PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           6 March 2001                   
	DOCKET NUMBER:   AR2000035613

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Harry B. Oberg		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  In his 16 December 1999 application to this Board, the applicant requested that two officer evaluation reports (OERs) and all correspondence relating to his case be removed from his official military personnel file, promotion to first lieutenant, promotion to captain retroactive to 29 May 1996, and reinstatement on active duty, with the restoration of all rights, privileges, and property.  On      18 January 2001 the application modified his application, requesting that all adverse OERs that he received while on active duty be removed from his official file; promotion to first lieutenant effective and with a date of rank of                      1 February 1994, with all due pay and allowances; and correction of his           DD Form 214 to show voluntary release from active duty and separation as a first lieutenant.  He also requests that he be ordered to active duty from the Army Reserve in the rank of Captain with his current date of rank (the date of rank he was promoted to Captain in the Army Reserve), and reinstatement as a Regular Army officer.       

3.  The applicant states that he was accused of larceny and destruction of night vision devices, and on 3 January 1994 was relieved of command and given a change of rater OER.  The date of the OER was through 16 December 1993.  During this period his wife, who was pregnant, required hospitalization, and the CID agent who interrogated him knew this, and used this information against him.

4.  He was tried by a military judge on 2 June 1994 (exhibit 2 of the applicant’s application) and found not guilty.  He returned to his position in the battalion supply office, expecting to receive his promotion to first lieutenant; however, he was informed to stay away from battalion headquarters, and was rebuffed by the commanding general of the 7th Army Training Command (ATC).  He performed various duties in a TDY status, and on 21 June 1994 was notified that he was to be held pecuniary liable for the loss of the night vision goggles (exhibit 4).  He rebutted those findings (exhibit 5).

5.  He was notified that he was not recommended for promotion to first lieutenant (exhibit 6), submitted his comments (exhibit 7), and the issue was abandoned.  Again, he was not recommended (exhibit 8), provided his comments again, and the recommendation was returned because the 7th ATC Staff Judge Advocate concurred with the reasons contained in his rebuttal.  The recommendation to not promote him was rewritten (exhibit 10).  He again rebutted this action          (exhibit 11); however, the ATC commander agreed with the recommendation not to promote him and not to retain him on active duty (exhibit 12).  He was informed that he would be separated from active duty immediately. 

6.  The applicant outlines his difficulties in arranging for transportation [from Germany], having only six working days to clear and out-process.  He states that was done as a punishment and also to prevent him from going to the command Inspector General.  He states that as a result of a congressional inquiry, his command waived the action of the report of survey.  He and his wife arrived at Fort Dix, and he was separated from active duty.

7.  He voluntarily transferred to the Army Reserve.  On 14 August 1994 he received his final OER (exhibit 17), submitted his rebuttal, but it was not included in his official military personnel file.  He states that his battalion commander referred to his trial by General Court-Martial in his senior rater comments, which was improper.

8.  He states that a routine background check showed that his security clearance had been administratively removed.  Without the clearance, he was unable to submit a packet for the 1999 captain promotion board.  His rights have been violated.  He has been advised by the 88th Regional Support Group Inspector General to request assistance from this Board.

9.  He has since been promoted to first lieutenant and Captain in the Army Reserve.   

10.  The information in the military records is provided by the applicant.  

11.   He received an OER while assigned as a rifle platoon leader of Company C, 1st Battalion, 4th Infantry, for the period 18 December 1992 through                     17 December 1993.  The OER was signed by his rater on 28 January 1994 and by his senior rater on 3 February 1994.  His rating officer (his company commander) stated that he always exceeded requirements and should be promoted ahead of contemporaries.  His senior rater, his battalion commander, placed him and one other officer below center of mass in the senior rater portion of that report (out of 37 total ratings).

12.  On 3 January 1994 his battalion commander relieved him for cause, for stealing a pair of night vision goggles and wrongfully destroying night vision goggles.  His relief for cause OER for the period 17 December 1993 through       3 January 1994 reflects that he stole those goggles, and lied on repeated occasions to conceal the theft.  His rater stated that he should not be promoted.  His senior rater reflected that information in his comments, stated that the applicant should be separated from the Army, and placed him in the bottom block in the potential evaluation portion of that report.  The applicant acknowledged receipt of the OER, and stated that he understood that a commander’s inquiry or an appeal must be submitted separately to that OER.  There is no information that he submitted a rebuttal to that report, a commander’s inquiry, or an appeal to that report.

13.  A 16 March 1994 CID (Criminal Investigation Command) report of investigation established that the applicant stole a night vision device from the closet in his commander’s office, and destroyed the device by breaking it into smaller pieces and disposing of the pieces in various dumpsters.  The investigation itself revealed that an enlisted soldier had initially stated that he had turned in the device to the arms room as instructed by his company commander; however, two weeks later the report of investigation indicated that same soldier recanted that statement, admitting that he lied, and stated that he had seen the applicant take the device from the company commander’s locker.  The investigation revealed that the applicant made a sworn statement on                  16 December 1993 indicating that he took the night vision device because his “inventory was screwed up.” 

14.  A record of trial shows that the applicant was tried before a General Court-Martial on 2 June 1994 on charges of destruction of government property, larceny, and conduct unbecoming an officer.  The applicant testified during the trial that he had been interrogated by a CID agent for three or four hours, that the agent informed the applicant that he had been trained by Mossad on investigative procedures [the applicant’s parents lived in Israel], and that the agent threatened to have German police ready to question his wife and search his house thoroughly.  The applicant testified that his wife was pregnant and had been very sick during her pregnancy and that his wife would not be able to cope with questioning and a search of their house.  The applicant also stated that the agent said that he had police standing by to search his father-in-law’s house in Indiana.  The applicant stated, in effect, that he broke down and confessed to taking the night vision devices.  Testimony indicated that after the interview, he informed his battalion commander that his statement was wrong, and that the CID agent forced him into making the statement.  The military judge, in his ruling, stated that over a period of several hours, the CID agent engaged in a confession by ordeal.  He stated that the court, in all of its years of sitting as a judge had never seen a law enforcement agent who had been more evasive on the stand, and whose testimony had been more contrived.  He found that the statements made by the applicant to be candid and credible, that the agent’s references to things such as the Mossad, and threats to have his pregnant and sick wife arrested and hauled in by the German police to have been intentional ploys on the agent’s part to overwhelm the applicant and wear down his defenses.  He stated that the agent’s testimony was unworthy of belief, and that the statement [of the applicant] was the product of unlawful coercion.  He excluded the admission of the applicant’s statement on the basis of untrustworthiness as a coerced statement, but indicated that he would continue to hear the remaining evidence in the case.  The court found the applicant not guilty of all charges and specifications.

15.  A 19 June 1994 report of survey found the applicant pecuniary liable for a pair of night vision goggles.  The surveying officer stated that the applicant had confessed to taking the goggles and destroying them; however, the applicant had since recanted his original statement, saying that he was coerced by a special agent into making it.  The surveying officer stated that the special agent denied coercing the applicant, but said that the applicant broke down and confessed to stealing the goggles.  The surveying officer stated that he believed that the applicant had taken the goggles, after realizing that he had not done a proper inventory, with the intent of later returning them; however, when they were discovered missing, the applicant destroyed them.  

16.  In his 27 June 1994 rebuttal, the applicant stated that he was exonerated by a General Court-Martial of the larceny and the destruction of the goggles.  He stated that the military judge specifically found that his statement (that he stole the goggles) was the production of coercion and was therefore untrustworthy, and that the special agent’s testimony was unworthy of belief.  He stated that the unit armorer’s testimony was not probative on his (the applicant) accountability of the goggles, and the statement of another soldier during the court-martial proceedings was not trustworthy [as the surveying officer admitted], as the soldier had lied on two occasions.  He stated that statements obtained by unlawful coercion were not admissible as evidence and there was no foundation to the allegations that he was liable for the loss of the goggles.

17.  A DA Form 78 (Recommendation for Promotion of Officer) of                         31 January 1994 shows that the applicant was not recommended for promotion to first lieutenant, in that he admitted under questioning to the theft of night vision goggles.  That recommendation was referred to the applicant for his comments.  The applicant stated that he was pending resolution of his case in a General Court-Martial and requested that the court decide his case prior to him accepting the referral.

18.  A DA Form 78 of 6 June 1994 shows that the applicant was again not recommended for promotion, in that the applicant admitted in a sworn statement to stealing and destroying a pair of goggles, and lying to the battalion commander about their loss.  That recommendation was referred to him.  He stated that the reason for disapproval of his promotion had been resolved in a General Court-Martial and he had been acquitted of all the charges and specifications. 

19.  In a 20 June 1994 DA Form 78, the recommending officer again stated that the applicant had admitted in a sworn statement to stealing and destroying a pair of night vision goggles, and lying to the battalion commander.  He stated that the applicant had admitted that his lie was to conceal his involvement in the incident, and his statement was the basis of the report of survey administrative action.  He recommended that the applicant not be promoted and that he be separated immediately.  The applicant’s battalion commander approved the recommendation, stating that the applicant demonstrated lack of maturity, judgment, and integrity, and that he had character and performance flaws.  He stated that deceitfulness was the applicant’s strongest attribute.  

20.  The applicant’s rebuttal shows that he again stated that he had been acquitted by a General Court-Martial of the larceny and destruction of the property, and for conduct unbecoming an officer.  He stated that he had performed only one serial-numbered inventory despite the battalion commander’s reference to “inventories”, and that the one inventory was correct, but the inventory sheet was done incorrectly, as sworn by the unit armorer in court.  He stated that the military judge found that his sworn statement was coerced, and that in essence, the special agent was a liar.  He stated that the issue of an unregistered firearm [referred to by the battalion commander] was raised and investigated and no charges were preferred because the issue was unsubstantiated. 

21.  An OER for the period 4 January 1994 through 11 July 1994 shows that the applicant’s rater indicated that the applicant always exceeded requirements, and that he should be promoted with contemporaries.  His senior rater stated that the applicant was pending trial by court-martial for criminal misconduct during the period and assisted the battalion S-4 while performing a variety of menial tasks, which he performed adequately.  He stated that because of his demonstrated lack of judgment and integrity, he was unsuitable for military service.  He rated the applicant in the bottom block in the potential evaluation portion of that report.

22.  On 27 June 1994 the 7th ATC commander agreed with the recommendation not to promote the applicant, and he also disapproved a six month retention.  On 28 June he was notified that he would be separated from active duty on            12 July 1994, the date specified in his order.  He was released from active duty on that date and transferred to a Reserve unit in Edinburg, Indiana.  He had         2 years, 2 months, and 3 days of service.  His DD Form 214 shows that his release from active duty was as a result of his non-selection for permanent promotion.  

23.  On 19 September 1994 a Member of Congress (MC) indicated that the applicant’s report of survey debt had been waived.

24.  The applicant’s Officer Record Brief (ORB) shows that he has continued to serve in the Army Reserve subsequent to his separation from active duty, and that he has served as aide-to-camp to two Commanding Generals of the          88th Regional Support Group.  He received three outstanding evaluation reports from those officials.  The applicant was promoted to first lieutenant on               29 May 1995.  

25.  Army Regulation 15-185, which prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR), states in pertinent part, that the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  There is no evidence, nor has the applicant submitted any, to show that he has exhausted his administrative remedies by appealing the challenged OERS through the Army Personnel Command to the Officer Special Review Board, an avenue of appeal available to him.

26.  The Reserve Officer Personnel Management Act (ROPMA) mandates that an officer must have 7 years of commissioned service in order to be promoted to captain.  The applicant’s Officer Record Brief shows that his basic date of appointment as 5 May 1992.  Information obtained from an official at the Reserve Officer Promotions Branch at St. Louis revealed that the zone of consideration for promotion to captain by the 1999 CPT APL (Army Promotion List) selection board was those first lieutenants with a date of rank of 16 May 1996 or earlier.  The applicant was selected for promotion, and promoted to captain on               26 July 2000.

27.  Information also revealed that the zone of consideration for promotion to captain by the 1998 CPT APL selection board was those first lieutenants with a date of rank of 16 May 1995 or earlier.  The President approved the results of that board on 1 April 1999.    

28.  Army Regulation 624-100, then in effect, provides for the promotion of officers on active duty.  Chapter 3 pertains to promotion of officers to first lieutenant, and states in pertinent part, that when an officer is under or if circumstances exist requiring the officer to be placed under the suspension of favorable personnel actions, the DA Form 78 will be forwarded to the approval authority for consideration; however, promotion will be delayed until suspension of favorable personnel actions is closed.  If the officer is exonerated of any wrongdoing, or if a determination is otherwise made that the officer was qualified for promotion during the entire period of delay, the officer will be promoted with the date of rank, effective date and position of the active duty list he would have received had there been no delay.

29.  That chapter continues by saying that the recommending officer on the          DA Form 78 is the eligible officer’s rater, and the approving officer is, in most instances, the individual’s senior rater.  When the approval authority’s recommendation is to deny promotion, the DA Form 78 (with the officer’s comments or acknowledgement) must be forwarded to the PRA (Promotion Review Authority) for final disposition.  Both the recommending officer and the approval authority must recommend or not recommend that the officer be retained on active duty for 6 months after the officer’s promotion eligibility date (PED), and if the recommendation is against retention, state why retention would be inconsistent with good order and discipline.  The approval authority will forward the recommendation to the PRA, who will direct that the officer be promoted or not promoted, and approve or disapprove the 6 month retention if not promoted.  When the PRA denies a 6 month retention, the officer will be separated from active duty not later than 90 days after notification of pending separation.

30.  Army Regulation 623-105, then in effect, establishes the policies and procedures for the officer evaluation reporting system.  Chapter 4 of that regulation states in pertinent part that no reference will be made to an incomplete investigation (formal or informal) concerning an officer.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the OER to HQDA.  If the rated officer is absolved, comments about the incident will not be included in the OER. 

31.  That chapter also states that any verified derogatory information may be entered on an OER.  This is true whether the officer is under investigation, flagged, or awaiting trial.  While the fact that an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.  When previously unverified derogatory information is later verified, an addendum will be prepared and forwarded to HQDA.  Likewise, should previously reported information prove to be incorrect or erroneous the officer will be notified and advised of his right to appeal the report.  Reports will not be delayed to await the outcome of a trial or investigation.

32.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

33.  A challenge to an OER on the grounds it lacks objectivity must overcome the strong, rebuttable presumption that administrators of the military discharge their duties “correctly, lawfully, and in good faith.  Applicant alleges his OERs reflect an improper and prejudicial factor, i.e., lack of objectivity, bias and reprisal.  If apparent or actual bias, animosity or reprisal are established or determined by the ABCMR, there is legal error and relief is warranted.  

34.  Military procedures require the rating process to be as objective as possible. The former Court of Claims recognized even though perfect objectivity is impossible, there are factors that may adversely affect ratings that “have no business in the rating process.”  Bias and personal animosity are among these improper factors, when a rater lowers an OER for “expediency” related to the rater’s personal interests.  

CONCLUSIONS:

1.  Although the Board usually requires the exhaustion of remedies, the OERs are only a small part of the relief in this case.  The larger issues relate to applicant's restoration of duty – relief subordinate agencies cannot grant.  Thus, the Board is the only entity which can grant relief.  This makes it efficient for the Board to address the OERs at the same time it resolves the larger issues.  There is no value added to the process by requiring applicant to exhaust his remedies.  The Board should waive the exhaustion of remedies requirement.  

2.  In this case, applicant’s adverse OERs, nonselection for promotion to first lieutenant and separation as a probationary officer were inequitable because the 7th Army Training Command cannot show that an improper factor, the unfair conclusion that applicant stole the night vision goggles, had no role in applicant’s OERs, nonpromotion and separation.

3.  A careful evaluation of the facts of record, and the reasonable inferences that can be drawn from those facts establishes leaders in the 7th Army Training Command did not promote the applicant, and issued an adverse OER because they believed he stole night vision goggles, despite a court-martial finding applicant not guilty of the allegations.

4.  Shortly after the allegations arose, the applicant’s battalion commander and his company commander relieved applicant of his position based on the belief he was a thief.  Subsequently, after charges were preferred the company commander and battalion commander executed a document to nonpromote the applicant because of their belief he had stolen the night vision goggles.  

5.  The battalion commander and the company commander then completed an adverse OER regarding applicant’s performance. 

6.  Thereafter, the trial court determined applicant’s confession was unreliable because of its involuntary nature, and applicant was innocent of the charges.  However, the 7th Army Training Command appeared to disregard the import of the trial court’s ruling and continued to harbor the same notions of applicant’s guilt as though the court-martial ruling had never been made.  Only two days after applicant’s acquittal, the applicant’s battalion commander revealed the extent of his substantial and inflexible bias against applicant by preparing a request to nonselect applicant for reasons which fully embraced the flawed reasoning applicant was a thief. 

7.  The battalion commander’s nonselection recommendation pointed out disingenuously that the applicant admitted to the theft of night vision goggles.  However, that officer completely omitted the significant facts that a court of law ruled the confession was coerced under outrageous conditions amounting to an “ordeal”;  the CID Agent taking the confession was unbelievable; and applicant was credible.  Moreover, he declined to mention that the applicant denied the allegations before the CID agent initiated coercive pressure, explained he admitted the theft to avoid harm to his in-laws and pregnant and ill wife, recanted the confession after determining his family was not in jeopardy, and was acquitted of the charges by the judge.  This pattern of factual distortion, and inflexible negative attitude toward applicant regardless of the facts, establishes a strong inference of bias that is not overcome by the evidence of record.   
   
8.  Moreover, the battalion commander subsequently modified his nonpromotion recommendation language by excising express references to applicant’s status as a thief.  However, the company commander’s language in that same action clearly cited applicant’s theft as the primary reason for his nonpromotion; and 
the battalion commander’s recommendation implicitly concurred with the company commander’s opinions.  The Commanding General approved the nonselection for promotion based on the recommendations of applicant’s rater and battalion commander.  As a result, the bias of the battalion commander and the company commander may be imputed to the Commanding General.

9.  Personnel of the 7th Army Training Command should have honored the decision of the court-martial and the principles for which it stood.  A CID Special Agent demanded that applicant confess or police on standby would enter his quarters, search his home, forcibly bring his sick and pregnant wife to the police station where she would be interrogated, and enter and search the home of his in-laws.  Fearing for the safety of his wife and unborn child, and fearing the public humiliation of his in-laws, an upset, nearly hysterical and crying applicant, confessed.  However, once assured his family was safe, applicant recanted. 
His course of action appears to be eminently reasonable and consistent with his pronounced innocence under the bizarre interrogation techniques the 
CID employed.

10.  The military judge characterized the outrageous nature of the CID interview techniques in this case, and found the Special Agent to be completely unreliable.
The judge invalidated the confession and subsequently acquitted applicant on the merits.  These decisions by the court make it particularly inappropriate for any personnel decisions regarding applicant to turn on the night vision goggle allegations.  This is particularly the case since the Report of Survey officer found serious credibility problems with the specialist who claimed he saw applicant with the night vision goggles, whereas the judge ruled applicant was credible.  Moreover, applicant’s outstanding record since 1994 reveals his trustworthiness and corroborates his credibility.  Indeed, not even the preponderance of the evidence supports the proposition that applicant stole the night vision goggles.  

11.  Based on the foregoing, there is no doubt the main reason for the adverse action against applicant was because his superiors believed he stole the night vision goggles.  That belief was an inappropriate factor in the promotion process. Accordingly, applicant should have been promoted to first lieutenant in early 1994.  Further, under the unique facts of this case, applicant suffered a miscarriage of justice when his command declined to honor the legal determinations of applicant’s innocence.  This made the adverse promotion and OER actions, and applicant’s follow-on release from active duty, highly inequitable.  Further, this scenario poses serious doubts about the fairness of the process under the public perception test, which is concerned with the maintenance of confidence in the fairness of the military personnel system by military whistleblowers, soldiers, the public, and Congress. 

12.  The applicant’s senior rater, the battalion commander, in completing his portion of the applicant’s  officer evaluation report for the period                          18 December 1992 through 17 December 1993, rated the applicant on                3 February 1994, knowing that the applicant had stated to the CID agent on      16 December 1993 that he stole the night vision goggles.  The senior rater’s bias is reflected in the OER as indicated by placing the applicant in the third from the top block in the potential evaluation portion of that report (below center of mass). Consequently, the senior rater portion, both comments and potential evaluation marking, should be deleted from that OER.  

13.  Moreover, the relief for cause OER covering the period 17 December 1993 through 3 January 1994 is unjust and unfair for the reasons hereto related.  That report should be expunged from his OMPF in its entirety.  A nonprejudicial statement explaining the absence of the expunged OER should be placed in his OMPF. 

14.  The comments and potential evaluation on the applicant’s OER for the period 4 January 1994 through 11 July 1994 (the day prior to the applicant’s release from active duty) again reflect the bias of the applicant’s senior rater, his battalion commander, and furthermore indicate the inappropriate reference to his pending trial by court-martial.  Whereas, the rater’s comments and ratings on this report are not prejudicial nor unfair, they do reflect his rank as second lieutenant, indicating that he should be promoted [to first lieutenant] with his contemporaries. In all fairness to the applicant, this report should also be expunged from his OMPF, and a nonprejudicial statement explaining the absence of the expunged OER be placed in his OMPF. 

15.  The June 1994 approval of the applicant’s nonselection to first lieutenant by the Commanding General of the 7th Army Training Command is void and without legal effect and should be removed from his records.  Furthermore, the adverse DA Forms 78, Recommendation for Promotion of Officer, prepared by the applicant’s raters and battalion commander, are void and without legal effect, and should be removed from his records, as should all other statements or references to his nonselection for promotion to first lieutenant.

16.  The applicant was not considered for promotion to captain by the 1998 CPT APL selection board because he did not fall within the zone of consideration based on his unjust date of rank as a first lieutenant of 29 May 1995.  However, the applicant should have been promoted to first lieutenant on 1 February 1994, the date that he normally would have been promoted to that rank.  Consequently, he would have been considered for promotion to captain by the 1998 CPT APL selection board, and in all probability would have been selected for promotion, and promoted to captain on 1 April 1999, the date the President approved the board results. 

17.  The applicant’s records should be corrected to show that he was promoted to first lieutenant on 1 February 1994.  He should receive all due pay and allowances in that rank from 1 February 1994 through the date of his separation on 12 July 1994, and continuing until he was promoted to captain in the Army Reserve.  Although it is difficult to predict the results of a selection board, the applicant was selected for promotion to captain the first time considered, and this Board believes that he would have been selected had he been considered, as he should have been, by the 1998 board.  Therefore, and in all fairness, the applicant’s record should be corrected to show that he was promoted to captain on 1 April 1999, the date the President approved the results of the 1998 selection board.  He should receive all due pay and allowances as a captain from that date. 

18.  The applicant’s DD Form 214 of 12 July 1994 should be corrected to delete all references that show that he was released from active duty because of nonselection for promotion.  That form should reflect his release from active duty in the rank of 1LT, pay grade 02, with a 1 February 1994 effective date of pay grade.  Items 23, 25, 26, 27, and 28 of that form should reflect that the applicant voluntarily resigned from active duty.  All other records, e.g., orders, etc., should be corrected to delete any references to his separation from active duty for lack of qualification for promotion.  Those records should reflect that he resigned voluntarily and that his resignation was approved and accepted.

19.  Any references in the applicant’s records showing that he was a suspected or actual perpetrator of any crimes arising from or related to the missing night vision goggles, or any involvement thereto should be expunged from his records (absent, however, any CID or other law enforcement records). 

20.  The applicant’s records should be corrected to reflect that he has had a SECRET security clearance since 1992, and that it has never been suspended or revoked for matters arising out of the night vision goggles incident.  However, nothing prevents the security or law enforcement communities from inquiring into the facts and circumstances of the case in order to make a determination regarding applicant’s security access, and from following the proper revocation procedures, if warranted.

21.  The applicant should be ordered to active duty from the Army Reserve, provided he is otherwise eligible, e.g., morally, medically, or otherwise unqualified.  He should be ordered to active duty in the rank of captain in the Regular Army (his component prior to his release from active duty), with the date of rank of 1 April 1999.  He should be allowed 180 days from the date of the decision of this Board to be activated to active duty.  The date that the Army notifies the applicant of his ineligibility for service terminates the operation of the 180 days the Board has authorized for his reentry, or the date that he voluntarily declines to enter the Army terminates the 180 days period.  The applicant’s branch and assignment upon his entry on active duty will be determined by the Total Army Personnel Command (PERSCOM).  That command also has the authority to make reasonable adjustments regarding the applicant’s promotion date to captain, as long as any such changes are in the applicant’s interests and benefit, and comport with the Board’s intent that the applicant is provided with a meaningful opportunity to compete successfully as compensation for the Army’s unfair discharge action.   

22.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  Deleting the comments and potential evaluation marking on the senior rater portion of the OER for the period 18 December 1992 through                      17 December 1993;

     b.  Expunge from the applicant’s OMPF the OER covering the period            17 December 1993 through 3 January 1994, and the OER covering the period    4 January 1994 through 11 July 1994.  Nonprejudicial statements explaining the absence of the expunged OERs will be placed in the applicant’s OMPF;
     
     c.  Remove from the applicant’s records the June 1994 approval of his nonselection to first lieutenant by the Commanding General of the 7th Army Training Command, and remove all adverse DA Forms 78 from his records as well as all other statements or references concerning his nonselection for promotion to first lieutenant;

     d.  Correct the applicant’s records by showing that he was promoted to first lieutenant effective and with a date of rank of 1 February 1994.  Grant the applicant all due pay and allowances as a first lieutenant from that date until his promotion to captain in the Army Reserve.  Correct his records to show that he was promoted to captain on 1 April 1999.  Grant the applicant all due pay and allowances as a captain from that date. 

     e.  Correct the applicant’s DD Form 214 of 12 July 1994 to delete all references that show that he was released from active duty because of nonselection for promotion.  Correct that form to reflect his release from active duty in the rank of 1LT, pay grade 02, with a 1 February 1994 effective date of pay grade.  Correct items 23, 25, 26, 27, and 28 of that form to reflect that the applicant voluntarily resigned from active duty.  Correct all other records, e.g., orders, etc., to delete any references to his separation from active duty for lack of qualification for promotion.  Those records should reflect that he resigned voluntarily and that his resignation was approved and accepted; 

     f.  Expunge from his records any references showing that he was a suspected or actual perpetrator of any crimes arising from or related to the missing night vision goggles, or any involvement thereto (absent, however, any CID or other law enforcement records);
 
     g.  Correct the applicant’s records to reflect that he has had a SECRET security clearance since 1992, and that it has never been suspended or revoked for matters arising out of the night vision goggles incident.  However, nothing prevents the security or law enforcement communities from inquiring into the facts and circumstances of the case in order to make a determination regarding applicant’s security access, and from following the proper revocation procedures, if warranted; and

     h.  Order the applicant to active duty from the Army Reserve, provided he is otherwise eligible, in the rank of captain in the Regular Army with a date of rank of 1 April 1999, in the branch and with the assignment as determined by PERSCOM.  The applicant has 180 days from the date of the decision by this Board to be activated to active duty.  Should he decline to enter the Army within the 180 day period, or should he be ineligible to be ordered to active duty, then this approval of the applicant’s request for active duty is permanently withdrawn.  

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___sk___  ___ewl__  __hbo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000035613	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010306	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  193	111.03	
2.	111.01	
3.	131.00	
4.	134.00	
5.		
6.