IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080004933 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that all records of the suspension of his security clearance be expunged from his military records and that his narrative reason for separation be changed.

2.  The applicant states that there is no evidence of misconduct in his military records that warranted the revocation of his security clearance.  He also states that he was never afforded an opportunity to improve his performance under another command per Army regulations.  He further states, in pertinent part, that while he was stationed in Germany his wife at the time remained behind in Hawaii; that she engaged in an adulterous relationship and conceived a child; and that she fraudulently listed him as the biological father on the birth certificate. He continued by stating that she contacted his command and falsely alleged that he had abused her.  At that time his commander withdrew his security clearance, removed him from his duties, and ultimately had him discharged under the provisions of Chapter 8, Army Regulation 635-120 (Officer Resignations and Discharges) for substandard performance of duty.  He also states that he made repeated requests to transfer to another unit after a series of substandard ratings and that although he requested his official military personnel file (OMPF) from the National Personnel Records Center (NPRC) none of his officer evaluation reports (OERs) were in his OMPF.  Additionally, he states that his narrative reason for separation should be changed because despite his requests, he was never given the opportunity to transfer to another command and improve his performance, and that Army regulations regarding eliminations are clear in that when an officer shows ineffective tendencies he/she will be given another chance under another commander.  
3.  The applicant provides, in support of his application; an undated supplemental statement signed by his counsel; his DD Form 214 (Report of Separation from Active Duty) for his active duty service from 24 June 1975 through 23 June 1977; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for his active duty service from 17 August 1981 through 24 April 1990; his baccalaureate diploma from the University of Hawaii at Manoa, dated 16 August 1981; a letter, dated 23 August 1984, which shows that he was selected for an extension of active duty in an initial voluntary indefinite status; a disposition form, dated 21 October 1988, in which the applicant's DA Form 873 (Certificate of Clearance and/or Security Determination) was requested to be removed from his 
DA Form 201 (Military Personnel Records Jacket); his DA Form 2166-5 (Enlisted Evaluation Report) for the period October 1975 through August 1976; the cover sheet of a Request for Personnel Security Investigation, dated 25 August 1987; and a letter, dated 18 December 2003, from an attorney to the applicant.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he enlisted in the Regular Army on 24 June 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).  He served a tour in Germany from October 1975 to June 1977 and then was honorably released from active duty on 23 June 1977.  On 16 August 1981, he was appointed a commissioned officer in the United States Army Reserve and entered active duty on 17 August 1981.  He completed the Ordnance Officer Basic Course on 19 February 1982 and then served as a Project Officer at Redstone Arsenal, Alabama from February 1982 to July 1982.  He then departed for a tour of duty in Germany, and was initially assigned to the 64th Ordnance Company.  In 1983, he was reassigned to Headquarters and Headquarters Company, 59th Ordnance Brigade.  He attended the Ordnance Officer Advanced Course at Redstone Arsenal, Alabama from 2 September 1985 to 10 February 1986, and then reassigned to the 9th Ordnance Company in Germany. 
3.  The applicant essentially stated that there is no evidence of misconduct in his military records that warranted the revocation of his security clearance.  However, on 21 March 1988, his commanding officer recommended that the applicant's access to classified information be suspended not due to misconduct, but because he was determined to have a mixed personality disorder during a mental status evaluation that was conducted on 18 March 1988.  The evidence also shows that prior to this occurring the applicant was issued a letter of concern from his battalion commander on 12 November 1987, where his battalion commander expressed his concern about the applicant's lack of professionalism in conjunction with his marital problems.  His battalion commander also stated that he was very sensitive to the fact that marital problems may cause high emotional stress, but that in his opinion the applicant's company commander had given him more than sufficient opportunities to resolve his problem.  He also stated, in pertinent part, that while he fully recognized that everyone needs to call "time out" to deal with personal problems, a true professional deals with problems in a professional manner and gets on with his life, and that the applicant needed to do the same.  His company commander essentially echoed the battalion commander's letter of concern in a 1st endorsement, dated 10 December 1987.  Correspondence, dated 8 April 1988, essentially shows that his battalion commander, after thoroughly evaluating the applicant's disqualification from the Personnel Reliability Program and considering statements and circumstances, approved his disqualification from the PRP on that date.  His DA Form 3180 (Personnel Screening and Evaluation Record) also essentially shows that the reason for his disqualification from the PRP was due to a mental condition which affected his judgment and performance as substantiated by a qualified medical officer to be prejudicial to reliable performance of nuclear duties.   

4.  The applicant also stated that none of his OERs were in his OMPF.  However, his OMPF does in fact contain his OERs, including his last OER from the 9th Ordnance Company which covered the period 26 May 1987 through 21 March 1988.  In this OER, the applicant's company commander, as his rater, stated that the applicant's judgment became clouded when acting under stress which caused him to make inappropriate and incorrect decisions.  He also stated that the applicant's performance had been substandard and that although his handling of a stressful situation had adversely affected his performance he hopefully would overcome the situation in the near future.  The applicant's battalion commander, as his senior rater on this OER, indicated that the applicant's potential was totally dependent on his ability to overcome the effects of marital-related stress on his duty performance.  


5.  The applicant also stated that he was never given the opportunity to transfer to another command and improve his performance and that Army regulations regarding eliminations are clear that when an officer shows ineffective tendencies he/she will be given another chance under another commander.  However, after his OER with an ending period of 21 March 1988, he was attached to Headquarters and Headquarters Company, 60th Ordnance Group on 21 March 1988.  On 13 May 1988, he was attached to the 72nd Ordnance Battalion and he was formally reassigned from the 9th Ordnance Company to Headquarters and Headquarters Company, 72nd Ordnance Battalion on 21 June 1988.

6.  The applicant's OMPF contained his OER from the 72nd Ordnance Battalion for the period 2 April 1988 through 28 February 1989, which had an actual rating period from 22 June 1988 through 28 February 1989.  This OER, which was prepared by different rating officials from a command different than his last OER from the 9th Ordnance Company, essentially shows that his rating officials indicated that he failed the 2-mile run during a physical fitness test and that he maintained a slovenly personal appearance.  This OER also shows that his rating officials indicated that he was unable to meet the requirements of his new job and was unable to focus on the issues at hand.  They also stated that the applicant had no future potential in the Army and that he should be released from the Army.

7.  Mental status evaluations were conducted on the applicant on 12 May 1988, 19 August 1988, and 31 August 1988.  The psychiatrist who conducted these evaluations determined that the applicant suffered from a personality disorder that interfered with his performance of duty.  He was again diagnosed with mixed personality disorder, but was not suffering from an incapacitating mental illness.  This psychiatrist also determined that the applicant was able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand board and judicial proceedings and participate in his own defense.  He also determined that further observation and psychological testing failed to reveal anything which would require a medical board or any significant suicide potential and psychiatrically cleared him for any administrative action deemed appropriate by his command.

8.  In a memorandum, dated 13 January 1989, the applicant was advised by a general officer that he was required to show cause for retention on active duty because of substandard performance of duty, as evidenced by his release from the 60th Ordnance Company due to unsatisfactory performance, his permanent disqualification from the PRP, and his inability to separate his personal life from his professional life.  He was also advised of his rights.

9.  On 10 June 1989, a Board of Inquiry, after carefully considering the evidence, recommended that the applicant be discharged under the provisions of Chapter 5 (Eliminations), Army Regulation 635-100 (Personnel Separations – Officer Personnel) with an honorable characterization of service.  On 12 January 1990, the Commander in Chief, Headquarters, United States Army, Europe, and Seventh Army, after reviewing the report and recommendation of the Board of Inquiry and the applicant's appellate brief through his defense counsel, recommended approval of the Board of Inquiry's findings.  

10.  On 9 March 1990, the Army Board of Review for Eliminations found that the government established by a preponderance of the evidence that the applicant should be eliminated from the service for substandard performance of duty, and recommended that the applicant be eliminated from the Army and issued an Honorable Discharge Certificate.  On 29 March 1990, the Deputy Assistant Secretary of the Army (Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review) approved the recommendation by the Army Board of Review for Eliminations.  On 24 April 1990, the applicant was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 has an entry of "Substandard Performance of Duty."  

11.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to:

   (a)  authorize placement of unfavorable information about Army members in their OMPFs;
   
   (b)  ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and 
   
   (c)  to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from their official personnel files.

12.  Paragraph 7-2 of Army Regulation 600-37 provides, in pertinent part, that once a document has been directed for filing in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  This regulation provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  Table 2-1 specifies that only a DA Form 3180 that shows a Soldier is disqualified from the personnel reliability or chemical personnel reliability programs will be filed in the general administration section of the service "S" portion of the OMPF, along with the Soldier's acknowledgement, the Soldier's statement, and the final action taken by the reviewing authority.

14.  Paragraph 2-4 of Army Regulation 600-8-104 provides, in pertinent part, that once a document is placed in a Soldier's OMPF, the document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by the Army Board for Correction of Military Records (ABCMR) or one of the other agencies listed in the referenced paragraph.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that all records of the suspension of his security clearance should be expunged from his military records, and that his narrative reason for separation should be changed.

2.  The applicant's contentions were carefully considered.  However, the applicant has provided no evidence of a clear and convincing nature that shows that the information in his military records surrounding his disqualification from the PRP or the suspension of his security clearance is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from his records.  As a result, there is no basis for expunging all records of the suspension of his security clearance or his disqualification from the PRP from his military records.



3.  The applicant's contention that he was never afforded an opportunity to improve his performance under another command per Army regulations was considered, but not accepted.  The evidence of record clearly shows that after receiving a below average OER from the 9th Ordnance Company, he was attached to Headquarters and Headquarters Company, 60th Ordnance Group on 21 March 1988, and was subsequently attached to the 72nd Ordnance Battalion on 13 May 1988.  Further, on 21 June 1988, he was formally reassigned from the 9th Ordnance Company to Headquarters and Headquarters Company, 72nd Ordnance Battalion.  As a result, the evidence shows that he was afforded several opportunities to improve under other commands, but still failed to improve his performance of duty.

4.  The applicant's contention that his narrative reason for separation should be changed was considered, but not found to have any merit.  The applicant's narrative reason for separation was based on his discharge for substandard performance of duty, and the applicant failed to provide any evidence which proves that it should have been anything other than that.  

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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  DENY APPLICATION









BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ________XXX______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080004933



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ABCMR Record of Proceedings (cont)                                         AR20080004933



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