MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 July 2000                   
	DOCKET NUMBER:   AR2000042512

	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. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 General Officer Memorandum of Reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF), that he be awarded the Army Good Conduct Medal (6th award), that he be awarded the Gold Recruiter Ring, and that his recommendation for the award of his reassignment Meritorious Service Medal be resubmitted.

APPLICANT STATES:  That during the Army Regulation (AR) 15-6 investigation, the investigation officer (IO) made an inappropriate comment that may have lead to an unjust conclusion.  The individual who was falsely accused of not taking the Armed Services Vocational Aptitude Battery (ASVAB) test stated that he did take the test.  His company commander, first sergeant, and station commander were never questioned concerning his integrity.  He was never given the benefit of any doubts about his innocence.  Supporting evidence is as listed on the DD Form 149.

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

He enlisted in the Regular Army on 8 September 1981.  He completed basic training and advanced individual training and was awarded military occupational specialty 71G (Patient Administration Specialist).  He was assigned as a field recruiter on or about January 1996.  He was promoted to Sergeant First Class (SFC), E-7 on 1 May 1997.  He was awarded the Army Good Conduct Medal (fifth award) on 7 September 1996.

On 16 February 1999, a report of investigation was conducted to determine if a “ringer” took an ASVAB test for one of the applicant’s recruits, F___.  The IO found that the applicant had met F___ over two years previously.  F___’s name was E___ J___ F___ on all documents except the document in question where his name and signature were written as J___ E___ F___.  F___ had taken the ASVAB a total of four times, scoring 13, 19, 19, and finally, on 8 December 1998, 42.  He had taken the first three ASVAB’s in Columbus, GA; the fourth in Americus, GA.  Apparently, the Columbus, GA test site administered the ASVAB every Tuesday evening and F___ had to babysit that evening.  At the test site F___ identified himself as J___ E___ F___.  He did not have any identification so a thumbprint was used as identification.  On 11 December 1998, F___ tried to enlist.  While processing, it was noticed there was a discrepancy in the order of F___’s name and significant differences in the signature style.  It was recommended that his enlistment process be stopped pending further investigation.  

The IO determined that an unknown person took F___’s ASVAB as a ringer.  Although F___ goes by the name J___, he could not show where he ever signed his name J___ E___ F___.  The IO thought F___’s answers to questions sounded as if he were coached.  The applicant’s planning guide was blank and he could not verify that he picked up F___ for the test.  The IO offered F___ the opportunity to take a confirmation test that afternoon.  F___ declined, stating he was too upset but asked if he could retake the test the following week.  F___ also refused to submit to a second thumbprint.  The IO talked to members of the recruit’s family, who all referred to him as J___, thus supporting the fact that he was known by his middle name.  The IO found it suspicious that F___, who previously had appeared anxious to enlist, refused to clear his name.  The IO noted that F___ did not graduate from high school until he was almost 21 and that fact, along with his first three low test scores, would validate the score of 42 being questioned.  A review of all of the applicant’s contracts was conducted and nothing significant was revealed.  The U. S. Army Criminal Investigation Command (CID) Crime Laboratory conducted a handwriting analysis using the original processing paperwork and using known signatures of F___ and came to a definite conclusion that F___ did not sign the U. S. Military Entrance and Processing Command (USMEPCOM) Form 714AE on 8 December 1998.

On 25 February 1999, the applicant rebutted the findings of the investigation.  He stated most of the evidence was meaningless.  He assumed F___ received a higher score on the ASVAB in question because he finally studied for it.  F___ was uncooperative with the IO because he chose to be uncooperative and was probably defensive because he was accused of faking his test.  There was nothing unusual about his presence in Americus with F___ or in his taking the test in Americus instead of Columbus.  His planning guide was blank and he circled the incorrect test on F___’s card because he was busy with other responsibilities.  The IO places the greatest weight on the results from the CID Crime Laboratory’s handwriting analyst.  The handwriting analysis is one piece of evidence and does not create an airtight conclusion.  Handwriting analysis differs significantly from reliable identifiers, such as DNA evidence.  He did not know why F___ decided to write his name differently.  The IO did not approach his job in an impartial and objective manner.  The IO told one person he was trying “to get the recruiter…” Common sense should establish his innocence.  He had no motive.  He was in his last month as a recruiter and had his reassignment orders. F___’s enlistment would not have had any impact on his mission for that month.  The IO found that he never had any other recruiting irregularities.  The applicant provided a statement from a fellow recruiter who stated the Test Administrator mentioned to him that the IO was looking to “burn” someone.  In a statement from a family friend of F___, the friend stated that the IO told him “everything was OK with J___, we want to get the recruiter and nothing was going to happen to him.  The recruiter got someone else to take the test.”

On 15 April 1999, the Commanding General, U. S. Army Recruiting Command (USAREC) initiated a memorandum of reprimand.  He stated he had reviewed the report of investigation and that the preponderance of the evidence substantiated that the applicant had allowed a “ringer” to take the ASVAB for F___.  He proposed filing the GOMOR in the applicant’s OMPF.

The applicant rebutted the GOMOR.  He stated he still maintained his innocence and asked that his military career and past performance in Recruiting Command be considered.  He went over his previous excellent work as a recruiter and his family’s proud devotion to military service.  He wanted to continue his career and requested that the GOMOR not be issued or at least placed in his restricted fiche.  

On 15 June 1999, the Commanding General reviewed the applicant’s rebuttal, noted that the additional information provided by the applicant did not alter the proposed filing determination and directed that the GOMOR be filed in his OMPF.

Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual official personnel files; and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states that a letter to be included in a soldier’s OMPF will be referred to the recipient concerned for comment.  A letter may be filed in the OMPF only upon the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual. 

Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  It provides that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is normally 3 years.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  In instances of disqualification as determined by the unit commander, the commander will prepare a statement of the rationale for his or her decision.  This statement will include the period of disqualification and will be referred to the individual concerned for response.  It also states that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  The award should reflect both the individual’s level of responsibility and his or her manner of performance.  No individual is automatically entitled to an award upon departure from an assignment.  

USAREC Regulation 672-10 establishes policy for the Recruiting Incentive Awards Program.  In pertinent part it states that a recruiter is eligible to compete for the Recruiter Ring after earning a total of 1200 points within 24 months (points are awarded based only on assigned mission).  No level of command will approve or present a recruiting incentive award while an individual is flagged or has a recruiting impropriety pending.  Awards are not automatic.  Each level of command will consider the “whole person” concept as well as production accomplishment.  However, if an individual receives any type of administrative punishment (i. e., letter of reprimand, Article 15, etc.) for a wrongdoing from Recruiting Brigade or USAREC level, he/she will lose all accrued points toward their current award and start over from zero.

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 contends that the handwriting analysis was only one piece of evidence and did not create an airtight conclusion.  The Board concludes that that one piece of evidence by itself was preponderant enough for the Commanding General to believe the allegation of using a “ringer” was substantiated.  CID Crime Laboratory examiners are highly trained technicians who, when certified, are qualified to testify as expert witnesses in courts of law.  Juries may or may not believe their testimony shows guilt beyond a reasonable doubt.  However, a court’s standards are not required when the proposed punishment is a GOMOR.  

3.  In addition, although F___ stated he took his own ASVAB, he refused to do something simple such as provide a thumb print to prove his and the applicant’s innocence.  He was not required to do so; however, the Board concludes that the Commanding General reasonably believed his refusal to do so was suspicious and added to the preponderance of evidence substantiating the allegation.

4.  The Board does not agree with the applicant’s contention that any “inappropriate comment” the IO may have made was enough to sway the Commanding General in deciding to issue the GOMOR.  The Board concludes the Commanding General believed there was sufficient evidence to substantiate the allegation without considering the IO’s comments.

5.  The Board does not agree with the applicant’s contention that he was never given the benefit of any doubts about his innocence.  The Commanding General reviewed his rebuttal to the AR 15-6 investigation and his rebuttal to the proposed GOMOR.  However, he still found that a preponderance of the evidence substantiated the allegations.

6.  There is no automatic entitlement to award of the Army Good Conduct Medal or to an award upon departure from an assignment.  Since the Board concludes that the GOMOR was appropriately issued, it would not be appropriate to award the Army Good Conduct Medal or any other decoration that the applicant’s commander saw fit to withhold.

7.  While USAREC Regulation 672-10 does state that the “whole person” concept will be considered in approving an incentive award, such as the Recruiter Ring, it also states that receipt of any type of administrative punishment causes the recruiter to lose all accrued points toward their current award.  Again, since the Board concludes that the GOMOR was appropriately issued, it would not be appropriate to award the applicant the Recruiter Ring.

8.  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

__cmf___  __emw___  __jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041512	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.04	
2.	107.00	
3.	107.0056	
4.		
5.		
6.