MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           1 August 2002   
	DOCKET NUMBER:   AR2002067948

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith 		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:  In effect, that the reason and authority for his separation be changed from resignation in lieu of trial by court-martial.  He also requests, in effect, to appear in person at a formal hearing.

APPLICANT STATES:  That he made a mistake by wearing an unauthorized insignia, a Ranger Tab.  Although he received an honorable discharge, the reason for his separation keeps him from being allowed to serve in the future.  He contends that soldiers who committed far more serious offenses are granted waivers but that because he was discharged, "in lieu of court-martial," he cannot obtain a waiver.

He states that he accepted full responsibility although he "had received conflicting orders from his superiors regarding the completion of the applicable Ranger Level requirements and his qualifications for subsequent assignments…."  The narrative reason for separation has hindered his employment prospects and, in effect, should be changed to "Secretarial Authority or "resignation from active duty"

His Ranger School instructor told him that he had failed a portion of the course and would not graduate.  Nevertheless, he received orders, Exhibit 3, [Exhibit 3 is a microfiche print from his Official Military Personnel File (OMPF).] awarding him the Ranger Tab.  In effect, he did not wear the Ranger Tab until after he reached the 1st Infantry Division and was selected to coordinate the design and implementation of a Pre-Ranger training course.  He believes that both the assignment to the 1st Infantry Division and his selection to develop the Pre-Ranger training course were based upon the applicant's Officer Record Brief (ORB), Exhibit 11, which indicates completion of the Ranger Course in 1994.  He informed the executive officer, who had selected him for this assignment, that he had not earned the Ranger Tab.  Nevertheless, the assignment was made.  He "understood from this conversation that the Tab was not an issue.  Thereafter, [the applicant] wore the Tab to lend credibility to Major General G____'s Pre-Ranger training course."  

He believes that no one made an issue of his wearing the Ranger Tab because plans for the course were well underway and the executive officer did not wish to admit his mistake.  He was in charge of the project from 1998 to 1999 and received numerous accolades for his work.

By the time he was notified of a pending investigation and possible charges for wearing the unauthorized insignia, he had supervised two successful cycles of the Pre-Ranger training course and "had all but forgotten about the informal and presumably superseded notice he had received on the day of graduation from the Ranger School in April 1994."

He did not desire to stand trial and voluntarily tendered his resignation for the good of the service.  He did not understand and was never specifically advised that he would receive a DD Form 214 (Certificate of Release or Discharge from Active Duty) that would state that the discharge was in lieu of trial by court-martial.  

The outcome of this case is unduly harsh.  Similar cases usually result in nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice.  He decided not to retain civilian counsel because his assigned military defense counsel informed him that such matters were generally dealt with by a letter of reprimand or an NJP.  The fact that he faced charges was more the result of the chain of command's embarrassment than of the seriousness on the offense.  This is demonstrated by the Officer Evaluation Report that characterizes him as lacking in honor, integrity and selfless service despite praising him for the tremendous job he did in developing and implementing the course.  

The narrative reason for the discharge as stated on the DD Form 214 is an ongoing hardship that deprives him of significant employment opportunities and deprives him of a chance to make a significant contribution to the nation.  The words "in lieu of trial by court-martial" negate the effects of the honorable discharge.  "The narrative reason, as stated, is a subjective characterization that under all circumstances is unfair and unjust." 

He submits copies of numerous service record document and letters supporting the applicant's efforts to be allowed to join the Army Reserve, a letter of recommendation from his supervisor with the Bureau of Census and several post-service letters and certificates of appreciation.

EVIDENCE OF RECORD:  The available military records show:

The applicant, a graduate of the West Point Preparatory School and the United States Military Academy, was a Regular Army captain with approximately 6 years of active duty service when he was charged, on 20 April 1999, with two specifications (on or about April 1997 and between December 1998 and February 1999) of violating Article 134, UCMJ by wearing an unauthorized insignia, a Ranger Tab.

On 31 May 1999 the applicant voluntarily tendered his resignation for the "Good of the Service in Lieu of General Court-Martial."  His request stated that he had consulted with a named civilian counsel and that he had been afforded an opportunity to present matters in mitigation and extenuation.  He also stated "I understand that…I will be barred from all rights based on the period of service from which I am separated under any laws administered by the Department of Veterans Affairs…." 

The General Court-Martial Convening Authority (GCMCA) recommended approval of the applicant's request and separation with a general discharge.  The Ad Hoc Review Board considered the case and recommended approval of the applicant's request and separation with an honorable discharge.  The designated Secretarial Authority, the Deputy Assistant Secretary (Review Boards Agency), approved the request and directed that an honorable discharge be issued.

On 10 October 1999 the applicant was separated with an honorable discharge under the provisions of Army Regulation 600-8-24, chapter 3.  He had 6 years, 4 months and 12 days of creditable active service.   The Narrative Reason for Separation, item 28 of his DD Form 214, is In Lieu of Trial by Court-martial and the Separation Code, in item 26, is DFS.

On 18 September 2000, the Army Discharge Review Board considered the case and denied his request to change the narrative reason for separation.

Army Regulation 600-8-24, Officers Transfer and Discharge, paragraph 3-13 provides that an officer, on whom court-martial charges have been preferred with a view toward trial by general court-martial, cannot submit an unqualified resignation but may submit a resignation for the good of the service in lieu of general court-martial.  The request does not necessarily suspend proceedings but the GCMCA may not take final action upon a sentence until the Secretary of the Army (or his designee) takes final action on the request. 

Army Regulation 635-5-1,Separation Program Designator (SPD) Codes, implements Department of Defense policy for standardization of certain entries on the DD Form 214.  It sets forth the SPDs to be used and the associated narrative reasons and authorities.  It applies to both officer and enlisted personnel in the regular and reserve components who are issued a DD Form 214 in accordance with Army Regulation 635-5 and it is intended to be used in conjunction with that publication. Table B-1 indicates that officers who are separated in accordance with Army Regulation 600-8-24, chapter 3 are to be assigned a narrative reason of In Lieu of Trial by Court-martial and a separation code of DFS.

There is no statutory or regulatory right to a formal hearing.  The Board receives over 13,000 applications each year, but normally grants fewer than fifteen formal hearings a year.  Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.

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.  There is no available evidence to substantiate the contention that the applicant told the executive officer that he was not qualified to wear the Ranger Tab.  Furthermore, that incident, as described, hardly seems to justify the assumption that "the Tab was not an issue." 

2.  The Board finds no reasonable justification for the assertion that the applicant had received contradictory directions concerning Ranger qualification and no basis for concluding that his failure of the Ranger course had been somehow rescinded.  

3.  The applicant's voluntary request for separation for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The DD Form 214 was prepared in accordance with governing regulations and the narrative reason is not a "subjective characterization."  It is a succinct description of the applicant's discharge. 

4.  In light of the subject line of his request, which read "Conditional Resignation for the Good of the Service in Lieu of General Court-Martial," there was no need to counsel the applicant that those words would appear on his discharge.  Furthermore, the fact that he had to acknowledge that he would forfeit certain rights put him on notice that the action he was requesting was unfavorable in nature. 

5.  By his own admission, the applicant knew, long before he started wearing the Ranger Tab, that he was not Ranger qualified.  He cites the orders awarding him the Ranger Tab and the erroneous entry in his ORB as justifying his actions.  In reality, the applicant had an obligation to see to it that his OMPF and his ORB were corrected. 

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 this requirement.

7.  The Board concludes that this case is not so complex or the records so incomplete that sworn testimony is required.  A formal hearing is not warranted.

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

__SAC__  ___MHM_  __RKS __  DENY APPLICATION

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

INDEX

CASE ID	AR2002067948	
SUFFIX		
RECON		
DATE BOARDED	20020801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	19991010	
DISCHARGE AUTHORITY	AR600-8-24	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.		
3.		
4.		
5.		
6.