MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           13 February 2001                  
	DOCKET NUMBER:   AR2000043016

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Harry B. Oberg 		Member	
	Ms. Shirley L. Powell 		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:  In effect, the applicant requests that his discharge under other than honorable conditions be upgraded to honorable; and that his record of punishment under Article 15, UCMJ, and two letters of reprimand be removed from his official file.   

APPLICANT STATES:  That his racist and prejudiced supervisor was the cause of the derogatory action taken against him.  He stated that he obtained permission from his supervisor to enroll in a clinical pastoral program at Cumberland Hospital, a program that would be elevated to a formal program as progression took place.  After nine months of training in the program, his supervisor, a Chaplain (Captain) and he met with a Chaplain (Colonel) concerning the program.  He states that he explained the situation to the Colonel, and apologized for not saying that the program was training toward a clinical pastoral education.  The Colonel understood, stated that he would give him a letter of reprimand, which he would keep in his desk until he left Fort Bragg.  However, his supervisor was not satisfied, but went to the brigade commander.  He received nonjudicial punishment and a letter of reprimand.  His security clearance was revoked and he was transferred to Fort Riley, Kansas.  A show cause board met.  During the board proceedings two officers provided adverse testimony on his former supervisor.  He states that one of the board members was in his chain of command at Fort Riley.      

The applicant submits a document showing that he had completed a course in clinical pastoral education during 1999-2000.  He submits a certificate from the Andersonville Baptist Seminary awarding him a degree of Doctor of Pastoral Counseling in January 2000, copies of four evaluation reports, the latest ending in June of 1998, copies of training certificates, and a 24 August 1998 memorandum of support to the board of inquiry from the command chaplain.

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

The applicant’s DD Form 214 shows that he entered on active duty on               30 January 1979 and was released from active duty on 11 April 1988 in the rank of staff sergeant and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.  His discharge was because of a reduction in authorized strength under the FY88 early transition program.  He had 9 years,    2 months, and 12 days of service. 

On 3 July 1991, the applicant, then a second lieutenant, completed the Chaplain Candidate Course.  On 23 August 1991 he completed the Chaplain Officer Basic Course at Fort Monmouth, New Jersey.  On 19 May 1993 he completed a Hospital Practicum course at Brooke Army Medical Center.  In a                          19 November 1993 letter the Chaplaincy Services Support Agency informed the applicant that he was selected for an appointment to the Army Chaplaincy, and that active duty orders would be issued assigning him to Fort Bragg.
The applicant was appointed a Reserve first lieutenant in the Chaplain Corps on 28 January 1994.  He was ordered to active duty in the rank of first lieutenant with a reporting date to Fort Bragg, North Carolina on 15 February 1994.  He was promoted to Captain on 1 October 1994.

On 17 October 1997 an investigating officer found that the applicant had made false official statements to his chain of command about his participation in a clinical pastoral education program at Cape Fear Valley Medical Center and Cumberland Hospital.  The investigating officer found that applicant failed to go to his appointed place of duty, in that he was not participating in a clinical pastoral education program, and his conduct was unbecoming an officer and a gentleman.  She recommended that appropriate adverse action be taken against the applicant.

On 6 December 1997 the applicant was administered nonjudicial punishment by the commanding general of the Civil Affairs and Psychological Operations Command at Fort Bragg.  The record of proceedings indicates that the applicant made official statements, with the intent to deceive, that he was enrolled in a clinical pastoral education (CPE) program, statements that were totally false, and which he knew to be false; that on divers occasions he failed to go to his appointed place of duty at the CPE program; that in the course of investigation into the circumstances of his non-participation in the program, he wrongfully and dishonorably made false and misleading statements; and that in a written sworn statement, wrongfully and unlawfully, made a false statement.  He received punishment in the form of a reprimand and forfeiture of $1,000.00 per month for two months.  He appealed.  His appeal was denied.

On 6 December 1997 the applicant received a memorandum of reprimand for falsely stating that he was attending a program of CPE, lying about his CPE training and lying to an investigating officer.  The letter stated that the time off he took for alleged CPE was in reality a paid part-time job as a mental health worker.  The applicant acknowledged receipt of the memorandum of reprimand.

The applicant received a relief for cause OER.  His rating officer stated that he often failed requirements and should not be promoted.  His senior rater placed him in the fourth from the bottom block in the potential evaluation portion of that report, stating that he demonstrated a serious lack of integrity over an extended period of time, was a bad example as an officer and chaplain, and should not be assigned duties with soldiers or their families.  He recommended that the applicant never be promoted and stated that he should not be retained on active duty.  The OER was referred to him for comment.  He acknowledged receipt of the OER and stated that he would not provide comments in his own behalf. 

Sometime in early 1998 the applicant was transferred to Fort Riley, Kansas.  On 24 March 1998 the applicant received a memorandum of reprimand from the commanding general of Fort Riley for abusing his trust as a chaplain and for conduct unbecoming an officer.  That memorandum indicates that the applicant had on two occasions invited junior enlisted female soldiers into his bedroom for reasons other than pastoral counseling, and making inappropriate comments to them; invited another female to his quarters, inviting her to spend the weekend with him; and used the false pretense of conducting a group counseling session to draw another female soldier that he had been assigned to counsel, and who had previously attempted to commit suicide, into his off-post quarters.

The applicant rebutted the memorandum of reprimand, stating that the facts in the case were ambiguous, and the testimony of one of the plaintiffs was untrue.  The commanding general directed that the memorandum of reprimand and the applicant’s rebuttal be filed in the performance portion of his official file. 

In an endorsement to the Total Army Personnel Command, the commanding general at Fort Riley indicated that elimination proceedings had been initiated against the applicant on 15 April 1998, the board heard the evidence, and recommended that the applicant be separated from the service and that he receive a discharge under other than honorable conditions.  However, prior to completion of the record of proceedings, the applicant submitted a request for resignation in lieu of elimination proceedings.  Consequently, proceedings were suspended pending final action on his request.  He recommended that the applicant be separated in lieu of elimination proceedings and that his service be characterized as under other than honorable conditions.

The applicant’s 31 August 1998 voluntary request for resignation in lieu of elimination proceedings indicates that he stated that he had been advised prior to submitting the resignation that he could consult with counsel, and that he had been fully advised concerning this matter.  He stated that he had appeared before a board of inquiry with legally qualified counsel, and that board having recommended elimination, he elected to waive any further consideration of his case by any appellate or review agency.  He stated that he understood the nature and consequences of an under other than honorable conditions discharge that he might receive.
 
On 16 November 1998 the applicant’s request was approved and a discharge under other than honorable conditions was directed.

The applicant was discharged on 1 December 1998.  He had 4 years, 9 months, and 17 days of service.
 
On 14 December 1998 the Central Personnel Security Clearance Facility at Fort Meade, Maryland notified that applicant that his SCI (Sensitive Compartmented Information) access eligibility and security clearance were revoked.
  
On 28 August 2000 the Army Discharge Review Board, in an unanimous opinion, denied the applicant’s request to upgrade his discharge.

Army Regulation 600-8-24 provides policy and procedures for officer separations. Paragraph 4-1 states that an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer's patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or can not maintain those standards will be separated. 

Paragraph 4-2b states that elimination action may or will be initiated against an officer for misconduct.  While not all inclusive, elimination action may be or will be initiated for misconduct, or moral or professional dereliction, to include intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer. 

Paragraph 4-24a states in pertinent part, that an officer identified for elimination may, at any time during or prior to the final action in the elimination case, elect to submit a resignation in lieu of elimination.  Elimination proceedings will be suspended pending final action on the option elected by the officer. 

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal courts-martial rules of evidence and may consider any matter, including unsworn statements the commander reasonably believes to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF.  Paragraph 3-4 of that regulation provides, in pertinent part, that a nonpunitive letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.

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.  The applicant’s contention that his nonjudicial punishment, letters of reprimand, and less than honorable discharge, were caused by a racist and prejudiced supervisor has no evidence in fact.  He caused his own problems.

2.  The applicant's voluntary resignation in lieu of elimination proceedings was administratively correct and in conformance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.  There is no indication that his request was made under coercion or duress.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  As its name indicates, nonjudicial punishment (NJP) is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence and could have argued technical matters such as the jurisdictional question.  Instead he chose to have the matter settled at nonjudicial punishment.  

4.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of his rights. The applicant has submitted neither probative evidence nor a convincing argument in support of his request to have the record of his punishment removed from his files. 

5.  The administrative letters of reprimand were properly imposed and were more than justified considering the nature of the applicant’s offenses.  They were properly filed on the performance fiche of the OMPF in accordance with applicable regulations.  He has submitted nothing to support his request that those letters should be removed from his files.

6.  While the Board has taken cognizance of the applicant’s past honorable service and his good post-service conduct; none of these factors, either individually or in sum, warrant the relief requested.

7.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

8.  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 that requirement.

9.  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

___hbo__  ___slp___  ___jh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000043016	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.02	
2.	126.04	
3.	134.01	
4.		
5.		
6.