MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	


	BOARD DATE:            12 May 1999 
	DOCKET NUMBER:   AR1997005492

	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.



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:  In effect, he is appealing the officer evaluation reports (OERs) for the periods 10 July through 27 September 1990, 11 June through 3 November 1991 and 4 November 1991 through 28 April 1992.  There is no evidence that the applicant ever appealed these reports.

APPLICANT STATES:  In a letter of clarification to his application, he states that the references to his charge of driving under the influence (DUI) were inappropriate.  He also contends that the reference to his voluntary participation in an alcohol and drug abuse prevention and control program (ADAPCP) should not have been mentioned in his OER.

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

He was commissioned from the Military Academy and entered active duty on    25 May 1983.  He was promoted to captain effective 1 May 1987.  He was assigned to Hawaii in March 1989.

On 20 September 1990, the applicant was arrested by civil authorities for driving while under the influence of alcohol (DUI).

The first contested report, when he was serving as a battery commander, was a relief for cause report covering 3 rated months.  In Part IVa, the rater gave him a 3 for “Displays sound judgment;” in Part IVb, the rater commented that his “Intemperate use of alcohol led to relief from command;” in Part Vc, the rater commented again on his use of alcohol and his apparent inability to uphold the personal standards of conduct demanded of commanders.  In Part Vd (promotion potential), the rater checked the “other” block, provided several positive comments and expressed his belief that this single incident was not indicative of the applicant’s manner of performance. The senior rater (SR) checked the applicant’s potential as a 6th block rating in Part VIIa.  He made comments relating to the DUI incident and cited his poor judgment and the need to relieve the applicant from his command.  This was considered an adverse report and was referred to him as one.  The applicant acknowledged the OER and elected not to make a statement.

On 3 February 1991, the applicant was informed by a memorandum from the     U. S. Total Army Personnel Command (PERSCOM) that he was required to show cause as to why he should not be eliminated from the service for acts of personal misconduct and conduct unbecoming an officer under the provisions of Army Regulation 635-100.  He was also advised that he might resign or request 
discharge in lieu of elimination.  The applicant requested a postponement of the elimination proceedings based on convincing evidence that he would be found not guilty of the DUI offense.  His civil court was scheduled for 22 July 1991.  The postponement was supported by his chain of command up through the 3 star command level.  His request was granted by PERSCOM on 19 April 1991.

The applicant was arrested again for DUI by civil authorities on 8 September 1991.  The report states that after failing a field sobriety test the applicant submitted to a blood alcohol content test which showed his level at .119.  Anything .10 or higher was considered as DUI.

The applicant received a general officer memorandum of reprimand (GOMR) on 19 September 1991 for the DUI offense.  It was referred to him for acknowledgement and comment.  In his statement the applicant noted that his court appearance on the charge was 3 months away and that he was in an alcohol treatment program.  The GOMR was directed to be filed in his official military personnel file (OMPF).

On 28 October 1991 the U.S. Army Pacific Command notified the applicant that his elimination proceedings would go forward despite another rescheduled court date for his first DUI arrest.  He was again directed to elect his options.  The applicant requested to delay the proceedings until January 1992.  His request was disapproved.  He declined to submit a statement of rebuttal to elimination and was directed to appear before a board of inquiry.

The second contested OER, ending period 3 November 1991, is a change of duty report for 5 rated months.  In Part IVa, the rater gave him a 2 for “Performs under physical and mental stress” and a 3 for “Displays sound judgment.”  The rater commented that while he had voluntarily enrolled in an alcohol treatment program he did not successfully complete it.  The rater also commented that his repeated intemperate use of alcohol led to issuance of a GOMR.  In Part V, the rater commented that the applicant’s off-duty behavior was not that expected of a commissioned officer.  In Part VII, the SR checked the applicant’s potential as a 4th block rating and commented that he was no longer a competitive officer due to his second arrest for DUI and failure to complete the alcohol rehabilitative program.  This was considered an adverse report and was referred to him as one.  The applicant acknowledged the report and declined to submit a statement in rebuttal.

On 2 March 1992, after consulting with counsel, the applicant submitted a request for resignation in lieu of elimination.  His request was approved by competent authority and issuance of an honorable discharge was directed.
Effective 28 April 1992, the applicant was released from active duty.

The third contested report is a release from active duty OER for 6 rated months.  The rater marked all 1’s in Part IVa. and made no comments about his reason for separation or DUI offense here or in Part V.  The SR checked the applicant’s potential as a 4th block rating in Part VIIa and commented on his pending separation for “alcohol related incidents”.  The SR also noted the applicant’s potential for future service was negated, commenting that the above mentioned incidents which led to his resignation would not allow him to remain competitive with his contemporaries.  This OER was considered an adverse report and was referred to him as one.  The applicant acknowledged the report and wrote on his acknowledgment that the SR comments do not apply to the reporting period but to the previous period.

A 6 July 1993 memorandum from the ADAPCP chief notes that the applicant was released from the program 5 days prior to the completion date for failure to comply with his treatment.  He continued with the after care program until his release from active duty and he was deemed a rehabilitation success at closure.

An 18 September 1995 letter from the office of the attorney general of the State of Hawaii certifies that an expungement order was issued which annulled the applicant’s arrest for the following offenses:

	Traffic Control Signal			9/8/91
	DUI Liquor					9/20/90
	Vehicle Enter Highway			9/20/90
	No No-Fault Insurance			9/20/90

According to the Hawaii Statutes, no expungement order can be issued where a finding of guilty has been established.

Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  Paragraph 4-21 states that any verified derogatory information may be entered on an OER.  This is true whether the officer is under investigation, flagged, or awaiting trial.  While the fact that an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  Paragraph 4-26 states that an officer who voluntarily enters the ADAPCP for an alcohol or drug abuse problem should not be penalized by mention of ADAPCP participation in his or her OER.  However, once an officer has been identified in an OER as having an alcohol or drug abuse problem based on information obtained independently of the ADAPCP, his or her voluntary entry into the ADAPCP should be mentioned as a factor to the rated officer’s credit.  The rating chain should note status of rehabilitation progress or outcome in the OER or in later reports.  

Army Regulation 623-105, paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

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 or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The first contested OER contains comments on the applicant’s intemperate use of alcohol which resulted in his arrest for DUI.  This was verified derogatory information at the time.  The fact that 6 years later the civil record of arrest for DUI was expunged does not change the fact that he was arrested.  The applicant has provided no evidence to show why the record was expunged, i.e., was it expunged due to the fact he was not under the influence of alcohol at the time of arrest, or only because of a technical violation of procedures by the arresting officer?

3.  The second contested OER, for the period 11 June through 3 November 1991, contains comments on the applicant’s repeated intemperate use of alcohol and his voluntary enrollment in (and failure to successfully complete) the ADAPCP program.  The comment on his use of alcohol is authorized since it is verified derogatory information (he was arrested for DUI on 8 September 1991).  The comment on his entry into the ADAPCP is authorized, since once he was identified in the OER as having an alcohol problem based on information obtained independently of the ADAPCP, his voluntary entry into the ADAPCP should have been mentioned as a factor to the rated officer’s credit.  The rating chain should have noted the status of his rehabilitation in the OER.  

4.  The third contested OER contains comments on his pending separation for alcohol-related incidents.  This is verified derogatory information.  While the alcohol-related incidents themselves occurred outside the rating period, his separation based upon those incidents was pending during the covered rating period.

5.  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___  __aao___  __jea___  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AR1997005492
SUFFIX

RECON

DATE BOARDED
19990512
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
111.01
2.

3.

4.

5.

6.