PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  23 January 2001
	DOCKET NUMBER:  AR1999034238

	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. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Walter T. Morrison		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 removal of all adverse information from his Official Military Personnel File (OMPF) and all records accessible or available to the promotion board containing the contested unfavorable information, and to show he was promoted to colonel on 1 October 1996.

3.  The applicant defers to counsel for contentions and presentation.

4.  Counsel submits a comprehensive appeal.  He contends the applicant’s promotion has been stopped based on old and rather insignificant unfavorable information that should not be in his record, or any other record.  While a Promotion Review Board (PRB) reviewed the applicant’s file and determined and recommended the applicant remain on the promotion list, the Secretary of the Army (SA) went against the recommendation largely because of misadvice he received from the Assistant Secretary of the Army (ASA) for Manpower and Reserve Affairs (M&RA).  Departmental officials unjustly placed a summary of unfavorable information in his record based on old and otherwise unproven charges.  The applicant is supported by many senior officers, including the current Chief of Staff of the Army.  He recently received a Top Secret/Special Intelligence clearance, notwithstanding the review of the same matters which resulted in deletion of his name from the promotion list.  Counsel also submits statements from the applicant and others, and other documentation in support of the applicant’s request.

5.  The applicant’s military records provided to the Board show that he was born on 8 March 1949.  He was enlisted in the Regular Army for 2 years effective 
11 July 1967 and attended the U. S. Military Academy (USMA) Preparatory School.

6.  Effective 6 June 1973 he was appointed a second lieutenant, Medical Service Corps, in the Regular Army, from the USMA.  He was promoted to first lieutenant effective 6 June 1975.  He attained the rank of captain on 6 June 1977 and he received a branch transfer from Medical Service Corps to Military Intelligence on 2 August 1977.  He attained the rank of lieutenant colonel (LTC) effective 
1 November 1990.

7.  He was selected by a LTC Combat Support Army Command Board.  He was referred to a Command Review Board (CRB) for a review of the selection in 1991, based on 1981 and 1987 incidents of a derogatory nature.  He submitted mitigation on his own behalf to the CRB.  He was retained on the command selection list by the Chief of Staff (CSA).

8.  He graduated from the Army War College in 1994.

9.  He participated in operation “Restore Democracy” in Haiti and “Joint Endeavor” in Bosnia.
10.  He was recommended for promotion to colonel by the 1995 selection board, with an expected promotion date of 1 October 1996. 

11.  The promotion board selection was reviewed by a 1997 Promotion Review Board (PRB) based on derogatory information concerning the applicant, summarized and presented to it for consideration.  The summary specified that the derogatory information was obtained by a routine background investigation by the Defense Investigative Service.  He submitted mitigation on his own behalf, including letters of support from high ranking military officers.  The derogatory information summary contained the following:

	In 1981 he was charged with and found guilty of driving while intoxicated in Fairfax County, Virginia and placed in an alcohol safety action program.  [Punitive action is not evident in his records provided to this Board.]

	In 1987 he was titled as the subject of a Criminal Investigation Command (CID) investigation for wrongfully suffering military funds to be lost between 1981 and 1982.  He was not found guilty of larceny.  He repaid money to the government by monthly deduction from his pay.  [Punitive action is not evident in his records provided to this Board.]

	In 1992 he was titled as a subject of a CID investigation for simple assault consummated with a battery against his wife.  He received written counseling [not evident in his records provided to this Board].

	A Command Review Board reviewed the applicant’s selection in 1991 for LTC Combat Support Army Command selection, based on the 1981 and 1987 incidents.  He was retained on the command selection list.

12.  The PRB recessed on 14 February 1997, and recommended his retention on the selection list.  The DCSPER, the ASA (M&RA) and the CSA considered the PRB’s action and recommended removal of the applicant’s name from the list to the SA.  The SA directed removal of the applicant’s name from the list.  The Office of General Counsel and The Office of The Judge Advocate General indicated no legal objection.

13.  On 22 July 1997 the applicant was notified by memorandum of the removal of his name from the promotion list.  He was advised that this memorandum, the PRB results, a summary of the alleged derogatory information, and his response to the board will become a permanent part of his R-fiche.

14.  The notification, the PRB proceedings, the summary of derogatory unfavorable information referred to the PRB, the applicant’s submissions on his own behalf to the PRB, and the SA’s directive are filed on the Service (S-fiche) of the applicant’s OMPF.
15.  On 5 September 1997 a draft of a memorandum concerning a summary of unfavorable information to be filed in the Performance (P-fiche) portion of the applicant’s OMPF was provided to the applicant, providing him an opportunity to respond/rebut prior to filing of the memorandum.  The draft was prepared by the Assistant President of the Deputy Chief of Staff for Personnel (DCSPER) Special Review Boards (SRB).  The memorandum did not provide the documentation that served as the basis for the proposed filing.

16.  On 5 November 1997 applicant’s counsel responded to the appropriate Departmental officials rebutting the proposed filing of the draft memorandum in the applicant’s records.  He stated the summary was materially flawed, that it was inaccurate in many respects, and is old, and does not reflect upon his leadership, potential, integrity or morals.  He stated that these incidents were handled by the applicant’s chain of command accordingly, and that fairness and administrative finality will be seriously violated if the information in question is placed in his record.  He also stated here that the PRB determined that the applicant did not commit the offenses in question, and that notwithstanding the allegations in question, the applicant should be promoted to colonel.  The ASA and the Director of Military Personnel Management (DMPM) acted improperly and had no basis for substituting their judgment for that of the PRB.  He stated that the correct result in this matter would be to reject the proposed filing of this memorandum in the applicant’s records.

17.  On 28 January 1998 the Assistant President of the SRB signed a memorandum of a summary of unfavorable information for the purpose of filing in the applicant’s OMPF P-fiche.  It was filed on the P-fiche record.  The unfavorable information was not fully affirmed or documented.  The acknowledgment/rebuttal was not filed on the P-fiche.  The DMPM is not shown as approving the filing of the unfavorable information on the applicant’s record.

18.  The applicant had not since been selected for promotion to colonel.

19.  The applicant had not been denied security clearances.

20.  The applicant was separated from active duty effective 31 July 1999 for sufficient service for retirement, and placed on the Retired List on 1 August 1999. He was retired as a LTC with a total of 28 years, 1 month and 25 days of active duty.

21.  Titling of an individual as the subject of a Criminal Investigation Command (CID) investigation does not show guilt or criminal misconduct.  The primary purpose for titling an individual as a/the subject of a criminal investigation is to insure that the information within an investigation is on record and can be retrieved, and indicates that an individual only may have committed a criminal offense.
22.  Legal definition does not show pecuniary liability as equivalent to criminal misconduct.

23.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) governs the initiation and maintenance of the OMPF.  It specifies that when derogatory information is filed in the OMPF, it will be filed in the commendatory/disciplinary sections of the P-fiche, and will include any rebuttal submitted by the applicant.

24.  It specifies that PRB proceedings removing an individual’s name from a promotion list, and allied documents, will be filed in the Restricted (R-fiche) portion of the OMPF.

25.  The R-fiche is used for historical data, that is not normally viewed by selection boards or career managers, and that which must receive appropriate authority to be viewed by selection boards.  It contains data which maintains an unbroken and historical record of a soldier’s service, conduct, duty performance and evaluation periods, and corrections to other parts of the OMPF. It is also for filing of investigative reports, appellate action, and to protect the interests of soldiers and the Army.

26.  The S-fiche is used for filing of general information and service data.  It is used for recording a soldier’s military service, for managing a soldier’s career, and to protect the interests of both the soldier and the Army.

27.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It specifies that unfavorable information will not be filed unless the recipient is given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, rebuttal or mitigation to be further considered.  The issuing authority should fully affirm and document the unfavorable information.  The DMPM, on behalf of the DCSPER, is the decision authority for filing unfavorable information in the OMPF.

28.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that removal of an individual’s name from a promotion list will constitute a non-selection.  It specifies that once removed from the list, individuals will be considered for promotion by the following regular selection board.  The regulation also specifies that, among other items, the respective OMPF P-fiche is furnished to regular promotion boards, and that the S-fiche and R-fiche are provided to promotion boards only when requested and approved by appropriate authority.

29.  The regulation also prescribes that promotion reconsideration is authorized for those individuals having material error in their records when previously considered and not recommended by a regular promotion selection board.

CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to a correction of his OMPF.  The evidence, including the regulatory provisions, clearly shows data have been erroneously or unfairly entered into his OMPF 
P-fiche and S-fiche.  Pertinent regulations specify that documents approving removal from a promotion list will be filed in an R-fiche.

2.  The notification memorandum addressed to the applicant advising him of the removal of his name from the promotion list, dated 22 July 1997, the PRB proceedings, including the recommendations of the DCSPER, ASA (M&RA) and the CSA, the summary of unfavorable information referred to the PRB, the applicant’s submissions on his own behalf to the PRB, and the SA’s directive are all erroneously filed on the applicant’s S-fiche.  They were directed to be filed and should have been filed on an R-fiche only.

3.  The derogatory information summary provided to the PRB is also erroneously filed on the applicant’s S-fiche instead of an R-fiche.

4.  The memorandum concerning a summary of unfavorable information, dated 28 January 1998 is erroneously and unfairly filed in the applicant’s P-fiche.  While the memorandum is authorized to be filed in the P-fiche by regulation, it merely shows that he was a subject of a 1997 PRB because of certain unfavorable information reflected in civil and military police records, and that the SA directed removal of his name from a promotion list.  The Board concludes that it is this type of information that if necessary, should be kept on an R-fiche.  It is of particular note here that while pertinent regulations require memorandums of this type be approved by the DMPM prior to filing in a record, there is no indication that the DMPM approved this action.

5.  In further compounding this error and injustice, the applicant’s rebuttal to the summary of unfavorable information, and his rebuttal to the filing of the summary of unfavorable information in his record, dated 5 November 1997, was not included in the P-fiche as required by pertinent regulations.  Nor was it approved for filing by the DMPM, as required by pertinent regulations.

6.  The Board does not disagree with the removal of the applicant’s name from the promotion list.  Removal of the applicant’s name from the list appears to have been a fair and proper determination under the circumstances.  While the PRB members earnestly recommended the applicant for retention on the list, the PRB member’s superiors, in carrying out their duties and responsibilities, simply made their recommendations and determinations based on their independent judgments of the facts and circumstances presented.  It has not been shown the removal action was improper or that the applicant was improperly considered or removed from the list.

7.  There was no error in the applicant’s records when he was considered and removed from the promotion list.  However, filing errors were later made, leading to multiple documents being erroneously placed in his record.  These documents should be removed and transferred from the applicant’s P and S-fiche to an R-fiche on a retroactive basis.  The documents should not have been filed on the P and S-fiche.

8.  Accordingly, the Board further concludes that when the applicant was considered for promotion after having been removed from the promotion list, i.e., under 1998 criteria, his record contained material error.  After correction of the foregoing noted errors and injustices, he should then receive promotion reconsideration under 1998 and 1999 criteria, as appropriate.

9.  The applicant and counsel have not satisfactorily shown that entries in other than his OMPF files are in error or that failure to correct them will result in any injustice.

10.  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:

a.  by transferring the notification memorandum addressed to the individual concerned, advising him of the removal of his name from the promotion list, dated 22 July 1997, and the PRB proceedings, including the recommendations of the DCSPER, ASA (M&RA) and the CSA, the summary of derogatory unfavorable information referred to the PRB, the applicant’s submissions on his own behalf to the PRB, and the SA’s directive for his removal from the promotion list, from his S-fiche to his R-fiche;

	b.  by placing the applicant’s rebuttal to the summary of unfavorable information, and his rebuttal to the filing of the summary of unfavorable information in his record, dated 5 November 1997, in his R-fiche; and

	c.  by transferring the memorandum concerning a summary of unfavorable information, dated 28 January 1998 from his P-fiche to his R-fiche.

2.  That, following administrative implementation of the foregoing, his records be submitted to a duly constituted special selection board under 1998/1999 criteria.

3.  That, if he is selected for promotion, his name be placed on an appropriate promotion list.

4.  That, if he is promoted to colonel, he receive pay and allowances from the date of promotion had no delay occurred, and with the retired rank of colonel.

5.  That, if he is not selected for promotion, he be so notified.

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

BOARD VOTE:  

__ls__  __to______  __wm_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Luther L. Santiful____
		        CHAIRPERSON

INDEX

CASE ID	AR1999034238	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.