PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:  11 July 2000
	DOCKET NUMBER:  AR1999029831

	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	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John Saputo		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests:

a.  removal from his OMPF entirely of a Memorandum of Reprimand (MOR), dated 19 September 1994, and associated documents, including the endorsement thereto dated 20 October 1994;

b.  to set aside the applicant’s non-selection for promotion to Lieutenant Colonel (LTC) by the O-5 Reserve Promotion Board that convened in September 1998 (primary zone), and all documents referring to such non-selection;

c.  reconsideration for selection for promotion to LTC retroactive to the O-5 Reserve Promotion Board that convened in September 1998 and any further non-selections that may occur while this ABCMR appeal is pending;

d.  in the event of retroactive selection for promotion to LTC, award back pay and allowances.

3.  The applicant states, in effect, that he was given a MOR for suspected cocaine use through a process that violated Army regulations which rendered it unjust and erroneous.  The violations were that the chain of command in providing endorsement to the MOR, included additional derogatory information that the applicant was not given opportunity to rebut, and the failure to designate the MOR filing location.  This was considered by the United States Court of Federal Claims who remanded this question to the ABCMR for consideration since the Board had not addressed this question in its Board proceedings.  The applicant was also erroneously and unjustly given a general discharge from the Army Active Guard/Reserve (AGR) program and the Reserves on the basis of the MOR without due process.  The United States Court of Federal Claims ruled this to be a violation of the applicant’s constitutional rights that obligates the Army to provide the applicant an adversarial hearing prior to his discharge.  The Court, in essence, voided the discharge by ordering the applicant restored to active duty in the AGR in his original rank of Major with all back pay and allowances and all additional benefits (reconsideration by promotion boards, etc.) to the date he was discharged, 18 August 1995.  The applicant submits with his application:  
1) a 13-page document prepared for him by his counsel that details his contentions of error and injustice and his request for corrections; 2) the United States Court of Federal Claims proceedings with plaintiff’s motion; 3) the United States Court of Federal Claims order; 4) copies of the MOR and related papers, the Department of the Army Suitability and Evaluation Board (DASEB) proceedings, and the ABCMR proceedings; and 5) his latest OER.  The counsel does not provide separate argument or evidence.

4.  The applicant’s military records show that in 1993, he was a Major in the Active Guard/Reserve (AGR) program assigned to the 65th Army Reserve Command at Fort Buchanan, Puerto Rico, as the supply staff officer.  
On 26 October 1993, the applicant provided a urine sample under an unannounced unit urinalysis test.  The sample was tested at the Fort Meade Urinalysis Test Lab in Maryland and found to be positive for cocaine.  
On 4 February 1994, the applicant was presented court-martial charges for wrongful use of cocaine.  The applicant refuted the charges and presented letter testament from his supervisor, superior officers, and associates that he did not use cocaine or display any evidence of use of cocaine.  The applicant’s senior commander requested an investigation under AR 15-6.  An Article 32 investigation was conducted and concluded on 29 March 1994.  The investigating officer concluded, “Reasonable grounds exist to believe the accused wrongfully used cocaine, and I believe that a general court-martial is appropriate in this case; however, in my opinion, there are several questions of fact which may make successful prosecution difficult at court-martial.  
I recommend that some consideration be given to administrative disposition of the case under AR 635-100, Chapter 14 (Misconduct).”  Consequently, due to this and due to the government failing to have the charges made by a person subject to the Uniform Code of Military Justice, the court-martial charges were dismissed on 26 January 1995.

5.  On 19 September 1994, the applicant was presented with a MOR from his colonel commander for testing positive for cocaine in the urinalysis test.  
The applicant was given an opportunity to submit a rebuttal and he did so in writing.  On 20 October 1994, the colonel commander indorsed the MOR to his superior commander for filing approval.  He recommended the MOR be filed in the applicant’s Official Military Personnel File (OMPF).  He also included in his endorsement other derogatory information on the applicant.  This endorsement was filed in the OMPF with the MOR without the applicant having the opportunity to see or rebut the additional derogatory information.  The colonel commander of the U.S. Army Garrison, Fort McPherson, Georgia, approved the MOR and its filing in the applicant’s OMPF.

6.  On 23 November 1994, the applicant’s top secret security clearance was revoked by the U.S. Army Central Personnel Security Clearance Facility at Fort Meade, Maryland, based on his suspected cocaine use.  The applicant appealed this decision to the agency with many letters of support from senior and contemporary officers of his command.  The security clearance revocation appeal was approved and the applicant’s security clearance was reinstated on 
22 March 1995.

7.  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 to be 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.

8.  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 reserves.  The applicant was so released from active duty on 18 August 1995 and transferred to the Reserve Control Group (Reinforcement). Further action on this recommendation was tabled when the applicant filed a claim with the United States Court of Federal Claims.

9.  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 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 or process to separate the applicant from active duty.

10.  On 4 August 1997, the applicant filed a law suit 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 applicant also contended that the Army violated applicable regulations when his commanding officer failed to give him an opportunity to respond to unfavorable information that the commanding officer relied upon in recommending that a MOR be permanently filed in the applicant’s personnel file.  He requested that he be reinstated on active duty in the AGR program with back pay and allowances and requested that the MOR and all reference to it be removed from his military records.

11.  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 AR 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 holds 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.

12.  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 ($123,823.21 and 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.

13.  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.

14.  Army Regulation 600-37, Unfavorable Information, does not permit filing in the soldier’s personnel records any derogatory information that the soldier has not had the opportunity to review and rebut.

15.  Army Regulation 600-8-104, Military Personnel Information Management/
Records, table 2-1, authorizes filing in a soldier’s Official Military Personnel File (OMPF) performance section, only authenticated extracts of completed investigation reports that have resulted in elimination or disciplinary action.
16.  The applicant’s OMPF microfiche, as of 12 August 1999, contains:

a.  the MOR, violating endorsement, and related material in the Military Personnel Record Jacket (MPRJ) data section, the disciplinary data section, and the restricted data section;

b.  the DAADB notice of release from active duty and appeal in the disciplinary data section and the restricted data section;

c.  the DASEB appeal and findings in the restricted data section;

d.  the security clearance revocation, appeal, and restoration in the MPRJ data section and the restricted data section;

e.  the Article 32 Investigation, Criminal Investigation Division (CID) report, and the general court-martial dismissal order are in the restricted data section.

CONCLUSIONS:

1.  The DAADB involuntary discharge notice, correspondence, and appeal material should be expunged from the applicant’s records since all was overturned by the United States Court of Federal Claims when the Court ordered the applicant reinstated on active duty in the AGR program with all back pay and benefits effective the date he was originally separated as though he had not been separated.

2.  Since the security clearance revocation action was reversed and the applicant’s security clearance was reinstated based on appeal and dismissal of court-martial charges, all material relating to the security clearance revocation should be moved to the restricted data section of the OMPF.

3.  Since the decision on filing of the MOR was likely unjustly influenced by the unauthorized derogatory information included in the MOR endorsement and filing recommendation, and since the government counsel that appeared before the Court of Federal Claims admitted to the Court that the Army had violated its regulations in this respect, the MOR and endorsement and all related material and appeal material should be expunged from the record.  The MOR administration and process was defective since it was unjustly affected by inclusion of derogatory material in violation of Army regulation and law. 

4.  The request for an investigation under AR 15-6, the Article 32 investigation, the CID report should be expunged from the OMPF as related documents to the defective MOR.  Under the circumstances of the MOR being removed as defective and the discharge being revoked by the United States Court of Federal Claims, the retention of these investigations in the OMPF then violates filing rules specified in AR 600-8-104, table 2-1.

5.  The DASEB dealt with two issues, the applicant’s unjust and illegal discharge and the MOR administrative procedure.  However, these two issues were rendered void as a result of the Court order.  The Board also concluded to expunge the MOR and related material because they violated regulatory procedure.  Based on these actions, DASEB should be expunged from the record as no longer applicable, correct, or just.

6.  After the correction of records, the applicant should be placed before a Standby Advisory Board for consideration for promotion to LTC under the criteria of the 1998 and 1999 LTC promotion boards for AGR officers.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected for the individual concerned by:

	a.  expunging from his records the MOR and endorsement with all related material;

	b.  expunging from his records the request for AR 15-6 investigation, the Article 32 investigation, and the CID investigation; 

c.  expunging from his records the DAADB correspondence and all related material;

	d.  expunging from his records the DASEB proceedings, correspondence, appeal, and all related material:

	e.  moving to the restricted data section of the OMPF all material relating to the revocation of his security clearance; 

f.  expunging any record of non-selection for promotion to LTC;

g.  placing him before a STAB for consideration for promotion to LTC in the AGR program under the criteria of the 1998 and 1999 LTC promotion boards; and

	h.  paying him the requisite back pay and allowances if he is selected for retroactive promotion to LTC.

2.  That the application for correction of this military record, all supporting documents, proceedings of this Board, and the decision of the Secretary of the Army be returned to the Board for permanent filing to preclude the normal filing of these records from nullifying the relief granted.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rw___  __ra____  __js___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond J. Wagner____
		        CHAIRPERSON

INDEX

CASE ID	AR1999029831	
SUFFIX		
RECON		
DATE BOARDED	20000711	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.126.03	Removal of Reprimands	
2.		
3.		
4.		
5.		
6.