PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:           18 September 2001
	DOCKET NUMBER:   AR2000050540

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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, in effect, that he receive back pay and allowances with interest for the period 1981 through 1988; he be credited with time served between 1981 and 1988, and that he be credited with retirement points and creditable service for retired pay for all his time served.  

3.  The applicant states, in effect, that he was convicted by a general 
court-martial (GCM) and sentenced to 2 years confinement at hard labor, forfeiture of all pay and allowances, and dismissal from the service in October 1982.  He claims that he originally applied to the Army Board for Correction of Military Records (ABCMR) requesting that a flawed Officer Evaluation Report (OER) be removed from his records; that he be promoted to captain (CPT); that he be provided back pay and allowances due; and that he be granted retirement points.  He indicates that for reasons unknown to him, the ABCMR failed to respond to these issues, with the exception of directing that the flawed OER be removed from his records.  He further comments that this flawed OER suddenly reappeared in his Official Military Personnel File (OMPF), 5 years subsequent to the ABCMR directing it be removed, when he was being considered for promotion to lieutenant colonel (LTC) by a Reserve Component (RC) LTC promotion board.  He is now asking that this Board provide a specific direct response to the issues he raises in his recent applications and more generally to interpret the directive issued, subsequent to his conviction and sentence being set aside by the United States (US) Court of Military Review, that directed that “all rights, privileges, and property of which the accused was deprived by virtue of the finding of guilty and the sentence so set aside will be restored”.  He contends that since 1982, when he was originally convicted his life has been adversely affected by the decisions made by the Fort Ord, California legal community.  He further indicates that he did everything expected of him during the almost 6 years he was assigned to the United States Army Reserve (USAR) awaiting the appeal results that overturned his conviction and he has no doubt that had this injustice not been imposed on him he would have continued to serve on active duty.  Finally, he indicates it is his hope that this injustice will be resolved by this Board as soon as possible.  His expanded summary statement is enclosed.  

4.  The applicant’s military records show that upon his graduation from the Reserve Officer Training Corps (ROTC) program in May 1980 he was commissioned a second lieutenant (2LT) in the USAR.  On 4 January 1981, he entered active duty and was contracted for three years, which established 
3 January 1984, as the expiration date of his active duty service agreement.  He completed the 10 week Quartermaster Officer Basic Course (OBC) and was awarded a primary specialty number 92A (Material Services Management Officer).

5.  On 16 October 1982, the applicant was found guilty by a GCM of violating Article 133 of the Uniform Code of Military Justice (UCMJ) by wrongfully and dishonorably conducting himself in a manner unbecoming an officer and a gentleman.  His sentence included 2 years of confinement at hard labor, forfeiture of all pay and allowances, and dismissal from the service. 

6.  On 19 November 1982, the GCM was promulgated in GCM Order Number 59, issued by Headquarters, 7th Infantry Division and Fort Ord and the sentence was approved by the GCM convening authority.  However, the execution of that portion of the sentence adjudging confinement at hard labor in excess of 
3 months was suspended until the completion of the appellate review.  

7.  On 21 December 1982, the applicant was released from active duty (REFRAD) and transferred to the USAR Control Group (Standby), St. Louis, Missouri, after completing 1 year, 11 months, and 15 days of active military service.  

8.  On 13 July 1984, the US Army Court of Military Review affirmed the GCM guilty finding and sentence adjudged against the applicant and advised the applicant that he had 60 days from the notification of this action to petition the 
US Court of Military Appeals for a grant of review on any matter of law. 

9.  The applicant petitioned the US Court of Military Appeals and on 
22 November 1988, this court rendered the decision to reverse the US Army Court of Military Review and to set aside the GCM finding and sentence adjudged against the applicant.  The basis for this decision was improper juror selection practices.  The underlying facts that led to his conviction were not challenged or impeached by the appellate court.  Therefore, the court did grant the GCM convening authority the authority to reorder a rehearing of the case. 

10.  The case was returned to commanding general (CG) of the US Army Field Artillery Center & Fort Sill, Fort Sill, Oklahoma, who was designated the GCM convening authority authorized to take action in accordance with the decision rendered by the US Court of Military Appeals.  

11.  On 10 February 1989, the Staff Judge Advocate (SJA), Fort Sill forwarded a request to the Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri, asking that the applicant be recalled to active duty based on a determination that a retrial of the charges against the applicant was feasible. 

12.  On 2 March 1989, an official of the Criminal Law Division of the Office of The Judge Advocate General (OTJAG) of the Army provided an opinion that indicated that the UCMJ only authorized an involuntary recall to active duty of a Reservist for offenses committed after 12 March 1987, and because the charges had been preferred against the applicant in 1982, recall provisions did not apply.  Thus, OTJAG opined that there were no regulatory or statutory provisions which would authorize the involuntary call to active duty of the applicant for the purpose of court-martial.  

13.  On 16 March 1989, the SJA, Fort Sill notified the applicant that the US Court of Military Appeals had reversed the findings and sentence of his court-martial and instructed the CG, Fort Sill to determine whether to rehear his case and further that the CG had decided to order a rehearing of his case but that would require his consent to be ordered back to active duty.  The applicant was advised that he had two options in connection with this action, which were to either consent or not consent to being recalled to active duty.  The SJA also informed the applicant that if he elected to consent to recall he would be retried not later than 4 April 1989.  In addition, based on the Appeals court decision he was authorized to be reimbursed the pay and allowances he forfeited between 
19 November and 21 December 1982.  In the event he refused to consent to recall, he was required to sign an enclosed affidavit and he would still be entitled to be reimbursed the pay and allowances he forfeited between 19 November and 21 December 1982.  Additionally, his separation would be characterized as honorable, the case against him would be dismissed, and all his records would be adjusted accordingly.  

14.  On 16 March 1989, the applicant signed an affidavit in which he acknowledged receipt of the notification letter from the SJA, which explained his options in regard to his recall to active duty and he elected not to consent to recall to active duty.  

15.  On 27 March 1989, the Commander, US Army Field Artillery Center & 
Fort Sill dismissed the charge against the applicant and ordered that all rights, privileges, and property affected by the finding of guilty be restored and directed that action be taken to characterize his separation as honorable.  

16.  This decision was promulgated in GCM Order Number 7, issued by Headquarters, US Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, which set aside the finding of guilty and the sentence as promulgated in GCM Order Number 59, Headquarters, 7th Infantry Division and Fort Ord, dated 
19 November 1982.  It also indicated that a rehearing as ordered on 
14 November 1988 was no longer practicable and that the charge against the applicant was dismissed.  Finally, this order directed that all rights, privileges, and property of which the applicant had been deprived by virtue of the finding of guilty and the sentence so set aside would be restored.  
17.  The applicant was issued a Department of Defense (DD) Form 214 (Certificate of Release or Discharge from Active Duty) which documented that he had served on active duty from 4 January 1981 until 21 December 1982, when he was honorably REFRAD and transferred to the USAR.  This document confirms that the reason for his separation was expiration of term of service and that he had completed a total of 1 year, 11 months, and 15 days of active military service.  

18.  On 22 December 1989, the applicant was transferred to the USAR Control Group (Reinforcement), Individual Ready Reserve (IRR), as a result of the decision of the U.S. Court of Military Appeals and on 14 September 1990, Orders Number C-09-028814, issued by ARPERSCOM, reassigned him from the IRR to a Troop Program Unit (TPU), effective 15 September 1990.  

19.  On 7 January 1991, ARPERSCOM published a promotion memorandum that promoted the applicant to 1LT, effective 27 May 1983, which was also established as his date of rank.  On 6 October 1995, ARPERSCOM published a memorandum that promoted him to captain (CPT) with a date of rank of 26 May 1987.  

20.  As a result of the applicant’s request to this Board, on 14 August 1994, the Officer Special Review Board (OSRB) directed that the applicant’s OER for the period 14 April through 30 September 1982, be deleted and that the same period be declared non-rated.  It was also directed that the OER and associated correspondence be removed from his OMPF and that a memorandum for record be added to his OMPF declaring the period as nonrated.   

21.  On 12 February 1996, ARPERSCOM published a memorandum that promoted the applicant to major (MAJ) effective 11 January 1996, with a date of rank of 25 May 1994.  

22.  In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Retirements and Separations Branch, Total Army Personnel Command (PERSCOM), dated 5 June 2001.  It was opined that the doctrine of constructive discharge applied in the applicant’s case and as such, administrative relief should not be granted.  This opinion was based on the enclosed opinion rendered by the PERSCOM, Command Judge Advocate (CJA), which indicated, in effect, that the initial offer to return the applicant to active duty was not improper nor coercive.  However, by regulation, even though he declined that offer to return to active duty, the Army should have offered him the opportunity to return to active duty on 24 March 1989, when the last charge was dismissed and all rights, privileges, and property were ordered restored.  Nonetheless, the PERSCOM CJA opines, under the doctrine of constructive discharge or release from active duty, with the parties acquiescing over a lengthy period of time, a return to active duty is not legally mandated.  

23.  The PERSCOM CJA further stated, in effect, in regard to constructive discharge, that the OTJAG has often opined on the subject and how it applies to certain situations.  Constructive discharge occurs when the conduct of both the Army and member, by affirmative act or inactivity for a substantial period of time, is such that it is clear that both parties acquiesce in a discharged status.  The facts in the applicant’s case suggest the application of constructive discharge or REFRAD because clearly both parties, thereafter, acted for a substantial period of time under the declination to return to active duty, and there is no evidence that suggests the applicant desired to return to active duty.  

24.  The applicant was provided a copy of this opinion and in order to be given the opportunity to respond, which he did on 20 June 2001.  In his rebuttal, the applicant stated, in effect, that he was given limited time to decide whether or not to consent to return to active duty and was forced to meet a captain at a local restaurant, where he was told he had to make his decision on whether or not to return to active duty at that meeting.  He claimed that he felt backed into a corner and if he didn’t make a decision to decline returning to active duty he would lose everything.  He contends the proper thing would have been for the GCM convening authority to advise him in writing of his options and to have him report to Fort Sill to discuss the case.  He again reiterates that the court directed “all rights, privileges, and property of which the accused has been deprived by virtue of the finding of guilty and the sentence so set aside will be restored” and from the date of his court-martial in 1982 up until the appeal court ruled he was adversely affected and to date have yet to be restored.  He also indicates that the PERSCOM opinion does not address his most recent request to be promoted to lieutenant colonel and to be provided all monies due.  He indicated that constructive discharge should not apply since he was told if he elected to return to active duty he would be retried and was asked to make this decision over lunch with no forewarning and certainly no consideration given him that he was due as an officer in the Army and this was not acquiescing over a long period of time.  He applied to this Board in 1992, and still did not receive justice and he asks why it is okay for the Army to not follow the letter of their own law and claims the Army has had plenty of opportunity to correct this second injustice that was imposed on him.  He also asks why the Army never informed him that he had the right to be recalled to active duty after the charge was dismissed.  He states that he was promoted to lieutenant, captain, and major with effective dates as if he had remained on active duty and this appears to be the Army’s only attempt to correct the wrong done him.  He finally indicates that he is pleading that the Army finally do the honorable and legal action mandated by the US Court of Military Appeals that “all rights, privileges, and property of which the accused has been deprived by virtue of the finding of guilty and the sentence so set aside will be restored.”

25.  The Manual of Courts-Martial contains guidance on the restoration, disposition of an original sentence.  It states, in pertinent part, that the Secretary of the Department concerned will order the restoration of rights, privileges, and property affected by an executed portion of a court-martial sentence which has not again been adjudged upon a new trial.  The Secretary concerned will set aside so much of the findings and sentence adjudged upon the original trial as may be appropriate. If a previously executed dismissal is not sustained upon a new trial the Secretary shall substitute a form of discharge authorized for administrative issuance, and an officer dismissed by such a sentence may be reappointed to such a commissioned rank that would have been attained had there been no dismissal; in addition, all time between the dismissal and such reappointment shall be considered as actual service for all purposes, including the right to receive pay and allowances.  

26.  Paragraph 3-71c, Army Regulation 635-100, in effect at the time, stated, in pertinent part, that any officer under a sentence to dismissal, who is REFRAD pending appellate review, will be returned to active duty with their consent at the grade they held on the date of their REFRAD and with the same service commitment when the final appeal action does not include execution of the dismissal. 

CONCLUSIONS:

1.  The Board notes the applicant’s contentions that he should receive a corrected separation document that includes active duty service credit for the period 1981 through 1989; back pay and allowances with interest for this period he was awaiting the appeal decision; and an adjustment to his Reserve retirement points to include the service credited for this period.

2.  The Board concurs with the PERSCOM CJA opinion that coercion was not a factor in the applicant’s decision to decline returning to active duty and it was likely the result of the applicant’s desire not to be retried.  Further, the Board concludes there is evidence to show that this decision has been accepted by both by the applicant and the Army for the period of time since it was made.  Thus, the doctrine of constructive discharge is applicable in this case.

3.  The applicant received the promotions he was denied as a result of his original conviction as if he had never left active duty, which satisfies the grade restoration requirements mandated by the successful appeal decision.  

4.  However, the Board finds the applicant is also entitled to receive active duty service credit and back pay and allowances for the period between his REFRAD, 
12 December 1982 and the expiration of his original contracted 3 year term of service, 3 January 1984.  Therefore, the Board concludes it would be appropriate to credit him with a total of 3 years of active military service from 4 January 1981 to 3 January 1984 and to provide him all back pay and allowances due as a result, minus any applicable off-set for any employment income he received for this same period.

5.  The evidence of record confirms that the applicant’s conviction was set aside based on improper juror selection practices on the part of the GCM convening authority.  However, the underlying facts that led to his court-martial conviction were not challenged or impeached by the appellate court.  

6.  By law, officers serve in the Army at the discretion of The Secretary of the Army.  Therefore, it was up to the Secretary of the Army whether to continue the applicant’s military service after his initial 3 year obligation expired.  Therefore, for this reason and the constructive discharge theory, the applicant is not entitled to active duty service credit, pay, or benefits beyond his initial contracted 3 year obligation.  His argument that he would have continued service but for the 
court-martial conviction is just speculation.  

7.  The evidence of record confirms that the underlying facts that led to the applicant’s court-martial conviction were not challenged or impeached by the appellate court.  Given this, he has no right or entitlement to an expectation of continued military service.  The Secretary of the Army would have retained the right to discharge or refuse him military service because of the misconduct allegations.  Therefore, the Board concludes that there is no merit to his claim of entitlement to service credit for the entire period his appeal was pending from 1981 and 1989 and that service credit beyond that granted in paragraph 4 above is not warranted.  

8.  The Board also notes that the applicant claims that an OER that was removed from his records in 1984 was again on file in his OMPF prior to his being considered by the RC LTC promotion board.  Further, he requested in his rebuttal to the PERSCOM advisory opinion that he be reconsidered for promotion to LTC using the criteria used by the LTC selection board that originally did not select him for promotion.  However, there is no evidence that suggests this contested OER was on file in his OMPF when it was reviewed by the LTC promotion board or that it is currently on file.  Therefore, there is no evidentiary basis for directing he be reconsidered for promotion to LTC by a Special Selection Board (SSB). 

9.  Additionally, by regulation, this Board will not consider any application if all administrative remedies have not been exhausted.  Therefore, if the applicant believes there was a material error in his record reviewed by a promotion board he should request promotion reconsideration from PERSCOM.  If after he exhausts this administrative remedy, his case is still not resolved to his satisfaction and he still feels that an error or injustice exists, he may resubmit an application to this Board, along with evidence of the denial of his request for administrative correction and any evidence of material error.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by crediting the individual concerned with a total of 3 years of active military service from 4 January 1981 through 3 January 1984; by issuing him a corrected DD Form 214 that documents this active duty service; and by providing him any back pay and allowances due for this active duty service, in the rank of 2LT from 12 December 1982 through 26 May 1983 and 1LT from 27 May 1983 through 3 January 1984, with off-sets for any employment income he received for this same period.

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

BOARD VOTE:  

__RJW__  __KWL__  ___PM___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   __Raymond J. Wagner  __
		        CHAIRPERSON

INDEX

CASE ID	AR2000050540	
SUFFIX		
RECON		
DATE BOARDED	2001/09/18	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1982/12/21	
DISCHARGE AUTHORITY	AR 635-100	
DISCHARGE REASON	ETS	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  283	128.1000	
2.  334	135.0200	
3.		
4.		
5.		
6.