IN THE CASE OF:	  

	BOARD DATE:     9 October 2008	  

	DOCKET NUMBER:  AR20080002290 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be reinstated to active duty. 

2.  The applicant states, in effect, that he was forced to retire by the Deputy Commanding General (DCG), USARPAC (United States Army Pacific Command), as punishment for his FG (Field Grade) Article 15.

3.  In a self authored statement, the applicant requests that the Board investigate the handling of his case and correct or expunge from his OMPF (Official Military Personnel File) all information regarding this unfortunate incident at USARPAC.  He states that he received a FG (Field Grade) Article 15 in October 2006; however, he was never provided a copy after a year and a half of investigations.  He states that the investigation was indicative of unethical and unprofessional behavior by at least two Army lawyers, a waste of Army money, resources, and time, and command pressure on him to retire.  He states that he strongly wishes he could continue to serve and to be reinstated to active duty from the retired rolls.

4.  The applicant continues and describes in some detail, in his self authored statement to the Board that spans some nine pages, the sequence of events and areas he feels contain justified concerns.  The applicant has divided his concerns into the general categories of:  the Article 32 Hearing, the Pre-Trail Hearings, the Plea Agreement, and the Article 15, Professional Misconduct.  Paragraph 8 of his self-authored statement summarizes his requests which include:  reinstatement to active duty; return of his confiscated passport by the CID (Criminal Investigation Division); that the MP (Military Police) report that was filed against him pertinent to assault, kidnapping, and larceny be expunged and removed from all data bases; and that the ABCMR investigate the handling of his case and correct or expunge from his records any and all information regarding the unfortunate incident at USARPAC.

5.  The applicant described the following events regarding his involvement in a domestic incident which occurred in June 2005:  

	a.  His command felt that there were enough discrepancies regarding the incident that charges were preferred.  An Article 32 Investigation process began in November 2005 which consisted of four iterations.  He elaborated on the iterations.  Despite the lack of convincing evidence, and despite what should have been considered both "mitigating," or "exonerating" evidence and testimony, the Article 32 investigating officer rubber stamps all charges to go to courts-martial.  

	b.  During the pre-trial hearing, the applicant's command conducted a full background check and was unable to find any evidence of anything improper in the applicant's personal or professional conduct prior to the incident.  After the pretrial hearings the prosecution was directed to negotiate a plea agreement  since the case was not likely to convict him on the charges presented during the pre-trial hearing.  The applicant's defense lawyers and the prosecution negotiated a plea agreement which included his receiving a General Officer (GO) Article 15 instead of a court-martial. 

	c.  The applicant signed his first plea agreement on 7 July 2006 which included a guilty plea to the following charges:  AWOL (absent without leave); no contact order (disobeys a lawful command of a superior commissioned officer); false statement; wrongful appropriation; and disloyal statements.  He agreed to repay the government for authorized use of a government cell phone and one miscalculated TDY (temporary duty) trip.  In return, he would be allowed to "resubmit his retirement paperwork" (which was originally submitted in January 2005), with a retirement date of 31 December 2006, based on a proposal by the prosecution, that if he submitted his request for retirement all allegations and charges would go away.  This plea included that all charges would be dropped.  He signed the plea agreement on 26 July 2006.  He re-signed the plea agreement for a third time with a new UCMJ (Uniform Code of Military) authority. He elaborated on the events that occurred during his third plea agreement.  His final plea agreement was for a GO Article 15 in which he was informed by his lawyers that he would be able to provide extenuating, mitigating evidence.



	d.  The applicant's initial hearing for his GO Article 15 was on 18 September 2006.  He was notified on 11 October 2006, by email, that his final hearing would be the next day with the UCMJ court-martial authority.  He stated that according to regulation, in all legal hearings, the Soldier is afforded 30 days to prepare for their defense and have the opportunity to present their case.  He was granted a 1 day notification which gave him little time to contact his advocate to speak on his behalf along with preparation of any final extenuating and mitigating information.  He requested a delay from his supervisor and was denied.  

	e.  At his GO Article 15 hearing, the court-martial authority was not interested in his extenuating or mitigating evidence.  He had signed the plea agreement, agreeing to the "guilty" charges.  The court-martial authority informed the applicant that he had to be out of the Army ASAP (as soon as possible).  He pointed out that his GO Article 15 punishment was 2 months of half pay before his flag would be lifted allowing him to resubmit his retirement application.  His plea agreement was that he would resubmit his retirement paperwork with guidance from his attorneys.  

6.  The applicant attempted to file his retirement request in November and December but he was denied because he was flagged.  He was unable to file his retirement application until the flag was legitimately lifted at the end of the Article 15 punishment.  He returned from Holiday leave and was informed that his retirement was approved for 31 December 2007.  In February 2007, he completed his medical processing and the ACAP (Army Career and Alumni Program), and was prepared to have his supervisor approve and sign a waiver to change his retirement date from 31 December 2007 to 31 May 2007.  

7.  The applicant elaborated on the professional misconduct rendered by the Deputy SJA (Staff Judge Advocate) and of Army lawyers and the conduct of military justice matters.  His passport was confiscated in December 2005 as evidence.  It was not returned despite repeated requests to return it since allegations and proceedings were complete.

8.  The applicant provides a copy of his ORB (Officer Record Brief), several newspaper articles, several plea agreements, a copy of his DD Form 1351-2 (Travel Voucher or Subvoucher), a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of a sworn statement from the Deputy SJA, a copy of his Article 32 Investigation, and a copy of his 15-6 Investigation in support of his request.  The copy of the Article 32 Investigation and 15-6 Investigation he indicated were attached to his request were not received with his request. 

CONSIDERATION OF EVIDENCE:

1.  The ABCMR is not an investigative agency.  It acts upon evidence that is submitted by applicants.

2.  The applicant’s military records show he was appointed a Reserve commissioned officer on 25 May 1982 in the rank of second lieutenant (2LT/O-1). 
He was promoted to lieutenant colonel (LTC/O-5) effective 1 February 2000.

3.  The applicant provided copies of his plea agreements, a copy of a sworn statement from the Deputy SJA, and a copy of his DD Form 1351-2 which were considered prior to his general court-martial proceedings.

4.  At a general court-martial on 16 October 2006, the applicant entered mixed pleas to a number of offenses under the UCMJ; however, all charges and specifications were withdrawn by the convening authority.  The applicant's rights, privileges, and property, which he was deprived of by virtue of these proceedings, were restored.  The general court-martial order showing charges preferred and which were ultimately withdrawn was filed on the applicant's restricted fiche of his OMPF.

5.  The applicant's request for retirement is unavailable for review by the Board.   He served until he was separated for the purpose of retirement on 31 May 2007. He was placed on the Retired List effective 1 June 2007.  

6.  A review of the applicant's OMPF (Official Military Personnel File) failed to reveal a GO Article 15, administered by the DCG.  

7.  The applicant provided several copies of newspaper articles which pertained to recruiting waivers in luring those with records, attracting quality officers, incentives to reenlist, and calls for more troops.

8.  The applicant provided a copy of a newspaper article, from the Internet titled, "The Army is Losing Good People."  The article elaborated on a high profile Army officer who was leaving the Army.

9.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel.  
Chapter 6, of Army Regulation 600-8-24, pertains to Retirements.  Paragraph    6-13 covers approval authority.  The Secretary of the Army (SA) is the approval authority for retirements. The SA has delegated approval authority for voluntary retirements (waiver/nonwaiver) to CG (Commanding General), HRC (Human Resource Command)-Alexandria.  CG-HRC-Alexandria may approve, disapprove, or delay/defer the requested retirement date of an officer who has completed 20 but less than 30 years of active Federal service.  The regulation reminds endorsing commanders that an officer requesting a voluntary nonwaiver retirement who has completed 20 but less than 30 years of active Federal service is eligible, but not entitled to retire upon request.  

10.  The regulation states that commanders who wish to recommend denial of a voluntary nonwaiver retirement request should forward the application to HRC-Alexandria with an accompanying statement setting forth the recommendation of denial.  Voluntary retirements may be denied or delayed based on the needs of the Army, and each application will be evaluated on its individual merits.  Approval authority for voluntary retirements requiring a waiver is HRC and, in some cases, the Secretary of the Army.  Approval authority for voluntary retirements of regular commissioned officers with at least 30 but not less than 40 years of active service for retirement purposes is the Secretary of the Army.  Approval of retirement requests may be mandatory or discretionary, based on the specific provision of law.  Delegation of approval authority does not include the following category such as a General Officer, ACC (Army Competitive Category) Colonel and promotable Lieutenant Colonel retirements.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's self authored statement which elaborated on the details of the Article 32 hearing, the pre-trial hearings, the plea agreement, the Article 15 (GO), and the professional misconduct rendered by the Deputy SJA and of Army lawyers and the conduct of military justice matters were considered.

2.  The evidence shows that the applicant was brought before a general court-martial; however, all charges and specifications were withdrawn by the convening authority.  His rights, privileges, and property which he was deprived of by virtue of these proceedings were restored.

3.  The applicant alleges that he was forced to retire by the DCG, USARPAC, as punishment for his GO Article 15.  His self authored statement indicated that his lawyers and the prosecution negotiated a plea agreement which was a GO Article 15 instead of a court-martial.  In return, he would be allowed to retire, based on a proposal by the prosecution, if he submitted his request, all charges and allegations would go away.  He signed the plea agreement.  




4.  The applicant's request for retirement was approved; however, a copy of his request is unavailable for review.  He served until he was separated for the purpose of retirement on 31 May 2007, under the provisions of Army Regulation 600-8-24.  He was place on the Retired List effective 1 June 2007.

5.  The applicant indicated in his self authored statement that he was administered a GO Article 15 and he described the details that occurred;  however, he failed to provide a copy of this document.  A review of his OMPF failed to reveal that he received a GO Article 15, from the DCG, prior to his retirement.  It is apparent or presumed that his command failed to ensure that a copy of this Article 15 was placed on the applicant's OMPF.  

6.  A review of the applicant's OMPF, restricted fiche, revealed a copy of his general court-martial order.  It failed to show any additional information regarding his unfortunate incident at USARPAC.  The applicant is advised that the ABCMR is not an investigative agency and acts upon evidence that is submitted for review.

7.  The applicant requests that the Board investigate the handling of his case and correct or expunge from his OMPF all information regarding this unfortunate incident at USARPAC.  The applicant has provided no evidence, and there is none, to show that the investigation of the handling of case was in error or unjust prior to his retirement. 

8.  The Board considered the newspaper articles presented by the applicant; however, these articles are not sufficient by themselves as a basis for reinstating him to active duty.  Therefore, there is insufficient evidence to support his return to active duty from the Retired List.

9.  The applicant's strong desire to be reinstated has been considered.  At this time, there has been no directive issued by the President of the United States to recall or order the applicant to active duty.

10.  The applicant alleges that his confiscated passport should be returned to him by the CID since the allegations and proceedings were completed.  The applicant has provided no evidence to show that he was issued a passport for personal or Government use.  However, if issued by the Government, he has no recourse to request that the Government return it to him.  If for personal use, which was paid for by his own personal funds, the applicant should request return of his passport from his last command.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.




       _    ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
















ABCMR Record of Proceedings (cont)                                         AR20080002290



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ABCMR Record of Proceedings (cont)                                         AR20080002290



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