MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 4 September 2003
                  DOCKET NUMBER: AR2003085148

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Frank C. Jones		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: In effect, that he be reinstated on active duty as a commissioned officer and retained until he completes 2 years of active service.

APPLICANT STATES: That in January 1998, elimination proceedings against him were initiated. His chain of command supported him and he was selected for continued service. Since he was selected for continued service, he received four positive Officer Evaluation Reports (OERs) and one negative OER. Due to the negative OERs prior to his selection for continued service and the one after, elimination proceedings were again initiated against him. Again, his chain of command supported him. On 25 October 2002, a show cause board was held at Fort Hood, TX. The board determined that, because of the support of his command and his experience, he still had much to offer the Army. However, when he contacted his branch manager in early November 2002, he was informed that he had a mandatory release date of 1 April 2003. He frantically tried to determine what happened. He finally received the 3 April 2002 memorandum on 22 November 2002. (This 3 April 2002 memorandum is unavailable.)

The applicant further states that he knows his language skills and his expertise in Arabic culture will be a significant asset as the Army continues to wage war on terrorism. He is prepared to support future operations in the Middle East. He requests that he be allowed to personally appear before the Board.

COUNSEL CONTENDS: That when the applicant received the letter dated 16 December 1999 notifying him he had been selected for continuation on active duty, the letter specifically stated that the Army's intent was to keep him on active duty barring a downward trend in performance. On 25 October 2002, a show cause board was convened to determine whether a downward trend had occurred. Three colonels at Fort Hood determined that the applicant did not experience a downward trend in his performance and recommended his retention. Shortly after the show cause board, the applicant was informed that he would be released from active duty. Counsel states that he understands Title 10, U. S. Code, section 632 and the selective continuation process. He understands the reasons for the process; he simply does not agree with them. The applicant was never given an explanation as to why the Army's intent changed from 1999, given that the Fort Hood board determined there was no downward trend in his performance.

Counsel contends that the applicant's desire to remain in the Army is so strong that he is staying in as an enlisted soldier. The applicant has experienced substantial prejudice in the Army as a result of his racial background. He was
forced to always prove himself to his chain of command to overcome the stereotype that preceded him. A few of the letters that show this prejudice are provided. (He provided 4 statements. One was a sworn statement dated 6 December 1995 from the E-5 personnel staff noncommissioned officer of the 70th Engineer Battalion. The E-5 stated every minority engineer officer was being discussed in a negative way and the applicant may have been caught between the negative talk about him and the racial problem within the battalion. Another was a sworn statement dated 6 December 1995 from the 70th Engineer Battalion E-6 S-4 noncommissioned officer. The E-6 stated he overheard negative statements made about the applicant's character, ability to perform, ability to lead, and negative racial statements [regarding the applicant]. A third was a statement from a 70th Engineer Battalion E-7. The E-7 stated that on many occasions he either overheard or was directly told of the applicant's substandard abilities. The fourth was a statement from the 70th Engineer Battalion E-7 operations sergeant. This E-7 stated the applicant was always professional. These statements were part of the applicant's appeal of his pre-1997 show cause action OERs).

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

He enlisted in the Regular Army on 18 February 1986. He was discharged on 23 June 1988 for the purpose of accepting a commission. He was commissioned a second lieutenant on 24 June 1988 and entered active duty that date. He was promoted to captain on 1 December 1992.

The U. S. Total Army Personnel Command (PERSCOM) notified the applicant by memorandum dated 17 November 1997, subject: Initiation of Elimination, that he was identified by the Fiscal Year (FY) 1997 Major Army Competitive Category Promotion Selection Board to show cause for retention on active duty. The action was based on a downward trend in his overall performance substantiated by OERs for the periods ending 9 December 1993, 1 July 1994, and 15 November 1995.

Apparently, a show cause board was not held at that time. The applicant's chain of command recommended revocation of the initiation of elimination action. His servicing Staff Judge Advocate, in a memorandum to PERSCOM, stated that the comments found in the commanders' endorsements clearly indicated the applicant had potential for continued service and it would be a waste of resources to conduct a board.

The applicant was apparently nonselected for promotion to major for the second time around FY 1999. He was considered by the FY 1999 selective continuation board and selected for retention for a period of 3 years. The original notification of selection for continuation is not available. PERSCOM clarified the Army's policy on captain selective continuation by informing the applicant by memorandum dated 16 December 1999 that the Army was intent on granting a subsequent selective continuation that would keep him on active duty until he was retirement eligible barring a downward trend in performance.

The applicant's OER history for the period between November 1997 and May 2001 follows. Possible ratings for Part V (Performance and Potential Evaluation) are "outstanding performance, must promote;" "satisfactory performance, promote;" "unsatisfactory performance, do not promote;" and "other." Possible ratings for Part VIIa (Promotion Potential) are "best qualified;" "fully qualified;" "do not promote;" and "other." Possible ratings for Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) are "above center of mass," "center of mass," and "below center of mass."

Rating period 1 October 1997 – 9 June 1998: Part V – outstanding performance, must promote; Part VIIa – best qualified; Part VIIb – above center of mass.

Rating period 10 June 1998 – 21 January 1999: Part V – outstanding performance, must promote; Part VIIa – best qualified; Part VIIb – center of mass.

Rating period 22 January 1999 – 18 June 1999: Part V – outstanding performance, must promote; Part VIIa – best qualified; Part VIIb – center of mass.

Rating period 19 June 1999 – 18 June 2000: Part V – satisfactory performance, promote; Part VIIa – fully qualified; part VIIb – below center of mass. Senior rater comments included, "He was counseled on conduct, duty and the need to follow procedures and showed some improvement…fails to accept responsibility when appropriate…established a reputation within the US Contingent for being unreliable…"

Rating period 19 May (sic) 2000 – 25 May 2001: Part V – outstanding performance, must promote; Part VIIa – best qualified; Part VIIb – center of mass.

PERSCOM apparently notified the applicant by memorandum dated 7 February 2002 that he was directed to show cause for retention on active duty because of substandard performance of duty.

The applicant's battalion commander stated that the applicant's performance was satisfactory and he had not observed any character flaws that would justify his elimination. The applicant continued to display some of the limiting personality traits described in the OERs, such as English language proficiency and an argumentative nature; however, the battalion commander believed those traits could be overlooked and dealt with by concerned and positive leadership.

The applicant's brigade commander stated that, while the applicant displayed personality traits which have led several of his raters and senior raters to rate him in less than an outstanding manner, he nonetheless was a hard-working officer who got things done.

The applicant's division commander stated he believed the applicant had the potential and ability to fulfill his duties honorably and competently and that his experience and training were too great of an investment to disregard.

A show cause board was held. On 25 October 2002, the board of inquiry (BOI) found the applicant did not experience a downward trend in overall performance that resulted in a consistent record of mediocre and substandard service and recommended he be retained by the Army for continued service.

The applicant was considered but not selected for promotion to major by the FY 2002 Army Competitive Category Promotion Selection Board. He was considered but not selected for selective continuation by the FY 2002 selective continuation board.

By memorandum dated 4 September 2002, PERSOM notified the applicant that he had not been selected for promotion, that the promotion board report was approved in August 2002, and that he would therefore be involuntarily separated not later than 1 March 2003 with entitlement to separation pay.

On 25 November 2002, the applicant acknowledged receipt of his notification memorandum informing him of his mandatory separation date of 1 March 2003. He indicated that, as he was a U. S. Army Reserve officer, he desired to be reappointed as a U. S. Army Reserve officer after his discharge from active duty.

On 13 December 2002, the applicant appealed his OER for the period 19 June 1999 – 18 June 2000. He based his appeal on inaccurate senior rater comments, senior rater employing vague terms that were subject to interpretation, and Part VIIc being inconsistent with Part VIId. His appeal was denied on 20 February 2003

By undated memorandum to the applicant, PERSCOM informed him that, based on the recommendation from the General Officer Show Cause Authority (GOSCA), he would be retained on active duty. The flagging action initiated on him by that headquarters was closed favorably effective 15 January 2003.

The Retention Management Division, PERSCOM authorized the applicant to reenlist in the rank of Sergeant First Class, E-7 effective 1 March 2003.

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The applicant apparently was separated on 1 March 2003. He is currently on active duty as a Sergeant First Class, E-7.

Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4 states that an officer is permitted to serve in the Army because of the trust and confidence placed in the officer's patriotism, valor, fidelity, and competence. An officer who will not or cannot maintain this standard will be separated. Substandard performance of duty, as evidence by a downward trend in overall performance resulting in an unacceptable record of efficiency, is one condition for which elimination action may be or will be initiated. The BOI's purpose is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army. The Government is responsible to establish, by preponderance of the evidence, that the officer has failed to maintain the standards of his or her grade and branch. In the absence of such a showing by the Government, the BOI will retain the officer. BOIs are appointed by the appropriate GOSCA. After closing arguments, the BOI determines its findings and recommendation by secret written ballot in closed session. The BOI may recommend retention or involuntary separation. When the BOI recommends retention, the proceedings will be forwarded to PERSCOM and the case will be closed.

Army Regulation 600-8-24, chapter 5, paragraph 5-9 states that a commissioned officer on the active duty list twice nonselected for promotion to captain, major, or lieutenant colonel will be involuntarily released from active duty or discharged unless he or she is selectively continued, has completed 18 or more years of active Federal service (AFS) on the release date, or retired. PERSCOM will forward the notification memorandum. Offices will be separated no later than the 1st day of the 7th calendar month after approval of the promotion board's report.

Army Regulation 600-8-29 (Officer Promotions), paragraph 1-14 states that, subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion may be selectively continued on active duty in their present grade. A selective continuation board may recommend the officer for continuation and the Secretary of the Amy must approve the recommendation before the officer may be continued. The Secretary of the Army will direct a selective continuation board to consider officers for continuation when required by the needs of the Army. Selectively continued officers, if otherwise eligible will continue to be considered for promotion until separation.

Army Regulation 600-8-29 further states that continuation for a captain will normally be for 3 years from the date the officer would otherwise have been separated for having twice failed to be selected for promotion. An officer who has been selected for continuation will be released from active duty or discharged on the expiration of the continuation period unless the office has since been promoted, selected again for continuation by a later selective continuation board, is within 2 years or retirement eligibility, or has retired, been sooner released from active duty or discharged under other provisions of law, or retained under other provisions of law.

Title 10, U. S. Code, section 611(b) states that, under regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned, whenever the needs of the service require, may convene selection boards to recommend officers for continuation on active duty under section 637 of this title.

Title 10, U. S. Code, section 632 states that a captain or major on the active duty list who has failed of selection for promotion to the next higher grade for the second time shall be discharged not later than the 1st day of the 7th calendar month beginning after the month in which the President approves the report of the board which considered him for the second time.

Title 10, U. S. Code, section 637 states that an officer subject to discharge in accordance with section 632 of this title may, subject to the needs of the service, be continued on active duty if he is selected for continuation on active duty by a selection board convened under section 611(b) of this title. Each officer who is continued on active duty under this subsection, and is not subsequently promoted or continued on active duty, shall be discharged upon the expiration of his period of continued service.

Title 10, U. S. Code, section 1181 states that the Secretary of the military department concerned shall prescribe, by regulation, procedures for the review at any time of the record of any commissioned officer to determine whether such officer shall be required, because his performance of duty has fallen below standards prescribed by the Secretary of Defense, to show cause for his retention on active duty. BOIs shall make findings and recommendations as to whether such an officer should be retained on active duty. If the BOI determines that the officer has established that he should be retained on active duty, the officer's case is closed.

Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR). Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

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 this requirement.

2. The Board notes that the applicant's chain of command supported his retention on active duty during the 1997 show cause action which resulted in his show cause action being closed favorably.

3. After the 1997 show cause action, the applicant was considered by a selective continuation board and selected for continuation on active duty for a period of 3 years. The original notification of his selection for continuation is not available. The Board notes that by memorandum dated 16 December 1999 he was informed that the Army was intent on granting a subsequent selective continuation that would keep him on active duty until he was retirement eligible barring a downward trend in performance.

4. During the time the applicant was in his 3-year selective continuation period, he was considered, but not selected for, promotion to major. Therefore, unless he was again selected for continuation when his 3-year period was up, he was required by statute to be separated.

5. Coincidentally, about the time the applicant's 3-year selective continuation period was about to expire, he was again identified as having to show cause for retention in the Army. The Board notes that once again his chain of command supported his retention and a BOI recommended he be retained. His case was once again closed favorably. This recommendation for retention closed the show cause action but did not override the constraints (i.e., the 3-year period) of his selective continuation.

6. The Board notes the applicant's argument that he knows his language skills and his expertise in Arabic culture will be a significant asset as the Army continues to wage war on terrorism. The Board notes counsel's contention that a show cause board determined on 25 October 2002 that the applicant did not experience a downward trend in his performance. (The Board also notes that the chain of command's statements in support of the applicant's retention were not highly laudatory.)

7. Selective continuation boards are convened by the Secretary of the Army to recommend officers for continuation on active duty. A BOI looks at an officer from a parochial point of view; a selective continuation board looks at an officer from an Army-wide point of view. The Board concludes that the selective continuation board considered the applicant's entire record, determined that his OER for the period 19 June 1999 – 18 June 2000 did indicate a downward trend in performance, and decided that, based on the needs of the Army, his continuation on active duty was no longer desired. Absent compelling evidence to the contrary, the Board will not substitute its judgment for that of the Secretary who had the overall needs of the Army at hand to consider.

8. The Board notes counsel's contention that the applicant has experienced substantial prejudice in the Army as a result of his racial background and considered the statements provided by counsel to "prove" this prejudice. The Board notes that only one of the statements actually indicated the writer overheard racial remarks made about the applicant. One of the other statements indicated the applicant may have been caught between the negative talk about him and the racial problem within the battalion. The other two statements did not mention a racial problem. There is no evidence to show racial prejudice or discrimination was ever substantiated. The applicant did not mention that he was the victim of racial prejudice or discrimination with his December 2002 OER appeal.

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

__rvo___ __fcj___ __bje___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085148
SUFFIX
RECON
DATE BOARDED	20030904
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	102.09
2.
3.
4.
5.
6.