MEMORANDUM OF CONSIDERATION

IN THE CASE OF:	  

BOARD DATE: 	4 February 1999
DOCKET NUMBER:	AC77-06999E
	AR1998012255

	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. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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 response to the Board’s Reconsideration Project, a reconsideration of his previous application to correct his records by;

a.  purging all references to a 1956 letter purported to have been written by him to the Secretary of the Navy;

b.  purging all information that led to a determination of undesirable background and non-qualification to reappointment in the reserves to include the above letter and reference to his ethnic background;

c.  showing that he qualified for and was reappointed as a second lieutenant in the reserves, effective 25 June 1959; and,

d.  granting him promotion to first lieutenant, captain and major.

APPLICANT STATES:  In effect, that his non-reappointment in 1959 was based upon erroneous and/or derogatory information improperly maintained in investigative files and made a part of his Official Military Personnel File (OMPF). He contends that entries made after his release from active duty in 1956 were improper if not illegal.  He avers that with the purging of the investigative files of the references to the 1959 letter there should have been no bar to his reappointment.  He further contends that his request for reappointment was also denied him due to his ethnic background and incomplete information surrounding his family and schooling in Germany.  He avers that the actions that occurred in 1959 have in essence resulted in his inability to continue as an officer in any branch of the reserves.  He states that, had the 1959 errors not occurred, he would have had a normal progression as an officer and been able to retire as a major.

NEW EVIDENCE OR INFORMATION:  The applicant has requested consideration of the basic issues on at least nine occasions with Memoranda of Consideration prepared to reflect the Board's considerations of his case on 4 February 1976, 3 November 1977, 23 April 1980, and 2 July 1986.  The remainder of the previous requests being administratively closed. Incorporated herein by reference are military records which were summarized in those considerations and a summarization of the evidence that was submitted in concert with his prior administrative reviews.

The applicant’s date of birth is 10 February 1927.

The following are the applicant’s reported periods of military service with grade at date of release;

a.  US Coast Guard 4 February 1945 to 6 June 1946 (Seaman First Class);

b.  US Army 4 September 1946 to 28 August 1948 (Private First Class);

c.  US Army Reserves 29 August 1948 to 20 July 1952 (Sargent)

d.  US Army Reserves 23 September 1953 to 12 September 1956 (Second Lieutenant)

e.  US Air Force Reserves 2 August 1960 to 2 November 1968 (Staff Sargent);

f.  US Army Reserves 4 December 1976 to 9 February 1987 (Master Sargent

g.  US Army Retired Reserves 10 February 1987 to present (First Lieutenant)

A synopsis of the salient events and issues are summarized as follows; 

a)	26 April 1956, a letter of questionable content and propriety was forwarded to the Secretary of the Navy from the applicant’s address.  The authorship of this letter, which was signed under a fictitious name, was originally attributed to applicant.

b)	7 August 1956, an investigation was undertaken in reference to the above noted letter.  The investigative report notes that the applicant accepted full responsibility for all actions on both his part and that of the actual writer of the letter who was a domestic employee.  The investigating officer recommended that either a reprimand be made permanent part of the applicant’s OMPF or that he be afforded an opportunity to appear before a retention board of officers or to resign his commission.  The record contains no evidence of any action on these recommendations. 

c)	An undated letter from the applicant’s commanding officer states that the commander was advised that no negative action was proposed or initiated against the applicant as a result of the findings of the investigation.

d)	8 October 1956, the applicant submitted a request for voluntary resignation of his commission due to personal reasons - conflict with civilian employment.

e)	18 October 1956, as a result of the above, Special Orders Number 200 ordered the applicant honorably discharged. 

f)	In early 1958, the applicant requested reappointment In the Army Reserves.

g)	21 January 1959, the applicant was notified that he was denied reappointment under AR 140-100, paragraph 7c (3).

h)	2 February 1959, the applicant again filed for reappointment submitting a letter from the commanding officer of the 400th Military Police Battalion, indicating that there was an available position in the grade of 1st Lt. and requesting that the position be filled with the applicant.

i)	25 June 1959, the applicant was notified that his application for reappointment should have been denied under AR 140-100, paragraph 9f and g rather then AR 140-100, paragraph 7c (3).  Added to the file copy of this document was a Memorandum for Record that indicated the applicant was denied reappointment based upon his having written the 1956 letter.  It states that the applicant admitted writing the subject letter and resigned his commission due to the incident.

j)	17 September 1959, the applicant withdrew his request for reappointment. 

k)	12 May 1960, an officer of the Adjutant General reviewed of the applicant’s records and noted that the applicant had resigned his commission listing personal reasons - conflicts with his civilian employment and that prior indications that it was due to the 1956 letter incident were in error.

l)	2 August 1960, the applicant was accepted into the US Air Force Reserves as an enlisted man.

m)	The applicant apparently again applied for and was denied reappointment as an Army Officer with a resubmission for corrections by this Board.  During this time frame it appears that a question dealing with security concerns were raised, specifically the fact that the applicant’s mother was German born, that he had two second cousins who resided in Germany and that he had attended school in Germany.  The actual documents surrounding this issue are not of record or were purged in concert with the following action.

n)	29 November 1971, the applicant was notified by the Office of the Assistant Chief of Staff for Army Intelligence, Washington, D.C. that a review was undertaken that determined that the applicant was not the author of the 1956 letter in question, and that it and all documents related to this matter were destroyed and all references to it were removed from the Defense Clearance and Investigations Index.

o)	7 March 1972, the applicant was notified that he exceeded the age limit for reappointment with insufficient time in grade to compensate for his age.  The age maximum was 28, the applicant was 45.

p)	18 September 1972, the applicant was notified of non-selection for reappointment due to reduction in force considerations, a lack of vacancies in his branch and not meeting branch requirements at the time of application.

q)	19 August 1972, the applicant was notified that his skills and experience were not sufficient to qualify him for an appointment as a major under an exception to policy consideration.  Further it was noted that the applicant would have difficulty functioning as a Military Police Officer without extensive branch training.  Additionally it was noted his lack of recent military experience as an officer would create a serious disadvantage to him in competing with company grade officers.

r)	21 October 1974, the applicant was notified he was denied reappointment as a 1st Lt. based upon his having exceeded maximum age and that his skills and technical qualifications were not sufficiently unusual to warrant a wavier of the maximum age limit.

s)	4 February 1976, this Board denied the applicant’s request for reappointment as a first lieutenant and purging of derogatory information in reference to the 1956 letter.

t)	15 July 1977, the applicant’s counsel, the Veterans of Foreign Wars, submitted an argumentation on his behalf.  Included in this statement it was noted that the applicant’s 1956 company commander indicated that he had been advised that no action against the applicant was initiated as a result of the investigation surrounding the 1956 letter incident.

u)	3 November 1977, this Board denied the applicant’s request for reappointment as a first lieutenant, purging of derogatory information in reference to the 1956 letter and his non-selection for reappointment in 1959.

v)	Exact date undetermined, the applicant again applied for appointment as a first lieutenant, deletion of the alleged derogatory information with an additional issue of retention in grade to qualify for major.

w)	23 April 1980, this Board denied the applicant’s request for appointment to first lieutenant, effective 25 June 1959, deletion of the alleged derogatory information contained on the 25 June 1959 letter from the Adjutant General and that he be retained in grade until he could meet the educational requirements for promotion to major.

x)	16 November 1984, a statement was submitted from the commanding officer of 12th PSYNOS Co, SMMUSARC, Washington , D.C. indicating that the applicant had been favorably considered for reappointment, however, this action was never completed due to the failure to receive a statement of health by return mail.  This lead to an assumption of ill health and a cancellation of recommendation.  

y)	24 March 1985, in concert with his application to this Board, he reported that he had been out of the country and had not received the health questionnaire.  He submitted a copy of a January 1984 military physical evaluation to document his good health.  It is unclear if this document was also submitted to his command for consideration of his appointment.  Also included in this packet was a statement by the applicant that his highest rank held was 1st Lt. 

z)	2 July 1986, this Board again denied the applicant for appointment to the grade of major and extension of his mandatory date to age 60.

aa)	29 September 1986, an administrative closure of another request to this Board was made.  It cited the determination that the applicant’s additional letter was purely argumentative and repetitious of his prior considerations. The issue of reappointment based on the 1984 denial of reappointment was not addressed nor had the Board previously considered this issue.  Therefore this type of closure was improper at that time.

bb)	14 November 1986, an administrative closure of another request to this Board was made directing the applicant’s attention to the 29 September 1986 letter for the reason for closure.

cc)	9 January 1990, notification by the Defense Investigative Service removed from his National Agency Check computer record the AKA of John T. Rogers.  This appears to have been the fictitious name on the 1956 Navy letter.

dd)	4 June 1990, a reconsideration request to this Board was administratively closed with a determination that the additional letter and its enclosures contained no newly discovered evidence pertinent to the issue involved.  However, issues of a grade determination and violations of his Constitutional rights had not been previously addressed by the Board, therefore this type of closure was improper.

ee)	A review of the applicant’s Officer Evaluation Reports and both his Army and Air Force enlisted evaluations shows that the applicant was always rated in the upper blocks with numerous notations of his high potential and recommendations for advancement.

ff)	The applicant was retired effective 10 February 1987 due to attaining age 60 with over 22 qualifying years for entitlement to reserve retirement pay.

gg)	A grade determination was made that indicated that the highest grade held was first lieutenant and the applicant is currently in receipt of retirement pay as a first lieutenant.

hh)	It is noted that the applicant continued to have problems with his status even post-retirement in that up until 1991 his records showed him discharged as opposed to a retired service member.

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 letter from the Assistant Chief of Staff for Army Intelligence, dated 29 November 1971, notes that the applicant’s request to have information regarding the 1956 letter purged from the Defense Clearance and Investigations Index was accomplished at that time.  That decision and action does not require this Board to take the same action in regards to his OMPF.  However, in the course of this review, it is noted that the above action did result in the removal of all of the direct documentation to the 1956 letter from his OMPF.  Although there are references to this event, this action renders the issue moot.

2.  The 1959 denials of reappointment as reported to the applicant were for invalid reasons.  The applicant had not resigned in lieu of disciplinary action, his record contains no record of any disciplinary action, he was professionally qualified for the position he was requesting and a position in grade was available and offered to him and he had resolved his civilian work conflicts.  

3.  While complete information on the decision to deny the applicant’s reappointment is not of record, over the years multiple factors have been presented to and reviewed by this Board as preclusions to his reappointment.  His employment in the D.C. fire department, his non-attendance in reserve drills, the 1956 questionable letter, his failure to submit a health statement, his possibly being a security risk and his age at the time of subsequent applications.  With the exception of his age, the applicant has overcome each of these factors as he was made aware of them only to have a new rationale for denial being raised. 

4.  At the time of the investigation that raised security concerns, the fact that the applicant’s mother was German born, that he had two second cousins who resided in Germany and that he had attended school in Germany were legitimate security concerns.  The Board is unable to determine to what extent these factors were reviewed or developed however they were valid reasons for possible preclusion into the reserves.  The only references currently found about the applicant’s ethnic background are those that he has submitted himself in concert with his prior appeals.  Without specific information or documents to reference or purge the Board is unable to take action on this aspect of his request. 

5.  The applicant had been selected for but not promoted to first lieutenant in 1956.  He made two applications for reappointment and withdrew the second to enter the Air Force.  While the applicant was favorably considered for a reserve commission as a first lieutenant he was not appointed due to the lack of verifiable health.  It was not for another two years that evidence was submitted to refute the reason for denial.  By this time the applicant exceeded all age considerations for appointment.

6.  As the applicant never served as a first lieutenant, it is unlikely that he would have been considered for appointment as a captain much less a major even without the other negative factors that were raised.

7.  Those Board actions and administrative closures based upon denials of reappointment due to age or other issues not related to his 1959 request were proper.  

8.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

9.  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

___JHL _  __AAO_ _  ___VBC_   DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC77-06999E
AR1998012255
	
SUFFIX		
RECON		
DATE BOARDED	1999/02/04	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	112/192	
2.	134/330	
3.	129/307	
4.		
5.		
6.