RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  8 January 2004
	DOCKET NUMBER:  AR2003085330

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Linda M. Barker		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his non-selections for promotion to lieutenant colonel (LTC) by the 1998 and 1999 special selection boards (SSB) be set aside, his third non-selection for promotion to LTC by the 2000 Reserve Components Selection Board (RCSB) be set aside, and his selection for LTC by the 2001 RCSB be set aside.  He further requests that he be promoted to LTC retroactive with a date of rank of 1 March 1999 and awarded back pay and allowances or reconsideration by 3 new SSB's under 1998 through 2000 criteria. He further requests that his non-selection by the 2002 Active Federal Service (AFS) Extension Advisory Board (EAB) be set aside, reconsideration by an AFS EAB to permit extension beyond his mandatory 20-years AFS retirement date of 1 April 2003, and reinstatement to active duty with back pay and allowance pending his reconsideration.

2.  The applicant defers to counsel for statement of facts.

3.  The applicant submits documents from his military records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel states that the applicant was unlawfully non-selected for promotion to LTC by two Standby Advisory Boards (STAB) convening in December 2000 and May 2001 under 1998 and 1999 criteria, when the Army Reserve Personnel Command (AR-PERSCOM) failed to properly expunge derogatory documents from his official military personnel file (OMPF) microfiche.  The expungement was ordered from a 1999 Federal Court order with reinstatement to active duty and a follow-on July 2000 Army Board for Correction of Military Records (ABCMR) decision that ordered additional documents be expunged.  The two defectively prepared microfiche allowed plain access and viewing by the STAB members.  Moreover, the banned derogatory documents can be printed directly from the microfiches to prove the defective expungement.  Counsel also states that the legal ground rule is that a service member's documents sent to a STAB or SSB must be substantially complete and must fairly portray the officer's record upon reconsideration.

2.  Counsel also states that both he and the applicant verified with officials at AR-PERSCOM, Promotions and Notifications, Special Actions Branch (responsible for STAB's and SSB's) and those officials stated that the STAB's/SSB's "use the microfiche viewers."  Because the bureaucratic error blatantly failed to follow the mandates of the court and the ABCMR, counsel reserves the right under a mandamus writ to reopen the court proceedings to compel the agency to properly perform its duties.

3.  Counsel further states that a Service correction board must be able to act in the event material errors of procedural, factual, or other nature "infect the SSB deliberations."  The applicant's non-selections from the 1998-2000, extension denial in 2002, and mandatory retirement in 2003, are unlawful and must be set aside.

4.  Counsel requests that the ABCMR grant relief as set forth in the applicant's request.

5.  Counsel and applicant provide copies of Federal Court Case No. 97-526C, the ABCMR 11 July 2000 Proceedings, several pages of actual microfiche viewer "print-outs", two defective microfiche obtained from the Special Actions Branch, an enlarged copy of the microfiche, the applicant's notice of selection by the 2001 promotion board, the applicant's non-selection notices by the 1999 and 2000 mandatory promotion boards, E-mail correspondence from the Chief, Special Actions Branch, and the applicant's officer evaluation report for the period ending August 1995.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show he was appointed in the Reserve as a second lieutenant effective 10 January 1978.  He attained the grade of major effective 7 January 1992.

2.  On 19 September 1994, the applicant was issued a Memorandum of Reprimand (MOR) from his commander.  After review of rebuttal statements, the final approving authority recommended the MOR be filed in the applicant's OMPF.

3.  On 23 November 1994, the U.S. Army Central Personnel Security Clearance Facility at Fort Meade, Maryland revoked the applicant's top secret clearance.  The applicant appealed this decision to the agency and his security clearance revocation appeal was approved.  The applicant's security clearance was reinstated on 22 March 1995.

4.  On or about 24 February 1995, the applicant applied to the Department of the Army Suitability and Evaluation Board (DASEB) to remove the MOR and related documents from his OMPF.  On 20 April 1995, the DASEB directed removal of the 2nd endorsement to the MOR (the one that contained additional derogatory information which the applicant had not had opportunity to review or rebut) from the OMPF performance section and placed in the restricted section.  However, the DASEB did not find sufficient proof to set aside or remove the MOR from the applicant’s OMPF.

5.  The applicant’s file was reviewed by the Department of the Army Active Duty Board (DAADB).  On 10 July 1995, the applicant was notified by letter that he had been selected for involuntary release from active duty by reason of misconduct, moral or professional dereliction, related to the MOR and the issue of wrongful use of cocaine.  The DAADB directed release from active duty with a general discharge and recommended that the applicant be further considered for discharge from the Reserve.  The applicant was so released from active duty on 18 August 1995 and transferred to the Control Group (Reinforcement).

6.  The applicant appealed to the Army Board for Correction of Military Records (ABCMR) on 1 August 1995 to be retained on active duty as an Active Guard/Reserve (AGR) major, to overturn the DAADB decision for his separation from active duty, and that the MOR be expunged from his record.  He contended that the absence of a court-martial or a show cause board was a denial of due process in his discharge procedure.  In a Board decision on 24 July 1996, the ABCMR denied the application finding no error or injustice in the issue and filing of the MOR or in the DAADB decision to separate the applicant from active duty.

7.  On 4 August 1997, the applicant filed a lawsuit in the United States Court of Federal Claims contending that his due process rights were violated when the Army discharged him for wrongful use of cocaine without providing him with a hearing at which he could protest the charges against him.  The United States Court of Federal Claims found that the ABCMR’s refusal to grant the applicant’s request for relief without providing him an adversarial hearing was arbitrary, capricious, and contrary to law.  The ABCMR did not address specifically a prime issue of the endorsement to the MOR being in violation of the regulations on unfavorable information.  The Court stated that it could not make a ruling on removal of the MOR from the record.  The Court recognized that the applicant’s commander violated Army Regulation 600-37 procedure by including in his MOR endorsement additional derogatory information that was further placed in the applicant’s OMPF without the applicant being afforded the opportunity to see and rebut the derogatory information.  Since the ABCMR did not address this specific issue, the Court could not address the issue.  This issue was referred back to the ABCMR for decision.  However, the government counsel in the Court conceded that the Army did violate its regulations on this issue.  The Court concluded that,  “the Army impaired (the applicant’s) liberty interest in his reputation when it characterized his discharge as general, and because (the applicant) has vigorously disputed the factual basis for the release, the due process clause of the Federal Constitution obligates the Army to provide the applicant with such a hearing prior to his discharge.  The Court held that the Army’s failure to provide (the applicant) with such a hearing before discharge was a denial of due process.”  The Court ruled that the Article 32 investigation did not satisfy this requirement since it was only a fact-finding forum to determine court-martial viability.

8.  On 13 May 1999, the Court ordered that the applicant be restored to active duty in the AGR program, receive all appropriate pay and allowances since discharge on 18 August 1995 to date of reinstatement, 60 days accrued leave, and receive all additional benefits to include consideration/reconsideration, as may be appropriate, for schools, promotions, and other professional advancement in the Army consistent with continuous service from 18 August 1995.

9.  During the above proceedings, the applicant was considered for promotion to LTC by the September 1998 and September 1999 promotion boards and not selected.  Changes to the applicant’s military records as a result of the Court order had not been accomplished prior to these promotion boards.

10.  On 22 July 1999, the applicant appealed to the ABCMR for removal of the entire MOR and associated documents, his non-selection for LTC under 1998 criteria, reconsideration for promotion to LTC under 1998 criteria and any further non-selections that may occur while his appeal is pending, and in the event of retroactive selection for promotion to LTC, award of back pay and allowances.

11.  On 11 July 2000, the ABCMR recommended that the applicant's records be corrected by expunging the MOR and endorsement with all related material; the request for AR 15-6 investigation, the Article 32 investigation, and the CID investigation; the DAADB correspondence and all related material; the DASEB proceedings, correspondence, appeal, and all related material from his records; and any records of non-selection for promotion to LTC; moving to the restricted data section of the OMPF all material relating to the revocation of his security clearance; placing the applicant before a STAB for consideration for promotion to LTC in the AGR program under 1998 and 1999 criteria; and paying him the requisite back pay and allowances if he is selected for retroactive promotion.

12.  The applicant was reinstated in the AGR effective 16 March 1999.

13.  The applicant was considered and non-selected for promotion to LTC by the 2000 RCSB.  He was considered and selected for promotion to LTC by the 2001 RCSB, which convened on 5 September and recessed on 2 October 2001.  The applicant was promoted to LTC with a date of rank 8 March 2002.

14.  The applicant was considered by SSB's under 1998 and 1999 criteria and non-selected for promotion to LTC.  Those boards convened in December 2000 and March 2001, respectively.

15.  On 19 September 2002, the applicant's voluntary request to remain in the AGR beyond his current removal date was disapproved.

16.  The applicant was separated from the Reserve effective 28 February 2003 and placed on the retired list effective 1 March 2003.

17.  On 28 August 2003, the ABCMR requested an advisory opinion from the 
AR-PERSCOM reference the applicant's request for correction of his military records.  On 29 September 2003, the Commander, AR-PERSCOM, advised the ABCMR that a comprehensive review of the applicant's records after the ABCMR identified seven documents to be expunged or moved to the restricted portion of the OMPF was conducted.  The AR-PERSCOM found that only one memorandum relating to the revocation of the applicant's security clearance remained and moved the memorandum to the restricted section of his record.  None of the other documents listed in the ABCMR's Recommendation were found in his military records.

18.  The Chief, Special Actions, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion that it is the policy of the Office of Promotions, that when preparing a file for reconsideration by a special board, to use as close to the same original file as was seen by the original board. Based on the ABCMR proceedings, the applicant's 1998 and 1999 files were corrected as originally seen by the board and the expunged documents were covered with stickers and could not be seen by the SSB members.  The DD Form 214 was also covered and not seen by the board.  Board members are briefed that any covered documents are of no concern as they are duplicate documents or are not eligible to be seen and to focus on the performance portion of the OMPF.  Due to the volume and time requirements, the amount of time spent reviewing files is extremely limited by each board member.  The board members that are selected are selected because the Army trust implicitly their maturity, experience, knowledge, and judgment to objectively and impartially evaluate an officer' record and arrive at a decision that will best serve the needs of the Army.

19.  The Chief, Office of Promotions, also stated that the applicant requested copies of his board files from the SSB's.  Copies were made from the fiche that was seen by the SSB's and forwarded to the applicant.  The flash of light used by the copy machine is so bright that it left a vague image of the covered documents on the applicant's copy of the fiche.  The applicant therefore contends that the board members can easily read the blocked out documents.  This is not true as it is not the fiche that board members viewed.  Enclosed was a copy of the fiche with the stickers covering the expunged documents for review in a microfiche viewer.

20.  The Chief, Office of Promotions, further stated that the 2000 RCSB saw an entirely new fiche; therefore, it did not have stickers, all the required documents had been removed, his file was complete and the applicant was again non-selected.  The applicant did not bother to send in any documentation to the 2000 board, such as a photo, the officer record brief (ORB), letter to the board President that possibly could have enhanced a selection by the board.  Based on this information it was recommended that the applicant's request be denied and the board's recommendations of non-selection should stand, given the knowledge, expertise, and maturity of three separate promotions boards.

21.  The advisory opinion was forwarded to the applicant for acknowledgment/
rebuttal on 1 October 2003.  The applicant's counsel responded on 1 December 2003.  Counsel stated that the opinion raised two new issues that he will brief on, along with a third issue.  The first issue is whether the applicant, upon reinstatement in March 1999, took appropriate action to review and update his ORB.  In response, counsel stated that the opinion is wholly mistaken that the applicant did not take appropriate action to update his ORB, the applicant fought desperately to change his records from day one through the present ABCMR appeal.

22.  Counsel stated the second issue is whether the applicant's corrected OMPF microfiche viewed by the 2000 RCSB was properly corrected when issued on 16 August 2000, as so ordered by the ABCMR.  In other words, did the Army Reserve Full-Time Support Management Directorate (FTSMD) remove derogatory information while ensuring it was a reasonably current performance record, as consistent with standard Army OMPF policies.  In response, counsel stated that the applicant had every reason to believe his corrections would receive equal treatment without hand-holding FTSMD at every step.  The applicant's non-selections were illegal because they relied on the incorrect OMPF and ORB.

23.  Counsel stated the third issue is whether FTSMD officials presented the applicant's records for the two SSB reconsiderations in a manner that was free from potential prejudice, that is, by not expunging the derogatory information but only placing "stickers" over the admittedly derogatory material, while asking the board members to not be concerned with this hidden material.  In response, counsel stated that the FTSMD did not remove the derogatory documents from the new USAR on-line OMPF in December 2001.  The applicant again had to request corrections.  The placement of stickers over the derogatory material ordered expunged by the ABCMR was not free from potential prejudice.  Because the suspiciously covered information was listed in the "performance" and "disciplinary" sections of the OMPF, it actually draws attention to red flags.  If this is free from possible prejudice, then why don't mandatory boards operate the same way?  Rather, the dubious sticker method simply places administrative convenience over substantial fairness to the officer, particularly when a considered officer is refused a pre-board review of his records nor given the procedures of the SSB.  Finally, STAB/SSB members are not specially selected, but perform this as an additional duty after their mandatory board.

24.  Current promotion policy specifies that promotion reconsideration by a STAB or an SSB may only be based on erroneous non-consideration or material error that existed in the record of a commissioned officer at the time of consideration.  A STAB is required for reconsideration for 1995 and earlier criteria prior to 1 October 1996, and an SSB is required for 1 October 1996 and later.  It further specifies that promotion reconsideration by a STAB for criteria prior to the Reserve Officer Personnel Management Act (ROPMA), implemented on 1 October 1996, may only be based upon ABCMR determination approved by the Secretary of the Army.  Approval for criteria after the ROPMA by an SSB may be accomplished by the PERSCOM.

25.  Title 10 United States Code, section 615 governs information furnished to selection boards convened under Title 10, United States Code, section 611a.  This provision of law states that the Secretary of the military department concerned shall furnish, inter alia, “such other information and guidelines as may be necessary to enable the board to properly perform its functions.”

26.  Current separation policy provides for involuntary separation of Reserve officers upon completion of 20 years of AFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to promotion reconsideration to LTC by an SSB.  The applicant and his counsel have not shown that the 1998 and 1999 SSB's and 2000 promotion selection boards were prejudicial as a result of AR-PERSCOM method of expunging the documents resulting in his  non-selections for promotion to LTC by two SSB's and one mandatory promotion board.

2.  Neither the applicant nor counsel have shown that those boards did not review a complete and fair portrait of the applicant's record upon reconsideration, or that the AR-PERSCOM's failure to adequately expunge highly inflammatory documents from his records caused his non-selections for promotion.

3.  There is no indication that the applicant’s non-selections LTC were unjust or inequitable.  There is no evidence of record that shows that his non-selection was contrary to law.  The promotion boards do not divulge the proceedings or reasons for non-selection; therefore, it cannot be determined why he was not selected for promotion.  Without evidence to show otherwise, it is concluded that the applicant was properly considered for promotion.

4.  Neither the applicant nor counsel have presented convincing evidence of a material error in his file at the time he was not selected for promotion by the SSB's under 1998 and 1999 criteria and the 2000 promotion selection board.  Therefore, there is no basis for submitting the applicant’s records to an SSB.  The applicant's records as well as other officers' records were placed before those boards using as close to the same original file as was seen by the original board.  Expunged documents were covered with stickers on the applicant's records and that method was also used on other officers' records when called for.  STAB/SSB board members are required to review and evaluate all the records presented objectively and impartially to arrive at a decision that would best serve the needs of the Army.

5.  The applicant and counsel contentions that the 1998 and 1999 SSB members could easily read the blocked out documents is unfounded.  The officials with the Office of Promotions, brief all SSB members to focus on the performance portion of the OMPF and that covered documents are duplicate documents or are not eligible to be seen.

6.  The 2000 RCSB reviewed an entirely new fiche that contained no stickers after all required documents had been removed, his file was complete and the applicant was again non-selected.  At that time, it was the applicant's responsibility to submit any updated documents that possibly could have enhanced his promotion selection by the board.  It is was also the applicant's responsibility to review his ORB and have his personnel manager take the necessary corrective action to again enhance a promotion selection by the board.

7.  The applicant was considered and selected for promotion to LTC by the 2001 RCSB and this promotion board was convened prior to his OMPF and ORB being corrected in early 2002.

8.  The applicant was properly separated on 28 February 2003.  As a Reserve officer he is not and was not permitted to remain on active duty beyond 20 years of AFS.  Therefore, the applicant is not entitled to recall to active duty.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kn___  __lb____  __jm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		__Kathleen A. Newman____
		        CHAIRPERSON

INDEX

CASE ID	AR2003085330	
SUFFIX		
RECON		
DATE BOARDED	20040108	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.	131.011	
4.		
5.		
6.