MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 April 2002                   
	DOCKET NUMBER:   AR2001065883

	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. Arthur A. Omartian		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Karen Y. Fletcher		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 administrative errors on his Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected and that his separation code (SPD) and authority and reason for discharge be changed to allow him to enlist in a Reserve component.

APPLICANT STATES:  That item 25 of his DD Form 214 contains the incorrect authority for discharge.  His decision to resign was made after receiving assurances from his unit that he would be allowed to reenlist after 2 years.  He was recalled to active duty as a Reserve Special Forces major for Operation Desert Shield/Storm and sent to Saudi Arabia with the 3d Armored Division.  One evening he had to stop the Division Safety Officer from placing himself at the head of a long line of soldiers waiting to call Germany.  The Safety Officer threatened to beat him up and then left angrily.  The applicant was made personally responsible for the security of the Division Rear.  The men in his teams were all infantry and special forces soldiers who were experts in setting up defensive positions but he soon found that the rear area staff sections, especially the Judge Advocate (JA) section, refused to take the security requirements seriously.  Once, some officers in the JA section removed sandbags prepared by enlisted soldiers in the G-2 section and used them to build positions of their own. He ordered the officers to return the sandbags.  He went to see the Staff Judge Advocate but that officer was not very supportive.  One time his teams were given the mission of providing escort and security for ammunition convoys composed of trucks designed solely for use on paved highways.  Driving on sand, they would frequently get stuck up to their axles.  It was a frustrating few days.  On the third day, while waiting for a group of stuck trucks to catch up with them, he noticed an old teapot in the desert.  He kicked it until it was about 20 meters in front of him.  The nearest soldiers were in their trucks about 20 meters behind him.  He pulled out his .45 and shot the teapot four times.  They finally linked up with their brigades on day 6 only to be told the ammunition was not needed.  For six days he was encouraging and cajoling a group of scared, tired, and frustrated soldiers only to be told it was a wasted effort.  When he returned to the convoy, a lieutenant asked him what he would say if someone told them they had to do it all over again.  To that, he pulled out his .45 and fired one round at a 45 degree angle away from them both and fired about four feet out into the sand.  There were no troops anywhere around them and the lieutenant understood his gesture perfectly and agreed.  

The commander of the 121st Transportation Company had repeatedly voiced his concern that his convoys were vulnerable and needed protection from enemy armor.  The applicant’s soldiers had been issued AT-4 anti-tank launchers but no one in his unit had any idea how to arm and fire one.  As a Special Forces officer, he knew how to train and protect the soldiers in his charge.  Once they returned 

to Kuwait, he informed the unit’s commander that he would conduct the class on the AT-4.  He took his soldiers and the company’s officers to a remote site and positioned them for a range-firing exercise.  The target was a disabled Iraqi tank. He paced off 250 meters from the tank, demonstrated the proper firing positions and stances for use with an AT-4, and demonstrated the proper arming and firing sequence.  He then passed out five AT-4s along the 100-meter wide firing line and gave instructions on how they would be fired in sequence under his direct supervision.  The first soldier fired on the target.  As the applicant was moving to assist the second firer, one of his Reserve captains and his driver on the far side of the firing line shot at the tank with their M-203 grenade launchers.  He immediately yelled, “Cease Fire,” and admonished the two soldiers.  Shortly thereafter, a major, two captains, and a corporal, all Reserve soldiers, opened fire with their M-203s.  He again immediately called, “Cease Fire.”  One of the grenades fell short and he went to correct the situation.  His driver then said something hit him (the driver) on the leg.  The applicant then cancelled training, had another major dismantle the range and return the soldiers to their unit, and he took his driver for medical aid.   

The applicant then went to report his driver’s injury to his superiors.  This involved a long drive with two jeeps across dangerous desert through a minefield to the 3d Armored Division Rear.  At one point the following jeep hit a mine and was damaged but no one was hurt.  The jeep was repaired and they continued on.  Soon, another jeep appeared and blocked their way.  It was the Division Safety Officer with whom he had had a run in earlier.  The Safety Officer pulled his jeep in front of his, forcing them to drive around him through a mined area.  This same Safety Officer later insisted that the applicant be made an example of because he had allowed one of his soldiers to be injured by friendly fire.  With that, the Office of the Staff Judge Advocate (OSJA) got involved and began an earnest prosecution of the case.  He was initially offered an Article 15 and was given a few days to consider whether to accept it or not.  During these few days, the JA prosecution officers he had reprimanded for the sandbag incident started an investigation of their own.  They found out about the teapot incident and wrote up charges that he had wrongfully discharged his weapon thus endangering human life.  He was told he would be court-martialed.  Also included was the charge that he violated a general order in that he allowed his soldiers to load magazines into their weapons during the war.  The order was issued before the war began and was meant to preclude the accidental discharge of weapons while in garrison.  As soon as they all crossed into Iraq on 24 February 1991, all of their weapons were loaded for any eventuality.  This charge was placed against him solely for the purpose of stacking charges.  It was not justice they wanted; it was revenge.  

Defense attorneys advised the applicant to resign in lieu of court-martial.  At first he was determined to fight these frivolous charges.  He was told that while he would undoubtedly not be convicted of wrongful discharge of a weapon thus endangering human life, he would undoubtedly be found guilty of the lesser charge of willful discharge of a weapon.  He had serious doubts concerning the ability of Armor officers, who most likely would sit on his court, to see the issue from a Special Forces soldier’s point of view.  A felony conviction would not only hurt him but it would hurt his wife’s career.  Upon lengthy discussion with his attorney and an assurance that he would be able to enlist after 2 years in order to complete the two years needed for retirement, he decided to resign.  This decision had nothing to do with the validity of the charges against him.  The corporal who fired the round that injured his driver was soon thereafter promoted. The major who fired on the range and was in charge of the others who fired on the range was placed in command of the unit from which he, the applicant, was relieved.  A commander of the Division Aviation unit shot his driver with an AK-47 he was not supposed to have and was given a letter of reprimand.  These actions indicate to him that what happened to him was personal and not professional.  

All the applicant asks is that he be allowed to enlist in the Reserve or National Guard and complete the two years necessary to allow him to retire honorably.  Clearly, the ability to render service to his country still exists.  He attempted to enlist in the U. S. Army Reserve in 1994 and again in 1995 but his request was denied.  He does not believe the circumstances warrant this denial.  

The applicant provides three documents as supporting evidence.  One is a memorandum from the 121st Transportation Company commander to the Commander, 3d Armored Division explaining the facts behind the firing range incident and expressing his support for the applicant.  One is a 17 December 2001 letter from the applicant’s defense counsel attesting to the fact the applicant was advised by OSJA, 3d Armored Division that he would be allowed to reenlist in the National Guard and that it would have made no sense for an officer       with his record to give up 18 years of dedicated service otherwise.  One is a        3 October 1994 affidavit from the applicant’s defense counsel.  In this affidavit his defense counsel states that the applicant was accused of an unauthorized weapons discharge and that discharge amounted to nothing more than unscheduled weapons training that was completely warranted. Any other such incident would have been ignored but for the fact the two officers supervising prosecutions decided to make the applicant an example.  He had repeatedly criticized the prosecutor’s staff and office for its complete lack of military preparedness and as a result these officers took the opportunity to bring a charge against him for no reason except to destroy his career.  He counseled 

the applicant to resign but it is his opinion that the entire matter was a serious abuse of the military criminal justice system.  After this incident he wrote a report summarizing the activities of the prosecutor’s office.  As a result, the two officers involved in this case were investigated and received letters of reprimand in their personnel files or were admonished.  The matter was so egregious as to be a factor in prompting him to leave the military.  

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

The applicant was commissioned out of West Point in 1975.  He served mainly in infantry and airborne assignments, including assignment as a company commander, until he completed the Special Forces Qualification Course in 1985 when he was then assigned to the 1st Special Operations Command, Fort Bragg, NC.  He was released from active duty in January 1987 and entered the U. S. Army Reserve (USAR).  He was promoted to major on 3 June 1987.  He was called to active duty on 6 December 1990 in support of Operation Desert Shield/Storm.

On 29 March 1991, charges were preferred against the applicant charging him with violating a lawful general order by wrongfully authorizing magazines to be placed into weapons under circumstances when the use of deadly force was not necessary, willfully authorized soldiers under his supervision to fire live ammunition under circumstances when the use of deadly force was not necessary, was derelict in the performance of his duties by negligently failing to conduct firing in a safe manner, wrongfully and willfully discharge a firearm into the ground under circumstances such as to endanger human life, and wrongfully and willfully discharge a firearm at a teapot under circumstances such as to endanger human life.  

On 30 March 1991, a lieutenant colonel from the 3d Armored Division Support Command was appointed duties as the Article 32 investigating officer.  On 1 April 1991, after having consulted with military counsel (the same individual who provided the letter and affidavit for the applicant’s request to the Board), the applicant waived his right to a thorough and impartial investigation of the charges preferred against him.  

On 1 April 1991, the applicant requested resignation for the good of the service under the provisions of Army Regulation 635-120, chapter 5.  He provided a letter in his own behalf outlining basically the same substance as noted above.  Memoranda of support were provided by his defense counsel (the same individual who provided the letter and affidavit for the applicant’s request to the 

Board) and others.  In defense counsel’s memorandum, defense counsel noted that the applicant’s resignation was punishment enough for the acts alleged.  He asked that the Commander, 3d Armored Division note that there was a complete absence of any criminal intent and that his record of service was long and honorable.  

On 2 April 1991, the Commander, 3d Armored Division forwarded the applicant’s request to the U. S. Total Army Personnel Command (PERSCOM) recommending approval of his resignation and that he be issued a General Discharge Certificate.  He stated that the applicant’s disregard for the safety of his fellow soldiers resulted in one soldier being injured and his wrongful discharge of a firearm on two other occasions underscored his complete lack of judgment in handling weapons.  

On 10 May 1991, the Office of the Assistant Secretary, Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review approved the applicant’s resignation and directed he be discharged with a General Discharge.  On 4 June 1991, PERSCOM informed the applicant’s major command that his request for resignation for the good of the service was approved under the provisions of chapter 5, Army Regulation 635-120 and that orders should be issued effecting his discharge under honorable conditions with a General Discharge Certificate.

On 30 June 1991, the applicant was discharged in pay grade O-4.  His DD Form 214 shows he had completed a total of 13 years, 6 months and 27 days of creditable active service and a total of 20 years, 5 months, and 3 days of service for pay with no lost time.  His DD Form 214 erroneously shows the separation authority as Army Regulation 135-200, chapter 1-7, the narrative reason for separation as conduct triable by court-martial, and the characterization of service as honorable.

Army Regulation 635-120, then in effect, set forth the basic authority for officer resignations and discharges.  Chapter 5 stated that an officer could submit a resignation for the good of the service in lieu of general court-martial when court-martial charges had been preferred against the officer with a view toward trial by general court-martial.  An officer separated under this paragraph normally received a characterization of service of under other than honorable conditions. 

In 1995, the applicant applied to the Army Discharge Review Board (ADRB) to have the narrative reason for his discharge changed because it was improper and its effect was not in proportion to the nature of the circumstances and denied him the ability to reenlist in a Reserve component.  On 28 April 1997, the ADRB 

determined that the narrative reason for discharge was improper in that the separation authority approved separation under the provisions of chapter 5, Army Regulation 623-105 (sic) and not Army Regulation 135-200 as stated on his DD Form 214.  The ADRB further determined that the narrative reason for discharge was equitable and voted to deny further relief.  (No corrective action was taken at that time.  In February 2002, the ADRB corrected its 28 April 1997 action to change the applicant’s narrative reason for discharge to in lieu of trial by court-martial, Army Regulation 635-120, chapter 5.  A new DD Form 214 was issued to this effect.)

Army Regulation 601-210 prescribes eligibility criteria governing the enlistment of persons into the Regular Army and the USAR.  Paragraph 3-14 states that enlistment into the USAR is authorized for current and former officers without regard to statutory entitlement (as for Regular Army enlistment).  Officers applying for enlistment must meet eligibility criteria of chapter 3.  Paragraph 3-9, moral and other administrative criteria, refers to chapter 4.  Paragraph 4-9 states that a waiver is required for any applicant who was separated from any Component of the U. S. Armed Forces for a number of reasons including courts-martial convictions or discharge for the good of the service.  

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210. 

National Guard Regulation 600-200 establishes policies for the management of Army National Guard soldiers in several areas, including accession and retention.  Table 2-10 lists waivable moral and administrative disqualifications, approval authorities, and documentation required.  Line H states that receipt of one or more convictions by military courts-martial during the last period of active duty or discharge as a result of resignation for the good of the service is waivable.

United States versus Argo, 46 M.J. 454, (CAAF 1997) is one of several cases that discusses claims of selective prosecution.  The military judge in this case stated that the burden of persuasion on a claim of selective prosecution is on the moving party.  To support a claim of selective or vindictive prosecution, an accused has a “heavy burden” of showing that “others similarly situated” have not been charged, that “he has been singled out for prosecution, and that his “selection…for prosecution” was “invidious or in bad faith.”  Prosecutorial authorities and convening authorities are presumed to act without bias.  The appellant has the burden of rebutting that presumption.  

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 Board notes the affidavit provided by the applicant’s defense counsel.  However, the Board also notes that the applicant states that his defense attorneys advised him to resign in lieu of court-martial.  Although his defense counsel now charges that the prosecutor’s staff and office took the opportunity to bring a charge against the applicant for no reason except to destroy his career and felt so strongly about this matter that defense counsel wrote a report summarizing the activities of the prosecutor’s office and was a factor in prompting him to leave the military, it appears he did not feel so strongly about this matter at the time to pursue that as a line of defense.  Neither the applicant nor his defense counsel has now submitted any evidence that would substantiate the charge of a vindictive prosecution.

3.  The Board notes that, as the applicant contends, he had extensive service on active duty as an infantry and Special Forces officer.  The Board also notes, as the applicant contends, he was in charge of a group of scared, tired, and frustrated Reserve soldiers.  Yet, during the teapot incident the applicant fired a weapon, in a combat zone, for no sound reason.  Any one or all of his scared, tired, and inexperienced soldiers could have opened fire in the same direction as he, their leader, which could have resulted in friendly casualties.

4.  The Board notes that the applicant makes two contentions concerning his future eligibility to enlist in a Reserve Component.  First, he states that he received assurances from his unit that he would be allowed to reenlist after 2 years.  Second, he states that his attorney gave him an assurance that he would be able to enlist after 2 years.  As a former company commander, the applicant should have been well aware that any such assurances only pertain to his entitlement to apply for enlistment.  Except for a few certain statutory entitlements (e.g., any former enlisted member of the Regular Army who has served on active duty as a Reserve officer of the Army), no one has a right to enlist.  Eligibility criteria changes over time as the needs of the Army change and, absent evidence of Government error, the Board will normally not substitute its judgment for that of Army recruiting officials.  

5.  The needs of the Army may have changed since the applicant last applied for enlistment in the USAR in 1995.  He has the right to apply again.  It also appears that he never applied to enlist in the Army National Guard, whose enlistment eligibility criteria is not the same as that for the USAR.

6.  The Board notes that the ADRB has taken the corrective action requested by the applicant.  His DD Form 214 still reflects the erroneous honorable discharge as reflected on his original DD Form 214.

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

__aao___  __rwa___  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065883	
SUFFIX		
RECON		
DATE BOARDED	20020404	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19910630	
DISCHARGE AUTHORITY	AR 635-120 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	100.03	
3.		
4.		
5.		
6.