MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            17 October 2000                  
	DOCKET NUMBER:    AR2000041872

	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.

	Mr. Carl W. S. Chun		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Barbara J. Ellis		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:  That the recommendation by the Army Staff to retain him on the Colonel promotion list be approved, contrary to the Secretary of the Army’s decision to remove him from that list.

APPLICANT STATES:  That the Army Staff recommended his retention on the promotion list.  He then details the problems he has had while in the Army resulting from a bitter divorce in 1980.  This included his wife contacting several of his superiors requesting additional money from him; his wife taking money out of his bank account without informing him which resulted in his writing checks that were dishonored; his problems with obtaining a security clearance; and his indebtedness.  The applicant explains how each of those issues occurred and how he successfully overcame them.  He continues that the Secretary of the Army in denying his promotion did not state why he should not be promoted.

EVIDENCE OF RECORD:  The applicant's military records show:

While serving in the Regular Army as a lieutenant colonel, on 26 April 1999 the applicant was notified that although he had been selected for promotion to colonel by the 1998 promotion board, a post-board screening process of all colonel level promotion and command selectees revealed adverse information on him.  As a result of that information, a Promotion Review Board (PRB) was reconsidering his selection.  He was told that he would be provided the adverse information and given 45 days to respond.  On 26 August 1999 the adverse information, which was derived from the Central Clearance Facility (CCF) and the Criminal Investigation Command (CID) files, was forwarded to the applicant.

The CCF reported that it had sent the applicant a notification of intent to revoke his security clearance on 7 June 1984 based on financial records which showed that he was two months late on payments of $1,397.00 owed to a lending institution, and that two checks made out to the same lending institution were returned due to insufficient funds; that a check issued by the applicant to an apartment complex was returned on 12 June 1981 due to insufficient funds; that a check issued by the applicant on 3 March 1983 was returned due to insufficient funds; that another lending institution recorded that the applicant frequently made late payments, as much as four months on some occasions; that another lending institution recorded that the applicant was late with payments over 10 days on eight occasions, 30 days late on 16 occasions, 60 days late on five occasions, and 90 days late on one occasion.  

The CCF reinstated the applicant’s security clearance on 7 August 1984. Subsequently, a review of police records revealed that the applicant wrote a check which was dishonored on 17 April 1981 for which he was charged with fraud and issuing a worthless check, a charge of which he was later found not guilty.  On 3 December 1991 the applicant completed security forms in which he indicated that he had no financial problems.  At that time a local check was completed and it was discovered that the applicant’s check cashing privileges were suspended at that time based on his record of having his check cashing privileges previously suspended in Europe due to writing checks without sufficient funds during 1988 and 1989, and his writing another check without sufficient funds on 10 November 1990.  Since it was a “second” offense the applicant’s check cashing privilege was suspended.  

Further investigation into the dishonored checks written by the applicant in Europe revealed that the Army and Air Force Exchange Service, Europe, in West Germany had reported that the applicant had written 13 checks totaling $1,914.00 between 19 December 1988 and 11 October 1990 for which he had insufficient funds.  Accordingly, his check writing privileges were suspended on 9 August 1991.  

A credit report dated 15 January 1992 disclosed numerous late payments by the applicant to a lending institution, numerous late payments to a credit union, and default on a student loan in his name that had been referred to the guarantor.  

The Maryland Department of Transportation records revealed that the applicant had three traffic citations: driving a vehicle on the highway at speed exceeding the limit, driving on the highway with a suspended license, and failure to display current tags.  Disposition of those charges were listed as failure to appear.  The applicant’s license was listed as suspended or revoked as of March 1992.  

The applicant submitted a rebuttal to the adverse information in which he claimed he was either innocent of the financial difficulties reported in the CCF report, or that they were a result of actions taken by his former wife and/or due to errors made in his pay.  

In his rebuttal, he pointed out that the incidents in question occurred more than eight years ago and that he resolved each incident, to the satisfaction of his commanders at the time, since his problems were only once documented in his record and then with the comment that he took aggressive corrective action.

He asserts that his personal problems never affected his duty performance as demonstrated by his selection for promotion to colonel.  In recognition of the quality of his service, he has included several strong letters of support from senior Army officers with whom he has served.  As a further measure of the quality of his performance, he says that despite the adverse information in his file, the PRB decided he had accepted responsibility for his past difficulties and the majority of the members of that board recommended he be retained on the promotion list.  

On 8 December 1999 the PRB forwarded a recommendation to the Secretary of the Army that the applicant be retained on the promotion list.  The Deputy Chief of Staff for Personnel (DCSPER), Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA (M&RA), and the Chief of Staff of the Army all recommended the applicant be retained on the promotion list.

On 1 March 2000, contrary to the Army Staff’s recommendation, the Secretary of the Army directed the applicant be removed from the promotion list.

The staff of the Board found it necessary to contact the DCSPER staff in the processing of this case.  A DCSPER staff member advised that the Secretary of the Army gave no reason for his decision to remove the applicant from the promotion list.  Also, the Secretary when asked if he had inadvertently initialed the block which directed removal replied that it was his intent to initial the block directing the applicant’s removal from the promotion list.

Army Regulation 600-8-29, paragraph 8-2, provides the guidelines for the PRB’s.  This paragraph states, in pertinent part, that “HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.”  The reasons an officer may be recommended for removal from a promotion list include, but are not limited to, any adverse documentation placed in the OMPF.  Upon receipt of a PRB recommendation, the Secretary of the Army, as The President of the United States designee, will make the final determination on whether the name of the officer will be removed from the promotion list.  The PRB’s recommendation is only advisory to the Secretary of the Army.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant had a history of financial difficulties spanning over a decade while an officer, and had problems with civil authorities.  These problems persisted at least into the early 1990’s.  While the applicant has stated that some of these problems were misstated, and has explained how he has rectified them the fact remains that he is an officer with a long-standing record of adverse financial and personal problems.

2.  The Secretary of the Army determines whether to remove an officer from the promotion list and is not bound by recommendations he receives.  Although the Secretary did not explain his decision, there is evidence the applicant had a history of financial problems and problems with civil authorities involving traffic citations which provided a basis for the Secretary’s determination.

3.  The applicant’s performance information, the adverse information in his files and his rebuttal together with the strong supporting documentation was reviewed by the PRB and that board decided the information at hand merited retaining him on the promotion list.  On the other hand, the same documentation was also considered by the Secretary of the Army who reasoned that it warranted removing him from the promotion list.  Since all of the pertinent material bearing on his promotion was properly considered by the appropriate authorities, despite their differing opinions, there appears to be no error that warrants challenging the Secretary’s decision in this matter.

4.  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

___rvo  __  ___lds___  ___bje__  DENY APPLICATION

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

INDEX

CASE ID	AR2000041872	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001017	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.02	
2.		
3.		
4.		
5.		
6.