MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 November 2000                   
	DOCKET NUMBER:   AR2000037958

	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. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Thomas E. O’Shaughnessy, 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 he be reinstated in the U. S. Army Reserve (USAR).

APPLICANT STATES:  That his involuntary separation from the USAR was unjust and vindictive.  In 1990, while in the 94th General Hospital, he volunteered for front line duty in the Persian Gulf and was assigned to the 947th Medical Clearing Company while the 94th served in Germany.  In 1991, he completed legal arrangements through appropriate military channels for the 94th General Hospital to receive and retain for display three captured Iraqi rifles as Trophies of War.  All three rifles were approved as Trophies of War and shipped back with other equipment belonging to the 947th Medical Clearing Company.  He was released from active duty on 24 June 1991.  In August 1991, after all the 947th’s property arrived in Colorado, he learned that approval for the three rifles had been withdrawn.  The Bureau of Alcohol, Tobacco and Firearms (ATF) was contacted but instead of providing assistance the ATF threatened to prosecute anyone involved with their now illegal entry. 

The applicant retrieved the three rifles with assistance from Fort Hood, TX personnel and destroyed them before the ATF was able to seize them as evidence.  The ATF then started a major investigation into a “major arms smuggling ring.”  The Army investigated the matter and he was given a favorable disposition and was even promoted.  The ATF persisted in their investigation and became increasingly frustrated by the lack of cooperation from Fort Hood and himself in identifying the personnel involved in retrieving the rifles.  The ATF eventually indicted him and, because of the expenses involved in a trial, he finally agreed to plead guilty to a single charge of “Aiding and Abetting the Use of a False Document.”

The applicant continued his clinical duties with the Federal Government and his duties as a Medical Corps officer with the USAR with the full support of the entire medical staff of the 94th General Hospital.  In 1997, his unit was ordered to select four physicians to deploy to Hungary for 9 months.  Due to his wife’s health problems he requested deletion from the assignment.  His request was denied.  He resubmitted it and it was denied again.  On 29 August 1997, he received his orders to report to Fort Benning, GA.  During the deployment process he sustained a left arm crush injury and was denied appropriate medical care for     5 days.  After being diagnosed with multiple left arm fractures he was placed in a long arm cast and returned to field training duties.  He was then accused of conduct unbecoming an officer and ordered to undergo a full psychiatric evaluation.  He was found not to be a threat to anyone and to have a legitimate concern about the proper healing of his fractures.  Still, his unit insisted he continue field training.  At the last minute he was not deployed.  He accepted an administrative reprimand as he was told that would be the only way he could expect to be promptly released from active duty.  As a result of his complaint to the Pentagon against his reserve command, both the commander of the 94th General Hospital and the commanding general of the Medical Brigade were relieved of command.  Their last action in command was to initiate vindictive administrative action against him for unprofessional conduct and in support of the separation action cited the already dealt with felony conviction of 1993.  In reporting the findings to the Commanding General (CG), 90th Reserve Support Command (RSC), the Staff Judge Advocate (SJA) falsely and incorrectly reported that the applicant had received a civilian conviction for threatening his commander.  

COUNSEL CONTENDS:  In the applicant’s Army Discharge Review Board (ADRB) application, counsel contended that the administrative separation board hearing was filthy with errors and that the post-hearing SJA advice clearly misled the CG.  The applicant had volunteered for active duty during Operation Desert Shield/Storm.  When he was later ordered to go to Hungary, he sought deferral because of recent injuries.  Despite his injuries, the commander insisted that he deploy.  After receiving delayed and inadequate medical treatment – and while under lawfully prescribed narcotic medication – the applicant protested abysmal medical and military incompetence.  The system then built a phony case against him.  After having been fully vindicated earlier, the administrative separation board revived a stale charge against the applicant as “proof” that he was a rascal.

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

He was appointed a commissioned officer in the USAR, Medical Corps in May 1982.  He was assigned to the 94th General Hospital, Mesquite, TX in July 1982. He was promoted to major on 15 April 1989.

On 15 October 1990, the applicant entered active duty in support of Operation Desert Shield/Storm.  On 20 January 1991 he was ordered to deploy in support of Operation Desert Shield and to be attached to the 947th Medical Company upon his arrival in Southwest Asia.

On 27 April 1991, both the applicant and the Commander, 947th Medical Company completed and signed three War Trophy Registration/Authorization forms.  (There is some indication this may have been a resubmission.)  The forms identified three each Dragunov semi-automatic rifles for retention, display and training by the 94th General Hospital.  Also on 27 April 1991, the Commander, 947th Medical Company prepared a memorandum for the Assistant Chief of Staff for Logistics requesting permission to ship war trophies to his home station with unit equipment.  In addition to three trophies for the 947th Medical Company, the three trophies for the applicant’s 94th General Hospital were identified on this form as being for the 94th General Hospital.  

By message dated 10 May 1991, the Deputy CG, Operations requested approval to retain captured enemy equipment for Army Central (ARCENT) Medical Command units.  The 947th Medical Company and the 94th General Hospital were listed on the message but on an unknown date a captain deleted the entry for the three trophies for the 94th General Hospital and noted “This Unit Not Approved.”  The 947th Medical Company apparently loaded its property for redeployment, to include the two sets of war trophies, on 18 May 1991.  On 13 June 1991, the 22d Support Command noted in a memorandum for record that the ARCENT Medical Group had approval to take listed captured enemy equipment back to the States but that the 94th General Hospital had been deleted from the approval and that the listed weapons were to be turned in.  

On 24 June 1991, the applicant was released from active duty.  

According to a 13 September 1991 ATF synopsis of investigation, in order to retrieve the Dragunov rifles the applicant presented a forged letter that stated his original permit application, dated 10 April 1991, had been approved.

In July 1992, the applicant was charged by the U. S. District Court, District of Colorado with smuggling goods into the United States; theft and conversion of government property; conspiracy; receipt of unlawfully imported firearms; false statements; and arms export and import control (violations).  In May 1993, he pleaded guilty to one count of Aiding and Abetting the Use of a False Document. He was sentenced to 2 years probation, a $5,000.00 fine and 200 hours of community service.

On 2 June 1993, the applicant received a letter of reprimand for his involvement in actions that resulted in his conviction for Aiding and Abetting the Use of a False Document, the letter to be filed in his military personnel records jacket for a period of 2 years.  His retention in the unit was recommended and approved.  

Because the applicant’s sentence to probation caused his security clearance to be suspended, he requested transfer to the Individual Ready Reserve in August 1994.  On 14 April 1996, he was promoted to LTC.  He requested transfer back to the unit in October 1996 and was transferred back to the 94th General Hospital on 5 February 1997.

On 18 May 1997, the 94th General Hospital commander sent the applicant a memorandum informing him it had received a Training Alert to support Operation Joint Guard in Southeastern Europe.  Five physicians were required and the commander was trying to fill the mission requirements with unit volunteers but would staff the mission with non-volunteers if necessary.  The applicant needed to express his volunteer interest no later than 3 June 1997 and also to indicate if he would go on the mission only if ordered or if he would leave the unit or leave the Army Reserve program if ordered to the mission.  The applicant’s response to this memorandum is not available.

On 12 July 1997, the applicant requested release from the 94th General Hospital so he could request transfer to a Flight Surgeon position with the Texas Army National Guard.  He had apparently initiated his transfer packet in November 1996 with the Texas Army National Guard.  It is unknown when he first made the 94th General Hospital aware of his desire for transfer.  

On 14 July 1997, the applicant’s request for transfer to enter the Texas Army National Guard was denied as the unit was under alert mobilization notification orders and all personnel actions regarding reassignments were on hold.  He had been selected for the mission based on his qualifications and mission needs.  He was ordered to report for deployment training on 2 – 3 August 1997.  It was noted that he had already missed a portion of the Hungary mission training but it was a portion that could be made up at his home station.  Failure to attend the mandatory training would result in adverse administrative action being initiated against him.  

On 9 August 1997, the applicant requested deletion from the Hungary mission due to family hardship and other reasons.  In support of his request, he provided a statement from his wife’s doctor, stating his wife had developed moderate clinical depression for which she required treatment from 1992 through 1993.  In June 1997 her depression recurred, precipitated by her medical problems and accentuated by the applicant’s expected prolonged overseas deployment.

On 15 August 1997, the applicant’s request was disapproved by the CG, 807th Medical Brigade.  The CG felt that the commander of the 94th General Hospital had acted in a timely manner to ensure the applicant would have all possible opportunity to coordinate his personal and business obligations and responsibilities prior to mobilization.

On 21 August 1997, the applicant rebutted the disapproval and again requested deletion.  He stated that the CG’s evaluation of his situation was faulty and that it was not the case that his wife’s health concerns were evident at the same time that he sought reassignment back into the 94th General Hospital.  His wife started therapy in 1992 until late 1993.  She did well until early 1996.  By October 1996, her symptoms prompted her primary care physician to try Zoloft.  In May 1997 she was diagnosed with polyarthritis and fribromyalgia, a medical condition that was clearly exacerbated by stress.  He found it difficult to believe the CG would disapprove his request based on the facts provided.  

On 27 August 1997, the applicant’s request for deletion was again disapproved.  Orders dated 29 August 1997 ordered him to active duty for a period not to exceed 270 days with a report date of 11 September 1997.
On 10 September 1997, the applicant injured his left forearm and chipped a tooth in an accident at his farm.  He was treated by a civilian physician for pain and swelling, his arm was placed in a splint and he was told to keep it elevated and an ice pack on it.  He was treated again by a military treatment facility on           11 September 1997.

On 12 September 1997, the Aviation Medical Clinic prepared a DA Form 3349, Physical Profile.  The form noted the applicant’s medical condition as a “crush injury to left forearm with severe contusion and sprain – may have missed fracture of wrist.”  He was given a temporary P4 and U4 (unable to perform in the categories of physical capacity and upper extremities) physical profile and assignment limitations of “May not be deployed outside CONUS due to limitations pending evaluation.”  On this date also he saw a civilian dentist who noted an abscess in his broken tooth, started endodontic treatment that date, made his next appointment for 2 October 1997, and stated all treatment would be completed in one month.

On 13 September 1997, Orthopedics prepared a DA Form 3349 and replaced the previous DA Form 3349 due to inconsistency in the narrative regarding PULHES and limitations.  His P and U profiles were changed to T2s and the only assignment limitations were “No APFT or strenuous activity involving left upper extremity pending resolution.”  

On 15 September 1997, the applicant was examined by Orthopedics and diagnosed with a fractured ulna styloid, distal ulna and radial styloid.  A new DA Form 3349 changed his profile to T3 under the U and he was given an assignment limitation of “Do stretching as able.”  He was determined to be deployable.  A dental examination on this date determined he was nondeployable due to incompleted root canal therapy.

While being examined by Orthopedics, the Physician Assistant (PA) heard the applicant ask the orthopedic technician to place extra fiberglass on so he could inflict pain with it.  After the PA told the applicant that would be a foolish thing to do, the applicant mentioned that he would just wait until they went to the weapons range.  The examining physician overheard the applicant make threatening statements about his commander on two occasions.

On 18 September 1997, the applicant was referred to psychiatry for evaluation of homicidal ideation.  The evaluating psychiatrist noted that the applicant admitted making statements of doing harm to his commander but denied a true intent of doing so.  The applicant stated he was known as a “hot head” but was only upset over his arm injury and desired full recovery before being deployed.  The applicant was not considered to be a threat to others or himself and it was recommended that he not be deployed until a period of observation be completed.
On 2 October 1997, the applicant was given a letter of reprimand for conduct unbecoming an officer.  Specifically, he made several threatening statements about physically hurting his commander to other military personnel.  Furthermore, the comments were made to personnel who were junior in rank to him and had to tell him to cease that type of behavior.  The applicant responded by stating that the comments he made were generalized statements made during a very difficult period while he was undergoing care for a 5-day old missed and untreated left arm fracture.  His inappropriate comments were also prompted by the additional frustration experienced when the Orthopedic PA declared him fully deployable.  He never made any comments to his commander or made any threatening statements to the commander or any one else outside the Orthopedics treatment area.  He later apologized to the commander and his apology was accepted.  The letter was directed for filing in his Official Military Personnel File.

On 8 October 1997, the applicant was released from active duty and assigned back to the 94th General Hospital due non-deployability because of his broken arm.  

On 9 December 1997, the applicant was notified that involuntary separation action was initiated against him under the provisions of Army Regulation        135-175, paragraph 2-12o for conduct unbecoming an officer and paragraph     2-12j, conviction by a civil court of a felony when no sentence to confinement results.  In December 1997, the applicant requested a hearing before a board of officers.  On 9 January 1998, he was informed the board would be held on          4 February 1998.  On 15 January 1998, applicant’s counsel requested continuance for several reasons.  A 2-week delay was granted.

On 18 February 1998, the board found that the applicant did receive a conviction by a civil court of a felony when no sentence to confinement resulted; that he did make several threatening statements about physically hurting his commander to other military personnel; and that his conduct was unbecoming of an officer.  The board recommended that he be discharged from the USAR because of moral or professional dereliction with a general discharge under honorable conditions.

On 3 March 1998, an assistant SJA reviewed the board proceedings and found them to be legally sufficient.  Paragraph 3 of the review stated “___ received a civil conviction for threatening his commander, a civil conviction for aiding and abetting the use of a false document in a case involving the illegal importation of war trophies, and exhibited conduct unbecoming an officer…”  On 6 March 1998, the CG, 90th RSC, considered all material presented, both favorable and unfavorable to the applicant, and the recommendations of his SJA and recommended approval of the board proceedings.  The case was forwarded through the U. S. Army Reserve Command to the Army Reserve Personnel Center for final determination.  On 26 June 1998, the applicant’s involuntary separation was approved.  On 10 August 1998, the applicant was discharged from the USAR with a general discharge under honorable conditions. 

On 16 March 2000, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to fully honorable.  The ADRB determined that the length and quality of his overall service partially mitigated the misconduct and/or acts of indiscretion and concluded that the characterization of his discharge as general under honorable conditions after 15 years of otherwise creditable reserve service was inequitable.

Army Regulation 135-175 prescribes the policies, criteria and procedures governing the separation of Reserve officers of the Army.  Paragraph 2-1 prescribes the conditions, not all-inclusive, which would authorize involuntary separation of an officer due to moral or professional dereliction.  Two of the conditions listed are conviction by civil court of a felony when no sentence to confinement results and conduct unbecoming an officer.

Army Regulation 40-501 governs medical fitness standards for retention and separation and for certain enlisted military occupational specialties and officer assignments.  Paragraph 5-14 states that all soldiers considered medically qualified for continued military status and medically qualified to serve in all or certain areas of the continental United States (CONUS) are medically qualified to serve in similar or corresponding areas outside CONUS.  Separate paragraphs discuss the hearing and vision requirements of officers assigned to certain branches.

Army Regulation 600-8-101 prescribes policies governing personnel in and out processing and mobilization processing as a function.  Paragraph 6.3 states that for contingency operations that do not require mobilization or in the event of the Presidential Selected Reserve call-up, the assignment restrictions in Army Regulation 614-30, Table 3-1 apply.

Army Regulation 614-30 provides policy guidance on eligibility and selection of military personnel for overseas service.  Table 3-1 provides eligibility criteria for overseas service for contingency operations and M-day.  Rule 1 states that if an individual has a permanent or temporary profile established by a medical board and the profile precludes satisfactory duty performance in the unit, as determined by appropriate medical authority and approved by the unit commander, then the individual is ineligible until the temporary disqualification expires unless the commander disapproves.

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 does not agree with the applicant’s contention that his involuntary separation was unjust and vindictive.  The evidence of record showed that his overall record contained sufficient adverse information to warrant his consideration for elimination from the service.  Although his earlier letter of reprimand for receiving a civil conviction initially closed that action, it was properly brought in as an issue in his involuntary separation proceedings to show that the latest incident for which he received another letter of reprimand was not an isolated incident of misconduct.

3.  The Board does not agree with the applicant’s implied contention that the SJA deliberately falsely reported that he had received a civilian conviction for threatening his commander.  Although it was an incorrect statement, from the wording of the SJA’s review it appears that this was an administrative oversight in proofreading and not a deliberate falsification.  In addition, the CG, 90th RSC stated that he considered all material presented, both favorable and unfavorable to the applicant, not just the recommendations of his SJA, and so appears to been aware of the error in the SJA’s memorandum and was not unduly influenced by it.  

4.  While the Board makes no determination as to the “justness” of the applicant’s conviction by a civil court, the Board notes that the 10 May 1991 message he cites as the approval for shipment of the war trophies was only a request for approval.  From the evidence provided the Board cannot determine that he had ever received approval to ship the weapons.

5.  The decision to declare the applicant deployable was within his commander’s discretion.  There is no evidence to show that the medical unit to which he was assigned and to which he would be assigned when deployed could not have adequately treated his arm.  Nor does he provide evidence to show that he felt so strongly about his wife’s condition that he responded to the18 May 1997 Training Alert by stating he would be willing to leave his unit or the Army Reserve if ordered to the mission.

6.  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

__tap___  __rwa___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037958	
SUFFIX		
RECON		
DATE BOARDED	20001121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.