MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  21 November 2002
	DOCKET NUMBER:  AR2002068891

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Lester Echols		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, that he be reinstated in the US Army Reserve (USAR), in the rank of lieutenant colonel/LTC, in order to protect and serve the country he so deeply loves.

APPLICANT STATES:  That his records should not have been boarded and that the eligibility requirements for the 1999 Colonel Command Selection Board must be met, which were at least 2 years time in grade (TIG) as a LTC and have command experience at battalion level or higher.  His last command was a company and his most recent awards and citations were missing from his Official Military Personnel File (OMPF).  According to the Army Reserve Personnel Command (AR-PERSCOM), he did nothing.  He has given the Army 23 years of diligent and steadfast performance, is a leader of soldiers, and his integrity is above reproach to both superiors and subordinates.  He now has over 18 years of qualifying service, that entitles him to the 18-year lock-in for a 20-year retirement, which is shown on his retirement points worksheet.  In support of his application, he submits several documents from his personnel file.

EVIDENCE OF RECORD:  The applicant's military records show he was commissioned as a second lieutenant in the USAR on 11 August 1978.

He was promoted to lieutenant colonel/0-5 on 18 July 1997.

On 1 May 2000, the Director, Personnel Actions and Services, AR-PERSCOM prepared a memorandum, Subject:  February 2000 USARC CCASB-Referred Consideration File.  The memorandum stated that a United States Army Reserve Command (USARC) Colonel Command Assignment Selection Board (CCASB) was held from 7 to 9 February 2000.  The board was responsible for selecting colonel commanders in the USARC and considered the applicant, an Individual Mobilization Augmentee (IMA) officer.  The board had concerns about the validity of two awards worn on the applicant’s uniform, as displayed on the photograph submitted in the applicant’s consideration file.  Specifically, the applicant wears the Joint Service Commendation Medal (JSCM) and the Joint Service Achievement Medal (JSAM).  The applicant alleges that he was awarded the JSCM and the JSAM during an IMA-Active Duty for Special Work (ADSW) assignment with the 8th US Army, Korea during the period December 1995 through June 1996.  Neither authorization to wear these awards nor an Officer Evaluation Report (OER) for the ADSW assignment were documented in his Personnel Electronic Records Management System (PERMS) OMPF provided to the board.  Additionally, the applicant did not document these awards in the Resume of Service Career or the DA Form 4037, Officer Record Brief (ORB), submitted in his consideration file.  Further, when contacted by telephone 

during the board proceedings by the recorder, the applicant stated that he had no documentation in his possession to verify authorization of the awards.  The USARC CCASB membership requested that the applicant’s consideration file be referred to the Commander, AR-PERSCOM for review.  The board considered this to be an integrity issue, which may require further action on the commander’s behalf.  

The applicant’s records contain a copy of his Chronological Statement of Retirement Points, dated 15 September 2000, which shows that he had completed 18 years of qualifying service for retirement purposes and over
24 years of commissioned service.

The board of officers met on 2 June 2001.  The board stated that the applicant did commit an act of misconduct, specifically under Army Regulation 135-175, paragraph 2-12d and paragraph 2-12o, conduct unbecoming of an officer by an intentional omission or misstatement of fact in official statements or records (photo) for the purpose of misrepresentation-specifically by wearing of the JSCM and the JSAM in an official DA Photograph without documentation or orders of authorization.  The board of officers completed its findings and recommendations on 29 July 2001. The board recommended that the applicant be discharged from the USAR with an honorable discharge and stated that this is based on an isolated incident, not a pattern of behavior or duty performance.  

The appropriate authority approved the finding and recommendations of the board of officers on 4 October 2001.

He was honorably discharged from the USAR on 10 October 2001, in the rank of LTC.

In the processing of this case, a staff advisory opinion was provided by the 
Chief, USAR Boards Support Branch, AR-PERSCOM.  AR-PERSCOM stated that the applicant contends on his application to this Board that a 1999 CCASB should not have considered him.  Available records from AR-PERSCOM indicated that no 1999 Colonel Command Selection Board considered him.  

The correct name of the board to which the applicant refers is the US Army Reserve Command Board (USARC) Colonel Command Assignment Selection Board (CCASB).  The USARC CCASB selects USAR officers for assignment to Troop Program Unit (TPU) colonel command positions.  Consideration by this board is totally voluntary on the part of eligible USAR officers, meaning that only those officers who choose to apply to this board are considered for TPU

command assignments.  The USARC CCASB, currently governed by USARC Regulation 140-5, Army Reserve Colonel and Lieutenant Colonel Command Assignment Selection Board Program, revised 1 July 2000, convenes twice a year.

During the Calendar Year (CY) 99, the USARC CCASB convened in March and August, and was governed by a previous edition of USARC Regulation 140-5, dated 1 June 1995.  The March 99 USARC CCASB considered officers to fill projected TPU colonel command vacancies during 1 April through 30 September 1999; the August 99 USARC CCASB considered officers to fill projected TPU colonel command vacancies during 1 October 1999 through 31 March 2000.  

In the statement attached to the applicant’s application for correction of military records, the applicant incorrectly states the eligibility requirements for colonel command consideration.  The applicant is also incorrect regarding concurrent promotion consideration as a result of colonel command assignment consideration.  

The applicant contends that he was not eligible for colonel command assignment consideration in 1999 based on his date of rank (DOR).  USARC Regulation 
140-5 dated 1 June 1995, paragraph 2-4b, which governed the CY 99 USARC CCASBs, stated that eligible officers must “be in the rank of colonel, or rank of lieutenant colonel with minimum of 2 years in grade at the end of the month and year in which the board convenes.”  Based on the applicant’s DOR to LTC of 18 July 1997, he would have attained 2 years in grade as of 18 July 1999.  In accordance with the above-referenced guidance, the applicant would have been eligible for consideration by both CY 99 USARC CCASBs.   However, available records in this office do not indicate that the applicant voluntarily applied for consideration by either USARC CCASB convening in CY 99, and thus was not considered in CY 99 for colonel command assignment.

The applicant stated that officers being considered for TPU colonel command assignment must have previous battalion level or higher command experience.  Paragraph 2-4 of both versions of USARC Regulation 140-5 lists the specific eligibility criteria for colonel command assignment.  Nowhere is it stated in either version that previous command experience at any level is a prerequisite for colonel command assignment.

The applicant’s perception that he was “boarded” (considered) concurrently for promotion to the grade of colonel as a result of being considered for colonel command assignment is incorrect.  Nowhere in USARC Regulation 140-5 dated 1 June 1995, or the revised edition dated 1 July 2000, is it stated that a LTC 

being considered for colonel command assignment is also considered for promotion to the grade of colonel at the same time.  The USARC CCASB only selects USAR TPU officers for assignment to USAR TPU colonel command positions.  

The applicant is incorrect about the year in which he was considered by a colonel command selection board.  He voluntarily applied to, and was considered by, the February 2000 USARC CCASB.  During board deliberations, two of the decorations claimed by the applicant were questioned.  There was no documentation in the applicant’s OMPF to support his claim to these decorations, nor could the board administrative staff obtain any documentation.  The board membership viewed this as an integrity issue, and recommended that the applicant’s board consideration file be referred to the Commander, AR-PERSCOM for investigation.

Upon investigation, the Commander, AR-PERSCOM approved the initiation of action to involuntarily separate the applicant.  The applicant subsequently requested a board hearing.  The board recommended that the applicant be discharged, which was subsequently approved by the AR-PERSCOM Commander.

AR-PERSCOM recommends denial of the portion of the applicant’s claim where he implies that he was improperly discharged based on alleged consideration by a CY 99 colonel command selection board, since USARC CCASB did not consider the applicant in 1999.

The applicant was provided a copy of this opinion for possible comment.

In his rebuttal, he noted that the Chief, USAR Boards Support Branch comments about the board consideration is totally voluntary may be true; however, in his case, the personnel in charge of notifying officers called him and requested that he appear before the board because of the need for outstanding and motivated minority officers.  He received several notices from 1999 to 2001 in reference to his records for preparation for that board and made a mistake in identifying the correct one.  He stands by his statements in reference to the eligibility requirements for colonel command consideration.  He also states that if a lieutenant colonel with less than 2 years TIG, with no battalion level or higher staff command experience could be considered and approved for CCASB, then he understands why the Armed Forces are in a current state of confusion.  He believed that to be eligible for USARC CCASB you had to be a colonel or LTC (P).  He was promoted to LTC in 1997 and boarded for a colonel slot (CCASB).  However, once you assume a position of such authority your rank will reflect that position.  The term he was referring to was frocked.  He does not believe that the Armed Forces have LTCs, not on a promotion list or with no command experience, commanding brigades.  
Prior to the board’s review, he received a call from AR-PERSCOM informing him that he needed a DA Photo and a summary of his career as soon as possible.  He submitted the necessary documents and was later informed that he had an integrity issue concerning his awards.  He requested an updated copy of his OMPF from AR-PERSCOM and noticed that several awards, an OER, and several other documents were missing.  He also noticed that his promotion to LTC was missing and that this was considered an integrity issue.  He understands that there may be hundreds of assignments but only a selected few are considered for the CCASB.  He discovered that AR-PERSCOM claimed that
they had no record of his duties and awards.  He felt that when it came to recognition and public honor, African-Americans were always overlooked, and why should it be any different for him.  During his career in the service he had to deal with envy, jealousy, and a general contempt due to his race.  He attempted to serve in an outstanding manner and had no derogatory issues or letters in his records.  He was placed before a board, that he was eligible for, and due to missing documents was involuntarily separated.  He has completed 18 years of qualifying service and is entitled to the 18-year lock-in addressed in Army Regulations.

Army Regulation 135-175 provides the policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the USAR, except for officers serving on active duty or active duty training exceeding 90 days.  Chapter 2 pertains to involuntary separation when retention is not in the best interest of the service.

Paragraph 2-12 pertains to moral or professional dereliction.  Subparagraph 
2-12d states that the intentional omission or misstatement of facts in official statements or records, for the purpose of misrepresentation, authorizes involuntary separation of an officer.  Subparagraph 2-12o pertains to conduct unbecoming an officer and also authorizes involuntary separation of an officer.
Subparagraph 12-12p states that when one or more reasons outlined in 2-12 is alleged, and the circumstances on which they were based indicated that the reason in 2-12o was involved, it will constitute additional reason for requiring involuntary separation.

USARC Regulation 140-5 implements policies, procedures, guidance, and prescribes responsibilities for implementing the CCASB.  Paragraph 2-4 pertains to criteria for assignment considerations.  It also lists the specific eligibility criteria for colonel command assignment which are:  (a) Be a member of the USAR and assigned to a USAR TPU, USAR Control Group (annual training), USAR Control Group (Reinforcement), or the USAR Control Group IMA; (b) Have the rank of colonel, lieutenant colonel (P), or lieutenant colonel with a minimum of 2 years in 

grade as of the end of the month and year in which the projected vacancy occurs; (c) Have a mandatory removal date (MRD) not less than 3 years from the end of the month and year in which the board convenes;  (d) Have an under graduate degree; (e) Be qualified in the basic branch of the unit prior to assuming command.  Qualified is defined as having completed the appropriate branch officer advanced course or having been designated in the applicable area of concentration (AOC) based on experience in previous branch assignments;  
(f) Be a graduate of the Command and General Staff Officers College or the equivalent; (g) Have passed the Army Physical Fitness Test (APFT) within the past 12 months, as of the end of the month and year in which the board convenes; and (h) Meet height and weight standard of Army Regulation 600-9.

Title 10, United States Code (US), section 12646, pertains to commissioned officers:  retention of after completing 18 or more, but less than 20, years of service.  Paragraph d(1) applies to officers who are discharged or transferred from an active status for physical disability, for cause, or because they have reached the age at which transfer from an active status or discharge is required by law.

Title 10 USC, section 14902; paragraph (b) pertains to misconduct, etc.  It states that the Secretary of the military department concerned shall prescribe, by regulation, procedures for the review at any time of the record of any Reserve officer to determine whether that officer should be required, because of misconduct, moral or professional dereliction, or because the officer’s retention is not clearly consistent with the interest of national security, to show cause for retention in an active status.

Title 10, USC, section 14903 pertains to boards of inquiry.  It states, in pertinent part, that the Secretary of the military department concerned shall convene a board of inquiry at such time and place as the Secretary may prescribe to receive evidence and review the case of any officer who has been required to show cause for retention in an active status under section 14902.

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 Board notes that the USARC CCASB selects USAR officers for assignment to TPU colonel command positions and that consideration by this board is voluntary on the part of eligible USAR officers, meaning that only those officers who chose to apply to this board are considers for TPU command assignments.  However, available records indicated that the applicant did not voluntarily apply for consideration by the 1999 USARC CCASBs held during the CY 99, and was not considered for a CY 99 colonel command assignment.

2.  The applicant stated that the eligibility requirements for the 1999 CCASC must be met, which were at least 2 years TIG as a LTC and have command experience at battalion level or higher.  However, paragraph 2-4, of USARC Regulation 140-5, dated 1 June 1995, and the revised edition dated 1 July 2000, listed the specific eligibility criteria for colonel command assignment.  Nowhere was it stated in either version that previous command experience at any level was a prerequisite for colonel command assignment.  It stated that the individual must have the rank of colonel, lieutenant colonel (P), or lieutenant colonel with a minimum of 2 years in grade as of the end of the month and year in which the projected vacancy occurs.  The applicant was promoted to LTC on 18 July 1997, and was eligible to appear before both USARC CCASBs that convened in 1999.

3.  A USARC CCASB was held from 7 to 9 February 2000 and had concerns about the validity of the of two awards worn on the applicant’s uniform, as displayed on his DA Photo, submitted with his consideration file.  He was wearing two awards, the JSCM and JSAM, that he alleged were awarded while assigned with the 8th US Army, Korea.  The applicant failed to provide authorization to wear these awards and his PERMS OMPF provided to the board failed to show these awards.  The applicant also failed to document these awards on his Resume of Service or ORB submitted with his consideration file.  

4.  The applicant was later contacted by phone during the board proceedings and he informed the board that he had no documentation in his possession to verify authorization.  At that time, the USARC CCASB membership requested that the applicant’s consideration file be referred to the Commander, AR-PERSCOM for review.  The board considered this to be an integrity issue, which required further action on the commander’s behalf.

5.  The applicant appeared before a board of officers who determined that he did commit an act of misconduct, specifically under Army Regulation 135-175, paragraph 2-12f and paragraph 2-12o, for the purpose of misrepresentation by 
wearing the JSCM and the JSAM on his official DA Photo without documentation or orders of authorization.  

6.  The board of officers recommended that the applicant be honorably discharged and stated that the applicant’s case was based on an isolated incident, not a pattern of behavior or duty performance.  The finding and recommendations were approved on 4 October 2001, and the applicant was honorably discharged on 10 October 2001, in the rank of LTC.

7.  The applicant had completed over 18 years of qualifying service for retirement purposes and was not allowed to remain on active duty to complete 20 years of service.  The applicant was involuntarily separated under the provisions of Army Regulation 135-175, paragraph 2-12, for misstatement of facts in his OMPF and conduct unbecoming of an officer.

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 this 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

__fe___  __tl____  ___le____  DENY APPLICATION

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

INDEX

CASE ID	AR2002068891	
SUFFIX		
RECON		
DATE BOARDED	20021121	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20011010	
DISCHARGE AUTHORITY	AR 135-175	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  320		
2.		
3.		
4.		
5.		
6.