MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        27 March 2001         
	DOCKET NUMBER:   AR2000042376

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Allen J. Raub		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Reinstatement on active duty with the restoration of all rights, benefits, and property; and subsequent retirement from the Army with full retirement benefits. 

APPLICANT STATES:  The applicant made no statement, but deferred to counsel.  

COUNSEL CONTENDS:

That the Army Active Duty Board (DAADB) did not process the applicant’s case in accordance with the law and the regulation; and that the Army failed to simultaneously process and forward the DAADB case and the Physical Evaluation Board (PEB) proceedings to the Secretary of the Army for final action. Counsel states that the Army’s action was contrary to law, arbitrary, and capricious.

Counsel provides a synopsis of the applicant’s career, to include his service in the Air Force Reserve, his military and civilian education, his Marine Corps service, his pilot training, and his service in the Army National Guard and the Army Reserve (Exhibit 3 (Tabs A and B) and Exhibit 6 (Tabs A through E)).     

Counsel states that in 1994 the applicant openly voiced his concern that two senior officers in his command, the 310th Theater Army Area Command (TAACOM), were engaged in waste, fraud, and abuse.  Sometime thereafter he filed a complaint with the DA Inspector General.  In July 1994 he was directed to immediately produce his officer evaluation report (OER), which was long overdue, for processing by the 310th TAACOM.  The rating officials were not available and only drafts OERs could be found.  The OER was located on the computer and changes were made, in accordance with the applicant’s understanding of his senior rater’s opinion of his performance.  He signed the signatures of his rater and senior rater, a not unusual practice in the command.  At exhibit 7 are drafts of the OER.  At exhibits 11 and 12 are statements in support of the applicant.   

The applicant was arraigned and tried by a general court-martial and found guilty of making a false official statement and of conduct unbecoming an officer by altering an OER.  He was sentenced to a reprimand and forfeiture of $1,000.00 per month for twelve months.  Despite the applicant’s request for clemency (Exhibit 14), the sentence was approved on 2 November 1995.  At exhibits 15, 16, and 17 are a petition for clemency, the general court-martial order, and the results of the appellate examination of his case.

Prior to the events that led to the court-martial, the applicant had been selected for promotion to lieutenant colonel with a promotion eligibility date (PED) of          7 February 1994.  For his promotion to be effective he had to be assigned to a duty position authorized a grade equal to or higher than that for which he had been selected  (Exhibit 18).  His promotion records were subsequently corrected and his PED changed to 24 November 1993 (Exhibit 19).  The applicant was slated for reassignment, but on three occasions the reassignment was blocked (Exhibit 13).  However, on 15 December 1995 he was informed that he had been considered and not selected for promotion (Exhibit 21).  The applicant was unaware that the board was to be held.

In mid 1996 the applicant’s record was selected for review by the DAADB to determine if he should be separated from the Army (Exhibit 22).  In        September 1999 the Army Reserve Personnel Command attempted to reassign the applicant to the Retired Reserve because of his non selection for promotion (Exhibit 23); however, he notified that command that he had already been selected for promotion (Exhibit 24).  The reassignment order was revoked (Exhibit 25).

Upon notification that his records would be reviewed by the DAADB, the applicant requested that the review be held in abeyance for medical and legal screening (Exhibit 26).  He also requested that his record be changed to show his actual active federal service (Exhibit 27).  His basic active service date was changed (Exhibits 28 and 29).  He received his 20 year letter (Exhibit 30).  He submitted his rebuttal to the proposed DAADB action (Exhibit 13), and on             15 October 1996 his request that the referral of his records be delayed was denied (Exhibit 31).  Exhibit 32 shows that the applicant was pending a Medical Evaluation Board/Physical Evaluation Board (MEB/PEB). 

Counsel states that the applicant attempted to advise the DAADB that he had      18 years of service and consequently, the DAADB was required to obtain authorization from the Secretary of the Army prior to initiating administrative proceedings against him (Exhibit 33). 

At Exhibit 36 is a record of a telephone conversation between the applicant and an official at ARPERCEN concerning his situation.  Counsel states that the official confirmed that her office had been advised in October 1996 that a MEB was pending, and that her office had provided requested materials (Exhibit 37).

Counsel states that to this day the applicant has not received a discharge certificate, orders, or other confirmation that he was released from active duty, nor had he been processed for separation under the provisions of Army Regulation 635-10.

Counsel states that the Army violated its own regulations when it pursued administrative separation by the DAADB without prior authorization from the Secretary of the Army, insofar as the projected date of separation was after the applicant had served 18 years on active duty.  Counsel states that an officer with more than 18 years of active duty may not even be considered by a DAADB absent authorization by the Secretary of the Army, and that the Secretary of the Army or his delegee is the ultimate approving authority for all DAADBs.  Counsel states that officers who are released from active duty, discharged, or retired must be furnished a DD Form 214 and that a member of the armed forces may not be discharged until he receives a discharge certificate or certificate of release from active duty, and his final pay is ready for delivery to him.  Counsel states that where an involuntary separation is precipitated by the commission of a legal error, the action may be declared void, and the service member is entitled to back pay.  Counsel provides an analysis in which he states, in effect, that the Secretary of the Army’s approval was required prior to referral of the applicant to the DAADB, based on the applicant’s 18 years of active duty, the fact of which he provided responsible officials.  Counsel states that the Army ignored the applicant’s sanctuary (18 years of active duty) provisions.

Counsel states that the Army erred when it forwarded the DAADB decision to the Secretary of the Army without simultaneously forwarding the recommendation of the PEB.  Counsel states that the regulation provides that when an officer is being processed for elimination, while also being considered by a PEB, both actions would be forwarded to the Total Army Personnel Command (PERSCOM), then to the Secretary of the Army for determination of appropriate disposition.  Counsel states that the Army failed to follow the governing regulations when the DAADB considered the applicant’s case and made its determination.  ARPERCEN then forwarded the action to the Secretary prior to completion of the PEB.  Counsel states that no simultaneous consideration took place, and that the DAADB determination was reviewed and preliminarily accepted prior to any consideration by the PEB.  The premature consideration of the DAADB likely prejudiced the Secretary’s consideration of his case – leading to the outcome that he was purportedly discharged from active duty in April 1998, and subsequently discharged due to medical unfitness in November 1998 (The applicant, under protest, chose instead to be transferred to the Retired Reserve). 
Counsel argues that because the applicant had 20 years of service when found unfit for active duty due to his physical disability, he was entitled to permanent retirement.  Counsel points out that the chief of the Physical Disability Branch, when issuing orders discharging the applicant from the Army Reserve, stated that the applicant had accumulated 20 years, 1 month, and 19 days service as computed under section 1208, title 10, U.S.C.  Based on that information, the applicant requested regular retirement; however, the chief of the branch then advised him that the calculation was not active duty but instead Reserve component retirement credit.  The chief incorrectly advised the applicant that he had only 18 years, 6 months, and 7 days of active service.  Counsel states that the branch chief contradicted himself, and that the applicant was entitled to full retirement.   

Counsel states that the applicant’s actions, for which he was punished, did not warrant his discharge in view of his many years of honorable military service, in that he was placed in an untenable position by his superior officers and forced into either disobeying a direct order to produce an OER that had not been finalized, or comply with the order, to produce the OER with the appropriate signatures, despite the fact that the raters were unavailable and the chain of command knew it.  The applicant chose to sign the OER in light of the practice common within the command, for which he underwent a court-martial.  Counsel states that it was fundamentally unjust to have the applicant subjected to a court-martial and to a DAADB action.  Counsel states that the Board should set aside the findings of the DAADB, reinstate the applicant into the Army, grant him all back pay, benefits, and allowances to include promotion to lieutenant colonel, and retire him with retirement pay.  

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant served in the Air Force Reserve and in the Marine Corps as an enlisted soldier before obtaining a commission in 1974.  He was a pilot, was discharged from the Marine Corps in the rank of Captain in February 1981, and served with the Hawaii Army National Guard.  He was discharged from that component in 1986 and transferred to the Army Reserve.

Regarding his promotion status:  On 29 November 1993 the applicant was notified by the Total Army Personnel Command at St. Louis that he had been selected for promotion to lieutenant colonel with a PED of 7 February 1994.  However, on 15 December 1995 he was notified that he was considered for promotion, but not recommended, constituting his first passover for promotion to lieutenant colonel.  On 12 April 1996 he was notified that his file had been reviewed, and his PED was now 24 November 1993, and that he could be promoted to lieutenant colonel when he was in a position or when he transferred to the Individual Ready Reserve (IRR).  Nonetheless, On 1 September 1999 the applicant was released from the Army Reserve Control Group (Reinforcement) and assigned to the Retired Reserve because of his non selection for promotion. Realizing the mistake, the order effecting this action was revoked                        on 25 October 1999. 

On 30 June 1995, while assigned to the 310th TAACOM, the applicant was arraigned, tried, and found guilty by a general court-martial of making a false official statement, and of conduct unbecoming an officer by altering an OER.  

On 9 July 1996 the Army Reserve Command notified the applicant that his records would be sent to the DAADB to determine if he should be retained on active duty (Exhibit 22).  That notification informed him that should he be involuntarily released from active duty he would be released no sooner than        5 days, but not later than 14 days after he had acknowledged receipt of the DAADB findings.  An enclosure to that notification indicates that files referred to the DAADB for consideration were [files of officers] with less than 18 years of active federal service on the projected separation date.  The 310th TAACOM endorsed that notification to the applicant on 20 July 1996.  A notation on that endorsement indicates that he received the notification on 19 August 1996.  

On 20 August 1996 the applicant requested that the DAADB action be held in abeyance until completion of medical screening and treatment, and for completion of the punishment phase and monetary forfeiture, end of       November 1996 (Exhibit 26).   His request was denied by ARPERCEN on         13 October 1996.

On 22 August 1996 the applicant requested that the Full Time Management Center at St. Louis add 53 days to his active federal service time.  A note on that request indicates that ARPERCEN received it on 28 August 1996.

On 28 October 1996 the PEB liaison officer (PEBLO) informed ARPERCEN that the applicant was pending a MEB/PEB, and requested information whether any adverse personnel action was being considered against the applicant. 

On 6 November 1996 the Total Army Personnel Command (PERSCOM) forwarded the DAADB case on the applicant through the Director, Army Council of Review Boards to the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) for review and appropriate action.

On 12 November 1996 ARPERCEN notified the applicant that his BASD was     13 November 1978 (in effect, meaning that he had 18 years of active service as of 12 November 1996). 

On 21 November 1996 the applicant was notified of his eligibility to receive retired pay at age 60 (twenty year letter).

On 9 December 1996 the DAADB recommended to the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs), that the applicant be released from active duty for misconduct, moral or professional dereliction with an Under Other Than Honorable Conditions characterization of service, and that he be referred to ARPERCEN to be considered for elimination from the service.  On 16 December 1996 the recommendation was approved.

Copies of  facsimiles to ARPERCEN in December 1996 and in January 1997 indicate that the applicant informed an official at that agency of his 18 years of active service and of his pending MEB/PEB (Exhibit 33). 

On 19 December 1996 ARPERCEN notified him that a DAADB selected him for involuntary release from active duty with an Under Other than Honorable Conditions characterization of service; and that the board recommended that he be referred to ARPERCEN to be considered for elimination from the Army Reserve (Exhibit 34).  His command was notified of that action on the same date.

A copy of a conversation record with an official at ARPERCEN indicates that the applicant expressed his concern about the DAADB considering his 18 years of service and the pending MEB/PEB.  He was informed by that official that she would look into it.  

On 13 January 1997 the applicant acknowledged that he had received the results of the DAADB.  He signed that acknowledgement under protest (Exhibit 38). 

On 10 February 1997 ARPERCEN requested approval of the Secretary of the Army to release the applicant from active duty in view of the fact that the applicant had 18 years of active federal service.  In that request, ARPERCEN indicated that the applicant was provided a complete copy of the entire file that was sent to the DAADB, to include a calculation that his BASD was                   10 January 1979, and that the applicant, in his written rebuttal, gave no indication that he believed his BASD was in error.  ARPERCEN did indicate that the applicant requested a recalculation of his BASD, and that his BASD was adjusted to 13 November 1978; however, that information was not provided the point of contact processing the DAADB action.  The DAADB recommended that the applicant be released from active duty and that recommendation was approved on 16 December 1996.  However, the applicant attained 18 years of active federal service prior to the DAADB rendering a decision.  ARPERCEN indicated that the DAADB results were expeditiously handled and that the board was under the impression that he would complete 18 years of active federal service on      10 January 1997.  When informed that the results would be presented to him by the GOSCA (General Officer Show Cause Authority), the applicant provided a copy of the form reflecting his adjusted BASD.  ARPERCEN also noted that the applicant was awaiting a PEB.     

On 10 February 1997 ARPERCEN informed the applicant that the DAADB results had been forwarded to the Secretary of the Army for a determination in view of the fact that he had 18 years of active federal service (Exhibit 41).  In a facsimile to ARPERCEN on 18 February 1997 the applicant stated that their action was incorrect, in that the regulation requires the results of his physical disability evaluation and the DAADB action to be forwarded simultaneously to the Secretary of the Army. 

In his rebuttal to the ARPERCEN request, the applicant stated that he was not notified of the action to refer him to the DAADB until 19 August 1996.  The DAADB convened in December 1996 and recommended his release on             16 December 1996.  He was notified on 13 January 1997 that he would be separated on 27 January 1997.  His BASD is 13 November 1978, thus he had    18 years of active federal service on 13 November 1996, prior to the consideration of his case by the DAADB.  Therefore, the consideration of his case by the Secretary of the Army without prior approval was improper and in violation of the governing regulation.  The applicant goes on to say that the ARPERCEN memorandum contained several inaccuracies, to include the timelines concerning the sequence of events in the handling of his case, i.e., the date in which he was advised that his record would be reviewed by the DAADB, the dates concerning the correction of his BASD.  He also stated that ARPERCEN cited his court-martial as the basis for the referral of his case to the DAADB; however, the court-martial was not yet final, because the general court-martial convening authority had not issued a final promulgating order.  Additionally, once final action was taken, he still had the right to appeal.  The applicant also stated that ARPERCEN failed to follow the guidance contained in the regulation concerning his medical screening.  He stated that ARPERCEN mishandled his case and ignored the provisions of the governing regulations.  Rebuttal is at Exhibit 40.

In an 18 June 1997 memorandum the Office of the Chief of the Army Reserve stated that final disposition of his case was awaiting physical disability agency review of his medical condition and subsequent decision by the Assistant Secretary of the Army (Manpower and Reserve Affairs).  The applicant was informed that it was his responsibility to ensure that his records were current, and that it was their determination that his separation was properly processed in accordance with the regulation (Exhibit 43).

On 2 June 1997 a PEB determined that the applicant was physically unfit and recommended a combined rating of 10% and that he be separated with severance pay.  The applicant concurred; however, he requested to be retained on active duty (Exhibits 44 and 45).

On 20 March 1998 the applicant was notified that the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the DAADB decision to involuntarily release the applicant from active duty with an other than honorable characterization of service, and his elimination from the Army Reserve for medical unfitness (Exhibit 1).  On 2 April 1998 he acknowledged receipt, protesting that decision (Exhibit 46).

On 13 April 1998 the Army Reserve Personnel Command published an order reattaching the applicant to the Army Transition Point at Fort Belvoir, Virginia, for separation processing, with a reporting date of 16 April 1998.  On 13 April 1998 that same command published an order releasing the applicant from active duty effective on 16 April 1998, and assigning him to the Army Reserve Control Group (Reinforcement).   

On 19 May 1998 the applicant was notified that the findings of the PEB were approved and he was offered the option of electing transfer to the Retired Reserve or discharge with disability severance pay (Exhibit 47).  On                     2 November 1998 the applicant was notified that he was discharged with a disability rating of 10 percent (Exhibit 48).  On 10 November 1998 the applicant declined discharge and requested regular retirement based on 20 years of active federal service (Exhibit 50).  On that same date the applicant was notified that he was not eligible for regular retirement, but only eligible for transfer to the Retired Reserve (Exhibit 51).  The applicant elected, under protest, to be transferred to the Retired Reserve (Exhibit 52).  The order discharging him with severance pay was revoked (Exhibit 53). 

Army Regulation 600-8-24 prescribes policies and procedures for the transfer and discharge of officer personnel.   Paragraph1.21f states in pertinent part that no formal discharge certificate will be issued when the officer is discharged under other than honorable conditions.  Paragraph 1.21g states that a DD Form 214 will be furnished as prescribed in Army Regulation 635-5 to an officer who is separated from active duty after completing 90 calendar days of continuous active duty.

Paragraph 1.23b concerns referral for physical disability evaluation and states in effect, that when a commissioned officer is being processed because of referral to the DAADB, the officer will be processed in accordance with the provisions of this regulation and through the MEB/PEB system.  If a physical disability evaluation results in a finding of physical unfitness, both actions will be forwarded by the Total Army Personnel Command (PERSCOM) to the Secretary of the Army for determination of appropriate disposition.   

Paragraph 1-27 states that separation requests or actions not specifically covered in this regulation that pertain to a Reserve component (RC) officer not on the active duty list (ADL) will be routed to the Commander, ARPERCEN.

Chapter 2 sets forth the tasks, rules, and steps for the release from active duty (REFRAD) of RC officers and officers of the Army of the United States without specification of component. 

Paragraph 2.31 provides the rules for processing involuntary REFRAD by the DAADB.  Paragraph 2-31a states that the DAADB (qualitative) is the Army’s tool for ensuring that only an RC officer who consistently maintains high standards of performance, efficiency, morality, and professionalism is permitted to serve on active duty.  The Director, Army Council of Review Boards, will operate the DAADB.  Approval authority to release or retain an officer under this paragraph is the Secretary of the Army or his or her designated representative.  His or her decisions are final. 

Paragraph 2.31c provides for commanders and certain other officials to recommend that an RC officer be considered by a DAADB to determine if the officer’s manner of performance, degree of efficiency, or misconduct constitutes consideration for involuntary separation.  Files referred to the DAADB will be identified according to certain criteria, one of which was that an officer have less than 18 years of AFS on the projected separation date.

Paragraph 2.31g states that the DAADB is convened under prescribed guidance as stated in the Memorandum of Instruction (MOI), issued by the Secretary of the Army or his or her delegee.  Therefore, the MOI may modify the terms of this regulation for the board, without changing the regulation, unless it is contrary to statute.

Paragraph 2.31h states that an officer who will complete 18 or more years of AFS on his or her scheduled release date will not be processed under this section, unless such action is approved by the Secretary of the Army.
   
Paragraph 2.31p states that the Secretary of the Army or his or her delegee is the final approving authority on all DAADB cases.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 4-4 states that a commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions.  Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.  Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced.  The administrative separation will be forwarded to the Commander, PERSCOM.  The Commander, PERSCOM, will refer the entire file, including both courses of action, to the Office of the Secretary of the Army for necessary review.  The Secretary of the Army will decide the proper disposition of the case.  
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant did have over 18 years of active federal service effective on    12 November 1996.  This was not the case however when he received the notification by ARPERCEN on 19 August 1996 that his records would be referred to the DAADB to determine if he should be retained on active duty.  Consequently, the processing of his case continued.  The applicant acted to correct his record, and it was corrected; however, apparently too late to affect the DAADB recommendation on 9 December 1996 that he be released from active duty.  That recommendation was approved on 16 December 1996 by the 
Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs), and on 13 January 1997 the applicant acknowledged that he had received the results.

2.  One month later ARPERCEN, realizing that the applicant had 18 years of active federal service, requested approval of the Secretary of the Army to release the applicant from active duty, albeit approval had been previously granted.  ARPERCEN noted in that request that the applicant was awaiting a PEB.  The Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) approved that request on 20 January 1998.  In a 20 March 1998 letter to the applicant ARPERCEN notified the applicant that he would be released from the Army Reserve because of his physical unfitness.  Ultimately, he was released from active duty on 16 April 1998, assigned to the Army Reserve Control Group (Reinforcement), and subsequently transferred to the Retired Reserve.      

3.  Notwithstanding counsel’s contentions, the applicant’s elimination processing (consideration of his records by a DAADB) and his PEB processing were conducted simultaneously.  ARPERCEN was aware of the PEB, and so notified the Office of the Secretary of the Army in their 10 February 1997 request that the applicant be released from active duty.  Counsel’s contention that the                  9 December 1996 DAADB recommendation likely prejudiced the Secretary’s consideration of the applicant’s case has no basis in fact.  Nevertheless, it is the opinion of this Board that the Secretary’s decision would not have been otherwise, with or without that recommendation.  The Board also believes that the Secretary of the Army would have initially authorized elimination proceedings regardless of the applicant’s years of service, with the same results. 

4.  The applicant did not have 20 years of active federal service on                    13 November 1998 when he requested transfer to the Retired Reserve as counsel contends.  He was, in fact, in the Army Reserve Control Group (Reinforcement) at the time of his request, having been released from active duty on 16 April 1998.  He is not entitled to regular service retired pay. 

5.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.   

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rwa___  ____gjw_  ___ajr_  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042376	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010327	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.