MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 September 2001
         DOCKET NUMBER: AR2001054906

         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. Carl W. S. Chun		Director
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Donald P. Hupman, Jr.		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 records be corrected to show his reinstatement into the Army National Guard (ARNG).

APPLICANT STATES: In effect, that

(1) an involuntarily discharge was brought as retaliation for having made complaints against his battalion commander and by naming him as a defendant in a complaint filed in United States District Court;

(2) his rights were denied;

(3) he was not permitted a prior meeting or preparation with his legal counsel;

(4) he was denied access to witnesses;

(5) he was denied proper notification of the board action;

(6) he was denied continuance due to a medical condition;

(7) he was denied the right to present his case to the board;

(8) he was denied the right to submit briefs in support of his case;

(9) he was denied the time to prepare his case when he was medically able to do so;

(10) the boards’ findings are not in compliance with the standards established in Army Regulation (AR) 135-175;

(11) there was a fraudulent scheme in furtherance of causing an involuntary discharge for personal gain, to obstruct litigation of a Federal lawsuit and conceal criminal activity;

(12) there is no evidence in the records for which involuntary separation can be justified; and

(13) that it is in the best interest of the Army to retain qualified captains because of officer shortages and Secretary of Defense policy.

He provides numerous copies of military documents in support of his request.

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

On 19 December 1992, the applicant was commissioned as a second lieutenant in the Army Reserve (USAR).

On 15 June 1993, he transferred to the Illinois Army National Guard (ILARNG).

During the period 11 September 1994 to 17 March 1995, he attended the Signal Corps Officer Basic Course (SCOBC); however, he failed to meet academic standards for graduation.

An Officer Evaluation Report (OER) rendered for the period 3 September 1994 to 14 July 1995 (and authenticated by the applicant), indicates SCOBC completion and recommended attendance at the SC Officer Advanced Course as soon as possible. This was a center of mass report.

An OER rendered for the period 15 July 1995 to 7 March 1996 (Mortar Platoon Leader) rated the applicant above center of mass.

On 1 September 1995, he was transferred to an Infantry position.

On 18 December 1995, he was promoted to first lieutenant. His promotion pay was contingent on confirmation of Federal recognition.

During the period 10 March to 1 July 1996, he completed the Infantry OBC (IOBC) and graduated. His academic evaluation indicates he “performed in a marginal manner. Overall, [applicant] ranked in the bottom 10% of the class. He had difficulty during IOBC primarily because of his poor academic performance.”

An OER rendered for the period 2 July 1996 to 14 January 1997 was adverse and indicated “[Applicant] should improve his judgement, loyalty and dedication through a better understanding of military leadership and the chain of command.”

On 6 August 1997, this Board denied his request to award him credit for graduation from the SCOBC, which he had previously attended but did not graduate.

On 20 March 1998, he joined the Wisconsin ARNG (WIARNG).

On 9 November 1998, he was promoted to the rank of captain.

On 7 February 1999, he was transferred to the Army Reserve Personnel Command (Reinforcement) (AR-PERSCOM) based on his unsatisfactory participation in the WIARNG.
On 4 May 2000, the Commander, USA Special Operations Command (USASOC) advised the applicant by memorandum of his pending elimination board and of his rights. The applicant acknowledged, on 22 May 2000, that he had received the notification. The applicant requested another service member as his legal counsel.

On 7 October 2000, the elimination board was called to order. At this time, the applicant refused to attend; however, his legal counsel was present for his defense.

The findings of the board was that the applicant had made intentional omissions or misstatements of fact in official statements or records for the purpose of misrepresentation and that he:

(1) falsely stated that he had successfully completed the SCOBC, when, in fact, he had failed to meet the academic requirements for graduation;

(2) falsely stated that he had received a Master of Arts Degree from Northern Michigan University, when, in fact, the degree had not been conferred;

(3) falsely stated to his battalion commander that he had validated and submitted his Electronic Personnel Security Questionnaire (EPSQ), when, in fact, there is no evidence he did so;

(4) did not participate satisfactorily in required Ready Reserve training in that he failed to attend Army Reserve drills in the months of September, October and November 1999 after being notified to do so and thus accrued unsatisfactory performance in 9 training assemblies in a single year; and,

(5) showed intentional neglect or a failure to perform assigned duties in that he failed to comply with orders to complete and submit his EPSQ to obtain his duty position top secret clearance and failed to comply with unit out-processing requirements despite repeated directives to do so.

Additionally, the board found that the applicant did not engage in acts of personal misconduct; engage in conduct unbecoming an officer; engage in conduct that is inconsistent with the interests of national security; show an intentional neglect or a failure to reply to official correspondence.

The board recommended that the applicant be involuntarily separated and discharged from the USAR with a General Discharge under honorable conditions.

On 29 January 2001, the Commander, AR-PERSCOM approved the findings and recommendations of the board and directed his separation.
On 5 February 2001, Orders R036-02, USASOC directed his discharge from the Army Reserve with a General Discharge, effective 29 January 2001.

This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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 is not entitled to reinstatement in the Army Reserve or in the Army National Guard.

2. There is no evidence to support any of his allegations.

3. While it is true that it is in the best interest of the Army to retain qualified captains it is also true that they should be the best qualified. It does not appear the applicant meets that requirement.

4. This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

5. 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 this requirement and, in the absence of evidence to the contrary, it is presumed that his discharge was conducted in accordance with law and regulations applicable at the time.

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

_cla____ _dph____ _clg____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001054906
SUFFIX
RECON
DATE BOARDED	20010911
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	Reinstatement
2.
3.
4.
5.
6.