RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 August 2005
      DOCKET NUMBER:   AR20050010926


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Deborah S. Jacobs             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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.  The applicant requests, through a court remand, reconsideration of his
request for entitlement to Special Duty Assignment Pay (SDAP).

2.  The U. S. Court of Federal Claims noted the applicant had been
involuntarily separated from the Army but later reinstated after he
successfully applied to the Army Board for Correction of Military Records
(ABCMR) (in Docket Number AR2000044795 dated 26 June 2001).  He later
claimed that, upon his reinstatement and subsequent retirement, various
errors were committed in determining his back pay and veterans benefits.
He had applied to the ABCMR for further relief, but the ABCMR denied his
request.

3.  The applicant presented four claims in his current Court action.  He
claimed (1) he was entitled to additional accrued leave pay; (2) income
taxes were improperly withheld on the back pay he received, which he
claimed was exempt from taxation; (3) separation pay relating to his
initial discharge was improperly recouped against his veterans disability
payments; and (4) he was entitled to SDAP during the period of his
constructive service.

4.  As for the applicant's first claim, the Court noted the Army had
recouped, at the time he was reinstated in 2001, the $2,316.60 he was paid
for unused leave when he was separated in 1999.  However, the Army
indicated he was eligible to seek a waiver that would result in the return
of the full amount.  The applicant applied for that waiver and he was paid
the full amount on 1 March 2005.  The Court dismissed this claim as moot.

5.  As for the applicant's second claim, the Court noted he claimed the
withholding of income tax from his back pay was improper because he was in
a combat zone at the time he received it.  The Court noted the applicant's
entitlement to compensation for his constructive service accrued no later
than the time of his reinstatement to active duty on 10 September 2001, 18
months before his service in a combat zone began.  Under Treasury
Regulations, the fact he received those funds while serving in a combat
zone was "irrelevant."  The Court rejected his claim for exemption.

6.  The Court dismissed the applicant's third claim for lack of
jurisdiction, as a matter that should be pursued within the exclusive
review mechanism established by Congress for the denial of veteran's
benefits.  Accordingly, the ABCMR lacks jurisdiction over this claim.

7.  As for the applicant's fourth claim, the Court cited facts outlined in
the ABCMR's 26 June 2001 original consideration of his case.  The original
consideration noted the applicant's commander had apparently intended to
relieve the applicant from recruiter duties effective 1 July 1997.  His
command did not follow up on the relief action.  The applicant received an
adverse noncommissioned officer evaluation report (NCOER) in September
1997.  Separation for misconduct action was initiated for two domestic
incidents that led to the applicant's arrest by civil authorities.  The
separation action was dropped because he was not convicted of any
misconduct.  Relief from recruiter duties was re-initiated based on a
December 1996 incident and the May and November 1997 domestic incidents and
his SDAP was terminated effective 1 February 1998.  However, he received a
change of rater NCOER for the period September 1997 through May 1998 which
indicated he had successfully performed duties as a recruiter.  He was
recommended for separation under the Qualitative Management Program (QMP)
based on the adverse NCOER and was honorably discharged [on 13 February
1999].

8.  The Court noted the applicant did not directly raise the issue of his
entitlement to SDAP in his original application to the ABCMR.  Nonetheless,
the ABCMR noted, "…in spite of the applicant's civilian charges he remained
in a recruiter capacity, and received a favorable evaluation report for the
period September 1997 through May 1998, which further confirms that the
report in question was based solely on the civilian charges."  The ABCMR
further concluded that had the applicant's "chain of command truly believed
[he] was unfit for recruiting duties it would have appeared that the
original relief action would have been pursued and he would not have been
allowed to remain in a recruiter capacity through May 1998."

9.  The Court noted, in his second ABCMR application (Docket Number
AR2002082997 dated 3 July 2003), that the applicant sought payment of back
SDAP from the date of his termination through the end of his constructive
service.  In its 3 July 2003 Memorandum of Consideration, the ABCMR
rejected his assertion, concluding that given receipt of SDAP is contingent
on a member performing the special duty for which it is authorized, it
would not be appropriate to provide the applicant SDAP for the reinstated
period of service.  The applicant argued before the Court that since his
reassignment from recruiting duty was based upon the same criteria the
Board found had improperly caused his separation from the Army, those
criteria cannot support the decision to reassign him from recruiting.

10.  The Court noted the Government had cited Groves v. United States, 47
F.3d 1140 (Fed.Cir.1995) to support its proposition that special pays are
awarded at the discretion of the Secretary of the Army and the Court was
not qualified to review substantive merits of a decision to terminate it.
The Court opined that Groves appeared to cut the other way.  The Federal
Circuit stated in Groves that the Secretary's discretion to award special
pay under the authority of Title [37],  U. S. Code is tempered by the
statutory command of Title 10, U. S. Code, section 875(a) to restore to
Groves all rights, privileges, and property affected by the court-martial
conviction.

11.  The Court noted it was not called upon to review whether the Secretary
of the Army correctly terminated the applicant's SDAP.  Rather, the issue
was whether the Government failed to comply with the first ABCMR
recommendation, adopted by the Secretary of the Army, that he should
receive "restoration of all rights and privileges, including all
appropriate back pay and allowances.”  It appeared the second Board did not
properly evaluate the issue because it proceeded on several faulty
premises.

12.  The Court found the ABCMR had not yet properly considered whether,
based upon the administrative record, the applicant is entitled to SDAP.
The Secretary's order that the applicant be reinstated "with restoration of
all rights and privileges, including all appropriate back pay [and]
allowances" requires the ABCMR to consider whether he would have continued
to receive SDAP had the erroneous course of conduct that led to his
separation not been initiated.  For this purpose, it matters not whether
the applicant was reassigned from recruiting duty a year or a day before he
was separated.  Rather, what appears important is whether the two events -
reassignment and separation – were interrelated and represent a continuum
of unjust conduct that the first Board and, in turn, the Secretary,
intended to correct.

13.  The Court found, in short, as there was evidence the applicant's
reassignment was interrelated with his later separation, it believed this
issue should be remanded to the ABCMR to allow that administrative body to
determine, in the first instance, whether restoration of the applicant's
rights and privileges was intended to or should include the receipt of SDAP
for the period of his constructive service.

14.  The applicant also provided an Army Commendation Medal award
order/certificate for the period 20 March through 30 April 2003 for his
service during Operation Iraqi Freedom.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 October 1983.  In
March 1994, he was assigned as a recruiter in Frederick, MD.  He was
promoted to Sergeant First Class, E-7 on 1 November 1996.

2.  On an unknown date, the applicant met the assistant principal, Doctor
R___, of one of the high schools he was responsible for.  They became
friendly, their friendship grew.  Approximately in June 1996, he moved out
of his household and into hers.  By November 1996, he was pursuing a
divorce from his wife.

3.  In April 1997, a psychiatric evaluation indicated the applicant had
been seen at the mental health clinic for 8 appointments since his initial
referral by the command in early January 1997.  The evaluation indicated he
"had several recent difficulties which have, in some capacity, involved
alcohol" and that he "acknowledged a tendency to utilize alcohol to assist
in coping with his problems…"  The evaluation further noted the applicant
appeared to have a paranoid personality style and his "personality style
interferes with his ability to consistently project a positive image and
interact with others in an appropriate manner."  The evaluating physician
recommended the applicant be reassigned out of recruiting duties.

4.  In April 1997, after a second argument, Doctor R___ requested the
applicant leave to go back to his wife.  In May 1997, as he was moving his
belongings, a neighbor called the police and he was arrested.  Doctor R___
refused to press charges but the State pressed charges.  On an unknown
date, the State dropped the charges.

5.  The events described in paragraphs 2 and 4 above were taken from a
March 2001 affidavit provided by the applicant with his original ABCMR
application.

6.  In an undated memorandum, the applicant's commander indicated he was
recommending the applicant be reassigned as an unqualified recruiter and
that his entitlement to SDAP would be terminated effective 1 July 1997.
Apparently this recommendation was never processed to conclusion.

7.  In September 1997, the applicant received the adverse NCOER for the
period ending August 1997 noted by the Court.

8.  On an unknown date, the applicant and Doctor R___ got back together.
In November 1997, he and Doctor R___ got into an argument that escalated
into a shouting match.  A neighbor called the police and the applicant was
arrested.  This information was obtained from a March 2001 affidavit
provided by Doctor R___ with the applicant's original ABCMR application.

9.  In January 1998, separation for misconduct was initiated on the
applicant.  The applicant was acquitted of second degree assault charges in
February 1998 and the separation action was dropped.

10.  In a 3 April 1998 memorandum, the applicant's commander again notified
him he was being reassigned from recruiting duties.  The memorandum noted
the previous recommendation to reassign him from recruiting duties based on
his "failure to maintain acceptable standards of conduct due to a diagnosed
paranoid personality style" was "not served and stopped when more serious
misconduct occurred."  The commander then cited the applicant's May and
November 1997 domestic incidents and the December 1996 alcohol incident as
the basis for the recommendation to reassign him from recruiting duties.
His entitlement to SDAP had apparently been terminated effective 2 February
1998.

11.  The applicant apparently continued to perform recruiting duties
through May 1998 as evidenced by his NCOER for the period ending May 1998.


12.  On 6 April 1998, the Calendar Year 1998 Master Sergeant Promotion
Board determined the applicant should be barred from reenlistment under the
QMP based on the August 1997 adverse NCOER.  The applicant appealed, his
appeal was denied, and he was honorably discharged on 13 February 1999.

13.  On 26 June 2001, the ABCMR recommended the applicant's records be
corrected, in pertinent part, by voiding the QMP action, declaring his 13
February 1999 discharge from the Army null and void and reinstating him on
active duty in pay grade E-7 without any loss of creditable service and
with restoration of all rights and privileges, including all appropriate
back pay and allowances.  That ABCMR panel had concluded, in part, that the
applicant's "only laps (sic) of discretion, which resulted in the
unfavorable evaluation report and memorandum of reprimand, was based on
civilian charges which were ultimately expunged by the civilian court which
brought the original charges."

14.  The 26 June 2001 ABCMR panel also concluded, in part, "had the
applicant's chain of command truly believed the applicant was unfit for
recruiting duties it would have appeared that the original relief action
would have been pursued and he would not have been allowed to remain in a
recruiter capacity through May 1998."

15.  The applicant was subsequently reinstated, received the "appropriate"
back pay and allowances but not SDAP, and retired on 1 February 2004.

16.  Army Regulation 601-1 (Assignment of Enlisted Personnel to the U. S.
Army Recruiting Command), paragraph 5-4 states that a recruiter's
reassignment as unqualified is without prejudice.  It does not, in other
words, entail the potential adverse career impact as do unsuitable or
ineffective reassignments.  Recruiters may be identified as unqualified for
one of several listed reasons including being unable to accomplish
recruiting duties due to physical or medical limitations, not the result of
misconduct.

17.  Army Regulation 601-1, paragraph 5-6 states recruiters may be
identified as unsuitable for any of several listed reasons including
failure to meet or maintain acceptable standards of conduct, to include
involvement in unfavorable incidents or commission of acts which adversely
reflect on the Army and the recruiter and which violate civil law or the
Uniform Code of Military Justice (UCMJ).

18.  Army Regulation 601-1, paragraph 5-7 states recruiting battalion and
recruiting brigade commanders are authorized to suspend U. S. Army
Recruiting Command personnel within their respective commands who are
identified as unsuitable according to the criteria specified in paragraph 5-
6.  Normally, recruiters identified as unqualified or ineffective will not
be suspended but will continue to perform recruiting duties pending
involuntary reassignment.  Suspended recruiters are not entitled to SDAP
because they are removed from their recruiting duties.  Termination of SDAP
is effective on the date of suspension.

19.  The Manual for Courts-Martial, United States, both the 1984 and the
1998 editions, lists the elements of Article 134 (Adultery) as (1) the
accused wrongfully had sexual intercourse with a certain person; (2) at the
time, the accused or the other person was married to someone else, and (3)
under the circumstances, the conduct of the accused was to the prejudice of
good order and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.

20.  The Manual for Courts-Martial, United States, both the 1984 and the
1998 editions, lists the element of Article 134 (General article) as, if
the conduct is punished as a disorder or neglect to the prejudice of good
order and discipline in the armed forces, or of a nature to bring discredit
upon the armed forces, then the following proof is required:  (1) the
accused did or failed to do certain acts; and (2) under the circumstances,
the accused's conduct was to the prejudice of good order and discipline in
the armed forces or was of a nature to bring discredit upon the armed
forces.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR, in its 26 June 2001 consideration of the applicant's case,
erroneously concluded, in part, that the applicant's only lapse of
discretion, which resulted in the unfavorable evaluation report and
memorandum of reprimand, was based on civilian charges which were
ultimately expunged by the civilian court which brought the original
charges.

2.  The applicant admitted, in his original ABCMR application, that he was
in violation of the UCMJ, Article 134, at least from approximately June
1996 to April 1997 and possibly later.  He had moved out of his household
and into Doctor R___'s household and it was not until November 1996 that he
started pursuing a divorce from his wife.

3.  Whether or not the above violation was actually adultery, the
applicant's conduct was clearly of a nature to bring discredit upon the
armed forces.  Doctor R___ was the assistant principal of one of the high
schools he was responsible for.  On at least two occasions, their public
conduct was such to draw unfavorable attention from their neighbors and the
police.

4.  It is not clear from the evidence available that his command knew of
that violation or, if they knew, they opted to minimize the career damage
to the applicant by relieving him from duties as an unqualified, rather
than an unsuitable, recruiter.  Nevertheless, it was still misconduct
punishable under the UCMJ.

5.  It appears the 26 June 2001 ABCMR panel also erroneously concluded, in
part, "had the applicant's chain of command truly believed the applicant
was unfit for recruiting duties it would have appeared that the original
relief action would have been pursued and he would not have been allowed to
remain in a recruiter capacity through May 1998."

6.  The applicant's command did pursue the original relief action.  In his
3 April 1998 memorandum, the applicant's commander again notified the
applicant he was being reassigned from recruiting duties.  The ABCMR's 26
June 2001 action indicated the memorandum noted the previous recommendation
to reassign him from recruiting duties was "not served and stopped when
more serious misconduct occurred."  It appears the April 1997 relief action
was not terminated but was only suspended pending the result of the
applicant's civil court case and military separation action.  It appears
the commander made a proper decision to suspend the termination action.
The original action was to reassign the applicant from recruiter duties due
to being medically unqualified.  Had his civil court case resulted in a
conviction, relief due to being medically unqualified, a nonprejudicial
course of action, would no longer have been appropriate.

7.  Neither the applicant nor Doctor R___ denied the incidents for which
the applicant was arrested ever occurred.  One of the reasons listed in
Army Regulation 601-1 to be identified as unsuitable is a failure to meet
or maintain acceptable standards of conduct to include involvement in
unfavorable incidents.

8.  It was logical and reasonable for the applicant's command to re-instate
the relief action after the November 1997 incident.  The fact that incident
occurred, even if the applicant was not convicted of any charge arising
from that incident, was sufficient reason to relieve him from recruiter
duties as being unsuitable.  It is noted his commander, in his 3 April 1998
memorandum, used the unsuitability phrase "failure to maintain acceptable
standards of conduct" rather than the unqualified phrase "unable to
accomplish recruiting duties due to physical or medical limitations."

9.  For the above reasons, the ABCMR concludes the applicant's reassignment
and separation were not interrelated and do not represent a continuum of
unjust conduct that the first Board and, in turn, the Secretary, intended
to correct.  The applicant's reassignment from recruiter duties was
initiated, based on findings made prior to the May 1997 incident, that he
was medically unqualified for continued recruiter duties.  It appears the
reassignment action was properly suspended pending the outcome of the civil
charges.  Since incidents of a nature to bring discredit upon the armed
forces continued to occur, it was proper for the commander to have re-
instated the reassignment action and to have terminated the applicant's
SDAP.  Therefore, it would not be reasonable or equitable to consider the
applicant's SDAP to be one of the "appropriate back pay and allowances" he
should have received during the period of his constructive service.

10.  The above being said, the applicant's command appears to have allowed
him to continue to perform recruiter duties after his SDAP was suspended
effective 1 February 1998.  According to his NCOER for the period ending
May 1998, he successfully performed recruiter duties through May 1998.
While it would certainly not be equitable to show the applicant was paid
SDAP for any period after May 1998, it would be equitable to show his SDAP
was terminated effective 1 June 1998 and not 1 February 1998.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__jns___  __dsj___  __mjf___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by voiding the termination of his Special Duty
Assignment Pay effective 1 February 1998 and showing his Special Duty
Assignment Pay was terminated effective      1 June 1998.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
paying him Special Duty Assignment Pay from 1 June 1998 through the end of
his constructive service.




            ___John N. Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050010926                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.14                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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