IN THE CASE OF:	  

		BOARD DATE:	        4 JUNE 2009

		DOCKET NUMBER:  AR20090000120 


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 all allegations and charges brought against him involving a female other than his wife and the negative portion of his last Officer Evaluation Report (OER) be removed from his military records.  He also requests that his discharge be upgraded to honorable and to have the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) changed to resignation.  The applicant further requests that all leave and pay taken be restored.  

2.  The applicant provides his statement through his counsel. 

3.  The applicant provides his supporting documentation through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states that a female other than the applicant’s spouse fabricated evidence in her statement that she and the applicant had sexual relations.  Counsel further states that this statement was the basis for three out of four charges levied against the applicant.  

2.  Counsel continues that the Army incorrectly demanded that the applicant incriminate himself.  Counsel claims that the applicant did not violate Article 90 of the Uniform Code of Military Justice (UCMJ), a no contact order.  Counsel argues that the Army misapplied Article 90, UCMJ, Article 90, and the remaining allegation against the applicant should not stand.  
3.  Counsel argues that the applicant denies that he had a sexual relationship with a female other than his spouse and it was his understanding that the charges were dropped.  Counsel concludes that the applicant should not have received an under other than honorable conditions discharge based on one specification of fraternization.  Even if the allegation was true, at most, the applicant would have received a letter of reprimand and based on his many years of meritorious service, the applicant would have been allowed to leave the military with an honorable discharge.   

4.  Counsel provides a 13-page petition, a copy of a DD Form 458 (Charge Sheet), a copy of an affidavit, a 3-page copy of a Clarksville Police Department Incident Report, a copy of an Honorable Discharge Certificate from the U.S. Navy, a copy of an Honorable Discharge Certificate from the U.S. Army, a copy of a Certificate of Achievement in Aviation Safety, a copy of a DA Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States), copies of 10 OERs, three statements of support, a copy of NAVPERS 161624 (Enlisted Performance Evaluation Report), a self-authored statement, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army (RA) in the pay grade of E-4 on 13 February 1996.  He was discharged on 8 July 1996 for the purpose of accepting an appointment as a warrant officer.

2.  On 9 July 1996, the applicant was appointed as a U.S. Army Reserve (USAR) warrant officer which was effective the date of acceptance for an indefinite term and ordered to active duty in the pay grade of warrant officer one.

3.  On 1 June 2004, the applicant was appointed in the RA in the pay grade of chief warrant officer three (CW3). 

4.  An undated DD Form 458 shows the applicant was charged with one specification of wrongfully having sexual intercourse with a married woman not his wife during the period from 1 November 2005 to 28 February 2006; knowingly fraternizing with an enlisted person by engaging in sexual intercourse during the period from 1 December 2005 to 31 January 2006; making a false official statement with the intent to deceive a captain on 1 March 2006; and disobeying a lawful command from a superior commissioned officer on 1 March 2006.


5.  The applicant's counsel provided a 2-page affidavit from a female who states that she met the applicant through her ex-husband when they were stationed at Fort Campbell, Kentucky.  The female continues that they met the applicant again in Germany.  She further states after being in Germany her husband found out that he was being deployed to Afghanistan and asked the applicant if he would check in on his family while he was away.  The female states that when her now ex-husband returned to Germany he hired a private investigator to follow her around and had her and the applicant investigated through the military.

6.  The female states that she called the applicant after she found out about the investigation.  The applicant informed her that he was under orders not to speak to her.  The female concludes that due to all of the stress she was under she thought at the time the best way to get the investigators off her back was to tell the investigators that she slept with the applicant, but they never did.  

7.  The applicant received an annual OER for the period 25 July 2005 through 5 June 2006 [hereafter referred to as the contested report] for 10 months where he was rated in the position of Troop Maintenance Officer. 

8.  Part VII (Senior Rater [SR]) of the contested report shows that the SR, a lieutenant colonel, gave the applicant a "Do Not Promote" rating and indicated that he rated 7 officers in the grade of chief warrant officer three.  He placed the applicant in the "Below Center of Mass Do Not Retain" block in his profile.  The SR provided comments that during the rating period the applicant "was involved in an adulterous relationship with a spouse of a deployed officer.  In addition, he was engaged in an inappropriate relationship with a junior enlisted Soldier assigned to this Squadron." 

9.  The applicant's record shows that on 25 May 2006, he submitted a request for resignation for the good of the service in lieu of a general court-martial based on the court-martial charges preferred against him on 8 May 2006.  Prior to submitting his request for resignation under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), he consulted with counsel from Trial Defense Services.  The applicant requested he be issued a general, under honorable conditions discharge.  On 23 June 2006, the Commanding General, 1st Infantry Division, recommended approval of the applicant's request with an under other than honorable conditions discharge.  On 11 August 2006, upon review of the applicant's request by the Department of the Army Ad Hoc Review Board, the Deputy Assistant Secretary (Army Review Boards) accepted the applicant's resignation and directed separation from the Army with an under other than honorable conditions discharge.


10.  The applicant's record also includes his DD Form 214 that was issued on
13 September 2006, the date of his separation.  This document shows he was discharged under the provisions of Army Regulation 600-8-24, paragraph 3-13, by reason of in lieu of trial by court-martial with an under other than honorable conditions discharge, in the rank/grade of CW3/W-3.

11.  On 29 October 2008, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general, under honorable conditions.  However, the ADRB determined that the reason for discharge was both proper and equitable and voted not to change it.

12.  Army Regulation 600-8-24, paragraph 3-13, provides that an officer may submit a resignation for the good of the service (RFGOS) in lieu of general court-martial when court-martial charges have been preferred against the officer with a view toward trial by general court-martial or when the officer is under a suspended sentence of dismissal.  The commander will ensure that RFGOSs are voluntary, that officers are provided the opportunity to consult with legally qualified counsel who is a member of the Judge Advocate General’s Corps or a civilian counsel retained by the officer at his or her own expense, and allowed a reasonable period of time to consider requesting a RFGOS.  An officer separated under this paragraph normally receives a characterization of service of under other than honorable conditions and is not entitled to compensation for unused accrued leave.

13.  Army Regulation 600-8-24, paragraph 1-22, states that the character of service will be predicated on the officer’s behavior and performance while a 
member of the Army.  Characterization will normally be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there are circumstances in which conduct reflected by a single incident could provide 
the basis of characterization of service.  An honorable characterization of service 
will normally be given when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer.  A general under honorable conditions characterization of service will normally be given when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable characterization of discharge.

14.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and procedures pertaining to the evaluation reporting system.  It also provides guidance regarding redress programs, including commander inquiries and appeals.  Paragraph 3-39 provides the basic rule applicable to modification of previously submitted reports.  It states, in pertinent part, that an evaluation 

report accepted by Headquarters, Department of the Army (HQDA), and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.

15.  Chapter 6 of the same regulation contains the policies and procedures pertaining to managing the evaluation redress program.  Paragraph 6-7 restates the policy on reports accepted for filing by HQDA that is outlined in paragraph
3-39 and Section III contains guidance on evaluation appeals.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It stipulates that the burden of proof rests with the appellant.  Accordingly, in order to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-39 and paragraph 6-7 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

16.  Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) provides the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of DFS is the appropriate code to assign to Soldiers separated under the provisions of paragraph 3-13 of Army Regulation 600-8-24, by reason of in lieu of trial by court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the allegations and charges against him, and the negative wording from his last OER, should be removed from his records.  The applicant further contends that his discharge should be upgraded to honorable, the narrative reason of his discharge be changed to resignation, and that all leave and pay taken be restored.    

2.  Evaluation reports accepted and placed in the official military records are presumed to be administratively correct, been prepared by the properly designated rating officials, and represent the considered opinions and objective 

judgments of the rating officials at the time the report is rendered.  There is no evidence in the available records and the applicant or counsel has not provided sufficient evidence showing that the contested report was unjust or prepared in error.  Absent such evidence there is no basis to amend the contested report. 

3.  It is noted that the ADRB upgraded the applicant's character of service from UOTHC to general, under honorable conditions; however, the ADRB found the reason for his discharge to be both proper and equitable.  Therefore, there appears to be no reason to change his reason for his separation.

4.  The applicant's counsel submitted a 2-page notarized affidavit from a female stating that the allegations she made against the applicant never happened. 

However, there is no other documentation found in the applicant's OMPF nor has 
the applicant provided evidence to show that these allegations and charges were unjust and should be removed from his records.  Absent evidence to show that the allegations and charges were unjust, there is no basis to remove the allegations and charges from his records.
   
5.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Absent any evidence that the applicant's discharge was not proper and equitable, Government regularity must be presumed in this case.  

6.  The applicant's contention that he is entitled to pay and accrued leave was carefully considered.  However, since an RFGOS results in the loss of unused accrued leave, there is no basis to grant the relief requested 

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.



      _________XXX______________
               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)                                         AR20090000120



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ABCMR Record of Proceedings (cont)                                         AR20090000120



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