MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 May 2000                   
	DOCKET NUMBER:   AR1999033959

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		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:  Reconsideration of his request for removal of an adverse officer evaluation report (OER) for the rating period 26 June 1992 through               19 October 1992 from his military records and reinstatement as a commissioned officer at his former rank of captain.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the new evidence provided shows that the challenged OER is not sustainable and that an ill-founded rationale was raised to support his relief for cause.  It was not true that the applicant had lost the trust and confidence of his non-commissioned officers.  He refuted each and every “knock” against him.

NEW EVIDENCE OR INFORMATION:  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 30 October 1996 (COPY ATTACHED).

Two new supporting statements are provided.  One statement is by a major who served as the 3d Training Brigade, 10th Infantry Regiment, Fort Leonard Wood, MO Assistant Operations Officer during the period of the contested OER.  The applicant’s unit was a subordinate unit within the Brigade and he had also previously served with the applicant.  The major stated that the applicant was cleared of an allegation of sexual misconduct with a female trainee; however, he was relieved of command shortly after the investigation.

The second statement is from the former commander of Company A, 35th Engineer Battalion, Fort Leonard Wood, MO who apparently served in that position during the period of the contested OER.  They had the same senior rater, who at the time instructed his battalion commanders to explain the applicant’s situation to their officers to minimize any rumors.  His battalion commander made it clear that the applicant was being relieved for sexual misconduct and nothing else.  He also knows that the applicant was escorted into the female barracks but the escort was the female fire watch and not a drill sergeant as the applicant thought the investigating officer meant. 

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.  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 the aforementioned requirement.

2.  The two new statements of support provided by the applicant have failed to overcome the presumption that the contested OER was prepared by the proper rating officials and represents the considered opinion and objective judgment of the rating officials at the time of preparation.

3.  The applicant may have been cleared of the allegation of sexual misconduct involving the trainee; however, at least one investigation found that he used poor judgment in drinking heavily at a social function involving cadre personnel.  In addition, the senior rater noted that the applicant repeatedly placed himself in questionable situations involving female soldiers.  While “questionable situations” are not the same as substantiated misconduct, the Board concludes that his rating officials expected their training company commanders to conduct themselves so as to place themselves above question and they felt he failed to do so.  Regarding the statement from the former company commander, the Board concludes that a misunderstanding could have occurred at any point after the brigade commander put out his information or the battalion commanders could have put their own personal slant to the information they disseminated.

4.  The Board has weighed all of the information and concludes that the more reliable indicator of the reasons for the relief are the Army Regulation 15-6 investigation, the reasons in the relief letter and the reasons in the relief for cause OER.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  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

__eja___  __ewl___  __klw___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033959	
SUFFIX		
RECON		
DATE BOARDED	20000525	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.