MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 June 1999 
	DOCKET NUMBER:    AR1999016625

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		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 his records be corrected to show that his release from active duty is null and void, that it be shown that he was retained on active duty and promoted from captain to lieutenant colonel; upon completion of 24 years of active service [2 October 2005] he was [will be] placed on the Permanent Disability Retired List (PDRL), rated 100 percent disabled; and he be given the money these corrections will necessitate.  He also requests $800,000.00 for his pain and suffering, $400,000.00 for the pain and suffering of his family, and letters of apology from the President of the United States and the Secretary of Defense.

APPLICANT STATES:  In two applications and 20 separate letters to the Board, he states that after he filed an Equal Opportunity (EO) complaint, he was accused of sexual harassment to discredit his discrimination complaint.  He was then psychologically and physically tortured and brain-washed in an attempt to force him to recant his claims of racial abuse, and then “fired.”  Other racially motivated events directed against him include the false allegation that he had threatened his superiors, which led to the confiscation of his privately owned guns, his arrest by the military police and his confinement in the psychiatric ward.  The ensuing investigations into those events were unduly and illegally delayed and did not address his primary allegations, as the investigating officers and commands fell into the racist conspiracy to eliminate him from the Army.  This conspiracy was code named “Fast Fix” and was classified “Black Ops” until that designation was lifted by the VA.  The applicant alleges his mental and physical conditions were caused by the racial abuse, and the physical and mental torture to which he was subjected.  He states, in part, that “I have very strong sexual preoccupations, poor impulse control, and sexual acting out” and “I do a great deal of fantasy thinking mostly about sex” and “I fear that I have such an intense latent anger problem and explosive personality, with my martial arts background I could be potentially lethal, not to self but others (I have attacked my wife, and grabbed her throat several times, I have once beaten my daughter savagely, I use to beat my son many times, I fought the staff of DDEAMC 4 times and it took a show of force to restrain me with over a dozen staff persons each time . . . “ and “Because of this inner stress brought on by the army I am easily set off when I feel threatened, provoked, manipulated or handled any kind of way but correct.  My behaviors are unpredictable except for sure I will react to provocation in some manner.”  In the applicant’s remaining letters to the Board he repeatedly refers to himself as being the victim of the “Fast Fix” while in the Army, and how the “Fast Fix” was used in lieu of the Officer Evaluation Report (OER) system to remove him from his position because of his rater’s erroneous belief that his performance was unacceptable.  He gives his viewpoint on the events which happened, or failed to happen, while he was on active duty.  He outlines why he believes those events were retaliatory and part of a conspiracy, as a result of his complaints of racial discrimination.  He questions events which occurred or failed to occur in the course of the numerous investigations conducted into his allegations.
EVIDENCE OF RECORD:  The applicant's military records could not be located and were not provided to the Board.  The following information was derived from documentation provided by the applicant himself.

While serving as a psychiatric nurse in the rank of captain, in November 1995 five nurses under the applicant’s supervision submitted written statements attesting that the applicant was making continued, unwanted, sexually orientated remarks to them.  The nurses also complained that the applicant was not doing his job, thereby forcing them to do his work for him.  On 12 November 1995 the applicant’s supervisor, the head nurse, made a statement in which he said that one of the nurses who alleged sexual harassment on the part of the applicant had initially complained about being harassed by him in July 1995 and requested to be moved from under his supervision.  The applicant’s supervisor said that he had moved that nurse due to her request at that time.

The applicant filed two Equal Opportunity (EO) complaints on 8 January 1996.  In those complaints he alleged he had to “deal with attitudes and behaviors which exploited both my race and possibly gender to satisfy racist ends” and that the reason why previous EO complaints he had filed had been unsubstantiated was 
“ . . .white people supervisors are responsible for investigating other white people and their peers resulting in encapsulation.  Therefore justice is not possible within the current system of law.”

On 27 February 1996 an IO was appointed to investigate the applicant’s EO complaints.  On 15 May 1996 the investigation was completed with a conclusion of no discrimination.  The IO found that the applicant had not been placed in charge of the hospital ward because he was not professionally qualified to do so; and that he was reassigned within the hospital due to his own misconduct, the sexual harassment of a female NCO, an allegation for which the applicant admitted.  The IO noted that the applicant became isolated on the ward due to his lack of medical skills and his seniority, and he did not communicate or get along with the head nurse.  The IO opined that his isolation, combined with his failure to be selected for leadership positions that a nurse with the proper medical skills would normally have been given, gave rise to his perception that he was being discriminated against.  In a statement given to the IO from a major who had conducted an investigation into the charges of sexual harassment filed against the applicant, the major stated that there was really not enough evidence to substantiate the claims against the applicant, that the lieutenant had stated it wasn’t so much what the applicant said to her than how he said it.  The major continued that the lieutenant’s work schedule was changed to remove her from the applicant’s sphere of influence prior to June 1995, and two other officers had also objected to working with the applicant because of their belief that he would unfairly give them the tough patient assignments while he would take the easy assignments, and then would sit at his desk all night and not assist them with their patients.  The major continued that the problem appeared to be resolved until a decision was made to move the applicant to the ward where the NCO who had previously complained about the applicant’s conduct was assigned.  When she protested the applicant’s assignment the lieutenant was asked if she would write a statement, which became the basis for the sexual harassment complaint.  The major stated that he had recommended that the complaint be closed without action because there are no witnesses to the incidents in question, because the solution of moving the lieutenant away from the applicant had been working for 5 to 6 months, and because he believed that the applicant’s supervisor was attempting to utilize a “fast fix” for her lack of written counseling for a sub-par worker.  When he was faced with the prospect of having to keep the applicant he took the fastest approach he could for having him removed.

On 8, 11, and 15 March 1996 the applicant was evaluated by an Air Force Mental Health clinic.  At that time he was diagnosed as having an obsessive-compulsive disorder, major depressive episode (moderate), significant paranoid traits, and probably paranoid personality disorder.  The psychiatrist conducting the evaluations stated that the applicant was not a danger to himself or others.  However, untreated he would be at a moderate risk for potential future harm to himself and others.  The psychiatrist recommended removing any firearms or other significant violent weapons from his place of residence.

On 27 March 1996 a Medical Evaluation Board (MEB) was convened to consider whether the applicant was medically qualified for retention.  The MEB found the applicant medically disqualified due to obsessive-compulsive disorder, major depressive episode (single episode), and personality disorder with paranoid, narcissistic and passive aggressive features, manifested by a longstanding pattern of distrust and suspiciousness of others, the persistent bearing of grudges, a sense of entitlement and grandiose sense of self-importance, persistent complaints of personal misfortune, and alternations between hostile defiance and contrition.  The MEB referred the applicant to a Physical Evaluation Board (PEB).

The applicant submitted Inspector General Action Requests (IGAR’s) on 28 August (two); 24, 25, and 28 October; 1, 2, 21, 22, 25 November, and 2 December 1996.  In those IGAR’s he alleged harassment by the psychiatrists who were treating him, stating that his treatment was politically motivated and, therefore, demanded the rights guaranteed political prisoners under the Geneva Convention; he alleged improper assignment of an officer junior to him to the position of head nurse; he alleged that the sexual harassment complaints filed against him were false and only filed to discredit his racial discrimination charges; his EO complaint was not processed with the urgency which his situation demanded; he was illegally confined in the psychiatric ward and that he was illegally physically restrained and administered restraining medications; and all of the adverse actions taken against him were in retaliation for his filing an EO complaint and requested relief under the Whistleblower Protection Act.  None of the applicant’s contentions were determined to be substantiated.

On 27 September 1996 a formal PEB was convened after the applicant refused a 50 percent rating recommended by an informal PEB.  The applicant contended that his disability warranted a 100 percent disability rating.  The formal PEB concurred with the findings and recommendation of the informal PEB, that the applicant should be placed on the TDRL rated 50 percent disabled.

In a letter to the Medical Command IG, a colonel, dated 9 October 1996, the applicant stated that “I feel it necessary to address you in this way because I cannot stand the sight of you, and this way I don’t have to cause myself any undue emotional distress.”  The applicant continues to be disrespectful towards the colonel and uses racial epithets freely, a practice he used in the majority of his correspondence regarding his complaints while he was on active duty.

On 10 October 1996 the installation mental health clinic notified the provost marshal’s office that it was their opinion that, after being told that he was being admitted as an inpatient at the psychiatric ward, the applicant’s mental condition was such where he could be considered armed and dangerous.  The military police then contacted the applicant and escorted him to the hospital for inpatient admission.

In an undated memorandum the applicant requested redress under Article 138, UCMJ.  Specifically, he considered his involuntary admission to the Mental Health Ward in violation of regulation and law.  The disposition of that request was not provided to the Board by the applicant.

On 21 April 1997 the applicant was honorably released from active duty and placed on the TDRL, rated 50 percent disabled.

On 27 April 1999 the applicant was placed on the Permanent Disability Retired List, rated 70 percent disabled.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s primary contention appears to be that sexual harassment charges were filed against him solely to invalidate his racial discrimination complaint and to eliminate him from the Army without due process in what he refers to as a “Fast Fix.”  When the “Fast Fix” failed to eliminate him from the Army a racist conspiracy was initiated against him.  That conspiracy included collusion by his superiors and the hospital psychiatrists to have him classified as psychotic and dangerous, resulting in his personal weapons being taken from him and his being involuntarily admitted as an inpatient in the psychiatric ward (which he considers false imprisonment).  All the applicant’s other allegations appear to stem from these primary issues.  As such, each of these contentions will be addressed individually by the Board:

	a.  Concerning the sexual harassment charges filed against him to allegedly invalidate his racial discrimination allegation, it’s noted that an NCO and a lieutenant were moved due to their complaints of sexually inappropriate behavior on the applicant’s part prior to his filing an EO complaint.  As such, it appears that he filed the EO complaint in response to the possibility that formal sexual harassment charges would be filed against him, not the other way around.  As for the credibility of the sexual harassment charges, the applicant himself stated that he had very strong sexual preoccupations, he had poor impulse control, he acted out sexually and he fantasized about sex.  While not conclusive proof, there appears to have been a basis for the complaints.

	b.  Contention:  His rater attempted to eliminate him without due process in what he refers to as a “Fast Fix.”  It appears that the applicant had serious interpersonal and professional deficiencies which his command attempted to resolve without harming the applicant’s career (e.g., moving these women who complained about his conduct).  It was only when subsequent assignments within the hospital resulted in the applicant and the first woman whom had complained about him being again assigned together that the applicant’s supervisor was forced to take formal action against him.  

	c.  Contention:  When the “Fast Fix” failed to eliminate him from the Army a racial conspiracy was initiated against him.  The records show that the applicant, not his command, inappropriately used color, sex and race as the sole basis of claims and accusations.  While there is absolutely no evidence whatsoever to indicate or even suggest racism was a motivating factor in the actions taken in conjunction with the applicant, it is apparent that the applicant attempted to have the actions which he found objectionable altered or terminated by the threat of racial discrimination complaints.

	d.  Contention:  The conspiracy included collusion by his superiors and the hospital psychiatrists to have him classified as psychotic and dangerous, resulting in his personal weapons being taken from him and his being involuntarily admitted as an inpatient in the psychiatric ward.  As with the applicant’s statements describing his sexual preoccupation and poor impulse control, the applicant himself stated that he had an intense latent anger problem and an explosive personality.  He also said that with his martial arts background he could be potentially lethal, not to himself but to others, and admitted to having attacked his wife, having beaten his daughter and son, and having fought with the staff of a hospital on several occasions wherein it took a show of force to restrain him with over a dozen staff persons each time.  He also said that because of his inner stress he is easily set off when he feels threatened, provoked, manipulated or handled any kind of way but correct, and that his behaviors are unpredictable except for sure he will react to provocation in some manner.  Based on those comments, in conjunction with psychiatric evaluations, it is reasonable to presume that the applicant’s command believed that he was a threat to others if not himself, which was a sufficient, legal basis for his personal weapons being taken from him and his involuntary commitment to the psychiatric ward.

2.  It is evident that the applicant is convinced that his disability and resultant medical retirement are a result of a racial conspiracy and will not accept any response to his allegations which will not validate his allegations.  That appears to be the reason that the applicant has maintained that his sexual preoccupation and violent behavior occurred as a result of his being racially discriminated against, and that the behavior did not form the basis for the actions taken against him.  The psychiatric evidence of record and other available documentation do not support his allegations.

3.  In view of the foregoing, it appears that the applicant was properly processed for medical retirement and there is no basis to either void his discharge, or to promote him to lieutenant colonel or retain him on active duty until 2 October 2005.  The Board is not authorized to award damages and cannot direct the President and Secretary of Defense to issue letters of apology.

4.  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

_jlp_______  _tap___  _ewz____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016625	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990617	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.