IN THE CASE OF:  

		BOARD DATE: 1 March 2023

		DOCKET NUMBER: AR20220001817


APPLICANT REQUESTS:  reconsideration of his previous request(s) for promotion to 
lieutenant colonel (LTC). 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
Reconsideration Request 

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AC85-00660 on 6 March 1985 and AC90-
06376, on 2 September 1992. 

2.  The applicant states: 

	a. He requests the Board reconsider his appeal to the grade of lieutenant colonel 
(LTC). The Senior Rater [on his Officer Evaluation Report] stated that he "based 
evaluation on some reports." However, he did not produce the reports, nor was he (the 
applicant) aware of any report in which his performance was involved. As a matter of 
fact, during the only visit that he made to Fort Buchannan, when he was the officer in-
charge of the Medical Services at Fort Buchannan, he congratulated him and wrote a 
nice letter. As an attorney, he is familiar with the right of confrontation under the Sixth 
Amendment of the United States Constitution. And, furthermore, they are all familiar 
with the Hearsay Rule. Those are basic principles of law that we all learn in the first year 
of law school. They are pillars in our judicial system. The Sixth Amendment gives the 
appellant the right to be confronted with the witnesses against him. In,  (1988), the 
Supreme Court held that: "In this country, if someone dislikes you, or accuses you, he 
must come up in front. He cannot hide behind the shadows." In addition, the Court held: 
"The perception that confrontation is essential to fairness has persisted over the 
centuries because there is much truth to it. A witness may feel quite differently when he 
has repeat[ed] his story looking at the man whom he harms greatly by distorting or 
mistaking the facts. He can now understand what sort of human being that man is." 
	b.  General White knew who he (the applicant) was when he interviewed him for the 
job as the commander of the medical services at Fort Buchanan. He remembers him 
telling him “You will be the only MSC officer in-charge of the health care facilities, and 
there are a significant number of problems at the base. However, with your training and 
experience, you are the right person for the position.” He knew the applicant’s record 
very well. He knew that he was a lawyer with training in medical malpractice; safety 
officer with OSHA training; medical supply and patient administration. General was 
convinced that the applicant’s experience in dealing with the Veterans Administration 
(VA) and with the United States Navy were extremely important in his assignment. 
When he was the commanding officer of the Army detachment at the Naval Hospital in 
Boston, he had to interact with the VA Hospitals all the time. General thought that that 
was an asset, because in Puerto Rico the U.S. Navy had a big operation at Roosevelt 
Road Naval Base. It was interesting, that while he [was] at the Boston Naval Hospital, 
one of his extra duties was to deactivate the Dispensary at the Boston Army Base. In 
Puerto Rico, it was he opposite. The services at Fort Buchannan were in need of 
immediate attention. 

	c.  In his interview with the Post commander and his deputy, he was bombarded with 
many complains. He looked at the problems from the military, medical malpractice, and 
the public administrator and points of view. He now knows that his endorser did not 
know that the physicians at the Fort Buchanan clinic received their medical training in 
Spain. They were not familiar with the medical records system required in the United 
States and the accreditation organizations. He immediately established the S.0.A.P. 
system; they were reluctant to follow it. He reviewed every medical and dental record in 
the clinics daily. It was a slow process, however, at the end they understood the 
importance of the S.O.A.P. system. It does not prevent medical malpractice lawsuit; 
however, it requires a thorough exam from the doctors and dentists. It also provides for 
accountability. The doctors were required to examine the patient, talk to them, and write 
everything down. One of the complaints that he heard when he arrived at Fort 
Buchannan was that the doctor did not even examine him. That they were not even 
using the stethoscope. He was not sure that they knew how to read x-rays. That was 
another problem. To solve the problem, he was able to contact a Reserve Officer in San 
Juan with a practice in Radiology. He still remembers his name, Doctor. He was a board 
certified in radiology by the Board of Medical specialization. A great officer and human 
being. They came to an agreement in which he read our x-rays and gave them a written 
report. His medics took the films to his office, which was about 10 minutes from Fort 
Buchannan and waited for the results. Now, he was satisfied that they had a sound, 
professional system. That was a system that they created to expand the clinic's 
capacity. They got feedback and their doctors were better prepared to handle the 
patients and to communicate with them. 

	d.  In addition, he established specialty clinics. He contacted pediatricians from the 
National Guard and the U.S. Reserve. He opened monthly clinics in orthopedics and 
pediatrics. The physicians were happy and the residents at Fort Buchannan were 
delighted with the services. The mothers were happy with the care their children were 
receiving. Another area that he thought needed attention was the Occupational Health
Program on the base. He arrived in Puerto Rico during the raining season and during 
these months it rains every day. The AEDES AEGYPIY was an endemic in Puerto Rico, 
and it requires constant monitoring. There was no program as required by OSHA, to 
protect the employees using chemicals to control the mosquitos. The employees were 
working for housing; however, nobody was paying attention to the OSHA requirements. 
It took some time to develop new job description for an Occupational Health Nurse. He 
personally wrote the job description and with the complete support of the Installation 
Commander, the Medical Center at Fort Gordon, approved the new position. The 
requirements of OSHA had been ignored and neglected to the detriment of their 
employees. They interviewed candidates and a qualified nurse was hired. This, then 
gave them two registered nurses at the Clinic. They immediately established base line-
blood tests for the employees, and some individuals, because of the high toxicity in their 
bloods, were suspended from work. Now, the installation was in compliance with OSHA, 
and legal actions were prevented. It was a critical decision and lives were saved. 
Furthermore, they were in compliance with the local public policies of Puerto Rico.

	e.  As far as interagency agreements, he established an Interservice Support 
Agreement with the VA in San Juan. His experience in dealing with the VA hospitals in 
Boston help him with his approach to this problem. They were getting medical supplies 
from Fort Gordon, GA. Some of the supplies arrived to them after the expiration dates. 
By establishing the agreement with the VA, they always had fresh drugs and in 
sufficient quantities. Obviously, he had to establish a reorder point for each item. 
Fortunately, his training in the area off medical supplies help them with the issue. He 
established an Order and Shipping Time and a Reorder Point for each item. And, during 
this project, he discovered that the supply specialist was stealing and selling supplies to 
the locals. He was reduced in rank. Perhaps some members of the dental team at Fort 
Gordon were upset with him because he discovered the dental personnel were using 
the first hour of every day waiting for emergencies, for over three years. He asked the 
dentist: "How long have you been working in here and when was the last time that you 
saw an emergency?" And his answer was: "I have been working here for three years 
and I have never seen an emergency." He told him that for now on they are going to 
work by appointments only beginning at 0800 hours every day. He immediately 
prepared an appointment form and assigned 45-minutes per patient. After, he 
implemented the system, he was at the Clinic for four years and a dental emergency 
was never reported to him. In the Medical Clinic, the appointment system that he 
implemented was for 20 minutes per patient.

	f.  The Supreme Court held: " ... his constitutional right to face-to-face confrontation 
was violated we reverse the judgement of the Iowa Supreme Court and remand the 
case for further proceedings not inconsistent with this opinion." Furthermore, the 
Supreme Court in various cases has made clear that the disclosure of impeachment 
evidence must be disclosed under the Due Process Clause of the U.S. Constitution. He 
asks the Board to look at (1972); (1963); and (1985). In addition, we, as member of the 
American Bar Association (ABA) ae required to abide by the Model Rules of the ABA. in 
particular, Model Rule 3.8 which is the basis for the ethics rules in every U.S. 
jurisdiction. The ethics rule applies to any potentially exculpatory information whether or 
not it is material. 

	g.  There should not be any doubt that he is entitled to defend myself. All reports, of 
any kind, pertaining to his actions during his position of the Director of Health Care at 
Fort Buchannan should have been disclosed to him. Furthermore, he should have been 
allowed an opportunity to respond to the report and, if necessary, get witnesses to attest 
to his credibility. He was never allowed that opportunity. It was interesting, he was 
always available to get counselling; however, he was never counselled. Colonel was 
right when he told him that "others will see me as competition." He is no threat to 
anybody. He just wants to be the best, study and study more. 

	h.  The Hearsay Rule (801(c)provides: "Hearsay is a statement, other than one 
made by the declarant while testifying at trial or hearing, offered in evidence to prove 
the truth of the matter asserted." Clearly, his senior rater violated his rights when he 
made an assertion of facts totally unknown to him. His assertion that he relied on 
reports was a violation of his constitutional rights. It was of unfair prejudice, to which he 
was not aware of, and unable to properly challenge. Today, he is a member of the Bar 
of the Court of Appeals for Veterans Claims and of the Supreme Court. And his 
complete name in both is [He lists a name] 

	i.  He must give his most sincere thanks to the Army for allowing him to serve on 
active duty for 20-years. The Army also paid for all his studies, at law school, Master's 
Degree, and Doctoral Degree in Education. He received his Doctoral Degree in 
Education from the University of Kentucky in 1991. He also expresses his most sincere 
appreciation to Colonel his commanding office at Hospital in Fort Knox. When he told 
him that he was about to embark in the Doctoral Degree Program, he congratulated him 
and told him "You will be the only MSC officer in the Army with two doctoral degrees." 
And he also told him: ''Others will see you as competition and will try to destroy you." 
Colonel knew what he was talking about. While at Fort Knox, he submitted his 
Dissertation Proposal, and it was accepted. He is proud to say that of 25 students who 
began the Ed.D. Program with him, he was the only one who completed it. He 
completed the Dissertation and defended it. The defense of the Dissertation was similar 
to a jury trial. The Dissertation was published. When the Board reads his dissertation, 
they will find that it has to do with his experiences in the Army. Perhaps, his Dissertation 
was the first step that created the idea that it was possible to integrate the military 
health care systems. On page 159 of his Dissertation, he recommends the consolidation 
of all Federal health care services. Attached, as Appendix A, is a copy of his 
Dissertation. The following three officers can testify as to his character for truth and 
veracity: [He lists names and phone numbers] 

	j.  As his record indicates, he never neglected his military training. He asks the 
Board to help him in this endeavor. He never intended for this request to be this 
extensive; however, he needs to be thorough and explain some of the challenges that 
he faced while at Fort Buchannan. When one is a lawyer with medical malpractice 
training, they see problems that a lay person, particularly two thousand miles away 
cannot see. He asks the Board to review his record and grant his request for promotion 
to LTC.

3.  Review of the applicant’s service records shows: 

	a.  having had prior enlisted service, the applicant was appointed as a Medical 
Service Corps of the Regular Army on 3 June 1966.

	b.  He served in a variety of staff or command positions, rising through the ranks to 
captain on 8 June 1973 (date of rank) and to major on 16 June 1978. He also 
completed Command and General Staff College in 1983. 

	c.  He was considered for promotion to LTC by a special selection board (SSB) in 
1981 and in 1982. In both instances he was not selected for promotion. 

	d.  He was also considered for promotion to LTC by a regular selection board in 
1982 and in 1984. He was also not selected for promotion. 

	e.  On 6 March 1985, the Board considered his petition “to be promoted to LTC,” The 
Board denied his request after it determined: 

		(1)  Neither probative evidence nor a persuasive argument has been presented 
in support of his request. His contentions were purely speculative and conjectural. 
There 

		(2)  The applicant’s records were properly constituted, devoid of material error, 
comprehensively evaluated, and equitably reviewed by the various regular and SSBs 
that considered but not selected him for promotion to LTC. 

	f.  He applied and was approved for voluntary retirement from active duty. As such, 
on 26 May 1987, the U.S. Army Military Personnel Center, Alexandria, VA published 
Orders S97-10 retiring him from active-duty effective 30 June 1987 in the rank of Major. 

	g.   The applicant retired on 30 June 1987, and he was placed on the retired list in 
the rank of Major on 1 July 1987. His DD Form 214 (Certificate of Release or Discharge 
from Active Duty) shows he completed over 21 years of active service. 

	h.  After his retirement, he appealed two Officer Evaluation Reports (1 November 
1979 through 31 October 1980 and 1 November 1980 through 31 May 1980) to the 
Officer Special Review Board (OSRB). 

	i.  On 15 July 1987, the OSRB denied his request 9 as well as his supplemental 
request) after the OSRB determined he failed to provide clear and convincing evidence 
to support his appeal. 

	j.  On 2 September 1992, the ABCMR also denied his request to remove the OERs 
covering the periods 1 November 1979 through 31 October 1980 and from 1 November 
1980 through 31 May 1981 and consideration for promotion to LTC by a standby 
promotion board to LTC. 

		(1)  In the processing of this case, a staff advisory opinion was obtained. It 
contains no information, advice or recommendation which would constitute a basis for 
granting the relief requested or for excusing the applicant's failure to timely file. 

		(2)  The applicant has not explained or otherwise satisfactorily demonstrated by 
competent evidence that it would be in the interest of justice to excuse the failure to 
apply within the time allotted. His application was not submitted within the time required. 
The applicant has not presented, and the records do not contain sufficient justification to 
conclude that it would be in the interest of justice to grant the relief requested or to 
excuse the failure to file within the time prescribed by law.

	k.  In the years after, the applicant submitted multiple requests for reconsideration 
regarding the two contested OERs and/or his promotion to LTC. In all cases, he was 
told his issue was either untimely or contained no evidence or was previously 
considered. 

4.  By AR 600-8-29 (Officer Promotions), SSB may be convened to consider or 
reconsider commissioned officers for promotion because the officer was erroneously not 
considered, and/or his/her records contained a material error at the time of 
consideration. No material error was presented by the applicant. 

5.  The law (10 USC section 613a, Nondisclosure of Board Proceedings) prevents 
disclosure of board proceedings to anyone outside the promotion board in question.  
The decision to recommend an officer for promotion was based upon the criteria 
established by the Secretary of the Army and the collective judgment of the respective 
board members as to the relative merit of an officer's overall record when compared to 
the records of other officers being considered.

BOARD DISCUSSION:

1. After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation. Upon review of the applicant’s petition and available military records, the 
Board determined the applicant provided no new evidence for consideration. The Board 
found insufficient evidence that would merit the applicant being reconsidered for 
promotion to lieutenant colonel. 

2. The Board agreed official promotion and selection boards select members for 
promotion based upon their performance and potential; the Board does not.  The Board 
may refer records to appear before a special selection board (SSB) for promotion 
consideration when there is a clear error or injustice.  The Board agreed the request for 
relief has no merit as the available evidence does not clearly indicate that the conditions 
for referring the applicant for reconsideration was met. Therefore, the Board concluded 
there was insufficient evidence of an error or injustice which would warrant the 
applicant’s reconsideration of his previous request(s) for promotion to lieutenant colonel 
(LTC).


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 Board found 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 to amend the decision of the ABCMR set forth in Docket 
Number AC85-00660 on 6 March 1985 and AC90-06376, on 2 September 1992.
	 
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.


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), in effect at the time, prescribed the 
officer promotion function of the military personnel system. It provided principles of 
support, standards of service, policies, tasks, rules, and steps governing all work 
required in the field to support officer promotions. Chapter 7 provided for special 
selection boards (SSB) and stated in:

	a.  Paragraph 7-2 – SSBs could be convened under Title 10, U.S. Code, section 
628, to consider or reconsider commissioned or warrant officers for promotion when 
HQDA discovers one or more of the following:

		(1) An officer was not considered from in or above the promotion zone by a 
regularly scheduled board because of administrative error.  This would include officers 
who missed a regularly scheduled board while on the temporary disability retired list and 
who have since been placed on the active-duty list (SSB required).

		(2)  The board that considered an officer from in or above the promotion zone 
acted contrary to law or made a material error (SSB discretionary).

		(3)  The board that considered an officer from in or above the promotion zone did 
not have before it some material information (SSB discretionary).

	b.  Paragraph 7-3 (Cases not considered) – an officer would not be considered or 
reconsidered for promotion by an SSB when the following occurred.

		(1)  The officer was pending removal from a promotion or recommended list, and 
the removal action was not finalized by the Secretary of the Army 30 days before the 
next selection board convened to consider officers of his/her grade. The officer would 
be considered by the next regularly scheduled selection board.

		(2)  An administrative error was immaterial, or the officer, in exercising 
reasonable diligence, could have discovered, and corrected the error in the Officer 
Record Brief (ORB) or OMPF.  It was the officer’s responsibility to review his/her ORB 
and OMPF before the board convened and to notify the board, in writing, of possible 
administrative deficiencies in them.

	c.  Paragraph 7-11, officers who discovered that material error existed in their file at 
the time they were non-selected for promotion could request reconsideration.

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct. The ABCMR is 
not an investigative body and decides cases based on the evidence that is presented in 
the military records provided and the independent evidence submitted with the 
application. The applicant has the burden of proving an error or injustice by a 
preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or 
request additional evidence or opinions.  Additionally, applicants do not have a right to a 
hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220001817


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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