IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100020358 


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, correction of his military records to show he was reinstated to active duty.

2.  The applicant makes a 4-page statement:

	a.  He states that on 9 June 2009, he unknowingly and under tremendous post deployment stress, committed an offense by taking $500.00 via an automated teller machine (ATM) from the account that was not his.

	b.  He contends that he was denied an opportunity to explain his actions to his commanding general.  Law enforcement records revealed he had no previous offenses.

	c.  On 13 August 2009, he tendered his voluntary resignation from the U.S. Army amid charges of wrongdoing.  His resignation for the good of the service was accepted and he was so discharged.

	d.  He contends that he is suffering from post traumatic stress disorder (PTSD) and he is receiving behavioral medication.  He has been under the watchful eye of the Department of Veterans Affairs (VA) since 12 February 2010.

	e.  He contends that he is getting his life back together, but it is causing him much pain and heartache.  He is a victim of PSTD.


	f.  He provides a summary of his military service that includes:

* deployment to combat twice
* duty as a company commander while deployed
* award of the Meritorious Service Medal
* completion of the Ranger School Indoctrination Course, Airborne, Air Assault, Civil Affairs, and other courses designed to make him a better officer
* award of the Combat Action Badge

	g.  He contends that he has never attended any training on how to cope with the after-effects of war.  He considers himself a successful officer.  He attained the rank/grade of major (MAJ)/O-4, and he was on assignment for the Intermediate Level Education (ILE) course.  Selection for the ILE course was a true accomplishment spanning a long and distinguished 16-year career of faithful and dedicated service.

	h.  He contends that he was dealing with tremendous marital problems and his family is paying the price.  He is now alone and trying to deal with his post-deployment problems.  He needs his fellow Soldiers.  He needs to talk to them as a war hero who made it instead of as a calculated thief, which the ordeal has made him out to be.

	i.  He contends that he is ready to get better and to reestablish his base as the confident, values-centered, officer that he is today.

	j.  He contends that he cannot imagine that he actually did what he was accused of doing.  He felt shame, hurt, and most importantly, a feeling that he had let his family down when they needed him the most.

	k.  He wants what every Soldier wants, the chance to serve, the chance to be a Soldier.  His diagnosis of PTSD has given him true insight into a regrettable situation.  He is growing everyday and feels so much better knowing that one can walk around feeling great at times and convince yourself that you are the same Soldier who walked around during pre-deployment, but instead, hurt deep down inside.

3.  The applicant provides VA medical progress notes, dated 21 May 2010, and a letter of support from a retired Army chaplain, dated 23 July 2010.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests to know if the applicant's entire court-martial proceedings, to include both the findings and sentence, have been vacated.

2.  Counsel states that if the court-martial proceedings have not been vacated, he would like to know what action he needs to take.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  On 17 May 1998, the applicant entered active duty as a U.S. Army Reserve (USAR) commissioned officer.  He attained the rank/grade of MAJ/O-4 on 8 July 2008.

2.  The applicant's Official Military Personnel Records (OMPF) shows that:

	a.  on 10 August 2009, the Deputy Assistant Secretary of the Army (DASA) (Review Boards) reviewed the applicant's resignation for the good of the service in lieu of general court-martial.  The DASA (Review Boards) accepted it and directed his discharge from the U.S. Army with a general, under honorable conditions characterization of service.  The DASA further directed the entire court-martial proceedings, both findings and sentence, if any, be vacated.

	b.  on 18 August 2009, the applicant acknowledged the acceptance of his resignation and understanding that he was to be cleared from Fort Benning, GA no later than 11 September 2009.

3.  On 11 September 2009, the applicant was discharged for unacceptable conduct.  He had completed 11 years, 3 months, and 25 days of creditable active service.

4.  Review of the applicant's interactive Personnel Electronic Records Management System (iPERMS) file is void of any documents relating to his court-martial.

5.  The VA progress notes provided by the applicant indicate that he was diagnosed with PTSD, chronic, depression, and bereavement.  A psychotherapy treatment plan was agreed to and the applicant was to be schooled for additional appointment.  The notes do not indicate that his medical conditions were responsible for his misconduct.


6.  The letter of support from a retired Army chaplain stated, in essence, that the applicant had been distressed over trying to appease his wife and to make his marriage work.  He was suffering from PTSD which has only recently been diagnosed.  The chaplain opines that the applicant is a fine Army officer who deserves another chance to serve in the U.S. Army, which he loves.

7.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states, in pertinent part, that:

	a.  an officer may submit a resignation for the good of the service (RFGOS) in lieu of a general court-martial (GCM) when court-martial charges have been preferred against the officer with a view toward trial by GCM or the officer is under a suspended sentence of dismissal.

	b.  the tender of an RFGOS does not preclude or suspend procedures.  A convening authority will not, however, take action on the findings and sentence in such cases until the Secretary of the Army or designee has acted on the RFGOS.

	c.  the officer under court-martial charges or under investigation with a view toward court-martial will be retained on active duty until final disposition of the charges or investigation or until the officer's RFGOS is approved.

	d.  the commander will ensure that the RFGOS is voluntary and that applicants 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/her own expense, and allowed a reasonable period of time to consider requesting an RFGOS.

	e.  an RFGOS will be expeditiously processed.  Court-martial proceedings may be continued until action by the convening authority on the findings and sentence of the court.  A convening authority will not take action in a case until the Secretary of the Army or designee acts on the RFGOS.

	f.  an officer separated under this paragraph normally receives a characterization of service of under other than honorable conditions.
DISCUSSION AND CONCLUSIONS:
1.  The applicant's voluntary resignation in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  In fact, the general, under honorable conditions characterization of service was lenient considering that the normal characterization of service for an RFGOS is under other than honorable conditions.

3.  There is no evidence of record and the applicant did not provide sufficient evidence to support his contention that his misconduct resulting in his voluntary RFGOS was the result of his suffering from PTSD.

4.  In view of the above, the applicant's request should be denied.

5.  Regarding counsel's concern about the vacation of the court-martial findings and sentence from the applicant's records, there are no documents in the applicant's iPERMS file that refer to this action.  Accordingly, it appears that the directed vacation of the findings and sentence, if any, was accomplished.

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)                                         AR20100020358



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ABCMR Record of Proceedings (cont)                                         AR20100020358



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