IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130000556 


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 reconsideration of his request to set aside or modify the narrative reason for his discharge to receive a military retirement.

2.  The applicant states:

	a.  He had completed an intense program of study and was a dedicated Soldier with a rising career that was derailed.

	b.  Subsequently, he was a professor at an Ivy League university and he currently works for the Department of Veterans Affairs (VA).  He has been successful in getting his discharge upgraded to an under honorable conditions discharge and was recruited by the Nebraska Army National Guard and U.S. Army Reserve.  However, his request to reenter the military was denied due to the narrative reason for his discharge.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request by:

	a.  voiding his discharge; 

	b.  granting him constructive credit for active duty from 30 September 1993 to the present or to a time when he would be eligible for retirement from active duty;

	c.  changing the narrative reason for the applicant's separation so it does not show he was separated for cause; 

	d.  upgrading his discharge to honorable; and 

	e.  awarding him all applicable pay and allowances.

2.  Counsel submitted an 18-page supplemental statement wherein he essentially states:

	a.  in the applicant's original record of proceedings (ROP) he addressed the inappropriateness and deficiencies in all of the court-martial charges made against the applicant by his then commander.

	b.  any additional charges brought against a lieutenant colonel (LTC) should have been referred to an Article 32, Uniform Code for Military Justice (UCMJ) investigation.

	c.  the applicant's commander was unaware of the procedures used by dental specialists in taking equipment and supplies with them to remote overseas assignments or chose not to handle this matter administratively by giving his permission for the applicant to take the equipment.

	d.  the statements from four experienced dentists provide evidence that the action against the applicant was unwarranted, because they all took equipment with them to their new duty stations.

3.  Counsel provides:

* the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a copy of the court-martial charges
* the applicant's Resignation for the Good of the Service (RFGOS)
* 23 Officer Evaluation Reports (OERs)
* a supplemental statement from the applicant
* a handwritten note prepared by the applicant
* a four-page supplemental statement
* six personal statements
* two VA Forms 10-2623a (Proficiency Report)
* the applicant's VA Rating Decision
* a Certificate of Appreciation
* two pages of Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR))
* three pages of Army Regulation 600-8-24 (Officer Transfers and Discharges)
* a page from the website "U.S. Military Lawyer"
* an information sheet from Trial Defense Services

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110010775, on 1 December 2011.

2.  In support of his request for reconsideration the applicant's counsel provides several arguments and documents which are considered new evidence and argument and merit reconsideration by the Board.

3.  The applicant's records show he was commissioned as a second lieutenant in the U.S. Army Reserve and ordered to active duty on 21 June 1981 to attend the Army Dental General Practice Residency and detailed in the Dental Corps.

4.  On 26 January 1993, the applicant received a general officer memorandum of reprimand (GOMOR) for violation of the following Articles of the UCMJ:

* Article 121 (Larceny) for shoplifting a sweatshirt valued at $22.00 
* Article 133 (Conduct Unbecoming an Officer and Gentleman)

5.  The GOMOR was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information), paragraph 3-4, and not as punishment under Article 15, UCMJ.  The applicant acknowledged receipt of the GOMOR in accordance with Army Regulation 600-37, 
paragraph 3-6.

6.  The commanding general directed filing the GOMOR in the applicant's Military Personnel Records Jacket for a period of 3 years or until the applicant was permanently reassigned to another command.

7.  The applicant was promoted to LTC on 22 June 1993.

8.  On 8 July 1993, he was charged with violation of Article 89 (Disrespect Towards a Superior Commissioned Officer) and 19 violations of Article 121 (Larceny) of U.S. Government dental equipment found in his home while he was assigned to Fort Rucker, AL.

9.  On 22 July 1993, the applicant submitted an RFGOS to the Commanding General, U.S. Army Aviation Center and Fort Rucker.  On 15 September 1993, the applicant's RFGOS was approved under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 5, with an under other than honorable conditions character of service.  He was discharged on 30 September 1993. 

10.  On 30 March 2005, the Army Discharge Review Board (ADRB) granted the applicant's request for an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.  The ADRB did not change the separation authority, separation code, or narrative reason for separation.

11.  Counsel argues that he and his client disagree with the previous ABCMR decision; specifically, the following in the Discussion and Conclusions section of the ROP:

	a.  paragraph 2a, "Seoul is the second largest city in the world; it is not a geographically isolated area.  Thus, the contention that the applicant was accruing dental supplies in his quarters because he was being reassigned to a geographically isolated area is baseless."

		(1)  Counsel argues that to the uninitiated, this statement might be reasonable, but he believes the statements provided from four retired Army colonels (COL's) who were specialized Army dentists, three of whom were prosthodontists, all of whom were on active duty during the same period as the applicant, address this issue more accurately than this statement from the ABCMR.

   	(2)  The COL's stated that Seoul was not a source of dental equipment mainly because of the large probability that such equipment was counterfeit and supplies would not be of the quality needed.  It was common practice for conscientious dental specialty officers to take supplies and equipment with them to new duty stations and with permission equipment was taken to overseas duty stations as permission was given by both the losing and gaining commander.

	b.  paragraph 5, "counsel's contention that the applicant's RFGOS did not comply with the governing regulatory guidance because it did not include his acknowledgement of whether he did or did not consult with counsel, that he was guilty of some or all of the offenses; and that he may be deprived of veterans' benefits was considered.

		(1)  Counsel bases his argument on MILPERSMAN 1910-106, dated 22 August 2002, which applies to U.S. Navy enlisted personnel and sets forth the policy and instructions for their separation in lieu of trial by court-martial.  However, that guidance neither applies to the applicant – a former U.S. Army officer – nor to this case now."

		(2)  Counsel argues that the important factor here is whether the U.S. Army officials followed the required procedural steps in processing the applicant's request for discharge in lieu of trial.  While MILPERSMAN may be the Navy stated procedure, it does accurately reflect the correct procedural rules which apply to all of the military services in processing such actions.

		(3)  The Army regulation cited as the authority for separating the applicant was Army Regulation 635-120, chapter 5, but as indicated, he had not been able to locate a copy because it was superseded several years ago.  In searching for Army Regulation 635-120, he (counsel) came across an article on this matter by a former U.S. military lawyer stating that the procedures for requesting separation in lieu of trial for officers "are similar to those relating to enlisted personnel."  The primary difference being that the Secretary of the applicable service is the approval authority for officers.

		(4)  The applicant consistently had denied any guilt regarding the court-martial trial charges made against him.  The basic requirement for the initiation and processing of any request for discharge in lieu of trial by court-martial mandates that the military member MUST admit that he or she is actually guilty of the alleged offenses.  In fact, the Army Trial Defense Service at Fort Knox, KY had published an information sheet for enlisted personnel contemplating submitting a request for discharge in lieu of trial and states in paragraph 4e "you must be informed that part of the process signing a request is admitting your guilt to all or some of the offenses.  You must admit guilt to at least one offense that authorizes imposition of a punitive discharge.  The Chapter 10 (discharge in lieu of trial) cannot be approved without this admission."

		(5)  In the present case, the applicant never admitted any guilt of the alleged offenses.  This was amply shown by his notes given to his military defense counsel in July 1993, his statement requesting discharge, dated 22 July 1993, his statement submitted with this application to this Board, and his supplement statement submitted with this ROP.  Because of his denial of guilt, his request should have never been processed.  In actuality, the processing and approval of his request was a violation of Army processing procedures and was "contrary to law."  Thus, clearly, an error occurred and the Board must declare it a nullity and set it aside as though it never happened.

	c.  paragraph 6 states:

		(1)  The resignation the applicant submitted is not contained in the available records.  The applicant has submitted a memorandum that apparently accompanied that resignation.  That memorandum is not the actual resignation that was mandated by the regulation, and in the absence of evidence to the contrary (counsel's emphasis) it is presumed the actual resignation conformed to the requirements of the regulation; and 

		(2)  Therefore, considering all the facts of the case and in the absence of evidence to the contrary (counsel's emphasis), the type of discharge directed, reason, and SPD code were appropriate.

		(a)  Counsel argues that Army Regulation 635-120, chapter 5, was the regulation cited in block 25 of the DD Form 214 issued at the time the Army separated the applicant from active duty as the authority for the action taken against him.  As previously stated, he (counsel) has been unable to obtain either a copy of said regulation or a copy of the applicant's official military file on this matter.  For the Board to state that in the absence of evidence to the contrary it is presumed (counsel emphasis) the actual resignation conformed to the requirements of the regulation is an inappropriate manner in resolving this issue especially since there is no indication that the applicant's original application for correction of his records was ever referred to a proper legal authority for an advisory opinion on this entire matter.

		(b)  From the beginning of COL P____'s action against the applicant, the Army officials involved have grossly mishandled this entire matter.  If COL P____ and others really believed the applicant was stealing dental equipment either for himself or to improperly take with him to Korea, at the very least there should have been a proper investigation of these matters which would have included referring the court-martial charges to an Article 32 UCMJ investigating officer.  He (counsel) is convinced that an Article 32 investigating officer would have shown there was definitely no substantiation of guilt by the applicant.  Instead, it appeared that someone advised COL P---y that the quickest way to get the applicant out of the Army would be to bring charges against and convince him that he should just request to be separated from active duty instead of standing trial.  Unfortunately, that is what actually happened and such an action resulted in the abuse of the military justice system and a gross injustice to the applicant.

		(c)  The reference memorandum of the applicant's statement was submitted as part and parcel of the request for discharge in lieu of trial.  The fact that the original request was not available through Army record channels should not result in a presumption against the applicant's interest.  Rather, the presumption should be in favor of what the applicant submitted.  To do otherwise lends support to the bad processing by Army officials to include, as it appears, their failure to assure such documentation was placed in the applicant's Army records.

		(d)  Although he (counsel) was unable to locate a copy of Army Regulation 635-120, he has located Army Regulation 600-8-24, dated 12 April 2006, which outlines in Chapter 3-13 the rules for processing a resignation for the good of the Service in lieu of general court-martial.  In relevant part, it states in:

		(1)  paragraph a, an officer may submit an RFGOS in lieu of a general court-martial (GCM) under the following circumstances (cannot submit unqualified resignation);

		(2)  paragraph a(1), court-martial charges have been preferred against the officer with a view toward trial by GCM; and

		(3)  paragraph d, the commander will ensure that the RFGOS are voluntary and that applicants are:

		(a)  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 own expense and

		(b)  allowed a reasonable period of time to consider requesting an RFGOS.

		(e)  These requirements were never met by Army officials in the applicant's case.  There was no indication that court-martial charges would have been preferred against the officer with a view toward trial by GCM.  Rather it appears charges were only preferred and there was never an Article 32, UCMJ investigation conducted.  Counsel is certain that due to the applicant's rank, an Army Judge Advocate in the rank of major or higher would have been assigned to defend him because GCM matters concern more serious charges.  An Article 32 investigation would have shown that the charges against the applicant had no basis and would have been dismissed.

		(f)  The statement submitted by the applicant is assumed to be the sample format outlined in Army Regulation 635-120.  It did not include any statements that he consulted with legally-qualified counsel or that he was guilty of any offense or that he understood that he could receive a discharge considered as "under other than honorable conditions."

		(g)  Rather, the applicant stated that he had been to Korea previously and knows well the problems of obtaining specific supplies there.  The applicant also related that he had been in contact with his sponsor in Korea who told him "both by letter and by telephone to bring whatever he could, what he needed, because new items most likely would not be ordered upon his arrival in Korea.

		(h)  In fact, the applicant made no request to resign or be separated in his letter, but instead stated that:

		(1)  "he would prefer to remain on active duty as a practicing Army dental officer and was crushed by these developments only two days after being promoted to LTC."

		(2)  If conditions were such that the charges would not be dropped and he could not remain in the Army, he requested that he be allowed to leave in the most gracious manner possible.

		(3)  He had given many good years of service and asks that you (approval authority) consider recommending approval of his resignation with an honorable conditions discharge.

	d.  paragraph 8, states "records show the applicant submitted his resignation for the good of the service in lieu of trial by court-martial.  Thus, it is concluded that the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge."

		(1)  Counsel argues that the important matter is that the applicant had an outstanding record as an Army Dentist as shown by his outstanding rating on his OERs.

		(2)  He (counsel) still contends that the requirements under the applicable regulations were not followed.  Lacking this statement, then the request, on its face, is improper and should be denied or sent back for compliance with the above requirement of including a statement of whether or not the requestor's service did or did not meet with the standards of acceptable service.

		(3)  The applicant's OERs and the statements made by the four retired military dentists who knew the applicant clearly attest to his unique ability to perform his duties in an outstanding manner.  It was also known by all that the applicant had just been promoted to LTC and that action shows he met the standards of acceptable conduct and performance and an honorable discharge.

12.  Counsel submitted as new evidence:

	a.  two VA Forms 10-2623a which show the applicant received "outstanding" ratings while he was assigned as a prosthodontist at the Omaha VA Medical Center during the periods 1 October 2010 to 30 September 2011 and 1 October 2011 to 30 September 2012;

	b.  six letters of recommendation, dated from 25 July to 26 November 2012, which essentially state:

* the applicant was well respected within the dental community
* his skills exceeded those of his peers 
* he made many contributions to the dental educational and professional service  
* with the losing command's permission, it was not uncommon to transfer equipment from one command to another due to shortages in places such as Korea 
* the applicant was acting in good faith when he attempted to transfer equipment to his next command

	c.  a statement from the applicant's spouse, dated 26 November 2012, who indicates some embarrassing incidents occurred at a Christmas party she attended in 1990.

	d.  a Certificate of Appreciation from the VA, dated February 2013, for recognition of the applicant's completion of the Veterans Health Administration Office of Dentistry's Dental Chief Mentorship and Curriculum Program.

	e.  his VA Rating Decision, dated 1 May 2013, which shows he received an overall combined service-connected disability rating of 40 percent.

	f.  an information sheet from the Fort Knox Trial Defense Services which outlines the criteria for a chapter 10, Request for Discharge in Lieu of Court-Martial, wherein he highlighted in paragraph 4e "you must be informed that part of the process is signing a request submitting your guilt to all or some of the offenses."  You must admit guilt to a least one offense that authorizes the imposition of a punitive discharge.  A Chapter 10 cannot be approved without this admission."

	g.  an extract of Army Regulation 15-185, dated 31 March 2006, wherein he highlighted the duties and responsibilities of the ABCMR Board Members and the commanders of the Army Staff Agencies and commands.

	h.  an extract of Army Regulation 600-8-24, Section VI, Task:  Process Resignation for the Good of the Service in Lieu of General Court-Martial, dated 12 April 2006, which explains the rules for processing a resignation for the good of the service in lieu of general court-martial.

	i.  Army Regulation 600-8-24, figure 3-4, which is the sample format for the memorandum for an RFGOS resignation.

	j.  two pages of the U.S. Military Lawyer's website, Subject:  Discharge, Resignations, and Retirements in Lieu of Court-Martial, dated 12 November 2012, wherein he underlined in the procedures and approval authorities for officers the statement "the primary difference is the Secretary of the applicable service is the approving authority."

13.  Army Regulation 635-120 implemented the statutory provisions of Title 10, U.S. Code, governing active duty officer resignations and discharges.  Chapter 5 stated an officer could submit a resignation FTGOS when court-martial charges were preferred against the officer with a view toward trial by GCM, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction), prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  A resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

14.  Army Regulation 635-120, paragraph 1-21 provides that the character of service will be predicated on the officer's behavior and performance while a member of the Army.  Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service.

	a.  Honorable characterization of service.  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. When the separation is based solely on pre-service activities or substandard performance of duty, it will be Honorable.

	b.  Under Honorable Conditions (general) characterization of service.  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.

15.  Army Regulation 600-8-24 prescribes policies and procedures governing the transfer and discharge of Army officers.  Chapter 3-12 of that regulation provides the rules for processing an RFGOS in lieu a general court-martial.

16.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.

17.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  This regulation states in:

	a.  paragraph 1–8 that the ABCMR members will:

		(1)  Review all applications that are properly before them to determine the existence of error or injustice.

		(2)  Direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.

		(3)  Recommend a hearing when appropriate in the interest of justice.

		(4)  Deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper.

	b.  paragraph 1-10 states that the Commanders of Army Staff agencies and commands will:

		(1)  provide advisory opinions on matters within their areas of expertise upon request of the ABCMR and in a timely manner.

		(2)  obtain additional information or documentation as needed before providing the opinions to the ABCMR.

		(3)  provide records, investigations, information, and documentation upon request of the ABCMR.

		(4)  provide additional assistance upon request of the ABCMR.

		(5)  take corrective action directed by the ABCMR or the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  Army Regulation 635-200, chapter 10, pertains to separation of enlisted Soldiers who have requested separation in-lieu of court-martial and therefore, is not relevant to this board of proceedings.  Army Regulation 600-8-24 was not published until 31 March 1995, which was after the date of the applicant's discharge and therefore, also is not relevant to this board of proceedings.

2.  Counsel contends that he disagrees with the following items in the Discussion and Conclusions section of the ROP:

	a.  paragraph 2, four retired Army COL's working in the same field as the applicant could address the issue of dental specialty officers taking U.S. Government property to new duty stations such as Seoul, could address the issue more accurately than this Board, even with the losing and gaining commander's permission, is noted.  However, while there is insufficient evidence to show he had permission from the losing command to take the U.S. Government property to his new duty station, he decided to take government equipment in disregard to pertinent Army regulations which govern the requisitioning and transfer of U.S. Government property.

	b.  paragraph 5 and 6, MILPERSMAN 1910-106, dated 22 August 2002, is not applicable to the ROP, but correctly reflects procedural rules that apply to all services, that he has not been able to locate a copy of Army Regulation 635-120, the applicant denied any guilt regarding the court-martial charges against him is noted.  Counsel also speculates that an Article 32 Investigation would have exonerated the applicant from any guilt.  However:

		(1)  this Board is not an investigative body but rules on cases legally before it based on the evidence of record and whether an error or an injustice exists in that record.  The rule of law pertinent to the Board provides for consideration of all cases with the presumption of administrative regularity, and that applicants have the burden of proving an error or injustice by a preponderance of the evidence.  The necessary presumption of regularity dictates that what action was taken by the Army was appropriate unless evidence submitted by the applicant may show or convince the Board otherwise.

		(2)  counsel states the applicant made no request to resign or be separated in his RFGOS, but instead stated that he would prefer to remain on active duty.  However, paragraph 8 of the applicant's RFGOS clearly shows the applicant asked the Commanding General to consider recommending approval of his resignation with an honorable conditions discharge (general).

	c.  paragraph 8, the applicant's record and statements made by other military officers indicate the applicant had an outstanding record as a dental specialist is noted.  Army Regulation 635-120 states that characterization of service normally will be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service.  Further, this is not an isolated instance of misconduct.  Evidence of record shows the applicant received a GOMOR for larceny and was charged with one specification of disrespect toward a superior commissioned officer and 19 specifications of larceny of U.S. Government property found in his home.

3.  His post-service conduct and contributions are noteworthy; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone.

4.  The statement submitted by his spouse has no bearing on this ROP.

5.  Based on his record of indiscipline, he is not entitled to have the narrative reason for his discharge set aside or modified and to receive a military retirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110010775, dated 1 December 2011.



      _____________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)                                         AR20130000556



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130000556



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1