APPLICANT REQUESTS:  Reinstatement to active duty with full rank and privileges or as an alternative, that he be authorized full separation pay. 

APPLICANT STATES:  That he was unjustly separated from the service for unsatisfactory performance and denied his due process rights to be represented by military counsel that was reasonably available.  He further states that he was initially informed that he was entitled to separation pay as indicated on his orders.  However, he was subsequently informed, after returning home, that he was not entitled to separation pay.  He goes on to state that had he been properly informed, he would have taken the steps necessary to leave the service with entitlement to separation pay. In support of his application he submits approximately 23 third party statements. 

COUNSEL CONTENDS:  That the General Officer Show Cause Authority (GOSCA) unjustly denied the applicant the opportunity to have witnesses who were located in the States appear in person at his board of inquiry which was held in Germany.  He also states that the GOSCA also used undue command influence by directing the board president to use alternate means of obtaining testimony before pursuing the option of bringing seven witnesses to Germany at government expense.  He further states that the failure of the president of the board of inquiry to inform the GOSCA that the alternative means of obtaining relevant testimony was inadequate, severely hampering the applicant’s ability to present a viable case for retention. Furthermore, he contends that the applicant was unjustly discharged for substandard performance based on generalities and not specifics, as required by the applicable regulation.

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

The applicant was commissioned as a Regular Army second lieutenant on 17 December 1976, upon graduation from ROTC as a distinguished military graduate.  He served as a military intelligence officer and was promoted to the rank of major on 1 November 1988.
On 17 September 1991 the Total Army Personnel Command (PERSCOM) notified the applicant that he was being considered for elimination from the service under the provisions of Army Regulation 635-100, paragraphs 5-10(a), (c), (d), and (e), for substandard performance of duty and that he was required to show cause why he should be retained.   

The memorandum from the PERSCOM cited the specific reasons for elimination as being a downward trend on overall performance resulting in an unacceptable record of efficiency or a consistent record of mediocre service, as evidenced by three officer evaluation reports (OER) covering the periods 14 February 1987 through 13 February 1988 (OER #1), 14 February 1988 through 14 October 1988 (OER #2), and 15 October 1989 through 14 October 1990 (OER #3).

The PERSCOM also informed the applicant of his right to be represented by counsel and to submit matters in his own behalf.  Furthermore, he was informed that he could submit a request for resignation in lieu of elimination, a request for discharge in lieu of elimination, or he could submit a rebuttal and/or declination statement and request appearance before a board of inquiry.  He was advised that he might be eligible to receive separation pay should he elect to request resignation or discharge in lieu of elimination.  The applicant, after consulting with counsel, elected to request appearance before a board of inquiry.

While awaiting appearance before a board of inquiry, the applicant submitted a request for unqualified resignation and separation from the service under the Voluntary Separation Incentive (VSI) option of the Voluntary Separation Incentive Program (VSIP).  He specified in his request that he did not desire to leave the service if his request for the VSI was not approved.  The PERSCOM denied his request on 6 October 1992 and informed the applicant that he was not eligible for separation under the VSIP.

On 12 November 1992 the GOSCA informed the president (a colonel) of the board of inquiry, that before funds would be expended to bring witnesses from the States to give testimony at the board of inquiry, alternate methods would be used to obtain the testimony (six of the seven witnesses called had already provided written statements).  The GOSCA also informed the president of the board that if after using alternate means to obtain testimony the board felt that the testimony was inadequate to make a fair and intelligent decision regarding the retention or separation of the applicant, the board of inquiry would be held in abeyance until the GOSCA was notified in writing why appearance of each witness was required.  

On 16 November 1992 the applicant appeared before a board of inquiry and was informed that the GOSCA had directed the board president to proceed with the hearing without live testimony of the applicant’s witnesses.  The applicant objected and motioned to dismiss the proceedings based on undue command influence.  After consulting with the appointed legal advisor, the president denied the applicant’s motion and proceeded with the hearing as directed by the GOSCA.

The board of inquiry heard testimony both in person and via telephone conversations (using speaker phones) and recommended that the applicant be eliminated from the service for substandard performance and issued an honorable discharge.  The chain of command supported the findings and recommendations of the board of inquiry and forwarded the case to the Army Board of Review for Eliminations (The summarized transcript of the board of inquiry is not present in the available records). 

The applicant, through counsel, submitted an appeal with his case in which he contended that the GOSCA exercised undue command influence on the board of inquiry which materially prejudiced the applicant’s right to a fair and impartial hearing.  He also contended that he was denied representation by a military counsel that was reasonably available.  The counsel he had requested was transferred to the States on the day the applicant requested to be represented by him.  The applicant’s command then improperly forwarded his request to the proposed counsel’s gaining command because until the counsel reported for duty, he was still under the command and control of the commander in Germany.  He also contended that he was unjustly denied a verbatim transcript of the board of inquiry.  He further contended that his statutory and regulatory due process rights were violated, in that the Department unnecessarily delayed the identification of his substandard performance by waiting 5 years after the first incident and 2 years after the last incident before separating him from the service.  He was also denied the right to a personal appearance of reasonably available witnesses.  He requested that the board of inquiry findings and recommendation and the separation proceedings be dismissed and terminated with prejudice.

The applicant subsequently submitted appeals of the first two contested OER’s to the Officer Special Review Board (OSRB).  The OSRB denied his appeals on 18 and 26 March 1993.

On 6 May 1993 the Army Board of Review for Eliminations recommended that the applicant be eliminated from the service and issued an honorable discharge.  The appropriate authority approved the findings and recommendations on 13 May 1993.

Accordingly, the applicant was honorably discharged on 3 July 1993, under the provisions of Army Regulations 635-100, paragraph 5-10 and Army Regulation 635-120, chapter 8, for substandard performance.  He had served 16 years, 6 months, and 17 days of total active service.  Although the applicant’s separation orders indicate that he was entitled to full separation pay, the applicant did not receive any separation pay.

A review of OER #1 indicates that it was an annual OER covering the period 14 February 1987 through 13 February 1988, evaluating the applicant as a promotable captain serving as a commander of a special security detachment.  In part IVa of the OER, professional competence, his rater assigned him two’s in three areas, “Demonstrates appropriate knowledge and expertise in assigned tasks”, “Clear and 
concise in written communications” and “Demonstrates sound judgement”.  The rater assigned him one’s in the remaining eleven areas.

The senior rater (SR) placed the applicant in the third block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant below the center of mass (COM) on the SR’s profile.  The supporting comments indicate that the applicant was slightly below the pack, that he should be employed on a brigade-level staff, and be given more experience in organizational and communication skills.

OER #2 was a permanent change of station report covering the period 14 February 1988 through 14 October 1988 evaluating him in the same position as OER #1 with the same rating chain.  The rater assigned the applicant two’s in three areas on this report under “Motivates, challenges, and develops subordinates”, “Clear and concise in written communication”, and “Displays sound judgement”.  The rater also indicated that the applicant should be promoted with his contemporaries.  The SR again placed the applicant in the third block of potential evaluation (below COM) and indicated in his comments that the applicant had done his best and that his overall performance had continued to be fully adequate and that he should be promoted with his year group.

The third report (OER #3) was an annual report covering the period 15 October 1989 through 14 October 1990, evaluating the applicant as an infantry brigade S-2 in the rank of major.  In part IVa, the rater assigned the applicant two’s in two areas, “Demonstrates appropriate knowledge and expertise in assigned tasks” and “Performs under physical and mental stress”.  The rater assigned him one’s in the remaining twelve areas.  The rater indicated in part Vb, under performance, that the applicant usually exceeded requirements and in part Vd, under potential for promotion, recommended that the applicant be promoted with his contemporaries.

On (OER #3) the SR placed the applicant in the third block of part VIIa (Potential evaluation).  This placed the applicant below COM on the SR’s profile.  The supporting comments indicate that the applicant’s performance had been marginal and that his weakness appeared to be his inability to grasp the tactical concepts and skills necessary to train his staff.  In addition, his interaction with other staff sections to produce a coordinated product was inconsistent.  The SR indicated that the applicant’s potential was limited. The report was considered adverse and as such was referred to the applicant.  The applicant acknowledged the report and elected not to submit matters in his own behalf.  There is no indication in the available records to show that the applicant has ever appealed this OER to the OSRB.

The third party statements submitted by the applicant are from individuals other than his rating chain on the contested OER’s who offer support of the applicant’s request.

Department of the Army Circular 635-92-1 outlines eligibility criteria for separation pay and provides separation pay formulas.  Moreover, it illustrates the various types of separation that are either eligible or ineligible for separation.  It states, in pertinent part, that officers separated by show cause proceedings or for substandard performance, are not eligible for separation pay. 

Army Regulation 635-100 provides policy and procedures for separating officers.  Chapter 5 states, in pertinent part, that the retention of officers who are substandard in performance of duty or conduct or otherwise unsuited for military service cannot be justified in peace or war.  The same standards of efficiency and conduct are applicable to officers regardless of component.  While not all inclusive, a downward trend in overall performance resulting in an unacceptable record of efficiency or a consistent record of mediocre service, a failure to keep pace or progress with contemporaries as demonstrated by a low record of efficiency when compared to other officers of the same grade and competitive category, failure to exercise necessary leadership or command expected of an officer of his or her grade, failure to discharge properly assignments commensurate with his or her grade, and failure to assimilate technical efficiency required of his or her grade and competitive category, authorizes elimination of an officer unless the officer successfully rebuts the proceedings.

Army Regulation 635-100 also states, in pertinent part, that the personal appearance of witnesses before a board of inquiry should be obtained whenever practical in preference to the use of depositions, affidavits, or written statements. Accordingly, such requests will be honored by the board if the requested witness is considered reasonably available and his or her testimony will add materially to the case.  Requests for witnesses will include a statement setting forth the substance of expected testimony.  The record of proceedings shall be kept in summarized format unless a verbatim transcript is required by the appointing authority after consulting with the servicing judge advocate or legal advisor concerning the availability of verbatim reporters.

Army Regulation 635-120 provides policy and procedures for separating officers from active duty.  Chapter 8 of that regulation states, in pertinent part, that a Regular Army commissioned officer who has been recommended for elimination by the GOSCA or who has been selected by the Department for elimination or to show cause why he or she should not be eliminated under the provisions of Army Regulation 635-100, chapter 5, may be discharged in lieu of or as a result of elimination proceedings.   Upon final approval by the Secretary of the Army of elimination proceedings against any officer of the active Army, that officer, regardless of component, will be discharged as a result of such proceedings. 

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.  The applicant was properly notified that he was required to show cause for his retention on active duty because of substandard performance of duty and was provided with specific reasons for the Department’s determination of his substandard performance.  Additionally, in the same notification, he was informed of the options available to him.

2.  Inasmuch as the applicant has not provided the summarized proceedings of the board of inquiry, the Board must presume, in the absence of evidence to the contrary, that the board of inquiry was conducted in accordance with applicable regulations.

3.  The applicant’s contention that the GOSCA unjustly influenced the board of inquiry by denying him the opportunity to have witnesses testify at the board of inquiry is without merit.  The evidence submitted by the applicant does not indicate that the GOSCA denied him the opportunity to have witnesses brought to Germany at government expense.  It simply shows that the GOSCA expected the president of the board to exhaust all means available to him to obtain the testimony before expending funds for testimony that may be redundant or that could be obtained in an easier manner.  Furthermore, the GOSCA left the door open for the board to request the presence of the witnesses (in accordance with applicable regulations) if they felt it necessary. 

4.  The applicant’s contention that he was unjustly denied representation by military counsel that was reasonably available is not supported by the evidence submitted with his application or the evidence of record. 

5.  The applicant’s contention that had he been properly informed of the procedures to leave the service with separation pay, he would have taken the appropriate steps to do so is without merit.  The applicant was properly informed of his options at the time of his notification and elected to appear before a board of inquiry.  He subsequently attempted to separate under the VSIP and his request was denied.  He apparently decided to allow the separation process to run its course and take his chances on retention.  At any point during the separation process, prior to final approval by the Department, he could have submitted a request for resignation or discharge in order to qualify for separation pay and yet failed to do so.

6.  Although the applicant’s separation orders incorrectly indicate that he was entitled to separation pay, it would not be appropriate to grant him a benefit (separation pay) that he was not otherwise entitled to receive or that others in similar circumstances are denied.

7.  While the supporting statements provided by the applicant are complimentary, none of those individuals were in a better position than that of his rating chain to appraise the applicant’s performance or to know what was expected of him by his raters.

8.  Accordingly, the applicant was properly discharged from the service in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

9.  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

                       DENY APPLICATION




		David R. Kinneer
		Executive Secretary