IN THE CASE OF:	  

		BOARD DATE:	        29 October 2009

		DOCKET NUMBER:  AR20090004481 


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 defers to his counsel for his request for reconsideration. 

2.  The applicant defers to his counsel for his statement.

3.  The applicant defers to his counsel to provide evidence in support of this application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that his client, the applicant, be retired based on length of service, "back payment of all retirement pension benefits from 17 January 1992 to the present," and "retirement-out processing, including, but not limited to, medical benefits and other benefits afforded to retirees."  Counsel also requests that the applicant's separation program designator (SPD) code be changed to show he was administratively separated. 

2.  Counsel states, in effect, that the applicant's new argument is based upon his upgraded discharge certificate reflecting an honorable characterization of service, a miscellaneous/general narrative reason, and an SPD code reflecting an unqualified resignation.  Counsel also states, in effect: 

	a.  that based on the fact that the applicant completed more than 20 years of active service he is now entitled to a length of service retirement.  Further, neither the applicant nor counsel knows of any regulation or statute barring a length of service retirement for Soldiers with an unqualified resignation.  Counsel continues that the Board did not provide any legal authority or basis for denying the applicant's initial request for length of service retirement.  

	b.  that if the Board feels a more favorable SPD code is necessary to facilitate a length of service retirement, then the Board should make the necessary change and grant the applicant the requested relief. 

	c.  that there are errors in the Board's consideration of evidence in paragraphs 4 and 12 of the Record of Proceedings for Board Docket Number AR20070011678. 

3.  Counsel does not provide new supporting evidence with the applicant's application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011678, on 31 January 2008.  On 6 February 2008, the Board notified the applicant through a memorandum that his application, dated 8 August 2007, was denied.

2.  The applicant was commissioned in the Regular Army through the Reserve Officers’ Training Corps on 3 June 1970.  He served continuously on active duty in the Corps of Engineers until he was separated.

3.  On 1 April 1988, the applicant, then a major, accepted a general officer imposed nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, 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 U.S. Government of a value of $2,494.00."  

4.  In June 1990, the applicant applied to the ABCMR and the U.S. Total Army Personnel Command (PERSCOM) Engineer Officers' Branch.  The applicant requested that the above NJP be removed from his official military personnel file (OMPF) and that his date of rank to lieutenant colonel be adjusted.

5.  Upon review of the applicant's request for correction of his military records to remove the NJP, suspicion was raised that he had discussed classified matters and provided classified documents without regard for the proper handling of classified information in support of his request.  The U.S. Army Criminal Investigation Command (USACIDC, also known as CID) was notified and an investigation was initiated.

6.  On 12 October 1990, PERSCOM issued Orders Number S198-16 approving the applicant's request for retirement, releasing him from active duty effective 31 March 1991, and placing him on the Retired List effective 1 April 1991.

7.  On 28 March 1991, two days before his retirement date, a DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was initiated by the commanding general of the U.S. Army Corps of Engineers for alleged security violations.

8.  On 29 March 1991, PERSCOM issued Orders Number S61-6 rescinding the applicant’s retirement orders.

9.  On 1 May 1991, Headquarters, Military District of Washington, Washington, D.C. issued Orders Number 84-33 reassigning the applicant from the Office of the Chief of Engineers, Washington to Headquarters, Military District of Washington 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.

10.  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 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 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, from about 5 through 18 September 1990;

	d. failing to obey a 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; and

	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 through on or about 22 July 1987.

11.  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 7 September 1991; and

	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.

12.  On 5 November 1991, after reviewing the charges, specifications, and allied papers, the Staff Judge Advocate (SJA) provided an advisory opinion to the general court-martial convening authority (GCMCA) on the court-martial charges.  The SJA recommended that the charges and specifications (as amended) be referred to a general court-martial.

13.  On 7 November 1991, the GCMCA approved the recommendations of the SJA and court-martial charges were preferred.  

14.  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 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).

15.  On 26 November 1991, the GCMCA recommended approval of the applicant’s resignation for the good of the service with an under other than honorable conditions discharge.  The GCMCA stated the applicant was unfit for further service and that, although he had completed 20 years of active Federal 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 GCMCA recommendation.

16.  On 16 December 1991, the Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the Department of the Army Ad Hoc Review Board recommendation and directed that the applicant be separated with an under other than honorable conditions discharge.

17.  On 3 January 1992, by memorandum, the applicant was notified that his resignation request 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 1992.

18.  Accordingly, on 17 January 1992 the applicant was separated with an under other than honorable conditions discharge under the provisions of chapter 5, Army Regulation 635-120 for conduct triable by court-martial.  Item 26 (SPD) of the applicant's DD Form 214 shows the code of "DFS" which represents the statistical code for "in lieu of trial by court-martial."  This same DD Form 214 shows his net active Federal service equals 21 years, 6 months, and 21 days.

19.  On 12 September 2005, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge based on a matter of equity.  The ADRB found that the preponderance of the applicant's service was honorable and that his misconduct was an aberration of the applicant's overall length and quality of service.  Accordingly, he was issued a new DD Form 214 that shows he was honorably separated under the provisions of Army Regulation 635-120 with a narrative reason for separation of "Miscellaneous/General Reasons" and with an SPD code of "FND."  

20.  The applicant's counsel presented a new argument and did not provide new evidence in support of this reconsideration application.   Counsel stated, in effect, that the applicant completed more than 20 years of active duty service, had an honorable discharge, with both the narrative reason and SPD code changed to support the upgraded honorable discharge and that the ADRB's decision was a matter of equity.  Counsel raised the following three arguments:
 
	a.  Counsel noted errors in the Board's consideration of evidence:  Specifically, paragraph 4 stating the applicant did not admit to a criminal investigator that he had used the frequent flyer miles;  

	b.  Errors in paragraph 12, whereby the Board "should plainly see the multiple defects in the charge sheets specifically all of the charges cited on the charge sheet stemmed from the same incident violating the Fifth Amendment, [Double Jeopardy Clause] of the U.S. Constitution."  Counsel states, "The allegation of a false official statement to the CID was nothing short of nonsense in the absence of a written sworn statement . . . the ADRB's decision to upgrade the applicant's discharge was recognition of the clear injustice created by the over-zealous charging and prosecutorial over-reaching . . . intended to compel the applicant to seek a resignation;" and

	c.  If the SPD code "FND" is not favorable allowing the applicant to retire with 20 years or more of active service, then the SPD code should be changed to grant the counsel's request on behalf of the applicant.   Specifically, "the applicant cannot find any regulation or statute barring a length of service retirement for Soldiers with an unqualified resignation . . . the Board has not provided any legal authority or basis for denying the applicant his entitlement to a length of service retirement."

21.  Army Regulation 635-100 (Personnel Separation—Officer Personnel) provides the policy for the separation of commissioned and warrant officers from the active Army.  In pertinent part, the authority to approve or disapprove an application for retirement is vested in the Secretary of the Army.  Approval of applications for retirement may be mandatory or discretionary, dependent upon the specific provision of law.  A commissioned officer above the rank of major may retire in the highest rank satisfactorily held on active duty for 3 years or more.  When there is sufficient unfavorable information to establish that a retiring officer's service in his current grade was not satisfactory, the officer's retirement application may be referred to the provisions of Army Regulation 15-80 (Army Grade Determination Review Board.)

22.  Title 10, U.S. Code, sections 3911 and 3924, states that officers with at least 20, but less than 40, years of active service, may, upon their request, be retired with discretion lodged with the Secretary of the Army.  There is no specific statutory requirement to approve a request for retirement for an officer until completion of 40 years of active service.

23.  Title 10, U.S. Code, section 639 states that when any action has been commenced against an officer with a view to trying such officer by court-martial and such officer is to be separated or retired in accordance with this chapter, the Secretary of the military department concerned may delay the separation or retirement of the officer, without prejudice to such action, until the completion of the action. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through his counsel, contends that he should be retired with all retirement pension benefits from 17 January 1992 to the present; and that he is entitled to retirement out-processing, including, but not limited to, medical benefits and other benefits afforded to retirees.  The applicant cites the ADRB decision that upgraded his characterization of service to honorable, changed the regulatory authority for separation, and its corresponding narrative reason and SPD code on his DD Form 214.  

2.  The ADRB's decision to upgrade the applicant's discharge was a matter of equity.  As a matter of equity, the ADRB decision does not support counsel's argument that "recognition of clear injustice was created by the over-zealous prosecutorial over-reaching" authority which compelled the applicant to submit a letter of resignation in lieu of trial by court-martial.  The ADRB decision was based on the applicant's lengthy, honorable service prior to his misconduct.  The applicant had the opportunity to request a trial by court-martial wherein his guilt would have had to have been proven.  He submitted his letter of resignation in accordance with Army Regulation 635-120 in lieu of trial by court-martial.  Upon submitting his letter of resignation, the applicant knew that he would not be entitled to retirement benefits.  

3.  The ADRB did not state that the applicant did not commit the offenses that resulted in his discharge.  To the contrary, the ADRB stated that the applicant's misconduct was an aberration of his overall length and quality of service.  As such, the action by the ADRB did not change the appropriateness of the applicant's retirement being revoked, it did not change the appropriateness of the court-martial charges preferred against him, and therefore did not change the appropriateness of the applicant's discharge in lieu of trial by court-martial.  Therefore, counsel's contentions concerning the applicant's SPD code and the perceived "errors" in the first Board consideration in this case are not relevant to the issue at hand.    

4.  In addition, there is no mandatory requirement to approve a retirement of an officer with less than 40 years of qualifying active service.  Therefore, counsel's implication that the applicant is entitled to placement on the Retired List based on the ADRB's action on the applicant's case is without merit.  To qualify for regular retirement an officer must maintain a military status.  The ADRB changed his resignation for the good of the service in lieu of a general court-martial to an unqualified resignation.  Therefore, the applicant still has no current military status making him ineligible for retirement.  The Board is not convinced given the circumstances that the resignation should be converted to a retirement as a matter of equity.   
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 to amend the decision of the ABCMR set forth in Docket Number AR20070011678, dated 31 January 2008.




      _______ _ 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)                                         AR20090004481



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004481



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1