MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 November 2000
	DOCKET NUMBER:   AR2000042549

	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	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Thomas Lanyi		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 on the fiscal year 1998 promotion list to sergeant first class and then promoted with an effective date and date of rank 1 March 1999.

APPLICANT STATES:  That, in effect, the Enlisted Standby Advisory Board (STAB) failed to comply with the procedural and substantive dictates of Army Regulation (AR) 600-8-19.  He further contends that the STAB based its decision to remove him from the promotion list upon inaccurate and insufficient allegations.  In support of his application he has provided a 5-page letter with    23 enclosures including letters of support from senior noncommissioned officers through field grade officers.  The applicant further contends that the Commander, 8th United States Army (EUSA) erred when he disapproved the administrative separation board’s findings and recommendation because they were based upon a relitigation of the civil court case.  Lastly, the applicant contends that the Commander, EUSA erred when he recommended his removal from the promotion list since his more immediate commanders did not support that action.

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

He enlisted in the Army on 17 January 1984 for 3 years.  He completed his initial training and has served in a series of assignments both in the United States and overseas.  He attained the rank of staff sergeant on 1 March 1994 and at the time of his application was still serving in that rank on active duty.

The applicant was charged with violation of the Customs Law while assigned to an Army unit in the Republic of Korea.  Specifically, the applicant was charged with conspiring with another to illegally divert large screen television sets from the Yongsan Main Post Exchange into the Korean economy and unlawfully introducing into the Korean economy a total of 113 television sets, worth 489,000,000 Won (approximately $489,000), from 20 January 1996 to 18 April 1997.  The Seoul District Court in Seoul, Korea took jurisdiction.  The three-judge court initially convened on 13 August 1997 and again on 9 more occasions with the final time on 25 February 1998.  Contrary to his court statement wherein he denied any guilt, the applicant was found guilty of purchasing and transferring 23 television sets, as corroborated by sales slips, anvil cards, vehicle escort entries and documents pertaining to issuance of televisions by the warehouse.  The applicant was sentenced to 10 months imprisonment, suspended for 2 years, and a civil assessment in the amount of 95,500,000 Won (approximately $95,500).  The record of trial indicates that the applicant filed an appeal with the Seoul High Court.

On 11 September 1998 an administrative separation board convened under the provisions of AR 635-200, Chapter 14.  The board was charged with determining whether  “by a preponderance of the evidence, the applicant was convicted by a civil court.”  The board’s guidance included the responsibility to consider the gravity of the offense for which the applicant was convicted, related events, any matters in extenuation, the military record of the soldier prior to the offense, and the prospects for rehabilitation.  The board considered the evidence before it and concluded the applicant’s conviction by civil court was not supported by the preponderance of the evidence and recommended the applicant’s retention on active duty.

On 25 September 1998 the Commander, EUSA, (convening authority for the administrative separation board) disapproved the findings of the subject board on the basis that it had improperly and without authority engaged in a relitigation of the underlying offense, rather than simply determining whether or not the applicant’s conviction warranted separation from the Army.  As a result, the commanding general directed retention of the applicant on active duty.  However, in paragraph 4 of his memorandum he directed that an authenticated copy of the applicant’s conviction be forwarded through the Commander, Total Army Personnel Command (PERSCOM) for filing in the applicant’s official military personnel file, and for referral to a Promotion Review Board (sic).

On 1 October 1998 the Acting Staff Judge Advocate, acting on behalf of the Commander, EUSA, published a memorandum down through the chain of command to the applicant informing him of the action being taken to remove him from the promotion list.

On 22 October 1998 the applicant’s defense counsel prepared a Memorandum for Record (MFR) recording his conversations with the Deputy Staff Judge Advocate (SJA) regarding the Commander, EUSA memorandum of 25 September 1998, as discussed above.  The defense counsel questioned that portion of the memorandum regarding the applicant’s promotion list status, wanting to know if it was the commander’s intent to initiate action to remove the applicant from the sergeant first class promotion list.  The commander affirmed that he intended only what was in paragraph 4 of the memorandum.

On 29 October 1998 the applicant submitted a rebuttal (with 83 enclosures) to the commander’s action to remove him from the promotion list.  His first contention was that the Commander, EUSA (the incumbent at the time of the Korean trial and administrative separation board) did not intend to have him removed from the promotion list.  As proof of this contention, he referred to the 22 October 1998 MFR written by his defense counsel which he alleged clearly disputes the SJA’s claim that the Commander, EUSA recommend removal.  He further contended that the placement of an incomplete transcript of a civil conviction in his official military personnel file, which excludes favorable information, was something beyond his control and that the SJA should be forced to obtain a verbatim copy of the Korean civil proceedings.  The applicant also discussed the inability of many different witnesses to identify him as a guilty party.  Among his many enclosures were recommendations from his company and battalion commanders that he remain on the promotion standing list.

On 5 November 1998, after a change of command, the new Commander, EUSA examined the applicant’s conviction, the Trial Observer’s report, the recommendations of the chain of command, the applicant’s personal data, and his rebuttal response.  The applicant’s company and battalion commanders recommended against the action to remove him from the promotion list while his brigade commander concurred with the action.  The Commander, EUSA then forwarded these documents to PERSCOM with his recommendation that the applicant be removed from the promotion list.

On 1 April 1999 the Chief, Enlisted Promotions Branch, PERSCOM, published a memorandum for the Commander, EUSA, wherein he informed him that the STAB had recommended the removal of the applicant from the promotion list to sergeant first class.  The Deputy Chief of Staff for Personnel approved the recommendation.  The applicant was to be informed of this action by a commander in the grade of lieutenant colonel or above in his chain of command.

In the processing of this case, the staff of the Board obtained an advisory opinion from the Chief, Promotions Branch, PERSCOM.  It opined that the applicant was selected for promotion by the Calendar Year 1998 Sergeant First Class Promotion Board and assigned sequence number 240 in recommended military occupational specialty 31W.  Further, promotions were made through his sequence number on 1 March 1999; however, he was not promoted due to a suspension of favorable personnel action imposed in November 1998.  The applicant was subsequently removed from the promotion list on 1 April 1999 as the result of a STAB.  During the processing of this action the applicant submitted a rebuttal statement alleging error, in that the commanding general had not really meant to have him removed from the promotion list, and even if he did, the fact that his company and battalion commanders did not support the action, should have stopped it.  The Chief, Promotions Branch further opined that any commander in the soldier’s chain of command can recommend removal from a promotion list.  As for the commander’s intent when he directed the applicant’s records be sent to a “Promotion Review Board,” it must be noted that this is standard terminology used when recommending an officer for removal from a promotion list.  A copy of the advisory opinion was provided to the applicant for his information and opportunity to submit a rebuttal statement.

On 12 September 2000 the applicant submitted a rebuttal statement.  He contends the PERSCOM opinion failed to take into consideration several facts about the conviction, a critical error that undermines the validity of the opinion.  He states that the opinion failed to recognize that the Korean trial lacked procedural safeguards, failed to provide due process protections and did not apply the burden of proof that would have been applied in the United States for a similar charge.  With reference to the administrative separation board, the applicant contended that the board did not relitigate the original offense as suggested by the Commander, EUSA, but rather, considered the evidence presented at the trial as well as the circumstances surrounding the conviction.  Furthermore, he states that the board acted in accordance with the regulation, as well as in accordance with the instructions received from the local office of the staff judge advocate.  The recorder was the government’s representative at the hearing, and if he believed that the board had acted improperly or relitigated the Korean trial, he could have noted his objection on the findings worksheet or refused to sign the document.  The applicant also contended that the Commander, EUSA did not have the authority to disapprove the findings, and that by doing so, he overshadowed the board’s decision, violating the spirit, if not the letter, of the regulation.  The applicant contends that the opinion names the wrong Commander, EUSA as the individual who referred the action to the promotion review board and that the commander who did forward the action was not even in the command when he was accused and tried in the Korean court, nor was he in command when the administrative separation board directed his retention.  Furthermore, the commander did not even consult with the chain of command prior to forwarding the matter to the promotion review board.  Finally, the applicant contends that his chain of command should have had the opportunity to disapprove the recommendation.  He states that both his past and present chain of command disagree with the recommendation.  Therefore, he requests that his name be restored to the promotion list, that he be promoted, and his promotion file considered with the 1998 fiscal year group.

AR 600-8-19 prescribes the policies and procedures governing promotion and reduction of enlisted personnel.  Paragraph 4-16b provides that any commander in the soldier’s chain of command may recommend that a soldier’s name be removed from a Headquarters, Department of the Army (HQDA) recommended list at any time.  That paragraph further states that the recommendation may be disapproved at any level of command and that the disapproval will be returned through command channels to the originator with the reason for disapproval.  Table 4-4 requires the commander requesting removal of a soldier from an HQDA promotion list to forward the action to the soldier concerned, who has     15 duty days after receipt to respond to the proposed action.  It further provides that the action will be forwarded through command channels for recommendations.

AR 635-200 prescribes the policies, standards and procedures pertaining to the administrative separation of soldiers.  Paragraph 1-19b provides that separation per this regulation normally should not be based on conduct which has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted.  Accordingly, administrative separations under the provisions of chapter 14 are subject to the following restrictions.  No soldier will be considered for administrative separation because of conduct that has been the subject of a prior administrative board in which the board entered an approved finding that the evidence did not sustain the factual allegations concerning the conduct, except when such conduct is the subject of a rehearing ordered on the basis of fraud or collusion, or has been the subject of an administrative separation proceeding resulting in a final determination by a separation authority that the soldier should be retained.  Paragraph 1-21 provides that commanders who are general court-martial convening authorities and their superior commanders are authorized to order separation per this regulation.  This includes the authority to convene administrative separation boards when required by this regulation.  This regulation further provides at paragraph 2-6d that no separation authority will direct discharge if a board recommends retention.  

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

1.  The applicant’s contention that the STAB based its decision to remove him from the sergeant first class promotion list on inaccurate and/or insufficient allegations is not supported by the evidence of record.  In fact, it appears that the applicant’s rebuttal, including all 83 enclosures, was considered by the STAB.  The applicant has not provided any other evidence to support his contention.

2.  The applicant contends that the administrative separation board did not relitigate the original offense as suggested by the Commander, EUSA, but rather, considered the evidence presented at the trial as well as the circumstances surrounding the conviction.  It appears to this Board that the instructions given to the administrative separation board by the convening authority support this contention.  However, this is a moot point since the board recommended the applicant’s retention, and the Commander, EUSA directed his retention.

3.  The applicant contends that the Commander, EUSA erred when he disapproved the findings and recommendation of the Administrative Separation Board.  Because the administrative separation board recommended retention of the applicant, the convening authority was limited by regulation as to his options. The convening authority took exception to how the board came to its conclusions, believing that the board had relitigated the underlying offense.  Even so, the convening authority had no option but to direct the retention of the applicant, which he did.  Therefore, even if the applicant’s contention was true, there is no harmful result.  The crux of this case is the applicant’s removal from the promotion list.

4.  The applicant’s contention that the Commander, EUSA should not have recommended his removal from the promotion list because the conviction was based upon inaccurate and insufficient allegations is without merit.  The applicant was convicted in a civil court, and that conviction apparently remains.  The issue before the Board is not the validity of the civilian conviction, but rather, its existence as a basis for the applicant’s removal from the promotion list.  Furthermore, it would not be appropriate for this Board to relitigate the civilian conviction, as that is a matter to be taken by the Seoul High Court.  The evidence indicates the applicant filed an appeal with that court.

5.  The applicant contends that the Commander, EUSA should not have recommended his removal from the promotion list since that was not the intent of the previous theater commander.  The intent of the previous theater commander was clearly stated in his memorandum dated 25 September 1998, although, as an officer he used terminology (Promotion Review Board) used within the Officer Promotion System when recommending an officer for removal from a promotion list, instead of “STAB,” which is used in the case of enlisted members.  However, even if this were not the case, the new Commander, EUSA was well within his authority to refer the civilian conviction regardless of what his predecessor had decided to do.

6.  The applicant contends that the PERSCOM opinion erred by failing to recognize that the Korean trial lacked the procedural safeguards and due process protections afforded individuals under the laws of the United States.  This contention is without merit since it is not within their area of responsibility to validate civilian convictions.

7.  The applicant’s contention that because his company and battalion commanders recommended his retention on the promotion list, the theater commander was in error for recommending his removal is also without merit.  The regulatory guidance is very clear, in that any commander in the chain of command may recommend removal.  Common sense dictates that it takes a higher level commander to disapprove any such recommendation.  Furthermore, the applicant and his entire chain of command provided their arguments and recommendations pertaining to this action, which were taken into consideration by the STAB.

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

__JNS___  __CLA__  ___TL___  DENY APPLICATION

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

INDEX

CASE ID	AR20000042549	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001130	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.