiers on
the temporary disability retired list.
b. The Commanding General, USAPDA, under the operational control of
the Commander, PERSCOM, will operate the Army Physical Disability
Evaluation System, to include interpreting and implementing policies coming
from higher authority; developing the policies, procedures, and programs of
the system; commanding and managing the subordinate elements of the USAPDA;
reviewing PEB proceedings to ensure that Soldiers are given uniform and
fair consideration under applicable laws, policies, and directives; making
the final decision on whether a Solider is unfit because of physical
disability, except when such decisions are reserved for higher authority;
and determining percentage rating and disposition.
56. The Army Physical Disability Evaluation System consists of Medical
Evaluation Boards (a function of the Army Medical Department); Physical
Evaluation Boards (elements of the USAPDA); case reviews, when applicable,
by USAPDA; and certain Department of the Army Boards, e.g., Army Board for
Correction of Military Records.
57. Paragraph 4-18 of AR 635-40 pertains to initial processing of a case
by a PEB and states in pertinent part that if documents are missing, action
will be taken to complete the file. The PEB may return a case for
additional information from the command concerning the Soldier’s ability to
perform the duties of his or her office, grade, rank, or rating. That
information must be provided for proper PEB evaluation of the case.
58. Paragraph 4-24 of AR 635-40 prescribes the procedures for an informal
PEB, and states in pertinent part that if the Soldier accepts the findings
and recommendations of the informal PEB, the proceedings will be approved
for the Secretary of the Army and forwarded to PERSCOM for final
disposition.
59. Paragraph 4-22 of AR 635-40 states that the USAPDA will review certain
cases, to include General and Medical Corps officers found unfit, any case
previously forwarded to USAPDA for review and approval and that has been
returned to the PEB for reconsideration or rehearing, and cases designated
by the Commanding General, USAPDA for review. Based upon his review of the
PEB proceedings, USAPDA may return the case to the PEB for reconsideration,
when the case records show such action is in the best interests of the
Soldier or the Army.
60. Paragraph 4-24 of AR 635-40 states that PERSCOM will dispose of the
case by publishing orders or issuing proper instructions to subordinate
headquarters, or return any disability case to USAPDA for clarification or
reconsideration when newly discovered evidence becomes available and is not
reflected in the findings and recommendations.
61. A Medical Command physical disability evaluation system training guide
provides the following information - PHYSICAL DISABILITY BRANCH (PDB):
After the case has been adjudicated by the PEB, it is reviewed by the PDB,
a branch within the PDA. When a Soldier is found unfit by the PEB and all
appeals and reviews required by AR 635-40 have been completed, the PDB of
the PDA will transmit via TRANSPROC (for installations that are serviced by
TRANSPROC II) or message the required data to complete the orders process.
The PDB will assign a "Not Later Than" 90 days suspense after the
completion of processing at the PDA headquarters. It will be the purview
of the installation commander, through the transition point, to establish a
separation or retirement date within this 90-day window, taking into
consideration local clearing time, permissive TDY, and terminal leave for
those Soldiers with leave that cannot be sold back.
62. Army Regulation 623-105 establishes the policies and procedures for
the OER system. It states that certain types of reports will be referred
to the rated officer by the senior rater for acknowledgment and comment
before they are sent to Headquarters, Department of the Army. “Referred
reports” include any report with negative remarks about the rated officer’s
value or leadership attributes; any report with a performance and potential
evaluation of “Unsatisfactory Performance, Do not Promote,” or narrative
comments to that effect; any report with a promotion potential evaluation
by a senior rater of “Do not promote,” etc.
63. That regulation also states in pertinent part that an OER accepted by
Headquarters, Department of the Army, and included in the official record
of an officer is presumed to be administratively correct, to have been
prepared by the properly designated rating officials, and to represent the
considered opinion and objective judgment of the rating officials at the
time of preparation.
64. Accordingly, to justify deletion or amendment of an OER under the
regulation, the applicant must produce evidence that clearly and
convincingly overcomes the presumptions referred to above and that action
to correct an apparent material error or inaccuracy is warranted.
65. Army Regulation 600-37, Unfavorable Information, states in effect that
unfavorable information will not be filed in an official personnel file
unless the recipient has been given the chance to review the documentation
that serves as the basis for the proposed filing and make a written
statement; or to decline, in writing, to make such a statement. It
provides, in pertinent part, that a nonpunitive letter of reprimand or
admonition would be filed in the OMPF only when directed by a general
officer senior to the recipient or by direction of the officer having
general court-martial jurisdiction over the recipient.
66. Army Regulation 600-37 also states that once an official document has
been properly filed in the OMPF, it is presumed to be administratively
correct and to have been filed pursuant to an objective decision by
competent authority. Therefore, the burden of proof rests with the
individual concerned to provide evidence of a clear and convincing nature
that the document is untrue or unjust, in whole or in part, thereby
warranting its alteration or removal from the OMPF.
67. Army Regulation 600-8-104 provides, in pertinent part, that
administrative letters of reprimand will be filed in the performance
portion of the OMPF. That regulation states that once placed in the OMPF,
the document becomes a permanent part of that file. The document will not
be removed from a fiche or moved to another part of the fiche unless
directed by the Army Board for Correction of Military Records, or the DASEB
(Department of the Army Suitability Evaluation Board).
68. The Manual for Courts-Martial states that any person subject to the
Uniform Code of Military Justice may be tried by a general court-martial
for any offense made punishable under the code, to include Article 83,
Fraudulent enlistment, appointment, or separation.
69. Article 83 states in pertinent part that any person who procures his
own separation from the armed forces by knowingly false representation or
deliberate concealment as to his eligibility for that separation shall be
punished as a court-martial may direct. It provides the elements that
define fraudulent separation – “(a) That the accused was separated from the
armed force; (b) That the accused knowingly misrepresented or deliberately
concealed a certain material fact or facts about the accused’s eligibility
for separation; and (c) That the accused’s separation was obtained or
procured by that knowingly false representation or deliberate concealment.”
70. Article 83 states in effect that a fraudulent separation is one
procured by either a knowingly false representation as to any of the
qualifications prescribed by law, regulation, or orders for the specific
separation, or a deliberate concealment as to any of those
disqualifications. Matters that may be material to a separation include
any information used by the separating officer in reaching a decision as to
separation in any particular case, and any information that normally would
have been so considered had it been provided to that officer.
71. The maximum punishment allowed for fraudulent separation is a
dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
72. Section 803, Article 3, Uniform Code of Military Justice, concerns
jurisdiction to try certain personnel. Article 3(a) states, “Subject to
section 843 of this title (Article 43), a person who is in a status in
which the person is subject to this chapter and who committed an offense
against this chapter while formerly in a status in which the person was
subject to this chapter is not relieved from amenability to the
jurisdiction of this chapter for that offense by reason of a termination of
that person’s former status.” Article 3(a) concerns trying enlisted
service members for offenses alleged to have been committed during a prior
enlistment. Therefore, it is not relevant to the applicant’s case.
73. Article 3(b) referred to by applicant’s counsel states, “Each person
discharged from the armed forces who is later charged with having
fraudulently obtained his discharge is subject to section 843 of this title
(Article 43), subject to trial by court-martial on that charge and is after
apprehension subject to this chapter while in the custody of the armed
forces for that trial. Upon conviction of that charge he is subject to
trial by court-martial for all offenses under this chapter committed before
the fraudulent discharge.”
74. Section 843, Article 43, pertains to the statute of limitations for
persons charged with an offense.
75. Army Regulation 600-8-24 provides for officer transfers and
discharges, and states in pertinent part that an officer may submit a
resignation for the good of the service in lieu of general court-martial if
court-martial charges have been preferred against the officer with a view
toward trial by general court-martial. An officer separated for this
reason normally receives a characterization of service of Under Other Than
Honorable Conditions.
76. That regulation also states that individuals who participate in
certain advanced education programs and fail to complete their educational
requirements or military service obligations are subject to the recoupment
provisions of Army Regulation 37-104-4, chapter 3.
DISCUSSION AND CONCLUSIONS:
1. Army Regulation 635-40 states in effect that once PEB proceedings are
complete, the PEB will forward the case to PERSCOM, who will dispose of the
case by publishing orders or issuing proper instructions to subordinate
headquarters; or return any disability evaluation to USAPDA for
clarification or reconsideration when newly discovered evidence becomes
available and is not reflected in the findings and recommendations. That
regulation also states that the USAPDA is vested with the authority to
review PEB proceedings designated by the PEB for review, and to return
proceedings to the PEB for reconsideration if it deems such an action is
appropriate. The USAPDA is thus the authority to approve the findings and
recommendations of the PEB. In either instance, however, the PEB or the
USAPDA is the approval authority for PEB proceedings.
PERSCOM then publishes orders or issues instructions to subordinate units.
2. The regulation, however, is outdated. The functions of PERSCOM in this
respect have been assumed by the Physical Disability Branch, which in this
case issued instructions to Fort Benning via a computer system, initially
to publish orders discharging the applicant because of a medical
disability, and then to publish orders revoking that discharge. The PEB
gave the authority to do so in the first instance, and the USAPDA in the
second instance. There is no evidence to show that PERSCOM was ever
involved in either instance. The PDB is an adjunct of the USAPDA and under
its authority.
3. Notwithstanding counsel’s argument and the out-of-date regulation, the
authority to act upon PEB proceedings for the Secretary of the Army rests
with the PEB itself, or as in this case, the USAPDA. The USAPDA, upon
receiving new non-medical evidence from the JAG PPTO, sent the case back to
the PEB for reconsideration. The fact that this new evidence did not first
go to PERSCOM, which had not been involved in the first PEB proceedings,
did not violate the applicant’s rights. Counsel is correct in that the
USAPDA is not an orders issuing authority, and that only Fort Benning could
issue the applicant’s discharge orders; however, the USAPDA has the
authority, as is evident in this case, to direct Fort Benning to revoke the
orders, which it did. Counsel’s argument that the applicant’s case could
not be reconsidered by the PEB or the USAPDA until after they first
received the case back from PERSCOM is without merit. The fact that
policies and procedures in effect were not contained in a regulation does
not make them less legitimate. The applicant was not harmed in any
reliance he may have placed on the regulation, as the first PEB finding
never went to PERSCOM, and so the requirement for PERSCOM to authorize
reconsideration was not triggered, contrary to the applicant’s claim.
4. In August 2001, instructions were forwarded to Fort Benning to revoke
the applicant’s discharge orders. Unfortunately, because of an
administrative error, the orders were not revoked; however, the applicant
was advised on 5 September 2001 that his case had been
reconsidered and that he had 10 days to appeal the proceedings. The
evidence shows that he agreed to return with his appeal on 17 September
2001, three days after his discharge, which, as directed by the first PEB,
was scheduled for 14 September 2001. Obviously, the applicant had no
intention of returning with an appeal. He misled the PEBLO. Counsel is
correct, however, in that the second PEB was not the final agency action.
At that time the second PEB did not constitute a final disposition of the
applicant’s case, as noted by the Article 32 investigating officer. Final
agency action could not have occurred until the case was resolved by the
USAPDA.
Counsel is incorrect, however, regarding the finality of the first PEB.
The fact that the applicant’s case was being reconsidered, that the
applicant was aware and acknowledged the PEB reconsideration, obviated the
first PEB proceedings.
5. The applicant, however, knew that the proceedings of the second PEB
would probably be approved and that he would be returned to duty. The
applicant had orchestrated his separation throughout the MMRB, MEB, and PEB
proceedings, taking pains to ensure that the processing for his discharge
was kept as secret as possible, and in fact, misleading personnel about his
intentions. He not only had no intention of submitting an appeal to the
second PEB proceedings, but also had no intention of waiting around for the
decision on those proceedings. The applicant’s conduct and actions leading
up to his separation were duplicitous, as indicated by the Article 32
investigating officer.
6. Article 83, Uniform Code of Military Justice, provides the elements
that define fraudulent separation, e.g., knowingly misrepresented or
deliberately concealed a certain material fact or facts about eligibility
for separation, and the separation was obtained or procured by that
knowingly false representation or deliberate concealment. Except for an
administrative snafu, the applicant would not have been discharged. So as
it turned out, the applicant complied with facially valid discharge orders
as counsel states. However, despite this fact and the same conclusion
reached by the Article 32 investigating officer, the applicant
misrepresented himself on 14 September 2001. He knew that those orders
would be revoked. He concealed the fact from the Fort Benning transition
center officials that his original PEB proceedings, which had formed the
basis for his medical discharge, were no longer valid. In addition, Major
“M,” the JAGC PPTO officer, had informed the applicant as early as 8 August
2001 that he would not be separated and that his separation orders were
going to be revoked. By his concealment of the truth concerning his
situation, a sin of omission, he was discharged. Had he been honest on 14
September 2001 to the separation officials, he would not have been
discharged. Despite counsel’s argument to the contrary, the revocation of
the applicant’s discharge was proper.
7. Even though the applicant was issued a hard copy DD Form 214 on
14 September 2001, this document was without legal effect because the
authority to issue it had been revoked well before that date, by or before
14 August 2001. Although counsel has in effect argued that a
hard copy revocation order was absolutely necessary to revoke the
separation orders, this is incorrect – either a verbal or hard copy order
is sufficient as long as it accurately reflects the intent of the
individual or agency that holds the authority to revoke the separation.
8. The Army’s actions in revoking his discharge orders and directing that
he be returned to duty were justifiable, and in view of his actions, the
decision to prefer charges to a court-martial for violation of Article 83
was justified. The applicant then requested resignation in lieu of trial
by court-martial. His resignation was accepted and he was discharged under
honorable conditions. Contrary to the applicant’s then detailed military
defense counsel’s assertion, the submission of his resignation request was
entirely the applicant’s choice, done of his own free will. He could have
chosen the alternative of court-martial, but did not opt to do so. Also,
if the Army had pursued civil litigation subsequent to his court-martial,
that would have been a legally permissible route to take, with an unknown
outcome. Such a course of action therefore does not constitute Army
harassment, as the applicant argued. Consequently, the applicant’s request
to remove all references to his resignation in lieu of trial by court-
martial from his OMPF is denied. His 1 October 2002 DD Form 214 is
correct. His request that it be declared null and void, of no force or
effect, and expunged from his OMPF, is denied. By the same token, his
request that he be reissued a DD Form 214 showing that he was discharged on
14 September 2001 because of a medical disability, with an honorable
characterization of service, is also denied.
9. Despite his contentions, and those of his detailed military defense
counsel in regard to his referred OER and his GOMOR, the applicant was not
a civilian, but a Soldier under the Army’s jurisdiction. He himself
apparently felt that way. He complied with instructions to return to duty
after his erroneous discharge. He served as an Army attorney for
approximately a year prior to his discharge in October 2002, apparently
drawing pay and allowances from the Army. He submitted his request for
resignation in accordance with the provisions of Army regulations. The
applicant’s argument, buttressed by his military counsel’s allegation, that
he was not under the jurisdiction of the Army, is specious.
10. The applicant has not provided any evidence that the OER for the
period 16 May 2001 through 3 May 2002 is inaccurate or unjust.
Counsel has not shown a conflict of interest between the applicant and his
senior rater. The applicant, in fact, was not rated for “TDS time” as
averred by counsel. He had no trial defense service duties for which he
was rated during the rated period. The applicant was a legal assistance
attorney providing legal advice and assistance to Soldiers at Fort Benning,
and these were the duties for which he was evaluated. There is no evidence
and neither the applicant nor counsel has provided any, to show that the
adverse OER was unreasonable and unjust. His request to have this report
deleted from his OMPF is not granted.
11. The applicant has not provided any evidence to show that the 3 June
2002 GOMOR issued by the Commanding General, United States Army Garrison,
Fort Myer, is unwarranted or unfair. Noted is the memorandum prepared by
the applicant’s detailed military defense counsel regarding an
understanding on her part that a GOMOR would not be issued. Noted also is
the reply by trial counsel disputing any agreement not to issue a GOMOR,
and who stated that at no time did he or anyone else promise that a GOMOR
would not be issued. The applicant’s 10 November 2001 deposition
transcript is unavailable to this Board; nonetheless, it would appear that
based on the information contained in the GOMOR, that there was more that
sufficient evidence available elsewhere to draft the adverse GOMOR without
using any prior statement or deposition made by the applicant. The
information contained in the GOMOR, in fact, is contained in these
proceedings. His request to have this document removed from his OMPF is
not granted.
12. Despite the vast amount of documents submitted by the applicant, there
is no evidence to support counsel’s contentions of unlawful command
influence or vindictiveness on the part of any official involved. Actions
initiated or completed against the applicant, e.g., court-martial charges,
adverse OER, GOMOR, resulted from the applicant’s own misconduct. By the
same token, the facts themselves are such that a change in the
characterization of the applicant’s discharge is not merited. There is no
evidence to support relief because of equity. Evidence of injustice in
this case is nonexistent. Consequently, the applicant’s request to upgrade
his discharge and to correct his record to indicate a voluntary and
honorable discharge is not warranted.
13. In light of the above decisions concerning his discharge, the
applicant’s request that DFAS cease efforts to recoup his severance pay
and to restore funds to him already recouped is denied.
14. The Board notes the applicant’s statements concerning the
constitutionality of Article 3(b), UCMJ. The Board, however, agrees with
case law promulgated by the United States Court of Appeals for the Armed
Forces (i.e., Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981)) that has held
Article 3(b), UCMJ, is constitutional. In addition, the Board notes the
United State District Court for the Middle District of Georgia declined to
follow the applicant’s request to find Article 3(b) unconstitutional. By
doing so, that court returned the applicant to military control to process
his court-martial charges.
15. Neither the applicant nor counsel has submitted probative evidence or
a convincing argument in support of his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__MM __ __AR ___ __LS____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable
error or injustice. Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.
______Melvin Meyer_______
CHAIRPERSON
INDEX
|CASE ID |AR20040007338 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20051027 |
|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. |134.00 |
|3. | |
|4. | |
|5. | |
|6. | |
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