ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20160019174 APPLICANT REQUESTS: amendment of his separation program designator (SPD) code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Résumé * DA Form 1059 (Service School Academic Evaluation Report), dated 20 December 1989 * Assistant Commandant, Headquarters, U.S. Army Air Defense Artillery School, letter, dated 21 December 1989 * Commanding Officer, Headquarters, 6th Air Defense Artillery Brigade, U.S. Army Air Defense Artillery School, letter, dated 4 January 1990 * Commanding Officer, Battery A, 1st Battalion, 6th Air Defense Artillery Brigade, letter, dated 8 January 1990 * Commanding Officer, Battery A, 1st Battalion, 6th Air Defense Artillery, 6th Air Defense Artillery Brigade, letter, dated 11 January 1990 * three DA Forms 67-8 (Officer Evaluation Report) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 189th Personnel Service Company Orders 161-56, dated 24 June 1991 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a.  In 1991, he was a very young and naive officer in the Regular Army. He wanted an "early out" after Operation Desert Storm. b.  He was misled by his battalion commander, Lieutenant Colonel (LTC) W____ T. S____, in requesting separation from the Army and agreeing to receiving unsatisfactory officer evaluation reports (OERs) in order to be separated earlier than his normal 5-year obligation. c.  He is a West Point graduate, Class of 1989, and LTC S____ was not very fond of West Point graduates. d.  The separation, unbeknownst to him, would indicate he was unfit and would bar him from ever returning to the military. e.  He has physical documentation that his Officer Basic Course evaluations and his first two OERs prior to his request for separation, were exemplary and that his final OER was drastically changed to show unsatisfactory performance in order for him to be separated early. f.  He is now in medical school and he desires to serve as an Army doctor. g.  He believes he was separated unjustly and, had he known that his military record would have been tainted with a "failure of selection of permanent promotion," he would not have "agreed" to submitting a request for separation and he would not have agreed to signing unsatisfactory OERS after previously having received exemplary reports. h.  When he submitted his request for separation sometime in June 1991, he was very depressed because he had received a citation for driving under the influence of alcohol. i.  He was led to believe that his Army career was over. In fact, he would not have requested an early separation and he would have gladly served his full 5-year obligation after graduating from West Point. j.  He tried to get back into the Army two times since his separation. His first attempt was in 1994, shortly after he got married. The recruiter told him he was not allowed to reenter, but no reason was given. The second time was in 2012 when he tried to enter the Health Professions Scholarship Program after entering medical school. k.  He wants to serve his country as an Army physician, which is why he is requesting reconsideration. 3. The complete circumstances surrounding the applicant's discharge are not available for review. 4. Upon graduation from the U.S. Military Academy Class of 1989, West Point, NY, he was appointed as a second lieutenant (2LT) in the Regular Army and ordered to active duty effective 24 May 1989. 5. He provided copies of his: a.  DA Form 1059, dated 20 December 1989, that shows he exceeded the standards of the Air Defense Artillery Officer Basic Course and Patriot Officer Qualification Course and he received honor graduate recognition. He received a letter of commendation from the Assistant Commandant, Headquarters, U.S. Army Air Defense Artillery School, dated 21 December 1989, and three congratulatory letters from his command; b.  DA Form 67-8 for the period 20 December 1989 to 17 December 1990 that shows his ratings as "Always Exceeded Requirements" and "Promote Ahead of Contemporaries." His senior rater commented, in part, "[Applicant] has demonstrated poor judgement off duty. If he continues to demonstrate that he has corrected this problem, which I expect, promote. He has potential"; and c.  DA Form 67-8 for the period 18 December 1990 to 21 March 1991 that shows his ratings as "Always Exceeded Requirements" and "Promote Ahead of Contemporaries." His senior rater commented, in part: "Has continued to improve. No repetition of his past error in judgement. Tactically and technically on track with his contemporaries. Give him tough jobs. Promote." 6. He was promoted to first lieutenant (1LT) effective 24 June 1991. 7. On 24 June 1991, the Chief, Personnel Actions, 189th Personnel Service Company, issued a memorandum, subject: Promotion to 1LT/Chief Warrant Officer Two (CW2), to the applicant's commander and attached a DA Form 78 (Recommendation for Promotion of Officer) for completion. The applicant's commander was advised to complete the justification in the remarks section of the DA Form 78 if an officer was not considered fully eligible for promotion. The commander was also notified that a recommendation against promotion must be referred to the officer for his comments. If not considered for promotion, the commander had to recommend or not recommend a 6-month retention period. 8. On 24 June 1991, the applicant's commander completed a DA Form 78 that shows the applicant was not recommended for promotion. a.  The remarks block contains the following entries: * "Officer did not review Officer Record Brief. * "[Applicant] is not recommended for promotion due to his poor conduct off duty and subsequently, his inability to lead [S]oldiers. I recommend against retention of 6 months." b.  The approval official approved the commander's recommendation and entered the comments: "[Applicant] has demonstrated poor judgement on multiple occasions while off duty, and apathy towards correction of the problem. This conduct, coupled with his desire to get out of the service, triggers my non-promote recommendation. This [S]oldier cannot lead by example. I recommend against retention for six months." 9. On 25 June 1991, the applicant was notified of disapproval of his promotion to 1LT. Hs commander advised him that his performance was below average; he had demonstrated poor judgement on multiple occasions while off duty and apathy towards correction of the problem; his conduct, coupled with his desire to get out of the service, triggered the non-promote recommendation and the recommendation against retention for 6 months. The applicant acknowledged receipt of the notification and elected not to comment on the recommendation pertaining to his promotion. 10. On 25 June 1991, he submitted a request for discharge effective 1 October 1991 under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 9. He expressed a desire for an appointment in the U.S. Army Reserve to fulfill his service obligation incurred upon graduation from the U.S. Military Academy. 11. On 1 July 1991, his battalion commander strongly recommended approval of his request for discharge and he supported the applicant's appointment in the U.S. Army Reserve. 12. On 1 July 1991, the 189th Personnel Service Company revoked his promotion to 1LT. 13. On 10 July 1991, his brigade commander concurred with the applicant's battalion commander's recommendation and recommended approval of the applicant's request for discharge from active duty. 14. On 22 August 1991, the separation authority approved the recommendation against the applicant's promotion to 1LT and denial of a 6-month retention period. He directed the applicant's separation from active duty no later than 90 days after notification of his pending separation. 15. He provided a copy of his DA Form 67-8 for the period 23 March 1991 to 1 October 1991 that shows his ratings were "Met Requirements" and "Do Not Promote." a.  His rater commented, in part: "However, the [S]oldiers have lost faith in his ability as a leader and his professional potential is poor at best." b.  His rater commented on his potential for promotion to the next higher grade: "[Applicant] possess all the capabilities and talents to be an effective Battery Executive Officer, but his creditability is in doubt." c.  His senior rater commented, in part: "However, he has no potential for promotion. As a leader, he has no credability [sic] with his [S]oldiers. Based on his personal desires and my assessment of his potential, I recommend that [Applicant] not be promoted and that he be released from active duty." 16. On 14 October 1991, the applicant was notified that his DA Form 67-8 for the period 21 March 1991 to 1 October 1991 was a referral report. He was advised he had until 24 October 1991 to acknowledge receipt of the report and to provide comments. He acknowledged receipt of the evaluation report and indicated he did not wish to comment. 17. His records are void of and he did not provide evidence of an incident of driving under the influence of alcohol. The incident timeline of June 1991 according to the applicant's statement corresponds with the period of his referred OER for the period 21 March 1991 to 1 October 1991. 18. On 1 November 1991, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). His DD Form 214 shows his: * reason and authority as Army Regulation 635-100 (Officer Personnel Separations), chapter 3, section XVI (Voluntary Release from Active Duty) * separation code as LGB (Failure of Selection, Permanent Promotion) * narrative reason for separation as Failure of Selection, Permanent Promotion 19. On 2 June 1992, the Chief, Appointments, U.S. Total Army Personnel Command, responded to the applicant's inquiry concerning reappointment in the U.S. Army Reserve from the Regular Army. The applicant was advised that after a review of his records and the eligibility requirements of Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), he was ineligible for reappointment. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. He requested to resign his commission, the request was approved, and he was separated accordingly. The reason for his separation shows Failure of Selection, Permanent Promotion, and his separation code corresponds with this reason for separation. The Board determined there was no error or injustice in this case. The Board also agreed not provide relief for his request to allow his reentry into service as his past performance does not warrant such a change. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. Instructions state when the promotion of an officer to 1LT or CW2 is denied, the promotion review authority will review the action. If the promotion review authority decides to deny the officer's promotion, that decision will not be changed. The officer will be released from active duty not later than 90 days after notification of the pending separation. Separation under this provision will be considered involuntary. a.  Paragraph 8-2, in effect at the time, stated Headquarters, Department of the Army, would continuously review promotion lists to ensure that no officer was promoted where there was cause to believe he or she was mentally, physically, morally, or professionally unqualified to perform duties of the higher grade. b.  An officer could be referred to a promotion review board for a referred OER or other derogatory information received by Headquarters, Department of the Army, but not filed in the Official Military Personnel File, if the referral authority finds the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. 3. Army Regulation 635-100, section XVI, in effect at the time, provided policies and procedures for separating officers from active duty. Section XVI stated eligible officers could submit an application for release from active duty whenever such action was considered appropriate. The first colonel in the chain of command or supervision had to counsel the commissioned officer if, in part, the officer was serving in a voluntary indefinite status and had less than 10 years of active commissioned service. Paragraph 3-16b stated the first endorsement would contain a statement that required counseling had been accomplished, a brief résumé of consultation, and the reason(s) given by the officer for submitting a voluntary request for release from active duty. 4. Army Regulation 635-120 provides policies and procedures for separating officers from active duty and implements the provisions of Department of Defense Directive 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay). Chapter 9 (Discharge of Regular Army Officers Who Are Not Recommended for Promotion) states a Regular Army 2LT on the Active Duty List who is found to be not qualified for promotion to the grade of 1LT may be discharged no later than the 90th day after receipt of notification. 5. Army Regulation 635-5-1 (Separation Program Designators (SPD)) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. The SPD code LGB is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-100, section XVI, for failure of selection, permanent promotion. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019174 0 7 1