BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20130015937 


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 an upgrade of his discharge under other than honorable conditions. 

2.  The applicant states:

	a.  the actions proceeding were based on an arbitrary and capricious command climate.  

	b.  he was rated at least average or above average as a second and first lieutenant and much of the time he held the rank of captain in the U.S. Army Reserve (USAR).  He was assigned to Germany in 1980. 

	c.  he received a lackluster Officer Evaluation Report from his battalion commander.  He was not surprised.  Immediately following the battalion commander's assumption of command, a clique formed.  He was subjected to personal insults, harassment, and name calling by this commander.

	d.  his battalion commander sent him to a logistics position and he found the records in the new office in a sad state.  He advised the executive officer that a report of survey should be conducted, but he refused.  Therefore, at the direction of the executive officer, he worked to "rehabilitate" the records.  Their annual inspection for combat readiness followed and the "rehabilitation" efforts got scrutiny.  His battalion commander blamed him for the negative remarks.  The battalion commander said he would get even and he did.

	e.  he left Germany and two years later he received a notice from Germany.  The captain who relieved him was responsible for any lost and destroyed equipment.  His former battalion commander recommended a month's pay be taken from him two years after he left Europe and after another officer had signed for and been responsible for the equipment.  Having had additional commerce with an officer with whom he would have otherwise been overawed; he exercised bad judgment.  He called the Judge Advocate General at Fort Bragg, NC, initiated a grievance, complained about the insults and asked to have the assessment cancelled.  Subsequently, it was.

	f.  what he did not elucidate was the extensive and pervasive culture of simple untruth.  He had not seen a single readiness report that did not get a "massage."  The battalion executive officer pressured the logistics officer, to include him, to alter records.  The recruiting command operated in a climate with similar limits.  In short, a climate of "situational" dishonesty was more the norm.

	g.  he let this climate rub off on him and he became part of the system.  He had turned in so many false reports by the time he finished his tour with the recruiting command that he was not clear on anything they were obligated to do.  When he got to his next duty station and his travel pay and expenses were trimmed as they always were, he did what he had always done.  The command reviewed his records and discovered a discrepancy.  Part of his travel and relocation allowance was in dispute.  At this point, he was distracted and very angry.  He was charged with a host of charges and he resigned.  The actual amount he was not allowed to claim was $130.00 or so, hardly a felony.  He repaid the amount the command had determined he was overpaid.  He should have resigned in Germany.    

	h.  given the circumstances and the climate of the command, given their mixed signals and obvious intentions he thinks a further review of his discharge is in order. 

3.  The applicant provides no additional documentary evidence.

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.  Having prior enlisted active service in the U.S. Navy, the applicant was commissioned as a second lieutenant in the USAR on 26 July 1974.  He arrived in Germany on 31 October 1979.  He was promoted to captain effective 
15 March 1982.  He departed Germany on 30 March 1982.

3.  On 3 December 1984, the following charges were preferred against him:

* preparing a false and fraudulent voucher or claim (two specifications)
* making a false and fraudulent statement
* larceny (two specifications)

4.  Trial by general court-martial was recommended.

5.  On 2 January 1985, after consulting with counsel, the applicant submitted a request for resignation for the good of the service under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), 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.  In a statement, he requested an honorable discharge and stated:

* he had served his country faithfully for over 16 years, both as an enlisted Soldier and as an officer
* not only has he served in the Army, but he served in the U.S. Navy
* he has been an instructor and commanded several different units during his 16 years, including a recruiting company
* he believes his overall record of military service has been excellent

6.  On 3 May 1995, the Deputy Assistant Secretary (Department of the Army Review Boards, Personnel Security and Equal Employment Opportunity Compliance and Complaints Review) approved the recommendation to accept the applicant' resignation for the good of the service with an under other than honorable conditions discharge.



7.  On 11 March 1985, 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, 4 months, and 
22 days of creditable active service.

8.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  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 for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, 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.

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the basic authority for the separation of officer personnel.

	a.  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, or the final revocation of a security clearance under Department of Defense Directive (DODD) 5200.2-R and Army Regulation 38067 for reasons that do not involve acts of misconduct, for an officer.  Department of Defense (DD) Form 256A (Honorable Discharge Certificate) will be furnished to a discharge officer; however, a certificate is not issued when an officer is released from active duty.  When separation is based solely on preservice activities, substandard performance of duty, or final revocation of a security clearance under DODD 5200.2R and Army Regulation 38067 for reasons that do not involve acts of misconduct, it will be honorable. 

		b.  Paragraph 1-22b provides 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.  A separation under honorable conditions will normally be appropriate when an officer submits:

	a.  an unqualified  resignation or a request  for release from active duty under  circumstances  involving  misconduct.

	b.  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.

	c.  is discharged for physical disability resulting from intentional misconduct or willful neglect, or which  was incurred  during  a  period  of  unauthorized  absence.

	d.  is discharged for the final revocation of a security clearance under DODD 5200.2-R and AR 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge under other than honorable conditions  is  appropriate.

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 his rights.

2.  A condition of submitting a resignation for the good of the service is that the individual concerned must acknowledge he/she understands his/her discharge may be under other than honorable conditions.  He/she must also understand the effects of such a discharge.  The applicant, a captain, 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. 

3.  He 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.  

4.  Careful consideration has been given to the applicant's contentions as well as his overall record of service.  The available evidence is insufficient to mitigate the applicant's actions coupled with the seriousness of the charges against him.  Accordingly, there appears to be no basis to grant the applicant’s request to upgrade his discharge under other than honorable conditions. 



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)                                         AR20130015937





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ABCMR Record of Proceedings (cont)                                         AR20130015937



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