MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 April 1999
         DOCKET NUMBER: AC97-09020
                                    AR1997002263

         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. Loren G. Harrell		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Ms. Jennifer L. Prater		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)

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APPLICANT REQUESTS: That his commission as a second lieutenant be restored and that he be reinstated on active duty for training in the Transportation Corps or the Military Police Corps or that the recommendation of the faculty board be set aside, along with the convening authority’s approval and a new board be conducted.

APPLICANT STATES: The applicant defers to counsel.

COUNSEL CONTENDS: That the applicant’s discharge was arbitrary and violated his procedural due process rights. The faculty board failed to meet several basic guidelines set in the regulations; specifically, there was an insufficient board report and the president of the board was not impartial. The board failed to state its findings of fact. Its findings describe what was evaluated but it does not indicate how it reached a decision. This failure to follow regulations is a direct violation of the applicant’s rights and makes his separation invalid. Without a properly written statement of the evidence relied upon and the reasons for its decision, the applicant was unaware of the rationale used to withdraw his commission. The regulation also provides that the board will be composed of impartial members. The president appointed to the board could not be impartial; he was the incoming battalion commander to the battalion to which the applicant was assigned. There was an appearance of partiality given the role of the board president and the job he was soon to have taken over. The lack of challenge for cause based on impartiality should not be considered waived as there were other problems with the board’s findings.

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

After having had prior enlisted service in the U. S. Army Reserve, he was appointed a second lieutenant in the Infantry Branch on 6 August 1994 after completing Reserve Officer Training Corps training. He entered active duty on 11 September 1994 and was assigned to the Infantry Officer Basic Course (IOBC) at Fort Benning, GA on this date.

On 21 November 1994, the applicant was recycled within the IOBC for failing the land navigation portion.

On 12 January 1995 (the document is erroneously date-stamped 12 January 1994), the applicant was involuntarily relieved from IOBC for failing the land navigation portion five times.

On 20 January 1995, three voting members, a recorder and a lay counsel were appointed to a U. S. Army Infantry School Faculty Board to determine if the applicant, who was to appear before the board for the reason of academic deficiency (land navigation) was suitable for continued service and retention of his commission. The board members were instructed to find whether the allegations or reasons for referral were true and, after arriving at those findings, the board would make recommendations based on those findings. The board was instructed to prepare the Report of Board Proceedings and Summation of Testimony in substantially the format shown at appendices F and G, U. S. Army Infantry School (USAIS) Regulation 15-1. The recorder was to adequately and completely summarize the testimony. The board would identify all documents entered as evidence and designate them as exhibits, and the board would refer to the exhibits in the Summation of Testimony.

The applicant was notified of his referral to a USAIS faculty board because of his academic deficiencies and provided copies of statements and other evidence which formed the basis for those board proceedings. He was informed that following the completion of the faculty board hearing, the proceedings would be forwarded to the Commandant, USAIS for review, who would review the testimony presented and the board’s findings and recommendations and make his decision.

On 26 January 1995, a faculty board was convened to consider the applicant’s suitability for continued service and retention of his commission.

The president of the board informed the applicant that he could challenge any voting member of the board for lack of impartiality but he chose not to make such a challenge.

The recorder of the board made an opening statement. He stated that the applicant had failed five land navigation tests; that the convening authority had already relieved the respondent and had therefore made a statement that he did not belong in the IOBC; that by convening the board, that authority was asking if there were any special circumstances with regard to the applicant (such as to merit his retention in service). The recorder stated that the applicant had failed to meet a clear-cut, established standard which the Infantry School had determined is essential for an infantry leader.

The recorder presented evidence and addressed the applicant’s academic deficiencies, including his below average scores on the Army Physical Fitness Test, M16A2 qualification, and failure of critical blocks of instruction on Army Doctrine, namely Introduction to Combat Operations and Platoon Operations.

The recorder presented evidence on the applicant’s performance after he had been recycled to another class. He focused on the applicant’s failing land navigation scores, his evaluation as an “average” leader, his record of disciplinary actions (counseling statements for twice missing formation), and his potential evaluations to show that the applicant was not exceptional in any category.

Two witnesses for the government attested to the applicant’s poor academic performance and they plus one other witness stated that he should not retain his commission as an infantry lieutenant.

After a five-minute adjournment, the applicant made an opening statement that he wanted to be in the Army and the infantry and that he knew he could do better. He stated he did have leadership potential to be an outstanding infantry officer.

Witnesses for the applicant, two IOBC peers, attested to his high leadership potential.

The applicant then appeared as a witness. In response to questions, he described his academic performance in his first class as weak at best. He described his problems with land navigation. He felt his leadership was strong but because he was not a loud leader, sometimes it was perceived that he had a bad attitude or a lack of motivation. He stated there was no lack of motivation at any time. His tactical skills progressed and he learned. He missed formation one time because his alarm did not go off and he overslept; the second time he was in formation but had gone back to get his protective mask that he had forgotten and his name was turned in for being late. He stated his strengths were that he was a good motivator and communicator; his weaknesses were that he did poorly on land navigation, his study habits were sometimes poor, and there were many things he could improve on.

The recorder closed with “This lieutenant has failed to meet a clear-cut, established standard which the Infantry School has determined is essential for an infantry lieutenant…His academic records show that he is a substandard officer…”

Applicant’s counsel closed with the statement “…being a second lieutenant is not a know all, be all person…I admit that (the applicant) did fail his land nav (sic)….but he has improved on nearly everything that he has set out to do whether it be academics,… P. T. test,…land nav (sic)….He has improved in every subject…”

The faculty board found that the applicant was not fit for continued service and retention of his commission and recommended that he be separated from the service and that his commission be terminated.

On 7 March 1995, the Commandant, USAIS, approved the findings and recommendations of the faculty board and directed that the applicant be discharged from the service and his reserve commission be terminated.

There is no evidence the applicant appealed the decision.
On 23 March 1995, the applicant was discharged under the provisions of Army Regulation 635-100, Chapter 3, for failure to complete a course of instruction, in pay grade O-1. He had completed a total of 9 months and 29 days of creditable active service.

Army Regulation 635-100, in effect at the time, provided the authority for the separation of commissioned and warrant officers from the Active Army. Chapter 3, section II provided that officers of the Army National Guard of the United States and the U. S. Army Reserve having less than 3 years commissioned service who failed to meet standards of service schools while attending branch orientation or familiarization courses of their basic branch due to, among other reasons, academic deficiencies could be relieved from active duty and discharged from their Reserve commissions. School commandants would refer the case of each officer who failed to meet the standards of the school and whom he recommended for processing under this section to a school faculty board for consideration and recommendation.

USAIS Regulation 351-14 prescribes responsibilities, policies and procedures for disposition, other than normal graduation, of students assigned or attached for the purpose of attending USAIS resident courses. In pertinent part, it states that the appropriate authorities may convene faculty boards under the provisions of USAIS Regulation 15-1 to determine if actions provided therein are appropriate in cases under consideration. The courses of action available for a student with an academic deficiency are recycle and relief.

USAIS Regulation 15-1 prescribes the responsibilities, policies and procedures for the administration and conduct of USAIS faculty boards. In pertinent parts, it states that students may be directed to appear before a USAIS faculty board for academic or leadership deficiencies, among other reasons. The student must be given written notice at least 48 hours prior to the hearing. The referral letter will include, among other items of interest, the reason(s) for referral; a notice that the student is entitled to have the matter at issue decided by a board composed of impartial members and may challenge for cause any legal advisor or voting member of the board who does not meet that standard; and copies of all documents which form the basis for referral to the board. The board would evaluate all evidence presented to it and make appropriate findings, each finding supported by a greater weight of evidence than would support a contrary conclusion. In determining the disposition of students, the board would conduct its evaluation using the “whole-person” concept, considering his/her academic performance, leadership, attitude, motivation, discipline, demonstrated potential, conduct, and any other matters affecting the student’s performance. Neither the board recorder nor the student would be present during deliberations and voting. The board would recommend that the student be continued or graduated or that the student would be relieved from the course and declared a nongraduate for one or more of the following reasons: academic deficiency and leadership deficiency or, if for other reasons, those reasons must be explained in the board report. An IOBC faculty board which recommends that a reserve component officer be declared a nongraduate will also recommend if the student should have his/her commission terminated and be separated from active duty. The recorder would prepare a report of faculty board proceedings (as in appendix F) and a summation of testimony (as in appendix G).

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2. Counsel contends that the faculty board failed to meet several basic guidelines set in the regulations; specifically, there was an insufficient board report. This Board finds that the faculty board report corresponds very closely to the format outlined in appendix F, USAIS Regulation 15-1. There is no ambiguity in the report; it is clear that the faculty board found the applicant should be relieved from IOBC and separated from the service by reason of an academic deficiency, specifically in land navigation. The faculty board was not required to state how it reached its decision. In fact, the regulation specifically stated that neither the board recorder nor the student would be present during deliberations and voting, thereby implying that how it reached its decision would never be revealed.

3. Counsel contends that without a properly written statement of the evidence relied upon and the reasons for its decision, the applicant was unaware of the rationale used to withdraw his commission. This Board finds that contention specious. The applicant was recycled once for academic deficiency. His referral letter stated he was being referred to the board because of his academic deficiencies and provided copies of statements and other evidence which formed the basis for those board proceedings. He was present during all testimony and when the recorder presented evidence and addressed the applicant’s academic deficiencies such as below average scores on the Army Physical Fitness Test, M16A2 qualification, and failure of critical blocks of instruction on Army Doctrine, namely Introduction to Combat Operations and Platoon Operations. He himself
described his academic performance in his first class as weak at best, his study habits as sometimes poor, and that there were many things he could improve on.

4. This Board believes that the faculty board evaluated the applicant using the “whole-person” concept and found his deficiencies as a commissioned officer outweighed his strengths. This Board believes his demonstrated weaknesses as a commissioned officer were not Infantry specific and would have occurred had he attended either Transportation or Military Police or any other Officer Basic Course.

5. Counsel contends the president appointed to the board could not be impartial; he was the incoming battalion commander to the battalion to which the applicant was assigned and there was an appearance of partiality. The lack of challenge for cause based on lack of impartiality should not be considered waived as there were other problems with the board’s findings. Counsel provides no evidence of actual lack of impartiality. This Board concludes that the findings of the faculty board were sufficient and in accordance with regulation. The Board also concludes that the applicant’s failure to challenge the member at the time of the board constituted a waiver of such challenge.

6. 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

__GDP___ __JLP___ __BJE___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC9709020/AR1997002263
SUFFIX
RECON
DATE BOARDED	19990408
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.03
2.
3.
4.
5.
6.