PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:                              
	DOCKET NUMBER:   AC98-05477

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr .Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show that he was honorably discharged on 1 May 1997 with entitlement to all back pay, special pay and allowances, that he is entitled to reimbursement of $25,000.00 in attorney’s fees and a formal apology from the Commanding General (CG) and Deputy Commander at Walter Reed Army Medical Center (WRAMC).

3.  The applicant states, in effect, that he received orders discharging him from the service with only 3 weeks notice and no pre-separation counseling.  He goes on to state that he informed officials at WRAMC that the notice was too short and that he would need at least until 1 May 1997 to find employment.  He continues by stating that he was rebuffed by officials and was informed that his separation date would remain firm.  He further states that he retained a private attorney to intervene in his behalf to no avail.  He also states that after his separation from the service, he discovered that permission had been granted by the Total Army Personnel Command (PERSCOM) in a 14 February 1997 message to the Commander of the WRAMC to change his separation date from 1 March 1997 to 1 May 1997 as he requested.  However, officials at the WRAMC failed to comply with the message or to notify him that the message had been received, which resulted in an undue hardship being imposed on him and his family.  He contends that he should receive all back pay and allowances from 1 March 1997 to 1 May 1997, that he should be reimbursed for his attorney’s expenses in the amount of $25, 000.00, and that he should receive a formal apology for his unlawful premature separation. 

4.  The applicant’s military records show that the applicant was commissioned as a Regular Army Medical Corp captain on 21 May 1983.  He was promoted to the rank of major on 21 May 1989 and to the rank of lieutenant colonel (LTC) on 1 October 1995.

5.  On 18 March 1996, while serving as a pediatric cardiologist at the WRAMC, the applicant submitted a request for unqualified resignation as an exception to policy to be effective immediately.  He stated that he had not fulfilled his Active duty service obligation and that he desired to accept civilian employment.  He also acknowledged that he was not opposed to reimbursing the government for reasonable amounts due as a result of his remaining service obligations.

6.  The applicant’s chain of command recommended disapproval of his request based on his having not fulfilled his service remaining obligations for participation in the professional education program.

7.  On 1 May 1996 the PERSCOM disapproved the applicant’s request based on his not having fulfilled his active duty service obligation incurred through funded education programs.  However for reasons not explained in the available records, on 14 January 1997, the PERSCOM approved his request for unqualified resignation to be effective 1 March 1997.  Orders effecting his discharge were published by the WRAMC on 16 January 1997.

8.  On 31 January 1997 the applicant’s civilian attorney sent a letter to the Office of the Staff Judge Advocate (SJA) at the WRAMC informing the SJA that the applicant was not being afforded the mandatory 90 day period between preseparation counselling and discharge as required by law.

9.  On 14 February 1997 the PERSCOM dispatched another message to the WRAMC indicating that the applicant’s request to change his date of separation from 1 March 1997 to 1 May 1997 was approved.

However, again for reasons not explained in his official records, the applicant was honorably discharged  on 1 March 1997 under the provisions of Army Regulation 635-120, chapter 3, due to miscellaneous reasons (Unqualified Resignation).  He had served 17 Years, 7 months, and 9 days of total active service.

In the processing of this case a staff member of the Board contacted officials at the PERSCOM officer separation branch to ascertain what transpired in the applicant’s case.  The case worker who handled the applicant’s case though no longer having a complete file, remembered the applicant’s case because of the level of involvement and the applicant’s repeated calls to check on the status of his case.  She indicated that after the applicant’s case had been disapproved, he retained a civilian attorney who contacted the Assistant Secretary of the Army (ASA) for Manpower and Reserve Affairs (M&RA) and requested intervention on the applicant’s behalf.  The case worker indicated that PERSCOM was directed to approve the applicant’s separation effective 1 March 1997 per the applicant’s request and was informed that the ASA for M&RA in coordination with the Office of the Surgeon General (OTSG) had elected to waive the applicant’s debt to the government regarding his educational expenses.  She also indicated that the applicant subsequently requested that his separation date be changed to 1 May 1997 and that she approved it and dispatched a message to that effect.  Inasmuch as she did not hear from the applicant after he requested a change in his separation date, she presumed that he had received the change and was satisfied.

CONCLUSIONS:

1.  While it is true that the applicant was not afforded 90 days to transition out of the Army; at the time the applicant originally submitted his request for unqualified resignation, he requested an immediate separation.  Although, his request was initially disapproved, he continued to pursue separation and based on his request, was granted a separation effective 1 March 1997.

2.  The Board notes that the applicant apparently was not satisfied with a separation date of 1 March and chose to pursue an extension of that date.  He was granted an extension to 1 May 1997; however, for reasons not explained in the available records, orders were never published amending the applicant’s separation date to 1 May 1995. 

3.  The Board also notes that the applicant had been in constant contact with officials at the PERSCOM to expedite his request and contends that he bears some responsibility for not following up on the request that he initiated to ascertain the outcome prior to his separation.

4.  While the Department bears some responsibility for not publishing an amendment to his orders prior to his separation, there is no evidence present in the available records to suggest that the failure to publish orders was done intentionally or was intended as a malicious act towards the applicant.

5.  Inasmuch as the applicant originally requested to be separated immediately with the intent to reimburse the Department for his educational expenses and showed no concern for a 90 day transition period, the Board finds that the remission/cancellation of his debt to the government is sufficient compensation for the inconveniences he is alleging to have suffered.

6.  The applicant’s contentions that he should be entitled to compensation for civilian legal expenses incurred in his obtaining a release from the Army and that he is entitled to an apology from officials at the WRAMC are without merit.  Although there are no provisions for the Board to award him legal fees, it is noted that the applicant elected to obtain legal counsel on his own while he was entitled to legal assistance from the Department.  The Board also finds that there is no evidence that officials at the WRAMC took any actions against him that would warrant an apology.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by 

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON