MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  15 February 2001
	DOCKET NUMBER:  AR2000043721

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret K. Patterson		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:  Correction of his records by removal of a General Officer Memorandum of Reprimand (GOMOR), removal of all record of his previous non-selections for USAR major caused by the inclusion of the GOMOR in his Official Military Personnel File (OMPF), and to have his records reviewed by a Special Selection Board (SSB) for promotion to USAR major without the GOMOR in his records.

APPLICANT STATES:  Applicant defers to counsel.

COUNSEL CONTENDS:  That the applicant was issued a GOMOR based on the belief that he had altered or caused to be altered a Medical Recommendation for Flying Duty (DA Form 4186).  The GOMOR was not based on fact, was erroneous, and was issued without the prior opportunity for rebuttal.

Counsel also states that there was no investigation under Army Regulation 15-6, nor was there any type of preliminary inquiry.  Although the applicant provided a rebuttal to the Letter of Reprimand (LOR), the Deputy Chief, Army Reserve (DCAR) directed filing of the LOR in the applicant’s OMPF without the required acknowledgment that he intended to file it in his OMPF.

The applicant had taken a polygraph examination to show that he did not alter or cause to be altered the DA Form 4186.  In April 1999 the Department of the Army Suitability Evaluation Board (DASEB) acted on his appeal and moved the LOR to the applicant’s restricted (R) fiche.  There is no evidence that the applicant altered the original DA Form 4186 and no one has ever provided a copy of the supposed original that the applicant is alleged to have altered.  Even the DASEB stated that “insufficient evidence is available to confirm whether the appellant has altered or caused to alter an official statement (the DA Form 4186).”  The presumption of regularity can not apply in this case since there is no record of the altered document and a polygraph examination supports his denial of the allegation.

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

At the time of the incident in question he was a USAR captain, not on active duty, with a date of rank of 22 March 1990.  On 3 August 1994 the commander of the Army Reserve Personnel Center (ARPERCEN) issued him a letter of reprimand (LOR).  The basis for the LOR was evidence that he had altered or caused to be altered a DA Form 4186.  The LOR states that he provided a copy of the form via fax to the command surgeon for flight clearance.  The command surgeon obtained a copy of the original form and found different entries in blocks 7 and 14.  The LOR goes on to state that matters in rebuttal will be considered before a filing determination is made in accordance with Army Regulation (AR) 600-37.  It is not possible to determine if the applicant was provided with a copy of the alleged altered form with the LOR notification.

In an undated response the applicant provided comments in rebuttal to the LOR. He stated that he did not knowingly change a DA Form 4186 and there was no reason for him to do so since he was not limited in any way from his flying duties. He had only provided a copy of the fourth or fifth page of the DA Form 4186 to personal officials at ARPERCEN.  His statement goes on to complain about the manner in which this issue was handled and his being found guilty by vague circumstantial evidence.  He makes no mention that he was not provided with or requested a copy of the alleged altered form.

In his rebuttal the applicant does not explain why the copy he submitted did not have the same remarks as the official medical records copy.  He also makes no statement that more than one original DA Form 4186 had been prepared or that he and/or the physician signed more than one original.

On 28 September 1994 the Deputy Chief, Army Reserve (DCAR), a general officer, directed that the LOR be permanently filed in his OMPF.

The applicant was nonselected for promotion to USAR major by the 1996, 1997, and 1998 Reserve Components Selection Board (RCSB).  The applicant’s promotion records were found not to contain a record of his completed military education and an April 2000 Special Selection Board (SSB) reconsidered him for promotion under the 1997 criteria.  The results of that board have not been approved for release.

On 30 October 1998 the HQDA Suitability Evaluation Board (DASEB) received an appeal from the applicant for removal of the LOR on the basis of it not being factual, erroneous premise, and imposed without an opportunity for referral.  In support of his appeal counsel states that apparently, after the applicant provided a copy of the DA Form 4186 to ARPERCEN, a second copy was prepared by the physician without the applicant’s knowledge.  Counsel makes no mention of the applicant’s signature as it appears on this alleged second copy or an attempt to contact the flight surgeon that conducted the examination and completed the form.

The DASEB decision summary, dated 21 April 1999, shows that his flight records are maintained by the Army Reserve Personnel Command (AR-PERSCOM) and provided the file copy of the DA Form 4186 in question.  The DASEB notes that it was identical to the one provided in the appeal except for the commander’s signature on 9 May 1994. A query of the database maintained by the Air Medical Activity Review Board showed that the applicant’s status was noted as “qualified with information” based on a December 1993 knee surgery.

The DASEB provides a summary of the normal processing of a DA Form 4186.  The individual completes the administrative, top portion of the form, and Section B is filled out, signed, and dated by the physician.  The individual signs and dates Section C acknowledging the physician’s determinations.  After a complete review of the medical records the physician annotates any additional information.  The DASEB review of the process showed that the individual may or may not receive his copy before the physician makes any possible additional annotations.

The DASEB was unable to determine if the applicant received a copy prior to a final review, if any, of his medical records and makes no mention of an attempt to contact the flight surgeon.  They were also unable to locate any official copy of the alleged second copy of the DA Form 4186 except the one copy contained in the applicant’s appeal and attached to the GOMOR.  The DASEB opined that there was insufficient evidence now available to confirm that the applicant had altered the DA Form 4186 or caused it to be altered and that the applicant had not provided sufficient evidence to overcome the presumption of regularity.

The DASEB did not address the results of the polygraph examination presented by the applicant.  Final action by the DASEB was to direct that the LOR be moved to the restricted portion of the applicant’s OMPF based on having its intended purpose served.  Transfer at that time did not constitute grounds for promotion reconsideration,

A review of the available two different copies of the DA Form 4186 show that the administrative data at the top of the form appear to have been prepared by the same hand but are also clearly different in location of the information on the form.  The applicant has previously explained that he changed the TO and FROM lines on the form he faxed to ARPERCEN.  Section A, block 7b is checked on one form while blocks 7b and f are checked on the second form.

Block 8 of both forms has a check in the NO block but are clearly different in orientation.  The dates in blocks 9 and 10 attributed to the physician, while not totally identical in appearance, are in the same location on both forms.  Their appearance of not being identical could be attributed to the difference in quality of the copies provided.

Block 14 of one form contains only one remark “FFD” (full flying duty).  The other form contains three remarks including completion of the Class II FDME (Flying Duty Medical Examination) and the one referring to the pending issue of a waiver for knee surgery.  Block 17 of both forms contain the physicians name, signature, and date.  This information on both forms appears identical, to include their location on the form.

Block 20 of both forms contain the applicant’s signature, date, and a block check that he may perform aviation duties.  The information in this block is clearly different on both forms although it appears to be made by the same hand.  The commander's signature and date only appears in the official unit copy that would have been entered after complete processing of the form.

Counsel submits a report of polygraph examination, dated 7 November 1997, conducted on the applicant.  In the opinion of the examiner and an additional certified examiner, the applicant did not attempt deception in his response to the two relevant questions regarding an alleged altered flight form physical (UPSLIP).  The applicant answered “NO” to two questions regarding the altering or participation in the altering of an UPSLIP.

Army Regulation 600-37 provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

The regulation also provides that a LOR, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.

Army Regulation 40-501 provides the policy for medical fitness standards and medical examinations including FDME and Medical Recommendations for Flying Duty (DA Form 4186).  It states that the DA Form 4186 is an official document used to notify the aviation commander of certification of medical fitness for all classes of military aircrew.  It also states that three copies of the form will be completed, copy 1 for the outpatient medical records, copy 2 for the unit commander for inclusion in the flight records, and copy 3 for the examinee.  The form will be completed as directed by ATB (Army Technical Bulletin) 10.

ATB 10 provides the policy for completion and processing of the DA Form 4186 and states that one reason for preparing the form is to document the results of an FDME.  It states that the examinee’s personal data is entered in blocks one through six.  The flight surgeon will complete Section A if the examinee is medically cleared for flying duty or Section B if the examinee is not recommended for flying duty.  It also states that block 14 (Remarks) is used to communicate to the unit commander any special requirements of any medical recommendations.  Examples include FFD and Annual FDME Completed.  
The name, signature, and date signed by the flight surgeon are entered at the bottom of Section B after the form is completed.

Section C of the DA Form 4186 is completed by the aircrew member to acknowledge that he was informed of the recommendations in Section A or B.  The crewmember checks the appropriate block concerning his aviation duties and signs and dates the form.  When the form is completed copy one is sent to the unit commander and copy two is given to the individual.

AR 15-6 provides the policy for the conduct of informal and formal investigations and boards of officers.  Paragraph 1-8 states that an investigation is not required under this regulation prior to taking adverse administrative action.

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 was issued a LOR by an authorized official based on material evidence that he had submitted an altered DA Form 4186.  The LOR stated the identity of the questioned document, notified him of the proposed filing recommendation, and, despite the contention of counsel, provided him the opportunity for rebuttal.  There is no requirement for an investigation under 
AR 15-6 prior to the issue of a LOR.

2.  The applicant’s rebuttal did not mention that he did not receive or have access to the alleged altered form.  He also does not mention that he did, or might have, prepared and signed more than one original form.  He never contested that his signature that appears on both forms, although obviously different, was not his.

3.  Notwithstanding the contention by the DASEB that the applicant might have received a copy of the DA Form 4186 before it was completely annotated, the regulations governing the preparation of the form do not allow for signature by either party until the form is complete.  To do otherwise is to cause the alteration of a completed official document.

4.  The report of the applicant’s polygraph examination, almost 2 ½ years after the LOR was issued to him, is not now considered sufficient material relevant evidence to conclusively prove, as contended by counsel, that the applicant did not submit an altered DA Form 4186.

5.  The applicant’s promotion files were properly constituted with the inclusion of the LOR when presented to the 1996, 1997, and 1998 RCSB.  He is not entitled to promotion reconsideration by a SSB based on the presence of the LOR.

6.  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.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__fe___  __mm___  __mp______  DENY APPLICATION

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

INDEX

CASE ID	AR2000043721	
SUFFIX		
RECON		
DATE BOARDED	20010215	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.01	
2.		
3.		
4.		
5.		
6.