IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20120001434 


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 reinstatement on active duty or in the alternative reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states he was advised by his counsel and promised by his command that he would receive a general discharge if he waived his right to a board.  He received an under other than honorable conditions discharge despite the representation.  Had he known he would receive an under other than honorable conditions discharge if he resigned, he would have demanded a board hearing as was his right.  He waived the board hearing only because he was assured it would protect him from an under other than honorable conditions discharge.

3.  The applicant provides evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's reinstatement on active duty with entitlement to back pay and allowances since his 2007 discharge.  In the alternative, counsel requests reconsideration of the applicant's earlier request for an upgrade of his discharge.

2.  Counsel states:

* At the time of the alleged adultery with Mrs. MR, the applicant and his wife were pending divorce proceedings
* Mrs. MR never informed him she was married; she also aggressively pursued him under the mistaken assumption that a relationship could develop
* The applicant was given a military protective order against Mrs. MR and a subsequent investigation confirmed the adulterous relationship
* The applicant received nonjudicial punishment for conduct unbecoming an officer; he also had separation action initiated against him for repeated engagement in an inappropriate relationship with Mrs. MR and violating the protective order
* He consulted with counsel and upon advice, he submitted a resignation in lieu of elimination proceedings
* He was given a non-binding verbal assurance of a general discharge but he was never advised he could submit a statement in rebuttal
* His decision was induced by the affirmative action of the Army and faulty advice from counsel
* Without a written agreement with the Army that he would receive a general discharge if he resigned, the applicant had nothing to lose and everything to gain by having his case heard by a Board of Inquiry
* He never knew he had the opportunity to fight his case before a Board of Inquiry and submit a resignation after the Board of Inquiry issued its findings and recommendation; therefore, his resignation was involuntary
* Various court decisions and/or boards of correction allowed for relief in cases where a service member relied on faulty advice of counsel

3.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Counsel's request for information from the Department of the Army under the Freedom of Information Act (FOIA)
* Letter from the FOIA Program Manager to the applicant's counsel
* Complete Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation with allied documents and legal review
* Notification of the Initiation of Elimination Action
* Army Discharge Review Board (ADRB) Case Report and Directive
* Various certificates, awards, decorations, and promotion orders
* Various officer evaluation reports (OERs)
* 
Metz v. United States, 61Fed Cl. 154 (2004)
* Sullivan v. United States, 177 Ct. Cl. 518 (2004)

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.  With respect to reconsideration of his request for upgrade of his under other than honorable conditions discharge to a general discharge issue:

	a.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15 governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within
1 year of the ABCMR's original decision and it has not previously been reconsidered.

	b.  The applicant and counsel submit a new argument with regard to his character of service.  However, he does not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's original decision (ABCMR Docket Number AR20080015625, dated 23 December 2008) and it has previously been reconsidered (ABCMR Docket Number AR20090003946).  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant's record shows he was appointed as a second lieutenant and executed an oath of office on 18 December 2000.  In his oath, he stated "I, [Applicant and social security number], having been appointed an officer of the United States …, and that I will well and faithfully discharge the duties of the office which I am about to enter."

4.  He served in a variety of stateside or overseas assignments, including Germany and Iraq, and he was promoted to captain on 1 March 2005.  His promotion orders to CPT stated: "The President of the United States has reposed special trust and confidence in the patriotism, valor, fidelity, and abilities of the following officers (applicant's name is included on the list).  In view of these qualities and their demonstrated potential for increased responsibility, they are, therefore, promoted in the United States Army to the grade of rank shown."

5.  During his service, he was awarded the Army Commendation Medal, Army Achievement Medal (2nd Award), National Defense Service Medal, Global War on Terrorism Service, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, Combat Infantryman Badge, and the Parachutist Badge.

6.  His OERs show a solid performance throughout his military service.  He was rated mainly "Outstanding Performance - Must Promote" and "Best Qualified."  Additionally, he received a "Yes" rating for the seven Army values of Honor, Integrity (Possesses high personal moral standards; honest in word and deed), Courage, Loyalty, Respect, Selfless Service, and Duty.

7.  In addition to completing the Infantry Officer Basic Course, he attended and successfully completed the Military Intelligence Officer Tactician Course at Fort Huachuca, AZ, in January 2006.  At the time of the incident, he was at the Fort Riley Training Mission, Class 10 in the 2nd Battalion, 34th Armor.  

8.  In December 2006, an investigating officer (IO) was appointed pursuant to Army Regulation 15-6 to conduct an investigation regarding the applicant's actions of alleged adultery with Mrs. MR, the wife of another Soldier who was deployed.

9.  Based on interviews, statements, personal visits, emails, and other evidence, the IO stated he acquired sufficient evidence, supported with hotel receipts, travel itinerary, check stubs, and written/sworn statement that demonstrated:

* The applicant took part in an adulterous relationship with Mrs. MR as recently as 13 November 2006
* The applicant was involved in a second sexual relationship with another individual who was stationed with the applicant in Germany
* A great probability that the applicant had sexual intercourse with a junior noncommissioned officer which should be further reviewed

10.  On 22 January 2007, an official of the Fort Riley Office of the Staff Judge Advocate conducted a legal review of the investigation into allegations that the applicant engaged in adulterous conduct and found it legally sufficient. 

11.  On 2 March 2007, by memorandum, the Commanding General (CG),
1st Infantry Division, Fort Riley, KS, notified the applicant that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b(8) for acts of personal misconduct and moral dereliction.  Specifically:

* From August 2006 to November 2007, he repeatedly engaged in an improper relationship with Mrs. MR while her husband was deployed to Iraq
* During the course of the Army Regulation 15-6 investigation, he violated clear and direct orders to have no contact with Mrs. MR, which he did in an attempt to improperly influence the investigation
* On 21 February 2007, he was found guilty at a General Officer Article 15 proceeding for this misconduct which was a violation of the Uniform Code of Military Justice (UCMJ)

12.  The CG further informed him:

* If he were eliminated for substandard performance of duty only, he would receive an honorable discharge and if he were eliminated for misconduct, moral, or professional dereliction, the least favorable characterization of service is under other than honorable conditions
* He could submit a resignation in lieu of elimination in accordance with Army Regulation 600-8-24, chapter 4
* He could request discharge in lieu of elimination in accordance with Army Regulation 600-8-24, chapter 4
* He could apply for retirement in lieu of elimination, if otherwise eligible
* In place of resignation, discharge, or retirement, he could submit a rebuttal or declination statement and request appearance before a Board of Inquiry

13.  On 13 March 2007, by memorandum, the applicant voluntarily tendered his resignation from the Army in accordance with Army Regulation 600-8-24,
chapter 4.  He indicated:

* He had been advised that prior to submitting this resignation, he could at his option consult with and be represented by qualified military or civilian legal counsel
* He has been advised and counseled in this matter by CPT RR, a member of the Judge Advocate General’s Corps (JAGC) and the U.S. Army Trial Defense Service (TDS) on 13 March 2007 at Fort Riley, KS
* He fully understood the implications of his voluntary action
* He elected to waive his right to either appear before a board of officers with legal counsel who may be a member of the JAGC or civilian counsel retained by him, or to submit matters in explanation, rebuttal, or defense concerning allegations in his case
* If his resignation is accepted, he could be furnished an honorable, a general, or an under other than honorable conditions discharge, as determined by Headquarters, Department of the Army (HQDA)
* He understood if his resignation is accepted under other than honorable conditions, he may be barred from all rights, based on the period of service from which he would be separated under any laws administered by the Department of Veterans Affairs (DVA), with certain exceptions
* He understood that his separation was voluntary and he was not entitled to any separation pay

14.  On 15 March 2007, by memorandum to HQDA, the CG, 1st Infantry Division, Fort Riley, stated the applicant chose the option of submitting a resignation in lieu of elimination proceedings with the understanding he could receive an under other than honorable conditions discharge.  The CG added he had carefully considered all the evidence collected against the applicant as well as the mitigating evidence the applicant had provided.  He opined that elimination action was warranted and recommended a general discharge.

15.  On 4 April 2007, a Department of the Army Ad Hoc Review Board reviewed the applicant's voluntary resignation in lieu of elimination based on misconduct, moral or professional dereliction.  Subsequently, the Acting Deputy Assistant Secretary of the Army (Review Boards) (DASA(RB)) accepted his resignation from the Army with an under other than honorable conditions characterization of service.

16.  The applicant was discharged on 16 May 2007.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 600-8-24, paragraph
4-2b, by reason of unacceptable conduct with an under other than honorable conditions character of service.  He completed 6 years, 4 months, and 29 days of active service.

17.  On 4 June 2008, the ADRB reviewed his discharge and found it proper and equitable.  Accordingly, it denied his petition for an upgrade.

18.  On 25 August 2008, the applicant petitioned the ABCMR for an upgrade of his under other than honorable conditions discharge to a general discharge under the contention that his characterization of service was too harsh.  On       23 December 2008, the ABCMR denied his request.

19.  On 24 January 2009, he petitioned the ABCMR for reconsideration of his request for a discharge upgrade based on his duty performance.  On 25 June 2009, the ABCMR again denied his request.

20.  He now presents, through counsel, two court cases in support of his contention that he should be reinstated and paid back pay and allowances based on his assertion that his resignation was involuntary because he was led to believe his resignation would result in a general discharge.

	a.  In Metz v. United States, 61 Fed Cl. 154 (2004), a U.S. Air Force (USAF) Master Sergeant (MSgt) was administratively separated from the USAF with an under other than honorable conditions character of service in lieu of trial by court-martial after having tested positive for marijuana.  He asserted that his separation was improper due to ineffective assistance from military and civilian counsel in conjunction with his decision to request administrative separation in lieu of trial by court-martial and the urine sample was tainted with another person's DNA.  The Court denied the Government's motion to dismiss and granted MSgt Metz relief in that it ordered his separation in lieu of trial by a court-martial set aside, his discharge under other than honorable conditions elided, his restoration in the USAF for the remaining term of his enlistment plus any extended period of enlistment to which he may have been entitled, and placement in a retired status if otherwise eligible.  The Court remanded the pay issue to the Secretary of the Air Force.  In its decision, the Court stated that:

* MSgt Metz's defense counsel did not consult with an expert regarding the urine sample or possibility to retest the sample for DNA
* MSgt Metz's civilian attorney had no recollection of being paid by the applicant for any services
* MSgt Metz's defense counsel and civilian attorney were working on a drug-related issue pertaining to another Soldier at the same time
* MSgt Metz's defense counsel signed the discharge paperwork on behalf of the civilian attorney despite the civilian attorney's assertion that he gave no such authorization
* There was a reasonable probability that but for counsel's errors, the outcome would have been different
* 
A DNA test was conducted by Dr. KJS, a civilian doctor, who found the test showed the urine sample provided by the USAF contained the DNA of more than one person
* MSgt Metz's sample bottle was destroyed and paperwork was generated months later to explain the reason for its destruction
* MSgt Metz was not informed of the destruction despite having had a petition before the Air Force Board of Correction of Military Records regarding his discharge
* The advisory opinions obtained by the USAF did not fully explain the reason for denial of his petition

	b.  In Sullivan v. United States, 177 Ct. Cl. 518 (2004), a former USAF major (MAJ), who had 24 years of service at the time, sued to recover active duty pay and allowances from 6 February 1962 when he was discharged from the service with an under other than honorable conditions discharge claiming his discharge was invalid.  He claimed that on the basis of unintentional misrepresentation and misinformation tendered by a superior officer following an incident which Sullivan feared might lead to trial by a court-martial, he submitted a resignation for the good of the service and also an application for longevity retirement and that his resignation, which was later accepted, was not voluntary.  He also contended he was denied effective representation by counsel in his hearing before the Air Force Board for Correction of Military Records.  The incident involved MAJ Sullivan taking his 8-year old son and a female friend of his son to a movie theater.  The girl's father subsequently reported to the Office of Special Investigation (OSI) that she had returned in a highly emotional state and complained that her private parts were hurt.  She later confided with her mother that MAJ Sullivan had unzipped her slacks and got inside and fondled her.  A physical examination by the base doctors revealed the child had not been physically harmed.  The base commander preferred court-martial charges against MAJ Sullivan and informed him that higher headquarters would allow him to resign in lieu of trial by a court-martial which, if accepted, would result in an under other than honorable conditions discharge.  He preferred to resign.  He did not confer with legal counsel.  The next day, an officer called him and informed him that two applications were being sent to him, one for resignation and one for retirement.  Based on the telephone call, he elected to avoid the court-martial and submitted both documents with the belief that his retirement would be accepted.  When he submitted his petition to the Air Force Board for Correction of Military Records, he appeared before a hearing with counsel present.  However, without informing MAJ Sullivan or his counsel, the board reconvened and heard testimony from the wing commander.  The board denied his request and the Assistant Secretary of the Air Force approved the denial.  The Court 

ruled that where an officer is induced to submit his resignation for the good of the service - in lieu of trial by a court-martial on the representation that by simultaneously submitting his application for retirement he would have a good chance of being retired instead of receiving a less than honorable discharge, and where such representations were not in accordance with the facts and probabilities of his case, his less than honorable conditions discharge which resulted when his resignation was accepted, was invalid.  In its decision, the Court stated that:

* At the time MAJ Sullivan submitted his retirement, he did not have a good chance of retirement and if the USAF accepted his resignation, he had no chance of retirement
* MAJ Sullivan was misinformed by the Air Force in that he was told to submit two applications, one to resign and the other to retire
* There was an irregularity in connection with the board proceedings when the wing commander's testimony was heard and accepted without MAJ Sullivan or his counsel's knowledge
* MAJ Sullivan did not have a fair hearing before the board

21.  Army Regulation 600-8-24 prescribes the officer transfers from active duty (AD) to the Reserve component (RC) and discharge functions for all officers on active duty for 30 days or more.  

22.  Army Regulation 600-8-24, chapter 4 (Eliminations), states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.

	a.  Paragraph 4-2b (Reason for Elimination) states while not all inclusive, when one of the several listed or similar conditions exist, elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interests of national security; acts of personal misconduct, conduct unbecoming an officer, or conduct or actions that result in the loss of a professional status.

	b.  Paragraph 4-5 (Separation date) states an officer approved for involuntary separation by the Secretary of the Army or his designee, or whose request for resignation or discharge in lieu of elimination is approved for misconduct, moral, or professional dereliction, or in the interest of national security will be separated accordingly.

	c.  Paragraph 4-6 (Board of Inquiry) states the Board of Inquiry’s purpose is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  Through a formal administrative investigation conducted under Army Regulation 15-6 and this regulation, the Board of Inquiry establishes and records the facts of the respondent’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer’s disposition, consistent with this regulation.

	d.  Paragraph 4-11 (Respondent) states in accordance with paragraph 4-24, respondents may at any time prior to final action in their case apply for voluntary retirement, if eligible;, tender resignation, or request discharge.

	e.  Paragraph 4-17 (Board of Review) states an officer recommended for elimination by a Board of Inquiry will have their case referred to a Board of Review.  The Board of Review is appointed by the Secretary of the Army or his designee and has the same board composition as the Board of Inquiry.  The Board of Review, after thorough review of the records of the case, will make recommendations to the Secretary of the Army or his designee as to whether the officer should be retained in the Army.  Appearance by the respondent (or counsel) is not authorized.

	f.  Paragraph 4-18 (Rules for processing an elimination of a non-probationary officer (more than 5 years of active duty)), unless precluded by another paragraph, states elimination action will be initiated against an officer who is identified by one or more of the reasons outlined in paragraph 4–2.  On receipt of elimination action, the CG, U.S. Army Human Resources Command (AHRC), will close the case or forward it to the Board of Review. 

	g.  Paragraph 4-24 (Rules for processing an option that an officer elects while elimination action is pending) states an officer identified for elimination may, at 
any time during or prior to the final action in the elimination case, elect one of the following options (as appropriate):  (1)  Submit a resignation in lieu of elimination; (2)  Request discharge in lieu of elimination; or (3)  Apply for retirement in lieu of elimination if otherwise eligible.  When an officer submits a resignation in lieu of elimination or a request for discharge in lieu of elimination, the officer waives the right to a hearing before a Board of Inquiry, and the case will be processed without convening a Board of Inquiry.  An officer may wish to waive the right to a Board of Inquiry contingent upon receiving a characterization of service more favorable than the least favorable characterization authorized for the reason for elimination set forth in the notice of elimination.  Officers wishing to submit a conditional waiver will submit a completed Resignation in Lieu of Elimination or a Request for Discharge in Lieu of Elimination.  Commanders will ensure that an officer has had an opportunity to consult with counsel before waiving the right to a hearing before a Board of Inquiry.  The appropriate separation authority may approve or disapprove the conditional waiver.  If the conditional waiver is disapproved, the case will be referred to a Board of Inquiry unless there is a subsequent resignation in lieu of elimination or request for discharge in lieu of elimination, where the officer unconditionally waives the right to a hearing before a Board of Inquiry.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a former commissioned officer who had taken an oath to faithfully discharge the duties of the office to which he entered, and a captain whom the President of the United States had reposed special trust and confidence in his patriotism, valor, fidelity, and abilities, was alleged to have had committed adultery with Mrs. MR, whose husband, another Soldier, was deployed to Iraq.

2.  A subsequent investigation determined that based on interviews, statements, personal visits, emails, and other evidence, there was sufficient evidence that demonstrated the applicant took part in an adulterous relationship with Mrs. MR.  Accordingly, the CG initiated elimination action against him.  He was so notified and advised of his rights.  Specifically, the CG advised him 

* If he were eliminated for misconduct, moral, or professional dereliction, the least favorable characterization of service is under other than honorable conditions
* He could submit a resignation or discharge in lieu of elimination in accordance or apply for retirement in lieu of elimination, if otherwise eligible
* In place of resignation, discharge, or retirement, he could submit a rebuttal or declination statement and request appearance before a Board of Inquiry

3.  Subsequent to this notification, the applicant voluntarily, willingly, and in writing tendered his resignation from the Army in accordance with Army Regulation 600-8-24, chapter 4.  He indicated that:

* He had been advised that prior to submitting this resignation, he could at his option consult with and be represented by qualified military or civilian counsel at his own expense
* On 13 March 2007, he had been advised and counseled in this matter by CPT RR, a TDS attorney of the JAGC at Fort Riley
* He fully understood the implications of his voluntary action
* He elected to waive his right to either appear before a board of officers with legal counsel who may be a member of the JAGC or civilian counsel retained by him, or to submit matters in explanation, rebuttal, or defense concerning allegations in his case
* If his resignation was accepted, he could be furnished an honorable, a general, or an under other than honorable conditions discharge, as determined by HQDA
* He understood if his resignation was accepted under other than honorable conditions, he could be barred from all rights, based on the period of service from which he would be separated under any laws administered by the DVA, with certain exceptions
* He understood that his separation was voluntary and he was not entitled to any separation pay

4.  The CG carefully considered all the evidence collected against the applicant as well as the mitigating evidence he had provided.  He opined that elimination action was warranted and recommended a general discharge.  A subsequent HQDA Ad Hoc Review Board reviewed the applicant's voluntary resignation in lieu of elimination based on misconduct, moral or professional dereliction.  After reviewing the proposed elimination, the Acting DASA (RB) accepted his resignation from the Army with an under other than honorable conditions characterization of service.  Accordingly, on 16 May 2007 he was discharged.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  With respect to the arguments and the court cases the applicant and counsel submitted:

	a.  The applicant argued that he was advised by his counsel and promised by his command that he would receive a general discharge if he waived his right to a board of hearing; however, in his voluntary request for resignation he acknowledged that if his resignation were accepted he could be furnished an honorable, a general, or an under other than honorable conditions discharge, as determined by HQDA, not by his command.

	b.  Counsel asserts that the applicant’s resignation was involuntary in that the applicant must have been misled by his defense counsel and the command because he had nothing to lose by exercising his option to contest his case before a Board of Inquiry, and he could have submitted a resignation after the Board of Inquiry made its findings and recommendation, so why would he 

voluntarily submit an unconditional resignation prior to a Board of Inquiry unless he had been misled?  This argument carries no weight in light of the documentary evidence.  Officers commonly submit unconditional resignations in lieu of elimination without first pursuing their right to a Board of Inquiry.  Whether to pursue the right to a Board of Inquiry is a personal decision made by the officer, and a declination of that option can be based on any number of legitimate considerations that do not imply impropriety by the command or ineffective assistance of counsel.  Neither counsel nor the applicant have presented independent evidence that demonstrates the applicant was misled by his command or received ineffective assistance of counsel as to the characterization he could receive pursuant to his resignation.  The applicant’s due process rights were not violated, and by the greater weight of the documentary evidence the applicant’s resignation was voluntary.

	c.  The cases cited are not controlling in this case.  MAJ Sullivan was fully eligible for retirement when he committed his alleged offense.  Another Air Force officer appears to have incorrectly informed him to submit applications to retire and resign at the same time in an effort to help him retire after having attained retirement eligibility.  The separation authority approved the resignation which negated any possibility for retirement.  Unlike MAJ Sullivan, the applicant in the case at hand was neither retirement eligible nor was he discouraged from appearing before a Board of Inquiry.  On the contrary, in his voluntary request for resignation, he indicated that he had the option to appear before a board but he elected not to do so.  Applicant and counsel’s belated assertions that the applicant was misled as to the possible characterization he faced and his rights are outweighed by the greater weight of the documentary evidence contained in the elimination file which the applicant acknowledged during the processing of his separation.  The applicant has not established he was misled by either his defense counsel or his command.

	d.  MAJ Sullivan was facing court-martial charges and the potential for a punitive discharge.  He was accused of a crime related to child abuse.  He did not consult with counsel and he chose the resignation for fear of a court-martial. Unlike MAJ Sullivan, the applicant in this case was facing only administrative, not punitive proceedings.  He did consult with counsel and he was never under the threat of a court-martial.  There is no appearance of coercion in the applicant’s case that might have led to his resignation in lieu of elimination.

	e.  MAJ Sullivan was denied a fair hearing before the Air Force Board for Correction of Military Records when that board conferred with the wing commander without his or his counsel's knowledge.  There was clearly an 

irregularity in connection with the board proceedings when the wing commander's testimony was heard and accepted without MAJ Sullivan or his counsel’s knowledge.  Unlike MAJ Sullivan, the applicant in this case had no such irregularities.

	f.  MSgt Metz was also facing court-martial charges and the potential for a punitive discharge.  He was accused of a crime related to a positive urinalysis.  His counsel did not consult with an expert regarding the urine sample or the possibility to retest the sample for DNA.  The urine sample provided by the USAF contained the DNA of more than one person, and the sample bottle was destroyed with no explanation.  Unlike MSgt Metz, the applicant in this case was facing administrative, not punitive proceedings.  The applicant was never under the threat of a court-martial; therefore, there is no appearance his resignation was coerced by the threat of court-martial.

	g.  MSgt Metz’s military and civilian attorneys’ accountings of their representation were inconsistent either because they had no clear recollection of the applicant's case or because they were working simultaneously on another case involving drugs.  Regardless, the attorneys' assistance, considered ineffective by the Court, was considered together with multiple other factors by the Court in determining there was a reasonable probability that but for counsel's errors, the outcome would have been different.  In other words, the attorneys' advice was not the sole reason the Court granted relief.  In the applicant's case, aside from his belated contention, there is no evidence that the applicant received ineffective assistance of counsel, was misled, or given poor advice.

6.  In view of the foregoing, the applicant's acts of personal misconduct and moral dereliction clearly established the bases for his separation as an officer.  
The clear weight of the evidence demonstrates that his resignation in lieu of elimination was voluntary.  Therefore, 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)                                         AR20120001434



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ABCMR Record of Proceedings (cont)                                         AR20120001434



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