IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100013423 


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 through U.S. Court of Federal Claims remand action that the Army Board for Correction of Military Records (ABCMR) reconsider his request for correction of his record to show he was transferred to the Retired Reserve, that he be issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) and military identification card, that he be provided inactive duty training pay for September and October 2003, that he receive compensatory damages, and that his former commander be reprimanded.

2.  The U.S. Court of Federal Claims, Washington, DC, directs that the ABCMR add the resignation correspondence between the applicant and Lieutenant 
Colonel (LTC) O____ to the record before the Board and that the Board make a fresh decision respecting the applicant's requests for relief based upon all the evidence before it.

3.  The applicant now provides electronic mail (e-mail) messages between him and LTC O____, dated between 26 October 2003 and 8 November 2003, through the U.S. Court of Federal Claims as new evidence to be considered by the Board.

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 ABCMR in Docket Number AR20040001524 on 30 November 2004.

2.  The applicant's record shows he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 11 May 1986.

3.  On 26 May 1994, he was promoted to captain and on 10 July 2002 he was promoted to major.

4.  On 8 November 2003, LTC O____ responded to the issues the applicant raised in his e-mail messages regarding transfer and resignation in response to the applicant's expression of his intent to resign on 6 November 2003.  In these e-mail messages, LTC O____ indicated he was trying to help the applicant.  He further indicated to the applicant that he was welcome to seek legal assistance and advice from the battalion Judge Advocate General (JAG).  He also informed the applicant he would support his resignation, but he wanted to make sure the applicant ensured he was making the right decision.  Reference is made to the resignation packet included in the administrative record reviewed by the Board during its original consideration of the case.  This packet shows the applicant requested resignation on 8 November 2003, the unit accepted the resignation request on 13 November 2003, and the applicant responded to the unit's acceptance on 20 November 2003.  The record also confirms the applicant was discharged from the USAR on 1 December 2003.

5.  The e-mail messages contain LTC O____'s responses to different questions/issues raised by the applicant.  In particular, he commented on the applicant's request to resign and stated that if the applicant intended to resign, he needed a signed memorandum dropped off at the battalion as soon as possible.  He also informed the applicant that he disagreed with the applicant's assertion that the past year was his worst experience with racial discrimination and indicated he was willing to help the applicant with his resignation if that is what the applicant wished.

6.  On 1 December 2003, the applicant was honorably discharged from the USAR.

7.  The ARPC Form 249-E in the applicant's record, dated 11 December 2009, confirms he completed 6 years, 6 months, and 21 days of qualifying service for nonregular retirement (Reserve Component retired pay) at age 60.

8.  The Board also considered the following documents which were included in the original administrative record before the Board during its original review of the case:

	a.  applicant's resignation request, dated 8 November 2003;

	b.  412th Civil Affairs Battalion acceptance of resignation, dated 13 November 2003; 

	c.  applicant's response to 412th Civil Affairs Battalion resignation action, dated 20 November 2003; and

	d.  U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points).

9.  In his 2004 application to the Board, the applicant requested transfer to the Retired Reserve, that he be issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) and military identification card, that he be provided drill pay for September and October 2003, that he receive compensatory damages, and that his former commander be reprimanded.  He also requested that he be provided a copy of his personnel file, which is not within the purview of the Board.

10.  During its review of the applicant's 2004 application and the evidence he presented, the Board concluded there was insufficient evidence to support the applicant's request for transfer to the Retired Reserve and to be issued a 20-year letter and military identification card.  The Board noted the applicant did not complete 20 years of qualifying service for retired pay and, as a result, was not eligible for these requested corrections.

11.  The Board also indicated the applicant provided no evidence to show he was forced to resign his commission or to show he was entitled to drill pay for September and October 2003.  In addition, it was noted that the ABCMR could not pay compensatory damages and could only pay claims for amounts due as a result of correction of military records.  The Board further noted the ABCMR could only recommend disciplinary or administrative action be taken against an Army official who committed an act of reprisal when the applicant was reprised against under the Military Whistleblower Protection Act and Department of Defense Directive; therefore, the ABCMR had no jurisdiction concerning reprimand of the applicant's former commander.

DISCUSSION AND CONCLUSIONS:

1.  The e-mail messages provided by the court along with the original evidence before the Board and the original Board decision have been carefully considered.  

2.  The e-mail messages show the applicant initiated a voluntary request to resign.  It further shows the applicant's commander, while indicating he would support the applicant's resignation request, advised the applicant to seek legal counsel and informed him he wanted to ensure the applicant was doing the right thing.  The messages clearly show a different view of events that occurred; however, they fail to show there was any coercion on the part of the applicant's commander or that the applicant was in any way coerced or forced to resign.  In fact, the messages show the commander attempted to work with the applicant.  Because mobilization issues due to a war footing precluded transfer of officers of the unit to the Individual Ready Reserve, the commander attempted to accommodate the applicant's desire to leave the 412th Civil Affairs Battalion by transferring him to another battalion.  The applicant opted not to accept the transfer offer and instead elected to resign his USAR commission.

3.  In addition, there is no evidence of record or independent evidence provided by the applicant in his original submission to this Board or in the messages now provided to the Board that suggest the applicant was in any way the subject of institutional or command racial or religious bias or discrimination.  As a result, absent any new evidence supporting the applicant's assertion that his resignation was coerced, there remains an insufficient evidentiary basis to support granting the requested relief or to support amendment of the original decision in this case.

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)                                         AR20100013423



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ABCMR Record of Proceedings (cont)                                         AR20100013423



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