MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            6 February 2001   
	DOCKET NUMBER:   AR2000046873

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Walter T. Morrison		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 his two memorandums of reprimand be expunged from his Official Military Personnel File and that, in effect, he be restored to active duty.  The applicant’s December 1999 application to the Board, and his February 2000 application which expanded on his original request, regarding the removal of one letter of reprimand, payment of Medical Additional Special Pay (MASP) and Incentive Special Pay (ISP) were adequately addressed by the Board on 31 August 2000 (AR1999034681) and as such will not be re-addressed by this Board.

APPLICANT STATES:  Via copies of two memorandums addressed to the Department of the Army Suitability Evaluation Board (DASEB) that the two memorandums of reprimand that he received were unjust and unfair.  He states that he was not intoxicated at the time he was apprehended for driving while intoxicated (DWI) and that in both instances the “the Army made [him] guilty without a hint of due process.”  He maintains that while both letters were intended as administrative measures they ultimately were used as punitive measures which resulted in his administrative separation.  In those same memorandums to the DASEB the applicant notes, in effect, that he was never found guilty of shoplifting and the DWI charge was dismissed in civilian court.

Additionally, he states, in effect, that as a result of a learning disability he was unable to secure a valid medical license which ultimately resulted in his elimination from the Army.  He submits a letter from the Louisiana State Board of Medical Examiners indicating that he has been granted a medical license for the states of Louisiana, Florida, Illinois, and New York.  The applicant maintains that his elimination from active duty “based on professional dereliction” was an “act of discrimination….”  He notes that the Army was “well informed of [his] diagnosis, the accommodations that were made for [his] disability, and the out come of [his] examination having passed the test and obtained the medical license.”

In an undated 12 page statement, which appears to be in response to congressional correspondence from officials at Fort Hood, Texas, the applicant maintains that the “prejudicial treatment” that he received resulted “in false accusations against [him]” and that these accusations “further led to the misguided elimination attempts, which directly induced [his] resignation/separation from the Army.”  In the statement he outlines his disagreements with the conclusions made by members of his command which ultimately served as the basis for his separation.

In addition to the letter from the Louisiana State Board of Medical Examiners, his 12 page statement, and the memorandums to the DASEB, the applicant also submits copies of responses to congressional inquiries prepared by the Deputy Adjutant General at Fort Hood, documents describing his reading disability, results from five United States Medical Licensing Examinations, documents associated with performance of his duties at the time he received a counseling statement for not being at his place of duty and a copy of a video tape from his DWI incident.

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 31 August 2000 (AR1999034681).  Additional information from records available to the Board indicate:

In March 1998 the applicant was notified that his clinical privileges at Darnall Army Community Hospital were revoked because he had failed to obtain a valid, unrestricted medical license.  By April 1999 the applicant had still not obtained a valid medical license and indicated to the Chief, Department of Surgery at Darnall Army Community Hospital that “after several attempts, he has been unable to pass Part III of the National Board Exam.”  As a result of the applicant’s lack of a medical license, a recommendation to administratively separate him from active duty was initiated by his unit commander.

In April 1999, just prior to the initiation of the recommendation to administratively separate the applicant from active duty, he received a memorandum of reprimand from the Commander, U.S. Army Medical Department Activity at Fort Hood.  The memorandum reprimanded the applicant for “a marked lack of judgment and attention to detail” stemming from an 11 December 1998 incident at the Fort Hood Post Exchange when he was observed placing merchandise inside other items and then failing to call the checkout clerk’s attention to the items or pay for them before he left the store.  In May 1999 the applicant submitted a rebuttal to the reprimand.  The reprimand was ultimately filed in the applicant’s OMPF.

On 14 July 1999 the applicant was informed by the Troop Commander that action to involuntarily “eliminate him from active duty for his inability to acquire his medical license” had been initiated.  This 14 July action apparently stemmed from the April 1999 recommendation.  The applicant refused to sign the acknowledgment or accept a copy of the elimination notification.  However, on 
10 August 1999 the applicant indicated that he wished to appear before a Board of Inquiry.

On 20 October 1999 the Commander, U.S. Total Army Personnel Command (PERSCOM) forwarded a memorandum to the applicant indicating that he was required to “show cause for retention on active duty” as a result of the April 1999 memorandum of reprimand.  On 14 December 1999 the applicant acknowledged receipt of the action and indicated that he would submit a statement in his behalf.

On 29 November 1999 the applicant was counseled by his supervisor for not reporting to his place of duty for several days during the early part of November.  The applicant refused to acknowledge the counseling action.  In November the applicant also received a less than favorable evaluation report covering the period 1 October 1998 through 30 September 1999, indicating that while he “has the potential to succeed as a physician” he has “very limited potential as a leader in the Army.”  His senior rater also noted that the applicant “is currently performing special duties as he does not possess a medical license.”  His senior rater rated him below center of mass and recommended that he not be promoted.  The applicant again declined to sign the evaluation report and declined to acknowledge that it was a referred report.

On 10 December 1999 the applicant received a second memorandum of reprimand for “driving an automobile while intoxicated on 4 December 1999.”  The reprimand notes that the applicant refused to submit to a breath test and that he was belligerent and threatened a Texas Department of Public Safety Officer.  He submitted a rebuttal to the reprimand and the reprimand was ultimately filed in his OMPF.

In March 2000 the applicant’s original elimination action from Department of the Army was amended to include “additional grounds for elimination.”  The supplemental action cited the applicant December 1999 reprimand, his November 1999 counseling statement, and the October 1998 - September 1999 evaluation report.  The applicant refused to acknowledge receipt of the supplemental notification action.  However, on 23 March 2000 he indicated that he would not make a statement or submit a rebuttal in his behalf and that he would not submit a resignation in lieu of elimination.

In spite of the 23 March statement, on 24 May 2000 the applicant submitted a request for resignation in lieu of elimination proceeding.  His request was approved and on 30 August 2000 he was honorably discharged in accordance with his request.

Documents provided to the Board by the applicant indicate that he failed part III of the United States Medical Licensing Examination (USMLE) in May 1997, December 1997, May 1998 and December 1998.  In March 1999 the applicant received documentation that indicated his “underlying visual deficits most likely lead to his reading more slowly than other physicians taking the medical boards, and represents a disability for him.”  In May 1999 the Federation of State Medical Boards of the United States denied the applicant’s petition for “extended double testing time” but did approve “stop-the-clock breaks” for part III of the USMLE and on 11 May 1999 he passed the test.  A 29 September 2000 letter from the Louisiana State Board of Medical Examiners, provided by the applicant, indicates that his “petition for a disability waiver of the Board’s rules, which preclude licensure consideration following a specified number of examination failures” was granted and he was granted a “license to practice medicine in Louisiana….”  That same letter notes that Illinois, New York and Florida had also granted him “unrestricted license to practice medicine in those states” although it is unclear when those licenses were issued.

The video tape, provided by the applicant, which he claims shows that he did not “refuse to take the breath analyzer as alleged” and proves that he was “never belligerent with anyone at anytime” is of poor quality but shows the applicant having trouble following the instructions of the police officer and questioning him (the police officer) regarding his right to read a document associated with the consequences of refusing a breath test.  The tape appears to end abruptly with the applicant taking a seat because his back hurt.  The source of the tape and its content are not certified in manner.

Army Regulation 600-8-24 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.

It also notes that the purpose of a Board of Inquiry is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  The Government is responsible to establish, by preponderance of the evidence, that the officer has failed to maintain the standards desired for his or her grade and branch, or that the officer’s conduct has been prejudicial to national security.  In the absence of such a showing by the Government, the board will retain the officer.  However, the respondent is responsible for producing evidence to disprove the Government’s position.

Army Regulation 600-8-24 also provides that at any time prior to final action on his or her case the officer may tender his or her resignation.

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

2.  While the applicant essentially maintains that his separation from the Army was primarily based on the fact that he was unable to secure a medical license, the evidence indicates that while that may have been the initial basis for the elimination recommendation, ultimately his discharged was the result of the two memorandums of reprimand, the less than favorable evaluation report and the counseling statement for failing to be at his appointed place of duty.  

3.  The applicant’s memorandums of reprimand, evaluation report and counseling statement were all completed in accordance with appropriate regulations with no indication of procedural errors which would tend to jeopardize his rights.  The applicant was given an opportunity to provide his input during each action.  The fact that he may not have agreed with each of the actions, or that he was not “convicted” of any crime, is not evidence that they were issued in error or were unjust.

4.  The applicant was identified by Department of the Army to “show cause to remain on active duty.”  He chose, however, to resign in lieu of elimination.  The Board concludes that there is no convincing evidence of any error or injustice in the processing of the applicant’s elimination action.

5.  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.

6.  The applicant’s allegation regarding the violation of rights is unsupported by the evidence of record.

7.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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

___rvo__  ___tl___  ___wtm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000046873	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
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.	110.00	
2.		
3.		
4.		
5.		
6.