MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 December 2001                   
	DOCKET NUMBER:   AR2001062250

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Lester Echols		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:  That the narrative reason for his separation be changed to secretarial authority.

APPLICANT STATES:  That his discharge was inequitable and improper because it was based on one isolated incident that resulted in his resignation for the good of the service.  No harm, other than embarrassment to his superiors and himself, was done to anyone but himself.  In addition, his resignation was to be submitted along with his medical evaluation so the Deputy Secretary of the Army could make a fair, unbiased determination.  However, no medical records/evaluations accompanied his resignation.  He was discharged in absentia, given an other than honorable discharge, and was not even allowed a discharge physical.  This failure prevented him from pulling his resignation and prevented the fact that he was under the care of a psychiatrist during this period of turmoil from becoming known.  He was under a lot of stress and did not clearly understand that the actions he was taking could have resulted in court-martial proceedings.  The resulting stress made him seek psychiatric care long before any charges were filed and before he submitted his resignation under duress.  
Because he was not allowed to take a separation physical, he could not establish that he was under psychiatric care for depression and, most importantly, he could not document nerve damage suffered in his ankle as a result of one of four surgeries.  As supporting evidence he provides a medical opinion dated            11 March 2000 indicating the applicant had been diagnosed with adjustment disorder with depressed mood sustained by the stress of litigation, obsessive compulsive traits, degenerative arthritis, neuropathy following numerous surgeries to feet and ankles, and stress due to legal problems and marital discord, and a 7 June 1991 memorandum indicating his request for retention beyond his original separation date had been disapproved.

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

After having had prior enlisted service in the U. S. Marine Corps, he entered active duty in the Army as a second lieutenant on 10 December 1982.  He was promoted to captain (in the Quartermaster Corps) on 1 December 1986.

The applicant’s Officer Evaluation Report (OER) for the period ending 31 July 1990 shows that he was rated as a G-4 Plans Officer, that he passed his physical fitness test in March 1990, that he always exceeded requirements and that he was recommended for promotion ahead of his contemporaries.

On 3 December 1990, the applicant was referred to Brooke Army Medical Center for a neurosurgerical consultation regarding an ankle condition.

In a sworn statement to a Criminal Investigation Command (CID) investigator dated 13 December 1990, the applicant stated that he and his wife were divorced in June 1986 and remarried in December 1986.  After a reconciliation failed, he was assigned to Korea and took another woman with him.  Around the end of 1987 that woman left him.  He again reconciled with his wife and was reassigned to Fort Hood, TX.  The reconciliation did not work out and he moved out of the house.  He met another woman, T___ D___, and they became intimate in January 1989.  D___ moved in June 1989.  His marriage improved.  D___ moved back to Texas and he again became intimate with her.  His wife moved to another state and he continued having intimate relations with D___.  His wife moved back to Texas around December 1989.  He told his wife that he was intimate with D___.  His wife talked about a divorce but he told her that she would have to be the one to initiate it.  Later, his relationship with D__ slowed down.  In May 1990, he told D___ it was all over.  A few weeks later, he met her in the club.  They got intimate again.  

The applicant continued by relating that in September 1990 he was given a project to prepare a memorandum concerning logistical support to units deploying to Operation Desert Storm that involved working with a computer and the Word Perfect system.  He did not know much about computers but D___ did. One day he took an office laptop computer to D___’s house for her assistance in installing Word Perfect and assisting him with the memorandum.  He did not know the information he was working on was classified.  She assisted him about ten separate times, the sessions lasting only about five minutes each.  The data she was working on was common knowledge and available to the public.  

The applicant stated that October 1990 was the last time he had sex with D___.  During the course of their relationship, D___ told several people that if he ever did her wrong that she would get him.  (D___ had initiated this investigation when she informed the 902d Military Intelligence Group, Fort Hood, TX that the applicant had given her classified information which he wanted her to process using a U. S. Government computer he had taken from his office.)

An investigation conducted by the 902d Military Intelligence Group and the Intelligence and Security Command determined that a foreign intelligence collection operation was unlikely in the incident.  They found that a physical loss of classified material did not occur.  They found that a compromise of classified material did occur but the compromise could not reasonably be expected to cause damage to the national security because its unauthorized disclosure did not affect the deployment of the units listed in the document and the information had since been declassified.  They found that there was no indication of a 

security weakness in the activity and that the applicant’s actions were a willful disregard of security procedures.  This finding was based on a review of and documentation of an active security training program in which the applicant participated.  

On 4 January 1991, a “med board periodic” physical found the applicant to be qualified for retention with a permanent 2 profile for the lower extremities.  It was noted he had a decreased range of motion in the ankles and a history of four ankle surgeries.  At this time he was referred to the medical clinic for high blood pressure and for a hearing consultation.

Apparently, the applicant was first treated for symptoms of depression on          29 January 1991.

On 13 February 1991, charges were preferred against the applicant charging him with violating a lawful general regulation by knowingly disclosing classified information to unauthorized persons, knowingly removing classified information from designated work areas without proper authorization, and improperly guarding or storing classified information; wrongfully having sexual intercourse on numerous occasions with a woman not his wife; and having possession of and access to information relating to the national defense and willfully transmitting or communicating the same information to a person not entitled to receive it.  

On 19 and 27 February 1991, an Article 32 hearing was held to investigate the preferred charges.  The applicant and defense counsel were present at the hearing.  The investigating officer found that no evidence was presented to show that the applicant was not mentally competent.  General court-martial was recommended but with one specification of the second charge dismissed.  On  22 March 1991, the Staff Judge Advocate disagreed with the investigating officer’s recommendation that the one specification be dismissed and recommended that the charges and their specifications be tried by general court-martial.  On 22 March 1991, the general court-martial convening authority approved the Staff Judge Advocate’s recommendation.  

On 25 March 1991, the applicant submitted a resignation for the good of the service under the provisions of Army Regulation 635-120, paragraph 5-2.  He stated that he did not desire to appear before a court-martial or a board of officers; that he had not been subjected to coercion with respect to the resignation, that he understood that his resignation might result in a discharge under other than honorable conditions (UOTHC), and that if his resignation was 

accepted UOTHC, he would be barred from all rights under any laws administered by the Department of Veterans Affairs (VA) except for insurance policies.  He acknowledged that he was advised and counseled in this matter by counsel and that he fully understood the implications of his action.  

On 28 March 1991, the general court-martial convening authority recommended approval of the applicant’s request with a discharge UOTHC and forwarded the action to Headquarters, Department of the Army.

On 8 April 1991, the AD HOC Review Board recommended the applicant’s resignation be accepted with a discharge UOTHC.  

On 16 April 1991, Brooke Army Medical Center evaluated the applicant.  

On 17 April 1991, the Chief, Medical Boards, U. S. Army Medical Department Activity, Fort Hood, TX prepared a memorandum stating the applicant was undergoing a Medical Evaluation Board (MEB).

On 23 April 1991, the Deputy Assistant Secretary of the Army, Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review, accepted the applicant’s request for resignation with a discharge UOTHC.  He was given a date of discharge of 4 June 1991.  

The MEB Narrative Summary was typed on 10 May 1991 indicating the applicant had diagnoses of limitation of motion of the ankles, right foot numbness, right arm paresthesia, impingement syndrome, patellofemoral knee pain, and right hip pain.  It was recommended he be referred to a physical evaluation board (PEB) for evaluation of fitness for retention.

The applicant acknowledged receipt of the acceptance of his resignation on      21 May 1991.  Orders dated 22 May 1991 assigned the applicant to the U. S. Army Transition Point effective 4 June 1991.  

On 24 May 1991, the applicant requested that action on his resignation be deferred as an MEB had been initiated for conditions resulting from a broken ankle, torn leg ligaments, and a separated shoulder.  He made no mention of a mental condition.  On 30 May 1991, the Patient Administration Division at Darnall Army Community Hospital, Fort Hood, TX requested the applicant be retained past his separation date because he was processing through the Army Physical Disability System.  On 31 May 1991, the Adjutant General, III Corps and Fort Hood, approved the request and adjusted the applicant’s separation date to        3 December 1991.  Orders dated 4 June 1991 revoked his separation orders and issued new orders changing his separation date to 3 December 1991.  

The U. S. Total Army Personnel Command (PERSCOM) disapproved the applicant’s request to defer action on his resignation for the good of the service and directed that he continue to be separated as scheduled.  His separation date was amended to 6 June 1991.  

The applicant was discharged on 6 June 1991, with a discharge UOTHC, under the provisions of Army Regulation 635-120, chapter 5, conduct triable by court-martial after completing 14 years, 7 months, and 3 days of creditable active service.

The applicant’s OER for the period ending 6 June 1991 shows that he passed the physical fitness test in February 1991.  All comments were derogatory but none indicated that he could not perform his duties as a G-4 Plans Officer because of physical limitations.  His rater did note that the applicant abused his physical profile.  The OER was referred to the applicant for comment.  He neither signed the OER nor responded to the referral.

A memorandum dated 7 June 1991 to the applicant informed him his request for retention had been disapproved and that, as he was unable to be contacted at work or at home, he was discharged effective 6 June 1991.  He was requested to contact the U. S. Army Transition Point to coordinate his out-processing.  

Army Regulation 635-120, paragraph 5-1 provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against him or her.  Paragraph 5-2(5) provides that a psychiatric evaluation will accompany the resignation if any reasonable grounds exist to indicate that the officer is, or was at the time of his or her misconduct, mentally defective, deranged, or abnormal.  Paragraph 5-1(3)b provides that the tender of resignation does not preclude or suspend disciplinary proceedings in a case. Whether such proceedings will be held in abeyance pending final action on a resignation tendered is a matter to be determined by the commander exercising general court-martial jurisdiction over the officer concerned.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 3-1 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and 

degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank.  Paragraph 4-1 provides that a soldier charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which would result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless:  (1)  the investigation ends without charges; (2) the officer exercising proper court-martial jurisdiction dismisses the charges; or (3) the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.  

Army Regulation 635-40, paragraph 4-4 provides that a commissioned or warrant officer will not be referred for disability processing instead of elimination action (administration separation) that could result in separation UOTHC.  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, cross-referenced, and forwarded to PERSCOM.  PERSCOM will refer the entire file, including both courses of action, to the Office of the Secretary of the Army for necessary review and proper disposition of the case.

Army Regulation 635-40, paragraph 4-11 provides that the narrative summary to the MEB is the heart of the disability evaluation system.  In describing a soldier’s conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  A correlation must be established between the soldier’s medical defects and physical capabilities.  This is important when a chronic condition is the basis for referral to a PEB and no change in severity of the condition has occurred.

Army Regulation 40-501 governs medical fitness standards for enlistment and appointment, retention, separation, and special duties, for physical profiles and medical examinations.  Paragraph 8-14 states that when accomplished incident to retirement, discharge, or release from active duty, medical examinations are valid for a period of 1 year from the date of the examination.

The Manual for Courts-Martial, United States, 2000 edition states that the elements of Article 134, adultery, are:  (1) that the accused wrongfully had sexual intercourse with a certain person; (2) that, at the time, the accused or the other person was married to someone else; and (3) that, under the circumstances, the 

conduct of the accused was to the prejudice of the good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.  The maximum punishment is a dishonorable discharge (dismissal for an officer), forfeiture of all pay and allowances, and confinement for 1 year.

On 21 June 1996, the Army Discharge Review Board upgraded the applicant’s characterization of discharge to general under honorable conditions based upon his generally acceptable performance of duty but determined that the reason for his discharge was proper and equitable.

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.  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 this requirement.

2.  The applicant’s contention that his discharge was based on one isolated incident is not supported by the evidence.  Even if the applicant’s giving a classified document to his girlfriend on ten separate occasions is discounted as one incident, by the applicant’s own admission he committed adultery on numerous occasions between 1987 and 1990, to include taking a woman not his wife with him on his tour in Korea.  When his wife later discussed divorce with him after being informed of his continuing relationship with D___, he informed her that she would have to initiate the divorce.  It appears the applicant had no intention of ever stopping his violations of Article 134, adultery.  The end result of his adultery occurred when D___ followed through on her threat to “get him” if he ever “did her wrong,” which he enabled her to do through his own extreme bad judgment, and which brought discredit upon the armed forces.

3.  The available evidence shows the applicant was first treated for depression in January 1991, after the investigation into the allegations of adultery and violations of security procedures began.  It was his own misconduct (including acts of adultery that occurred over several years) that led to the investigation that led to his depression.  The applicant and his counsel sought the discharge in lieu of court-martial to avoid the probability of the applicant’s being convicted, being 
separated with a punitive discharge, and possibly imprisoned for release of war-related classified material among other crimes.  This display of rational thinking belies the applicant’s contentions that he did not understand his crimes or the discharge in lieu of court-martial process and diminishes the reliability of any psychiatric opinion which seeks to establish his depression or that treatment thereof resulted in mental impairment.  When he requested, on 24 May 1991, to have his discharge deferred pending disability processing, he outlined several medical impairments as the reasons for the deferment but made no mention of depression or other mental problems.  He has failed to establish the existence of any serious error.

4.  Court-martial charges which could have resulted in the applicant’s dismissal were preferred in March 1991.  He voluntarily submitted his resignation on        25 March 1991.  He was advised by counsel prior to submitting the resignation and there is no evidence to show that he was mentally incapable of making an informed request at that time.  Under the provisions of Army Regulation 635-40, paragraph 4-1, as the investigation neither ended without charges nor were the charges dismissed nor were the charges referred for trial to a court-martial that could not adjudge such a sentence of dismissal, the applicant was erroneously referred for disability processing in April 1991.  In any case, his resignation for the good of the service was forwarded to Headquarters, Department of the Army on 28 March 1991 and the AD HOC Review Board recommended the applicant’s 
resignation be accepted with a discharge UOTHC on 8 April 1991.  Medical notice that he was undergoing an MEB was not even given until 17 April 1991.
On 23 April 1991, the Deputy Assistant Secretary of the Army accepted his resignation.  The MEB Narrative Summary was not even dictated until 10 May 1991.  It was not possible for a medical evaluation that had not even yet been accomplished to accompany the request for resignation.  In any event, the Deputy Assistant Secretary of the Army reviewed and denied the applicant’s appeal to stay the separation action after being made aware the applicant had a disability issue.

5.  The applicant’s being discharged in absentia was not contrary to any regulation and is not an uncommon occurrence.  It often happens when soldiers are placed on excess leave awaiting punitive or administrative discharge.  The applicant was aware of the type of discharge he was to receive.  There is no evidence to show that he was detrimentally affected by this occurrence.  

6.  There is no evidence to show that the applicant’s failure to receive yet another “separation” physical worked to the detriment of the applicant.  His January 1991 physical was accomplished incident to retirement, discharge, or release from 
active duty (i.e., what he hoped would be a physical disability separation) and noted in detail his ankle problems.  Follow-up consultations also noted in detail his ankle problems.  That medical examination was valid for a period of 1 year and so was valid at the time of his separation in June 1991.  There was no indication that reasonable grounds existed to indicate he was, or was at the time of his misconduct, mentally defective, deranged, or abnormal and so it appears that a psychiatric evaluation was not required.  Other medical documents noted he was being treated for symptoms of depression but nowhere noted that he was mentally incapacitated or impaired.

7.  Considering all the above factors, the narrative reason for his discharge was and still is appropriate.  

8.  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

__jns___  __tbr___  __le____  DENY APPLICATION

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

INDEX

CASE ID	AR2001062250	
SUFFIX		
RECON		
DATE BOARDED	20011220	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.