PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 December 1999                  
	DOCKET NUMBER:   AR1999032107

	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. Loren G. Harrell		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchannon		Member	
	Mr. Mark D. Manning		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 that his previous application to this Board be reconsidered.  On 18 February 1998 the applicant amended his application specifically requesting that a new Board, consisting of disinterested and impartial members be appointed to reconsider his appeal for promotion under the 1983 brigadier general promotion board, further promotion consideration under the 1984, 1985, 1986, 1987, 1988 promotion boards, and recall to active duty.

3.  The applicant states, in effect, that the Board’s denial of his previous request did not consider the merits of his case and his allegations were not properly investigated.  He contends that the interpretation of the Board’s investigative authority, as provided to him in a 23 January 1998 letter, which denied his appeal for lack of evidence, was misleading and misrepresented the authority of the Board.  In his opinion, the Board has authority to investigate and/or to request assistance from the Secretary of the Army to investigate any injustice.  He asserts that he is unable to provide evidence of the prejudicial nature of the General Officer Promotions Boards that denied him promotion because he does not have access to promotion board evidence.  Furthermore, since promotion boards are sworn to secrecy only the Secretary of the Army can direct an adequate investigation and obtain evidence of the injustice done to him and, in the interest of justice and fair dealing, the burden of providing such evidence is on the Army.

4.  He also challenges the impartiality of the membership of the Army Board for Correction of Military Records that initially considered his case, stating that the Chairperson was the Director of the Army Clemency and Parole Board who was aware of his conviction and incarceration while another member of the Board was assigned to the Army’s Office of the General Counsel who was involved in the cancellation of his favorable personnel action and involuntary retirement.  Since both of these members were from activities involved with the injustice perpetrated against him they were not disinterested or impartial examiners and should have excused themselves from his case.  The applicant further contests the validity of an advisory opinion provided to the initial Board by the General Officer Management Office (GOMO).  That opinion concluded that he was not entitled to special promotion selection board consideration because he had been properly considered by each of the Brigadier General Promotion Boards that had considered his case.

5.  In support of his request, he has provided two self-authored sworn affidavits:

a.  In an affidavit supporting his request for promotion, he states that a recorder for the 1983 Brigadier General Promotion Board related to a friend of his that he (the applicant) had been selected for brigadier general and, later the recorder told him that the president of the promotion board had removed his name from the selection list.  He further states that the president of the 1983 promotion board was the DA, Deputy Chief of Staff for Operations (DCSOPS) who had oversight over the activity in which he worked, and was familiar with his criminal investigation.  He contends that it was the DCSOPS, in the position as president of the promotion board, who removed his name from the selection list based on factors that were not in the official record at the time, in violation of his oath of impartially as a member of the promotion board.  Further, every Brigadier General Promotion Board from 1983 through 1988 had members who were aware of his criminal investigation or court-martial which prejudiced those boards against him.  He provides the names of the general officers that were members of each of those boards who knew of his situation.

b.  The second affidavit is provided in support of his request for recall to active duty and relates the circumstances of his involuntary retirement.  He states that he was retired on 31 August 1988 following the decision of a Selective Early Retirement Board.  He was then ordered to retire by the Commander, PERSCOM despite the fact that he was under a suspension of favorable personnel action (flag). To register his protest of this action at the time, he annotated his retirement application to show that it was submitted “with objection”.  He maintains that he was arbitrarily retired in violation of regulations and at the behest of the Army General Counsel while under flag and without benefit of prior notice to him or his counsel.  Subsequently, an individual from the General Counsel’s office also served as a member of the ABCMR when it initially considered his application.

6.  The applicant’s military records show that in December 1983, while serving as a Regular Army colonel, he was suspended from duty as assistant to the Director of Operations, Central Intelligence Agency, pending investigation of alleged violations of the UCMJ.  In April 1986, he was tried by a general court-martial.  Contrary to his pleas, he was convicted of disobeying a lawful order, dereliction of duty and conduct unbecoming an officer.  The sentence, as modified, included confinement.

7.  In November 1986, after serving 2 months in confinement, the Army Court of Military Review (ACMR) set aside the findings and sentence in his case and dismissed the charges and specifications for lack of a speedy trial.  The Court of Military Appeals affirmed the ACMR decision and the applicant was restored to active duty.  

8.  On 31 August 1988 he was retired (over his objection).  The following day his name was placed on the retired list.  He had completed over 31 years of active federal service and over 6 years of inactive service.  At the time, he was 51 years old.

9.  The applicant initially applied to this Board on 7 March 1991.  He asked that his records be corrected to show that he was promoted to brigadier general then to major general.  Following those corrections, he requested restoration to active duty to accept the promotions requested and, thereafter, to immediately be retired as a major general.  After receiving an advisory opinion from the Office of the Judge Advocate General and an unfavorable opinion from the General Officer Management Office (GOMO) regarding his nonselection and right to promotion, his application was denied on 18 December 1991.  

10.  On 23 April 1996 he requested reconsideration of his case.  That request was denied for failure to provide new evidence to support the request.  He subsequently voiced his concern with the denial through numerous letters to this agency, elected representatives and others interested in his case.  

11.  In August 1997 he requested an investigation of the Department of the Army General Officer Promotion Boards that had denied him promotion.  On              23 January 1998, he was advised that this Board had neither the legal authority, nor the staff to conduct the type of investigation he desired.  He strongly disagreed with this interpretation and again requested reconsideration of his appeal.

12.  The GOMO advisory opinion provided in connection with the initial consideration of this case (COPY ATTACHED) shows that the applicant was considered for promotion to brigadier general every year from 1983, his first year of eligibility until 1988, the year he retired.  It also reveals that the GOMO records were not precise on whether or not adverse information was shown to every selection board.  The applicant contends that this advisory opinion was both incorrect and misleading.

13.  A copy of this Board’s 18 December 1991 Memorandum of Consideration denying the applicant’s initial application (COPY ATTACHED) is provided for reference.

14.  Army Regulation 624-100, Promotion of Officers on Active Duty, the regulation in effect at the time, provides in pertinent part that special selection boards are convened to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: the officer was not considered from in or above the promotion zone by a regularly scheduled board due to administrative error; the action by a board which considered an officer from in or above the promotion zone was contrary to law or involved material error; the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  

15.  The same regulation provides that special selection boards are governed by the same instructions provided to the board that considered or should have considered an officer for promotion.

16.  Army Regulation 635-100, Officer Personnel, provides in pertinent part, that an officer retired under the selective early retirement provision of the regulation will be retired (under any provision of retirement law for which he is eligible) on the date requested by him and approved by the Secretary of the Army but not later than the first day of the seventh calendar month beginning after the month in which the Secretary approved the report of the board which recommended the officer for early retirement.  This regulation also provides that a Regular or Reserve commissioned officer of the Army who has at least 20 years of active federal service…may, upon application and, in the discretion of the Secretary of the Army, be retired.

17.  Army Regulation 600-31 prescribes policies and procedures for the imposition and removal of favorable personnel actions (flag).  It provides that the commander (or general officer staff head) may direct removal of a flag.  It also specifically allows for the retirement of soldiers who are flagged.

CONCLUSIONS:

1.  Although this Board has agreed to accept the applicant’s request for reconsideration, it will not revisit all the issues raised in the initial request as those questions were finally and conclusively decided by the 18 December 1991 Board.  Rather, this Board will limit its deliberations to the questions of his promotion and recall to active duty, as enunciated in his 18 February 1998 request.

2.  While the applicant challenges the objectivity of two members of the Board that considered his case in 1991, it does not appear from the available evidence that either challenged member had an actual conflict of interest in hearing the case.  The applicant’s perception of the conflict is that one of the Board members hearing his case was the Chairman, Clemency and Control Board, who must have had special knowledge of his case by virtue of the applicant’s 2 month incarceration at the Disciplinary Barracks.  Another member of that same Board was assigned to the Office of the Army General Counsel, who had been personally involved in his investigation and subsequent involuntary retirement.  He contends, therefore, that neither of the members could have been impartial and should have recused themselves.  There is, however, no evidence to show that either of these members had direct or indirect involvement with or personal knowledge of the applicant’s case such that a reasonable person could doubt their ability to impartially decide the case.  Thus, the applicant’s claim of bias on the part of two Board members is not accepted.

3.  The Board does not accept applicant’s assertions that the 1984 through 1988 promotion selection boards failed to properly discharge their duties because they included officers who were aware of his criminal investigation and court-martial.  However, the Board does believes that when his conviction was reversed and the charges against him dismissed his records should have been reconstituted free of any adverse information, and placed before a special selection board.  As a matter of equity, the restoration of his rights entitled him to fair consideration for promotion which he has not received.  To correct that inequity, his records should now be placed before special selection boards convened under the same criteria established for each year in which he was or should have been considered for promotion.  If selected, he should be provided an appropriate date of rank and eligibility for further promotion consideration in accordance with the promotion regulations.

4.  Further, to ensure fair consideration by the special selection boards, it would be appropriate to have his reconstituted records provided to him for review before submission to the boards.

5.  Insofar as his request to return to active duty is concerned, there was no impropriety in the processing of his retirement application while under flag.  Regulations provide for the retirement of soldiers while under flag, therefore, the Board finds his request to be recalled to active duty to be without merit.

6.  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 by:

a.  removing from the records of the individual concerned any improper references to his court-martial or associated flagging actions;

b.  furnishing him copies of his records for review prior to their consideration by the special selection boards;

c. placing his records before special selection boards for the years 1983 through 1988 for consideration for promotion to brigadier general under criteria then in effect;

d.  if selected for brigadier general, assigning him an appropriate date of rank and placing his records before an appropriate board for consideration for further promotion as provided for by regulations;

	e.  if selected, paying to him all back pay and allowances that may be due as a result of such selection for promotions; and

	f.  if selected, issuing to him a correction to DD Form 214 reflecting his correct grade.

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

BOARD VOTE:

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					______________________
						CHAIRPERSON

INDEX

CASE ID	AR1999031029	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19991215	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  102.02		
2.   129.05		
3.   131.00		
4.   136.00		
5.		
6.