IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110004711 


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:

The applicant defers to counsel (his father).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* the applicant's discharge under other than honorable conditions be upgraded to an honorable discharge
* a personal appearance hearing

2.  Counsel states:

* the applicant's superb record and extenuating circumstances were not considered prior to his discharge
* the applicant's claim for his entitlements as "rental" was foolish, but without a trace of intent to defraud the government of something to which he was not entitled
* the claim was a last resort, driven by frustration with an archaic finance system
* the applicant filed his travel voucher with rental receipts based on the recommendation of a clerk from the Defense Finance and Accounting Service (DFAS)
* the applicant had experienced numerous and significant reimbursement challenges throughout his temporary duty (TDY), including –

* accumulating more than $16,000.00 in expenses on personal credit cards
* having to cash out his civilian vacation time to pay his credit card bills in the absence of:  (1) a government credit card (to which he was repeatedly told he was not entitled) and (2) timely and accurate reimbursements of previous travel claims

* the applicant was not driven by greed and sought only to be paid what was legitimately due him
* the applicant sought help with his lodging and transportation allowances from –

* G4 and finance officers at the U.S. Army Intelligence and Security Command
* U.S. Army Forces Command
* U.S. Army Reserve Command
* U.S. Army Human Resources Command-St. Louis
* Fort Shafter
* Schofield Barracks
* 9th Reserve Support Command (Shafter Flats)
* commanders of the 115th Military Intelligence (MI) Group and 732nd MI Battalion
* 115th MI Group and 9th Reserve Support Command Inspector General (IG)

*	the above organizations would neither help him, accurately advise him, nor would they provide a copy of the Joint Federal Travel Regulation (JFTR)
* some of the personnel claimed that as a Reservist he was not entitled to assistance
* had the applicant had access to the JFTR, he could have found the housing expenses for which he could have legally filed claims
* the applicant was rejected three times for reviews of finance records
* the applicant filed a formal appeal for assistance on his finances in late December 2003 –

* he was told more than 6 weeks later that his finance problems could not be dealt with until approximately 18 months after the DFAS "system renovation" was complete



* the applicant's request through the Reserve IG system went unanswered
* neither the Criminal Investigation Command (CID) nor DFAS can agree on the amount owed by the applicant –

* the applicant has repeatedly offered to repay the government if a reasonable provable amount is named, yet DFAS asserts that he owes more than $100,000.00, but refuses to offer an explanation of how it arrived at that plainly inaccurate figure

* the woman who signed the rent receipts acted as his agent, watching over his townhouse during his frequent TDY, collecting his mail, inspecting the property, and seeking renters
* the applicant lost his promotion to colonel and his livelihood
* he is badly handicapped in seeking employment and has been deprived of his great pride in his service
* it was not until the applicant's last orders extension for 90 days that he was formally authorized reimbursement for private automobile expenses during his TDY
* he had already served more than 40 months of TDY and incurred vehicle expenses for that entire period, yet no one would authorize reimbursement of those expenses, even though the JFTR authorized reimbursement despite non-approvals by approving officials

3.  Counsel provides:

* excerpts from Congressional hearings on military pay, "Financial Friendly Fire"
* excerpts from the Department of Defense Pay Manual (DODPM)
* excerpts from the JFTR
* self-authored statements from the applicant
* expense spread sheets
* letter of input/performance evaluation on the applicant with copies of evaluations and officer performance reports
* 19 character reference letters
* awards, decorations, and citations 

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant was commissioned as a second lieutenant in the U.S. Army Reserve on 11 May 1985 and he was progressively promoted to the rank of lieutenant colonel.

2.  Records show the applicant performed several periods of active duty, the last being for the period 14 April 2003 through 31 December 2006.

3.  As a result of a CID fraud investigation, the applicant was recalled to active duty on 8 January 2009 and charged with the following:

* signing DD Forms 1351-2 (Travel Voucher or Subvoucher) with misrepresented lodging costs between 6 January 2004 and 31 December 2006 with intent to deceive
* stealing $87,000.00 from the U.S. Government
* fraudulently preparing for presentation for approval or payment/making claims against the United States in the amount of $87,000.00 for reimbursement of rental lodging when he owned the property he was claiming to rent
* conduct unbecoming an officer and gentleman

4.  On 14 January 2009, the applicant consulted with legal counsel and submitted a request for resignation for the good of the service in lieu of trial by a general court-martial under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-13.  In his request he acknowledged he had not been subjected to coercion with respect to his resignation and he had been advised of and fully understood the implications of the action.  He also acknowledged he understood his resignation, if accepted, would be considered as under other than honorable conditions and the discharge would have a significant effect on eligibility for veterans' benefits.  He provided a statement in his own behalf, requested an honorable characterization of service, and provided his explanation of events and 79 enclosures in support of his request.

5.  The applicant's chain of command recommended disapproval of the resignation for the good of the service in lieu of a trial by a general court-martial.  However, if resignation was approved, the detachment and brigade commanders recommended a general under honorable conditions discharge.

6.  On 29 January 2009, the general court-martial convening authority recommended disapproval of the applicant's resignation in lieu of trial by a general court-martial.  He initially indicated that if the resignation were approved he would recommend a general under honorable conditions discharge.  He later amended his recommendation indicating he was, in fact, recommending an under other than honorable conditions characterization of the applicant's service.

7.  The Department of the Army Ad Hoc Review Board reviewed the resignation for the good the service in lieu of trial by a general court-martial tendered by the 


applicant.  On 6 May 2009, the Deputy Assistant Secretary (Army Review Boards) accepted the resignation and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.

8.  On 10 June 2010, the applicant was discharged in lieu of trial by court-martial under other than honorable conditions under the provisions of Army Regulation 
600-8-24, paragraph 3-13.

9.  The applicant was granted a personal appearance hearing before the Army Discharge Review Board (ADRB).  On 23 August 2010, the ADRB voted 5-0 to deny the applicant's request for an honorable discharge.

10.  Army Regulation 600-8-24 sets forth the basic authority for the separation of officer personnel.  Paragraph 3-13 provides that an officer may voluntarily submit a request for resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by a general court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 600-8-24, paragraph 3-14, provides that requests for resignation for the good of the service are processed through the same channels as court-martial actions to the commander exercising general court-martial jurisdiction.

12.  Army Regulation 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.

13.  Army Regulation 600-8-24, paragraph 1-22b, provides that an officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  An office will normally be appropriate when, among other reasons, an officer:  (1) submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct; (2) is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate; 

14.  Army Regulation 600-8-24, paragraph 1-22c, provides that an officer will normally receive an under other than honorable conditions characterization of service when, among other reasons, the officer resigns for the good of the service.
15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR.  The Director may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request that his client's discharge under other than honorable conditions be upgraded to an honorable discharge was carefully considered and determined to be without merit.

2.  Although the applicant and counsel have requested to personally appear before the Board, there was sufficient evidence available for a fair and impartial consideration of his case based on the evidence of record.

3.  Counsel's arguments and evidence have been carefully considered; however, they are found to lack merit for the following reasons:

* the applicant's past record of service, while impressive, does not mitigate the misconduct for which he was discharged
* the applicant's problems with the military finance system are not sufficiently extenuating
* his excuse that he was driven to commit fraud as a last resort and out of frustration is unacceptable given his years of service and high rank – he should have known better

4.   The applicant's voluntary request for resignation in lieu of trial by court-martial, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge he may have received for a Federal felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has appealed through the appropriate channels and there is no evidence of procedural errors which would have jeopardized his rights.  His discharge accurately reflects his overall record of service.

6.  Based on the foregoing, counsel failed to show that an error or injustice occurred.  Therefore, the applicant is not entitled to an honorable discharge.



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 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)                                         AR20110004711



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004711



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1