MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 July 2000                   
	DOCKET NUMBER:   AR2000041829

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 the record of nonjudicial punishment, the letter of admonishment, and all adverse Officer Evaluation Reports (OERs) related to the informal Army Regulation (AR) 15-6 findings dated 24 November 1998 be removed from his records and that his records be considered by a Special Selection Board for promotion to lieutenant colonel.

APPLICANT STATES:  That he had a medical condition that caused his unsatisfactory performance.  His command did not consider his medical condition as a cause of his conduct.  His command denied him due process by effectively preventing presentation of medical evidence.  His command “erroneously applied non-enforceable regulation when determining elements of Article 92, violation of lawful regulation.”  His command erroneously used evidence gained under the limited use policy to substantiate elements of Article 134, drunk and disorderly.  Supporting evidence is as listed on the DD Form 149.

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

He was commissioned an Infantry Branch second lieutenant on 4 January 1984 and entered active duty on 4 June 1984.  He deployed to Somalia in 1993.  He was promoted to major on 1 December 1995.  He was assigned to Headquarters and Headquarters Company, 5th Battalion, 87th Infantry, Fort Kobbe, Panama about 14 June 1997 as the battalion operations officer.  

The applicant’s OER for the period ending 30 September 1997 showed that he had received a top-block rating from the senior rater (38/2/0/0/0/0/0/0/0).  His rater commented “…performance as the battalion operations officer, S3, has been absolutely superb…”  The senior rater commented “The best battalion S3 in all of U. S. Army South…”  His OER for the period ending 4 June 1998 shows he received an above center of mass rating from the senior rater.  His rater commented “…continues his superb performance as the very best S3 of three I have rated, and the very best I’ve seen in 19 years.”  His senior rater commented “The best battalion S3 of five in the Brigade and the best in all of USARSO.  One of the top three majors out of 49 in this brigade…”

The applicant’s OER for the period ending 14 October 1998 was a change of duty OER.  It showed his rater rated his performance and potential as “unsatisfactory performance, do not promote” and his senior rater rated his potential as “do not promote” and gave him a below center of mass rating.  Rater comments included “…it was determined that during this rating period …was engaged in an improper personal relationship with a female second lieutenant in this battalion…specifically…discussed inappropriate topics with the lieutenant ranging from sex to how companies were being led…”  Senior rater comments included “…failed to adhere to our Army Values and demonstrated poor judgement in his personal and professional behavior by pursuing an inappropriate relationship with a subordinate officer.”  Senior rater comments also included “…is the most technically proficient Battalion Operations Officer in this Brigade.  His operational achievements were outstanding.”  

In November 1998, apparently after departing on ordinary leave and arriving at his home near Fort Polk,LA, the applicant referred himself to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol abuse.

An informal investigation conducted 17 – 24 November 1998 found that the applicant abused his rank and position during a confrontation with Lieutenant (LT) S___ on 8 November 1998 by approaching him at the movie theater and telling him “I’m gone for ten minutes and you move in on my date …move the f____ out.”  (By “date,” he was referring to LT H___.)  The applicant and LT H___ were not on a date.  On 14 November 1998, the applicant caused a disturbance by entering the home of LT S___ and LT W___ and having an altercation with LT H___.  His conduct was unprofessional and unbecoming an Army major and was prejudicial to the good order and discipline of the battalion.  The applicant and LT H___ had an inappropriate familiar, but not sexual, relationship.  The relationship caused gossip and speculation within the battalion.  The applicant sexually harassed LT H___ by pressuring her for sex on numerous occasions.  Although he did not make his requests a condition of her career success, he made deliberate and repeated unwelcome sexual requests and thus sexually harassed LT H___.  The preponderance of the evidence did not show that the applicant  had an inappropriate or sexual relationship with Captain G___ but the investigating officer (IO) believed it possible that the sexual relationship did occur.  The applicant did assault LT H___ on 14 November 1998 by pushing her during an argument in LT S___’s apartment.  The IO recommended the applicant be relieved from his current duties as executive officer of the battalion and that he be charged with Article 93 (sexual harassment), Article 128 (assault) and Article 133 (conduct unbecoming an officer and gentleman).

The applicant’s OER for the period 15 October 1998 through 16 December 1998 was a relief for cause report during which time he performed duties as the battalion executive officer.  The rater and senior rater commented that the applicant had been relieved from duties based upon the findings of the 15-6 investigation.  The OER was referred to him for comment/rebuttal.  On              11 December 1998, he requested a delay.  On 16 December 1998, his senior rater denied his request but stated that any subsequent matters submitted would be considered and could be the basis for reconsidering his relief for cause. 

In December 1998, while in group therapy for alcohol rehabilitation, the applicant complained of nightmares which stemmed from an incident which occurred while he was in Somalia in 1993.  He had claimed that after a firefight with bandits he shot and killed a man he believed to be armed.  He did not report the killing at the time.  The U. S. Army Criminal Investigation Command (CID) initiated an investigation into the matter.
On 18 January 1999, the applicant submitted a request for unqualified resignation.  The request is not available.  

On 24 February 1999, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being drunk and disorderly on 14 November 1998 which conduct was of a nature to bring discredit upon the armed forces; for violating a lawful general regulation, to wit: paragraph 4-14, AR 600-20,dated 30 March 1988 by having an improper relationship with LT H___ between 5 June and 3 November 1998; and by engaging in an inappropriate relationship with LT H___ between 5 June and 3 November 1998, which conduct was unbecoming an officer and gentleman.  His punishment was to receive a letter of admonition and to forfeit $1,000.00 pay for 2 months, suspended.  

On 26 March 1999, the applicant requested withdrawal of his unqualified resignation.  He stated he had been diagnosed with PTSD.  He had submitted his resignation within days of his being released from a inpatient treatment facility and he was not able to properly weigh all concerns at the time.  The U. S. Total Army Personnel Command (PERSCOM) had revoked the applicant’s discharge on 9 February 1999.  The discrepancies in date of request and date of approval apparently resulted in faxed documents from the applicant and his command to PERSCOM crossing over one another.

On 2 April 1999, the applicant rebutted the relief for cause OER, stating the OER should have made reference to his diagnosis of post traumatic stress disorder.  His command was aware of his diagnosis.  The command, in recommending “do not promote,” did not even attempt to determine if he could be rehabilitated and retained.

On 22 April 1999, the CID investigation established insufficient evidence to believe the applicant committed the offense of negligent homicide while in Somalia.

On 1 June 1999, the applicant’s attending psychiatrist prepared a psychiatric report at the request of the applicant’s defense counsel.  The applicant’s complaints consisted of having a difficult time concentrating, having flashbacks that occurred without warning and being plagued by intrusive memories of Somalia that he would rather forget.  He was diagnosed with alcohol dependence and PTSD.  At the time, he was abstinent from alcohol and started on Zoloft to treat his depression and control his PTSD symptoms.  On 7 June 1999, the applicant’s attending psychologist prepared a statement at the request of his defense counsel.  He stated that the applicant experienced recurrent and intrusive distressing thoughts, memories, flashbacks and nightmares related to the Somalia incident.  He experienced distress on exposure to cues that triggered memories of the event and attempted to avoid stimuli associated with the trauma.  He attempted to deal with the problem with alcohol but feelings of depression and anxiety persisted.  Subsequently, significant marital and occupational problems developed.  On 26 August 1999, a physical evaluation board (PEB) found the applicant unfit for duty by reason of PTSD and recommended he be placed on the Temporary Disability Retired List (TDRL).  However, the findings were modified on 28 October 1999 to a finding of fit for duty.  The U. S. Army Physical Disability Agency (USAPDA) found no substantial evidence that he was unfit because of medical impairment.  His OERs through October 1998 rated him high until he was discovered to have been involved in an improper personal relationship with a subordinate.  He was relieved from his duties for cause, not a result of any medical condition.  The applicant rebutted this change.

On 2 February 2000, the Army Physical Disability Appeal/Rating Review Board concurred with the USAPDA decision, specifically adopting the rationale of the USAPDA in its discussion of the case and final decision.

On 19 November 1999, the Department of the Army Inspector General (DAIG) closed an inquiry into allegations the applicant had made.  The DAIG concluded the allegation that the Commanding General, U. S. Army South unfairly and unjustly disciplined him was not founded.  The DAIG concluded that the contention that he was mentally unsound to participate in the administrative actions against him and that his condition prevented him from presenting a more substantial defense to the actions was not supported by the actions of his legal counsel.  The Limited Use Policy identified in AR 600-85 did not prevent the command from taking administrative action against him for misconduct that occurred prior to his enrollment in the ADAPCP.  

AR 600-20 prescribes the policies and responsibilities of command.  Paragraph 4-14 of the 29 April 1988 version, in effect at the time, stated that relationships between soldiers of different rank that involve, or give the appearance of, partiality, preferential treatment, or the improper use of rank or position for personal gain, are prejudicial to good order, discipline, and high unit morale.  It is Army policy that such relationships will be avoided.  Commanders and supervisors will counsel those involved or take other action, as appropriate, if relationships between soldiers of different rank cause actual or perceived partiality or unfairness; involve the improper use of rank or position for personal gain; or create an actual or clearly predictable adverse impact on discipline, authority or morale.

AR 600-85 prescribes policies and procedures needed to implement, operated and evaluate the ADAPCP.  The limited use policy prohibits the use of the following evidence against a soldier in actions under the UCMJ:  (1) mandatory urine or alcohol breath test results taken to determine a soldier’s fitness for duty and the need for various types of medical treatment or in conjunction with a soldier’s participation in ADAPCP; (2) a soldier’s self-referral to ADAPCP; (3) information concerning drug or alcohol abuse or possession incidental to personal use occurring prior to the date of initial referral to ADAPCP provided voluntarily by a soldier as part of his or her initial entry into ADAPCP; admissions made by a soldier enrolled in ADAPCP to a physician or ADAPCP counselor concerning drug or alcohol abuse or possession incidental to personal use occurring prior to the date of initial referral to ADAPCP; and (5) information concerning drug or alcohol abuse or possession incidental to personal use obtained as a result of a soldier’s emergency medical care for an actual or possible drug or alcohol overdose unless such treatment resulted from apprehension by military or civilian law enforcement officials.

Limited use does not grant immunity for present or future use, illegal possession of drugs, or for other illegal acts, past, present or future.  For example, information that the client presently possesses illegal drugs or that the client assaulted a person while under the influence of drugs is not exempt under this policy.

The Diagnostic and Statistical Manual of Mental Disorders, fourth edition, states that PTSD is the development of characteristic symptoms following exposure to an extreme traumatic stressor.  The characteristic symptoms include persistent reexperiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased arousal (responsiveness to sensory stimulation).  PTSD can occur at any age.  Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before symptoms appear.  Duration of the symptoms varies, with complete recovery occurring within 3 months in approximately half of cases, with many others having persisting symptoms for longer than 12 months after the trauma.  .  

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 applicant did not receive his contested OERs, Article 15, or letter of admonishment for unsatisfactory performance.  On the contrary, his OER for the period ending 14 October 1998 included comments that he was the most technically proficient battalion operations officer in the brigade and that his operational achievements were outstanding.  His OER for the period ending      16 December 1998 cited his misconduct as the reason for his relief from duty and not any unsatisfactory performance of duty.

3.  The applicant stated in his rebuttal to the relief for cause OER that his command was aware of his diagnosis.  The Board notes that the DSM IV does not cite impairment of judgment as one of the characteristic symptoms of PTSD.  Therefore, the Board concludes that the applicant’s raters reasonably believed that his initiation of and continuance in an improper relationship with a subordinate was not the result of his PTSD and so was not a mitigating factor in determining the appropriate disciplinary actions to be taken.

4.  The Board disagrees with the applicant’s contention that AR 600-20 was a “non-enforceable” regulation in determining he violated Article 92, failure to obey order or regulation.  Paragraph 4-14 of the 29 April 1988 version of the regulation clearly stated that commanders would take action, as appropriate, if relationships between soldiers of different rank cause actual or perceived partiality or unfairness or create an actual or clearly predictable adverse impact on discipline, authority or morale.  One of the IO’s findings was that the applicant had an inappropriate familiar, but not sexual, relationship with a female subordinate that caused gossip and speculation within the battalion.  The Board concludes that this finding met the criteria of paragraph 4-14 and it was the commander’s responsibility to take appropriate action.  Considering the applicant’s rank, the Board concludes that an Article 15 and letter of admonishment were appropriate actions.

5.  However, the Board also finds that since specifications 2 and 3 of the Article 15 cover the same period of time and essentially the same misconduct, specifications 2 and 3 are multiplicious.  Specification 2 should be merged into specification 3.  The Board finds that specifications 1 and 3 are still valid and that the punishment imposed is still appropriate; therefore, it is not appropriate to set aside the Article 15.

6.  The limited use policy does not grant immunity for illegal acts committed prior to entry in the ADAPCP.  The Article 15 cited the applicant for being drunk and disorderly on 14 November 1998, prior to his entry in the ADAPCP.

7.  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.

NOTE:  The U. S. Army Total Army Personnel Command will be directed to redact specification 2 of the Article 15 charge sheet.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jlp___  __mhm___  __jea___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041829	
SUFFIX		
RECON		
DATE BOARDED	20000713	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	126.03	
3.	126.04	
4.		
5.		
6.