RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070011678 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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, in effect, that his 17 January 1992 discharge be voided and that he, instead, be retired for length of service with all rights and privileges thereto appertaining.  He specifically requests:

	a.  back payment of all retirement pension benefits from 17 January 1992 to the present.

	b.  retirement out-processing, including, but not limited to, medical benefits and other benefits afforded retirees.

	c.  active duty pay and entitlements per the "Dellums Letter."  Specifically,

75 days' accrued annual leave which he was forced to use while involuntarily held on active duty for the period April 1 to August 1, 1991.

active duty pay from 1-13 August 1991 and from 29 August-10 September 1991.

pay and allowances for the period 14-28 August 1991 while involuntarily assigned to an excess leave status.

temporary duty (TDY) pay reimbursement in the amount of$930.00 for the period 30 August-9 September 1991.

active duty pay for the period 11 September 1991-17 January 1992.

the difference in Variable Housing Allowance for the period 11 March 1991-19 January 1992 allowed for changing addresses from ZIP Code 22314 to 94105.

forgiveness of an erroneous debt action in the amount of $47,772.80.

	d.  active duty pay and entitlements from the date last paid to the date of discharge [note:  apparently included in "c" above].


	e.  the nonjudicial punishment (NJP) under Article 15 of the Uniformed Code of Military Justice (UCMJ) be overturned and expunged from his record.

	f.  accrued interest.

2.  The applicant states that:

	a.  his discharge in 1992 was involuntary.

	b.  his conduct did not warrant forfeiture of his retirement pension and benefits.

	c.  the Army Discharge Review Board (ADRB) agreed that his conduct did not merit the action taken.

	d.  the action taken was subsequent to an illegal flag (sic) (suspension of favorable actions) placed against his retirement and out-processing.

	e.  in effect, he was retaliated against because he was not viewed as a team player.

	f.  he has been diagnosed as having bipolar disorder which reduced his coping skills and may have caused friction with co-workers.

3.  The applicant provides the following additional documentary evidence in support of his application:

	1.  Table of Contents that includes Tab A through Tab L as follows:

		a.  Tab A:  The applicant explains the purpose of his request.  He states that part of his separation agreement in 1992, he was forced under duress to relinquish all rights to military benefits and accept an Under Other Than Honorable Conditions Discharge.  However, since the Army Discharge Review Board (ADRB) upgraded his discharge to an Honorable Discharge on 12 August 2005, he seeks correction of his records to remove any injustices.

		b.  Tab B:  The applicant states that since the ADRB upgraded his discharge on 12 August 2005, his application is timely and was made within the Statute of Limitations.


		c.  Tab C:  the applicant describes highlights of his military service prior to, during, and after joining the Continuity of Government Program (COG); the subsequent investigations relating to his COG service as well as his Nonjudicial Punishment under Article 15 of the Uniform Code of Military Justice during his assignment to the COG; and the events leading to his resignation from the Army.

		d.  Tab D:  The applicant restates the corrections he seeks from the ABCMR.  

		e.  Tab E:  The applicant describes his experience while assigned to the COG to include a mismatch between his prior personal history and work ethics and the COG organization culture.  He gives specific examples of compromising behaviors within the COG and attempts by certain COG members to alienate him.

		f.  Tab F:  The applicant describes the events that led to the Article 15.  He provided definition of the word larceny and compared the specifics of his situation to those in the General Services Administration (GSA) Regulations as well as the Manual for Courts-Martial (MCM).

		g.  Tab G:  The applicant gives a lengthy overview of the events leading to his Article 32 hearing and argued that there was command influence over the court martial authority.

		h.  Tab H:  The applicant gives an overview of his resignation and asserts that his resignation was the product of duress, coercive, and thus was not voluntary.


		i.  Tab I:  The applicant explains how his health issues appeared to have had a serious impact on his ability to cope during his assignment to the COG

		j.  Tab L:  The applicant describes his life after resigning from the Army.  He gives specific examples of the positive impact he has made.

		k.  Tab K:  The applicant gives an overview of the COG program as reported in the media.  He gives a background of the COG and how it was administered, describes a CNN report of the COG, and describes specific contract irregularities associated with the COG.

		l.  Tab L:  the applicant concludes that the COG assignment destroyed his career and that the Army as a whole failed to protect his interest.  He hopes the ABCMR would restore some measure of dignity and respect to his faithful service and grant him relief.

	2.  Exhibits Table of Contents that includes:

		a.  Tab 1:  DD Form 214 (Certificate of Release or Discharge from Active Duty) and the ADRB proceedings and approval memorandum, dated 12 August 2005.

		b.  Tab 2:  Letter, dated 22 November 1994, to a member of Congress, requesting pay and administrative action.

		c.  Tab 3:  Excerpts from newspapers and Internet and book articles, dealing with shadow government, classified and black assignments, and the intelligence community.

		d.  Tab 4:  No documentations includes.

		e.  Tab 5:  Letter, dated 8 August 2005, from the applicant's attending psychiatrist to the ADRB

		f.  Tab 6:  Undated Executive Summary and Applicant's Statement relating to the applicant's travel to India using the frequent flyer mileage.

		g.  Tab 7:  Applicant's letter, dated 24 May 2001, addressed to the Chairman, Committee on Government Reform, U.S. House of Representatives.

		h.  Tab 8:   Letter, dated 16 April 1991, from Regional Defense Counsel, U.S. Army Trial Defense Service, Fort Meade, Maryland, to the applicant.

		i.  Tab 9:  Affidavit, dated 4 August 2007, by an Attorney in support of the applicant's request.

		j.  Tab 10:  Copies of Memoranda of Record, dated 10 October 1991, and copy of the Report of Investigation, dated 30 September 1992, all by the 902nd Military Intelligence Group, Fort Meade, Maryland.

		k.   Tab 11:  Extract from Department of the Army Pamphlet (DA PAM) 27-50-342 (The Army Lawyer), dated May 2001, Recent Development of Unlawful Command Influence). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a Regular Army Lieutenant Colonel (LTC/O-5), serving in the Corps of Engineers.  In 1984, he was assigned to the Washington-based National Program Office's classified Continuity of Government (COG) program.  The COG program was established to ensure the survival of essential federal government leaders and agencies in the event of a severe crisis.  It was created at the height of 1960s public and government concern over the possibility of nuclear warfare and provides a network of disaster relief, emergency assistance, law enforcement, and information services to the general citizenry of the United States while, at the same time, maintaining underground facilities to protect the president, cabinet members, and essential government personnel in the event of attack or catastrophe.  An 18 November 1991 New York Times newspaper article discussed the COG, stating, in part:

WASHINGTON, Nov 17. - Acting outside the Constitution in the early 1980's, a secret Federal agency established a line of succession to the Presidency to assure continued government in the event of a devastating nuclear attack....

[I]f all 17 legal successors to the President were incapacitated, non-elected officials would assume office in extreme emergencies.

Among Government officials were designated to serve as successors in an expanded list...were Howard H. Baker Jr., the former Senate Republican leader who later became White House chief of staff a former Directory of Central Intelligence, Richard Helms; the United Nations ambassador, Dr. Jeane J. Kirkpatrick, and a former Defense Secretary, James R. Schlesinger.

The secret agency, the National Program Office, was created by President Ronald Reagan in 1982 to expand the list of successors and network of bunkers, aircraft and mobile command centers to insure that the Government continued to function in a nuclear war and afterward....

The issue of maintaining civilian, constitutional government during and after a nuclear attack has been a high priority for at least the last three Administrations, although it was always recognized as a remote possibility.  The recent thaw in East-West tensions has made such a strike more unlikely.  Moreover many questions about the plan’s operation remained unanswered...by Administration officials, who were reluctant to discuss the classified program.

In the late 1970s, President Jimmy Carter directed Zbigniew Brzezinski, his national security adviser, to draw up a list of people to be evacuated from the White House in the event of an imminent nuclear strike.  Those officials were then to fan out across the country on airborne command posts and mobile command centers.

President Reagan inherited the framework of the plan and authorized its expansion.  That expansion included creation of the National Program Office, which is run by the Vice President....

“It’s a very elaborate plan to protect the leaders of the Government when the country is under attack,” Representative Lee H. Hamilton, Democrat of Indiana, said today.  “You put them in air and get them to hideaway locations, with special communication systems so the government can function.”

Mr. Hamilton, who was chairman of the House Intelligence Committee in 1985 and 1986, said he was not familiar with any extra-Constitutional succession provisions. 

[T]he United States had spent more than $8 billion on the National Program Office since 1982, much of the money on advanced communications equipment designed to survive a nuclear blast.  The communications systems were technically flawed, however, and prevented the State Department, Defense Department, Central Intelligence Agency and Federal Emergency Management Agency from being able to “talk to each other....”

The Law on Presidential succession makes the order: the Vice President, Speaker of the House, President, pro tem of the Senate and the 14 Cabinet officers in order of the creation of their posts, beginning with the Secretaries of State, Treasury and Defense and succeeding to the newest department, Veterans Affairs.

Administration officials today refused to discuss the secret succession plan or the National Program Office.

3.  On/about 15 August 1984, the applicant began serving in the COG program.  This required him to perform extensive travel on commercial airlines.  He often used airlines that participated in frequent flyer programs.  Due to the critical nature of his assignment and the need to keep his destinations classified, he was informally allowed to maintain a personal accounting system of bonus points earned under frequent flyer programs while on official travel.  Frequent flyer bonus miles earned for official travel were the property of the government.

4.  On 11 April 1986, the applicant was issued a 75,000 Mile Bonus Award Certificate, which he used to obtain personal travel to India, rather than turning it over to the Government as required by the Joint Federal Travel Regulations (JFTR), then in effect.  Shortly thereafter, the applicant was reassigned and left the COG program in the August/September 1986 time frame.

5.  In January 1987, the applicant came under investigation by the US Army Criminal Investigation [Division] Command (USACIDC) concerning the use of the Bonus Award Certificate.  When questioned by a CID agent, he admitted to using the Certificate.  Following the USACIDC investigation, the applicant was administered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, by the Commanding General, Military District of Washington (MDW) for "...steal[ing] a 75,000 Mile United Airlines Mileage Plus Award Certificate, #94584922876, which entitled the bearer to one free international economy class round trip ticket which was the property of the United States Government of a value of $2,494.00."  As punishment, he was made to forfeit $700 pay per month for two months.


6.  In June 1990, the applicant submitted an application for correction of his military records to the Engineer Officers' Branch, PERSCOM, and the Army Board of Correction for Military Records (ABCMR).  The application sought to remove the NJP from his record and adjust his date of rank to LTC.  The application contained enclosures.

7.  Also in June 1990, the applicant submitted a request for voluntary retirement through his chain of command asking to be retired effective 1 April 1991.  On 12 October 1990, the U.S. Total Army Personnel Command (PERSCOM – currently known as Human Resources Command, or HRC) published Orders Number S198-16 approving the applicant's retirement and releasing him from active duty effective 31 March 1991 and placing him on the Retired List effective 1 April 1991.

8.  Upon review of the applicant's request for correction of his military records, suspicion was raised that he had discussed classified matters and provided classified documents in support of his request.  The USACIDC was notified and an investigation was initiated.

9.  On 20 March 1991, the Washington (DC) Field Investigative Activity, USACIDC, conducted an investigation into the applicant's activities during the period 19 September 1986 through September 1990.  The investigation revealed that, on 19 September 1986, the applicant's access to classified information in the COG program was terminated and he certified that he had no classified information in his possession and that he had not removed any such information from authorized control channels.  The investigation further revealed that the applicant, without authorization, disclosed classified information when he submitted his application for correction of his military records to the Engineer Officers' Branch, PERSCOM (HRC) on 11 June 1990 and to the ABCMR on 27 June 1990.  The application contained Top Secret (classified) information and five memoranda which were removed from a classified control channel.  At the time of the applicant's submission, neither the Engineer Officers' Branch nor the ABCMR was authorized access to this Top Secret information.

10.  On 28 March 1991, a DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was initiated by the Commanding General, U.S. Army Corps of Engineers against the applicant for security violations.

11.  On 29 March1991, PERSCOM (HRC), Alexandria, Virginia, published Orders Number S61-6 rescinding the applicant’s retirement orders.

12.  On 1 May 1991, Headquarters, Military District of Washington, Washington, D.C. published Orders Number 84-33 reassigning the applicant from the Office of the Chief of Engineers, Washington, D.C., with duty at the Presidio of San Francisco, California, to Headquarters, Military District of Washington, Washington, DC with duty at the Presidio of San Francisco, effective 5 April 1991.  The orders directed that UCMJ authority would remain with the Military District of Washington.

13.  On 25 June 1991, General Court-Martial charges were preferred against the applicant for:

	a.  failing to obey a lawful general regulation by wrongfully failing to store or causing to be stored, classified documents, pertaining to certain classified projects, during the period on or about 19 November 1986 through on or about 18 September 1990.

	b.  failing to obey a lawful general regulation by wrongfully failing to maintain a proper accountability and control over top secret documents or copies of top secret documents to a certain classified project by wrongfully transmitting the said document to the ABCMR, Arlington, Virginia, from about 27 June 1990 to 18 September 1990.

	c.  failing to obey a lawful general regulation by wrongfully failing to maintain proper accountability and control over a top secret document or a copy of a top secret document pertaining to a certain classified project by wrongfully transmitting said document to PERSCOM (HRC), from about 5 September 1990 to about 18 September 1990.

	d.  failing to obey lawful general regulation by wrongfully failing to safeguard classified documents that were discovered out of proper control and failing to immediately notify the appropriate security authority, from about 19 November 1986 to about 18 September 1990.

	e. wrongfully and unlawfully making, under lawful oath or affirmation, a false statement to a CID agent, that he was not in possession of any classified documents pertaining to a certain classified project, on or about 21 July 1987 to on or about 22 July 1987.


	f.  wrongfully and willfully communicating, delivering, and transmitting or causing to be communicated, delivered, and transmitted, classified information and documents pertaining to a certain classified project to the ABCMR on or about 5 July 1990.

	g.  wrongfully and willfully communicating, delivering, and transmitting or causing to be communicated, delivered, and transmitted, classified information and documents pertaining to a certain classified project to PERSCOM (HRC) on or about 5 September 1990 to on or about 18 September 1990.

	h.  permitting classified documents pertaining to a certain classified project to be delivered to the ABCMR on or about 5 July 1990  

14.  On 26 June 1991, the Commander, U.S. Army Garrison, Military District of Washington, appointed an investigating officer to conduct an Article 32, UCMJ, investigation into the applicant's case.  After thoroughly conducting his investigation, and based on the severity of the offenses and the evidence produced during the investigation, the investigating officer recommended the applicant be tried by a General Court-Martial.  The investigating officer added that the wanton disclosure of classified information, regardless of the applicant's motivation, simply could not be tolerated and that his offenses were too significant to justify NJP rather than a trial by court-martial.

15.  On 3 October 1991, additional general court-martial charges were preferred against the applicant for:

	a.  disobeying a lawful general regulation by wrongfully failing to safeguard a document containing classified information that was out of proper control and failing to notify immediately the appropriate security authority, on or about 2 November 1990 to on or about 7 September 1991.

	b. permitting classified information relating to national defense and pertaining to a certain classified project to be transmitted to unauthorized persons on or about 1 April 1988.

16.  On 5 November 1991, after reviewing the charges, specifications, and allied papers, the Staff Judge Advocate (SJA), Military District of Washington, provided an advisory opinion on the court-martial charges in the applicant’s case.  The SJA recommended that the charges and specifications (as amended) be referred to a General Court-Martial.

17.  On 7 November 1991, the Command General, Military District of Washington, who was also the General Court-Martial Convening Authority, approved the recommendations of the SJA.  

18.  On 10 November 1991, the applicant consulted with legal counsel and was advised of the nature of the offenses for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of an Under Other Than Honorable Conditions Discharge, and of the procedures and rights available to him.  Subsequent to receiving this legal counseling, the applicant voluntarily requested resignation for the good of the service under chapter 5 of Army Regulation 635-120 (Personnel Separations; Officer Resignations and Discharges).

19.  In his request for resignation, the applicant indicated that he did not wish to appear before a court-martial.  He further indicated that he was making the request for discharge of his own free will and was not subjected to any coercion whatsoever.  He further acknowledged he would receive an Under Other than Honorable Conditions Discharge and that he understood the adverse nature of such a discharge and the possible consequences thereof.  He also acknowledged that he understood if his resignation was accepted, he would not be entitled to compensation for unused accrued leave and that regardless of the type of discharge he would receive, he understood that he would not receive separation pay and would be ineligible for all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  Finally, he acknowledged his understanding that if he participated in any certain advanced education programs, he would be required to reimburse the U.S. Government in accordance with law and regulation.

20.  On 22 November 1991, the applicant’s immediate commander recommended approval of the applicant’s request for resignation in accordance with chapter 5 of Army Regulation 635-120.  The immediate commander stated that the applicant had undergone an earlier retirement physical on 27 February 1991 and that any other pre-separation medical examination required would be scheduled and completed as appropriate.  

21.  On 22 November 1991, the applicant’s intermediate commander recommended the applicant’s resignation for the good of the service in accordance with chapter 5 of Army Regulation 635-120 be approved and that he be furnished an Other Than Honorable Conditions Discharge Certificate.

22.  On 26 November 1991, the Commanding General, Military District of Washington, recommended approval of the applicant’s resignation for the good of the service under the provisions of chapter 5 of Army Regulation 635-120 and that he be prohibited from retiring from the Army.  The Command General further recommended the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate, stating that the applicant was unfit for further service and that, although he completed 20 years of service, the nature of the offenses with which he was charged represented a serious violation of his oath and were such that he should not be allowed to honorably retire.  The applicant's request was forwarded to the Army Ad Hoc Review Board, which concurred with the Commanding General's recommendation.

23.  On 16 December 1991, the Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the recommendation of the Department of the Army Ad Hoc Review Board concerning the applicant's resignation for the good of the service.  He directed the applicant be discharged with an Under Other Than Honorable Conditions Discharge.

24.  On 3 January 1992, by memorandum, the applicant was notified that his requested resignation from the Army for the good of the service was approved by the Office of the Assistant Secretary of the Army in accordance with chapter 5 of Army Regulation 635-120.  The applicant acknowledged receipt on 6 January 1991.

25.  The applicant's DD Form 214 was issued on 17 January 1992.  It shows he was separated with an Under Other Than Honorable Conditions discharge under the provisions of chapter 5, AR 635-120 by reason of Conduct Triable by Court-Martial.  He was issued a Special Program Designator (SPD) code of DFS, meaning resignation "in lieu of trial by court-martial."  He had 21 years, 6 months, and 21 days of creditable active Federal service.

26.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 12 September 2005, the ADRB approved the applicant's request to upgrade his discharge as a matter of equity.  Accordingly, he was issued a new DD Form 214 changing:  his character of service from "Under Other Than Honorable Conditions" to "Honorable;" the Separation Authority from "AR 635-120" to "AR 600-200;" the Narrative Reason for Separation from "Conduct Triable by Court-Martial" to "Miscellaneous/General Reasons;" and the SPD code from "DFS" to " FND."


27.  Army Regulation 635-120 (Officer Resignations and Discharges) prescribes procedures whereby an officer on active duty may tender his or her resignation or be discharged.  Chapter 5 states an officer may submit a resignation for the good of the service when court-martials charges are preferred with a view toward trial by a general court-martial.  Such resignations are normally accepted as being under other than honorable conditions.

28.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating soldiers from active duty, and the separation program designator (SPD) codes to be entered on DD Form 214.  The regulation divides separations by resignation, voluntary and involuntary discharge, voluntary and involuntary release from active duty (REFRAD), and retirement.  Voluntary/involuntary discharges and/or REFRADs are administrative separations.

29.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  
Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 

30.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM.  It states, in pertinent part, that the decision whether to file a record of nonjudicial punishment in the performance section of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-37b (2) states, in pertinent part that, for Soldiers in the ranks of sergeant (SGT) and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The 

decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final subject to review by superior authority.

31.  Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15. It further stipulates that Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence.  Additionally, paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

32.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

33.  Paragraph 7-2 of the unfavorable information regulation contains guidance on appeals for removal of OMPF entries.  It states, in pertinent part, the burden of proof to support removal of a document filed in the OMPF 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.  The regulation provides provisions that allow the transfer of a DA Form 2627 from the performance section to the restricted section of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting, in effect, that he be retired for length of service vice discharged by reason of resignation.  He bases this request, in part, on the ADRB's 8 August 2005 review of his discharge which resulted in change of characterization from under other than honorable conditions to fully honorable, and a change in the narrative reason for discharge from 'In Lieu of Trial by Court-Martial" to "Miscellaneous/General Reasons."

2.  Although the ADRB, as a matter of equity, changed the applicant's discharge to fully honorable and the narrative reason changed to "Miscellaneous/General Reasons," his SPD code of "FND" reveals that his separation was still a resignation.  The ADRB could have changed the applicant's discharge to an administrative separation.  Had the ADRB chosen to change the applicant's SPD code to one signifying an administrative separation by reason of "Miscellaneous/General Reasons," because of his more than 20 years of active Federal service, he would have been entitled, as a matter of law, to a length of service retirement.  However, this was not the case and the ADRB chose to issue him a "resignation" SPD code.

3.  Evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Had he not submitted his resignation; the applicant would have been tried by a General Court-Martial based on the gravity of the offenses charged.  After consulting with legal counsel, he voluntarily requested resignation from the Army in lieu of trial by general court-martial and, in so doing, he avoided the possibility of a Federal felony conviction.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The regulation provides that a resignation for the good of the service, when approved at Headquarters Department of the Army, is normally accepted as being under other than honorable conditions.

4.  Evidence of record indicates the applicant underwent separation processing, to include a physical examination (on 27 February 1991) within 1 year of his separation.  There was no indication the applicant was suffering from bipolar 

disorder, a condition that usually manifests in early adulthood.  His claim of bipolar disorder, diagnosed in 2005, some 13 years after the events surrounding his resignation, is not viewed as a causative factor in the conduct that led to his separation.

5.  Evidence of record shows that the applicant admitted to accepting an airline mileage award certificate for his personal use.  He accepted NJP under Article 15, UCMJ, rather than refusing it and demanding trial by court-martial, as was his right.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant’s rights.  Since there is no evidence and the applicant did not provide any evidence to substantiate the removal of the Article 15 from his record, he is therefore not entitled to relief.

6.  The applicant's finance records are no longer available.  The applicant has provided no evidence to support his contentions in the "Dellums Letter" that he is entitled to certain pay and allowances.  The Board presumes regularity in the discharge process, to include the appropriate settlement of all pay issues.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ji___  __ena___  __dkh___  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.




							John Infante
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.