IN THE CASE OF:

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20110024303 


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.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be granted constructive credit with pay and allowances providing for her retirement from active duty.

2.  Counsel states the applicant's request for retirement (resignation) in lieu of elimination was based on the false allegation that she had falsified an Army Physical Fitness Test (APFT) scorecard.  The command then initiated a cascading series of events that triggered her depression and ultimate request for retirement (resignation).  As a matter law, that decision to request retirement (resignation) was involuntary.

3.  Counsel provides a detailed description of the unfairness and impropriety involved in the actions taken against the applicant by the Army.  He includes a supplemental statement describing the circumstances of the case and why it is appropriate for the applicant to have her discharge changed to retirement.  He further provides a:

	a.  letter from NonResident Studies, Fort Leavenworth, KS, dated 30 January 2003.


	b.  memorandum for record, Subject:  Initiation of 15-6 Investigation Pertaining to Promotion Packet of (the applicant), dated 3 August 2003.

	c.  DA Form 1559 (Inspector General (IG) Action Request), dated 24 October 2003.

	d.  memorandum from the Commander, 55th Theater Support Command Materiel Management Center, Fort Belvoir, VA, Subject:  Initiation of Elimination, (applicant's name), dated 31 October 2003.

	e.  memorandum from the Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs, Subject:  Resignation in Lieu of Elimination (applicant's name), dated 21 October 2004.

	f.  DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 November 2004.

	g.  letter from the Army Discharge Review Board (ADRB), dated 9 December 2008.

	h.  evaluation from the Chief, Psychology Service and Director of Training, DeWitt Army Community Hospital Community Mental Health Division.

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted an appointment in the U.S. Army Reserve (USAR) as a second lieutenant on 14 May 1989.

2.  She entered active duty on 3 March 1994.  She was assigned to the 55th Theater Support Command Materiel Management Center, Fort Belvoir.  She was promoted to captain, Quartermaster Corps, on 22 May 1996.

3.  On 16 October 2002, the U.S. Army Reserve Personnel Command issued her  a memorandum Subject:  Notification of Eligibility for Retired Pay at Age 60 
(20-year letter).

4.  On 31 October 2003, the Commander, 55th Theater Support Command Materiel Management Center, recommended the applicant's elimination.  In his memorandum he relates that:

	a.  in July 2003, the applicant produced a falsified scorecard showing a passing APFT in order to make herself eligible for consideration by the most recent promotion board.  She sent the information to the board without command verification.  An investigation concluded that it was highly unlikely the APFT took place.  When interviewed by the investigating officer she provided a sworn statement claiming that the test took place on the date indicated on the 
scorecard.  However, she later admitted to the commander that she did not perform the 2-mile portion of the test.  She further admitted to collaborating in this fraud with the senior noncommissioned officer (NCO) who initialed and signed the scorecard.  By fabricating a passing APFT to further her career and making a false sworn statement denying this conduct, she displayed a complete lack of integrity.

	b.  in 2001, the applicant was dismissed from the Combined Arms and Services Staff School (CAS3) for plagiarism and for making a false official statement during the resulting investigation.  She received a General Officer Memorandum of Reprimand (GOMOR) from the Deputy Commander of the U.S. Army Command and General Staff College that is filed in her Official Military Personnel File (OMPF).

	c.  in reference to the applicant's performance of duty she:

		(1)  received a referred OER resulting from the CAS3 incident.

		(2)  received several counseling statements concerning her behavior and performance.

		(3)  was provided with additional duty tasks that were relevant and achievable based on her grade.  She is unable to display positive results and is content to continue to report that nothing has changed, indicating that she is not taking the initiative on a day-to-day basis.

		(4)  requested and was provided with a mentor who provided her regular quarterly counseling and small writing tasks that she either did not comply with or produced products that were far short of what is expected for her grade and education.

5.  On 14 December 2003, she was required to show cause for retention in an active status under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2, because of substandard performance of duty, by acts of misconduct, exhibiting moral and professional dereliction, and for derogatory information.

6.  On 11 August 2004, she voluntarily tendered her resignation from the Army under the provisions of Army Regulation 600-8-24, chapter 4, in lieu of further elimination proceedings.  She consulted with counsel and waived her rights to either appear before a board of officers or to submit matters in explanation, rebuttal, or defense concerning the allegations in her case.

7.  The Commander, 55th Theater Support Command Material Management Center, Fort Belvoir, recommended approval of her voluntary resignation with issuance of a general discharge.

8.  The Commander, Headquarters, 99th Regional Readiness Command, Coraopolis, PA, recommended approval of her request with a character of service of under other than honorable conditions.

9.  On 21 October 2004, the Deputy Assistant Secretary (Army Review Boards), Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) accepted her resignation and directed she receive a general discharge.

10.  On 25 November 2004, the applicant was discharged.  The DD Form 214 she was issued at the time shows she received an under other than honorable conditions discharge by reason of unacceptable conduct.

11.  In 2008, the applicant applied to the ADRB for an upgrade of her discharge to honorable, which was denied.  However, the board determined the character of service shown on her DD Form 214 was erroneous and directed the issuance of a new DD Form 214 to reflect her character of service as "Under Honorable Conditions, General."

12.  On 30 January 2009, the Army Review Boards Agency, Support Division, St. Louis, MO, voided the applicant's original DD Form 214 and reissued her a new DD Form 214 reflecting her character of service as "Under Honorable conditions, General."

13.  Title 10, U.S. Code (USC), Section 14905 (Officer Considered for Removal: Retirement or Discharge) provides:

	a.  ... at any time during proceedings...with respect to removal of an officer from an active status, the Secretary of the military department may grant a request by the officer:  

		(1)  for voluntary retirement, if the officer is qualified for retirement;

		(2)  for the transfer to the Retired Reserve if the officer has completed the years of service required for retired pay under chapter 1223 of this title and is otherwise eligible for transfer to the Retired Reserve.  

14.  Counsel's supplement statement relates:

	a.  the applicant's characterization of service was directed to be general under honorable conditions.  She was separated with an under other than honorable conditions discharge.  The ADRB corrected her record to show she was separated with a characterization of service of under honorable conditions, general.  She has not received a DD Form 215 (Correction to DD Form 214).

	b.  the notification of elimination alleged she received a GOMOR while at the Combined Arms and Services Staff School for alleged plagiarism and substandard performance of duty.  She disputed the plagiarism allegation.  She completed the program.  The substandard performance of duty allegation is not supported by her Officer Evaluation Report (OER).  The OER for the period 
3 February 2002 through 2 February 2003 resulted in the comment "Performance has been outstanding."

	c.  The allegedly falsified APFT scorecard was for a 19 February 2003 APFT.  The 2003 Major promotion board met on 3 March 2003 and 4 April 2003.  The APFT scorecard would not have impacted the promotion board.

	d.  an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was initiated on 3 August 2003.  The company commander claimed he had never authorized an APFT in February 2003.  The reality is that commissioned officers in the unit never relied on the commander's authorization.  The NCO in charge (NCOIC) administered and signed the scorecard.

	e.  There is no allegation that any number or signature on the card is falsified.  The error showing she was the same age for three previous tests would have no affect on her score as she remained in the same scoring range during that period.

	f.  The IG complaint notes the applicant was selected for promotion on
7 August 2003.  The IG complaint also highlights a cascading chain of events that flowed from the unit commander's allegation.  The investigation caused enormous anxiety.  The unit improperly referred her for a mental evaluation.  The evaluation did not result in any findings of significance other than workplace stressors and a recommendation for a rehabilitative transfer.

	g.  Unfortunately, the cumulative stress of the false allegation, mental health referral, and referred OER caused the applicant to request retirement (resignation).  In that regard her request for retirement (resignation) in the Retired Reserve was involuntary.
	h.  "The test for voluntariness is not a subjective standard, rather it is an objective reasonable person standard.  Kim v. U.S., 47 Fed. CI. 493, 501 (2000).  The Court in Kim framed the question thusly, "The question before the Court is whether the plaintiff exercised a free choice in making the decision to retire or resign."  When a command triggers a never-ending chain of adverse events flowing from a single false allegation (in this case, the allegation did not even allege that the APFT scores were falsified), the result is often enormous undue pressure to resign or retire where a rehabilitative transfer would have been perfectly appropriate.  That is precisely the case here."  

	i.  Given the applicant's lengthy service, constructive credit is appropriate.

15.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the basic authority for the separation of officer personnel.  Chapter 4 establishes 
policy and prescribes procedures for separating members for misconduct, moral or professional dereliction, or in the interest of national security.  An officer identified for elimination may, at any time during or prior to the final action in the elimination case, submit a resignation in lieu of elimination.

DISCUSSION AND CONCLUSIONS:

1.  Through counsel, the applicant requests, in effect, constructive credit with pay and allowances providing for her retirement from active duty.  Counsel contends:

	a.  There is no available evidence showing the allegation she falsified an APFT scorecard was not true.  Furthermore, she was discharged because she asked to resign rather than face further scrutiny of her performance or the consequences of her actions.

	b.  The scorecard would not have impacted the promotion board and officers in the unit did not rely on the commander's authorization to conduct APFT's are unsubstantiated and irrelevant.

2.  The available evidence clearly shows the applicant's substandard performance of duty and misconduct; no evidence is provided to show otherwise.

3.  The applicant has been issued a 20-year letter and is eligible for retired pay on application at age 60.  However, she did not qualify for nor is she entitled to retirement from active duty or any back pay.

4.  However, the applicant should have been given the option of transferring to the Retired Reserve with an honorable discharge.  As a matter of law, she should be granted this relief.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X ___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_________  _______  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by  changing her DD Form 214 to show she was transferred to the Retired Reserve with an honorable discharge.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting her constructive credit with pay and allowances and providing for her retirement from active duty.




      ___________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)                            AR20100020923



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ABCMR Record of Proceedings (cont)                            AR20110024303



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