IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110021922 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states an upgrade of his discharge is justified because of his valuable military service, outstanding performance as a federal employee from 1995 to present, good character, dedication to public service, and his leadership ability.  He also states his commanding officer did not support or endorse a discharge under other than honorable conditions.

3.  The applicant provides a petition brief, copies of notifications of personnel actions, copies of performance awards, and copies of two third-party letters of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be granted a personal appearance before the Board.

2.  Counsel reiterates the applicant's statement.

3.  Counsel provides a 14-page brief explaining the applicant’s justification for an upgrade of his discharge.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 21 December 1977.  He received an educational delay until
24 March 1982 when he was ordered to active duty in the rank of first lieutenant.  

3.  He completed his training as an air defense artillery officer at Fort Bliss, TX and was transferred to Germany.  He was promoted to the rank of captain on 1 June 1984.  He continued to serve in a voluntary indefinite status and he was promoted to the rank of major on 1 August 1992.

4.  On 2 September 1994, a U.S. Army Criminal Investigation Division Command (USACDC, also known as CID) investigation was completed that determined there was sufficient evidence to prosecute the applicant for making false official statements and making false claims against the government.

5.  On 22 September 1994, an officer (lieutenant colonel) was appointed to conduct an investigation of charges against the applicant in accordance with Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  The investigating officer concluded the applicant submitted false claims against the government and recommended nonjudicial punishment be imposed against the applicant. 

6.  On 22 November 1994, charges were preferred against the applicant for:

* one specification of attempting to steal currency of the government
* five specifications of making false claims against the government
* three specifications of stealing currency of the government
* five specifications of signing false statements

7.  On 15 December 1994, the battalion commander recommended trial by general court-martial.

8.  On 22 December 1994, an officer (lieutenant colonel) was appointed to conduct an investigation of charges against the applicant in accordance with Article 32, Uniform Code of Military Justice (UCMJ).

9.  The Article 32b session was convened on 27 January 1995 at Fort NcNair, Washington, D.C. with the applicant being represented by defense counsel.  On 2 February 1995, the investigating officer recommended that specification I of charge II be dismissed and that the remaining charges and specifications be tried by a general court-martial.

10.  On 4 April 1995, after consulting with defense counsel, the applicant submitted a request for resignation for the good of the service under the provisions of Army Regulation 635-120, chapter 5, in lieu of trial by court-martial.  He stated he understood he could be discharged under other than honorable conditions, that he had been advised by counsel and afforded an opportunity to present matters, and that he fully understood the implications of his request.

11.  The majority of the applicant’s chain of command recommended approval of his request for resignation in lieu of trial by court-martial and recommended the applicant be discharged under other than honorable conditions.  However, the commanding general recommended a general discharge.

12.  On 20 April 1995, the Ad Hoc Review Board recommended the applicant's resignation be accepted with an under other than honorable conditions discharge.

13.  On 3 May 1995, the Deputy Assistant Secretary (Army Review Boards/EEO Complaints) approved the majority recommendation to accept the applicant’s resignation for the good of the service with an under other than honorable conditions discharge.

14.  Accordingly, on 16 June 1995 he was discharged under the provisions of Army Regulation 635-120, chapter 5, in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He completed 13 years, 2 months, and 23 days of creditable active service.

15.  On 10 November 2008, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his under other than honorable conditions discharge to 


honorable.  He essentially cited the same reasons as he cited in his application to this Board.  He was also granted a personal appearance before the ADRB with his counsel on 18 May 2008.  After carefully examining the available evidence and reviewing testimony, the ADRB determined the applicant's discharge was both proper and equitable and voted to deny relief.

16.  At the time, Army Regulation 635-120 served as the authority for the resignation of officers for the good of the service.  It states an officer may submit a resignation for the good of the service when court-martial charges have been preferred against the officer with a view towards trial by a general court-martial.  Commanders will ensure that the officer concerned is afforded legal counsel and that there is no element of coercion in submitting a resignation for the good of the service.  Requests for resignations will be prepared in accordance with figure
5-1 and will include acknowledgements that they have not been coerced with respect to the resignation; that they understand the implications attached to such an action, to include the effects of a discharge under other than honorable conditions; that they have been afforded the opportunity to present matters in their own defense; and the fact that they have consulted with counsel.  Army Regulation 635-120 also provides that regardless of the type of discharge issued, an officer whose resignation for the good of the service is accepted shall be barred from all rights under laws administered by the Department of Veterans Affairs based on the period of service from which separated.

17.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It provides, in pertinent part, that applicant’s do not have a right to a hearing before the ABCMR.  The director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative discharge proceedings were conducted in accordance with the law and regulations in effect at the time with no indication of any violations of any of the applicant’s rights.

2.  A condition of submitting a resignation for the good of the service is that the individual concerned must acknowledge he/she understand his/her discharge may be under other than honorable conditions.  He/she must also understand the effects of such a discharge.  The applicant, a field grade officer, with the advice of legal counsel, chose to request an administrative discharge rather than risk trial by court-martial which could have resulted in a Federal conviction, confinement, and a dismissal from the service, among other punishments. Further, his commanding general’s recommendation was just that, a recommendation. 

3.  The applicant’s contention that his discharge was inequitable due to his overall record of service and because the charges were never proven is without merit.  The applicant knowingly violated the trust and confidence placed in him as a commissioned officer by multiple acts of misconduct and it was his decision to resign rather than risk the consequences of a trial by court-martial.  Accordingly, his claims of innocence 13 years after the fact are not supported by the available evidence of record.

4.  Careful consideration has been given to the applicant’s claims of post-service accomplishments as well as his overall record of service.  However, the actions of the applicant, coupled with the seriousness of the charges against him, militate against relief.  It is also noted that the applicant’s reliance on the "Douglas Factors" is singularly inapposite in the context of military service.

5.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110021922



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1