MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            28 January 1998
	DOCKET NUMBER:   AC98-10892/AR1998012025

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		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 a 13 September 1991 General Officer Memorandum of Reprimand (GOMOR) be removed from his military record; that his promotion to Major be reinstated; that his separation action directed by the DA Active Duty Board be voided and expunged from his record; that he be granted constructive credit for the period from his discharge to his reinstatement; that he be early retired as a Major; and that he receive retirement back pay.

APPLICANT STATES:  That he, an Active Guard/Reserve (AGR) Captain, was given a Relief for Cause Officer Evaluation Report (OER) that was not supported by fact, was inaccurate, and was biased.  Based on this same unsupported and inaccurate information, his commanding Brigadier General Officer gave him a GOMOR.  As a result of the Relief of Cause OER, he was removed from the selection list for promotion to Major.  His military record was subsequently reviewed by the DA Active Duty Board and he was released from active duty and AGR assignment and transferred to the Individual Ready Reserve (IRR) based on the questionable Relief for Cause OER and the GOMOR.

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

That the applicant, at the time of the Relief for Cause OER, was a Captain in the AGR program assigned as a full time S-3 Training Staff Officer in a Reserve Field Artillery Battalion.  He had, prior to that time, 16 years active and inactive service.

He received a Relief for Cause OER for the period 2 May 1991 to 18 August 1991.  He was relieved, according to the rater and senior rater, due to lack of sound judgement, questionable loyalty and integrity, and failing to meet the Army weight control standards.  The relief for cause was directed by his senior rater who was his battalion commander.

It is noted from the record that the Relief for Cause OER and the applicant's two previous OERs which were referred were based on a number of failures in duty performance and professional ethics.  The applicant failed to become qualified as an artillery fire direction officer during the period June 1989 to March 1991 and could not therefore properly function in his duty assignment.  This failure was due to not taking a required field artillery safety officer test.  The applicant failed to properly supervise and complete the battalion's load test in September 1990.  In January 1991, as a full time battalion S-3 training officer, he was counseled for failure to maintain training schedules to correlate with the battalion Yearly Training Guidance and calendar, adhering to published training schedules, and failure to maintain adequate military occupational specialty qualification progress records.

The applicant failed the Army Physical Fitness Test (APFT) in April 1991.  He did pass a later APFT retest.  He also failed to meet the Army weight control standards in July 1991 where he weighed 184 pounds, 14 pounds over the screening table weight of 170 pounds for his height of 66 inches and age of 41.  He further exceeded his body fat limit of 26%, measuring at 26.87%.  This was discovered when the applicant reported on 26 July 1991 for a two week professional school course where reporting in overweight status is a serious matter.  He then failed to inform his commander of this situation when he returned from the training.  (In 1990, according to his OER at that time, he had weighed 172 pounds.)  It was noted that in mitigation of these APFT and army weight standard failures, the applicant had been in a one car automobile accident on 9 January 1990, hospitalized for multiple bone fractures and on convalescent leave during the period 9 January to .20 March 1990.  He was then on temporary profile from most exercising and strenuous activity until 20 September 1990.  It is noted that he then had approximately seven months to prepare for his APFT which he failed and he had approximately 10 months to meet army weight standards which he failed.

The Relief for Cause OER was further based on failure in professionalism as determined by his senior rater/battalion commander who directed the relief for cause.  The applicant made life threatening comments about his supervisor, a Major in his battalion, wherein he stated to a third party that he wanted to "shoot" the Major.  When questioned by his commander, he did not deny his dislike or criticism of the Major.  He defended himself by saying that he had said that he wanted to "shock" the Major and that he had made the comment only to a third party off duty.  The commander viewed the intent of his comment as threatening in either case.

The applicant made a harassing telephone call to a subordinate 2nd Lieutenant's residence where he misrepresented himself as a police officer stating fictitiously that the 2nd Lieutenant had been arrested for driving while intoxicated and that his parents would have to contact the police department and post bail for his release. When questioned by his commander about this incident, the commander stated that the applicant did not deny the event or comments.  In defense, the applicant stated he did it out of anger and frustration over trying to contact the 2nd Lieutenant.

The applicant was insubordinate in that he questioned and complained on numerous occasions to junior officers and enlisted personnel concerning the decisions and directives issued by his commander and supervisor.  The applicant did not deny this and stated that his extreme dislike of his Major supervisor was no secret to anyone in the command.

It was reported to the commander that the applicant was unprofessional in that he was consistently derogatory and abusive to numerous members of the full time staff and interfered with directives given by the commander to a subordinate 1st Lieutenant.  The applicant did not deny his interference with the 1st Lieutenant.  The applicant stated that he told the 1st Lieutenant that he out ranked him and felt the authority and responsibility for pass approval and administration of the full time manning APFT program should rightfully belong to him and not to the Lieutenant.  When the Lieutenant pointed out to the applicant that he was simply following the Major's instructions, the applicant engaged in a diatribe directly challenging the authority of the Major and the battalion commander.

The commander concluded that the applicant's performance demonstrated a continuing pattern of substandard leadership ability, promotion potential, morals and integrity which was recorded and documented in his last three OERs from 
3 May 1989 to 18 August 1991 all of which were referred.  On 31 August 1991, the commander recommended that the applicant be terminated from his AGR tour.

Due to the events on which the Relief of Cause OER and the recommendation for termination of AGR tour were based, the applicant's Commanding General Officer issued a General Officer Memorandum of Reprimand (GOMOR) on 
13 September 1991.  The applicant was given the opportunity to comment on the GOMOR which he did.  The General considered the evidence and the applicant's comments which presented the same rebuttals as summarized above, and determined that the GOMOR should be placed in the applicant's official military personnel file.

An Army Active Duty Board reviewed the applicant's military record, the recommendations of his chain of command, and his detailed rebuttal to the proposed separation.  After careful consideration and a comprehensive and impartial review, the board determined that the applicant would be involuntarily released from active duty with an honorable release and recommended that he be discharged from the Army Reserves.  The applicant was notified of these decisions by letter dated 1 December 1992.  He was so released from active duty on 15 January 1993 and transferred to the Individual Ready Reserves.  He was further honorably discharged from the Army Reserves on 19 December 1994.  At that time, he had 12 years 9 months 29 days active service and 6 years 6 months 8 days inactive service.

In 1996, the applicant appealed his Relief for Cause OER to the Army Officer Special Review Board (OSRB).  He presented his defense as previously stated 

above and included 3 witness statements concerning his performance and professionalism during the rating period.  The witnesses were 3 peers, Captains: one the Headquarters and Headquarters Battery Commander during the entire period, one a full time training staff officer with the applicant from 23 July 1990 to transfer on 29 June 1991, and one a full time Supervisory Staff Administrator in the applicant's unit from February 1991 to November 1992.  The OSRB fully considered his appeal but denied it finding no substantive error in the OER.  The OSRB gave full consideration to the witness statements but did not find them sufficient to prove substantive error in the OER and in fact noted in the witness statement of the full time Supervisory Staff Administrator that he did not dispute any of the derogatory statements made about the applicant.

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.  That the Relief for Cause OER was correct and just and is based on the commander's personal observations, investigation of the allegations, and interview of the applicant.

2.  The GOMOR is correct and just and correctly administered.

3.  That the applicant's removal from the Major promotion list was correct and just in light of the Relief of Cause OER and GOMOR.  There are no grounds on which to reinstate the applicant on the Major promotion list.

4.  That the applicant's separation from active duty is correct and just based on the applicant's full military record and the applicant's comments after careful and impartial review by the DA Active Army Review Board.

5.  There are no grounds to reinstate the applicant in the Reserves or on active duty and therefore constructive credit requested cannot be considered or granted.

6.  The applicant, with his current active service time of 12 years 9 months
29 days, does not qualify for active duty retirement nor would he have if constructive credit was to be granted.  With his additional inactive service of 
6 years 6 months 8 days, he does not qualify for Reserve retirement at age 60 nor would he have if constructive credit was to be granted.  The applicant is not eligible for retirement.

7.  The record does not contain any evidence nor has the applicant submitted evidence to prove his contention of error or injustice.  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

_LLS____  _RWG __  _CLG ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10892/AR1998012025	
SUFFIX		
RECON		
DATE BOARDED	19990128	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	199412019	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.