ABCMR Proceedings (cont)                                                        AR2002079446

PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            29 April 2003
	DOCKET NUMBER:   AR2002079446

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

| Mr. Carl W. S. Chun | | Director
| Mr. Jessie B. Strickland | | Analyst

The following members, a quorum, were present:

| Mr. John N. Slone | | Chairperson
| Mr. Thomas Lanyi | | Member
| Mr. Bernard P. Ingold | | Member

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests the removal of an officer evaluation report (OER) covering the period from 16 June 1998 through 15 June 1999, promotion reconsideration to the rank of lieutenant colonel (LTC) and reinstatement of selection for Residency in Aerospace Medicine for academic year (AY) 2000.

3.  The applicant states that the OER was completed prematurely with inaccurate opinions and unverified, derogatory information stemming from an incomplete investigation of allegations made.  The investigation was not completed until 16 November 1999, when he was ultimately cleared.  The OER sent to him on 29 September 1999 and filed on 17 November 1999, nevertheless, contained irreparable, defaming, career-ending annotations and comments against his character, values, performance and potential, which resulted in his being twice passed over for promotion and removed from residency selection.  In support of his application he submits a detailed memorandum outlining the circumstances of his case as well as extensive supporting documents contained in two three inch binders that require complete reading in order to understand the sequence of events in this case.

4.  The applicant’s military records show that he was commissioned as a United States Army Reserve second lieutenant on 17 May 1986.  He was ordered to active duty and promoted to the rank of captain in the Regular Army on 19 May 1990 and was commissioned as a Medical Corps officer.

5.  On 22 March 1999, while serving as a commander of two health clinics in Germany, the applicant submitted a request for surface travel for his dependent daughter.  He contended that her medical condition of insulin dependent diabetes was complicated by air travel.  Meanwhile, while awaiting approval of his request, his wife and children flew back to the United States to visit relatives and subsequently returned. 

6.  On 11 May 1999, the applicant's chief nurse contacted (anonymously) criminal investigation division (CID) officials and reported that the applicant may have wrongfully obtained approval for surface travel to the United States using his daughter's health as the basis for his request, because his family had departed Germany by plane on 9 April and returned on 26 April 1999.  As a result, he had obtained first class passage on the Queen Elizabeth II (QEII).  An investigation was initiated which resulted in a finding that there was probable cause to believe the applicant had committed the offenses of fraud and false official statements when he submitted his request for surface travel based on the assertion that it would cause undue hardship on his daughter.  The investigation was completed on 21 July 1999; however, the applicant had transferred to the Command and General Staff Course at Fort Leavenworth, Kansas.

7.  Meanwhile, on 8 July 1999, the commanding general (a lieutenant general) issued the applicant a general officer memorandum of reprimand (GOMOR) for having prepared the memorandum signed by his daughter's physician and misrepresenting that the chain of command supported the action, for not making known the fact that his daughter had approved travel by plane to the United States at the time he requested surface travel, and for violating a lawful order from his commander not to discuss the investigation with anyone at the clinic.  The applicant was reprimanded for being deceptive, making false statements, flagrant disregard for orders, lack of discipline, loyalty and integrity.  The imposing officer informed the applicant that he was considering filing the GOMOR in his Official Military Personnel File (OMPF), but would not do so until he reviewed any response the applicant wished to make.

8.  On 5 August 1999, the applicant submitted a response to the GOMOR in which he asserted that the investigation conducted was designed to obtain irrelevant information to illicit negative feelings towards his efforts to protect his child, her welfare and his family's.  He went on to state that in his 13 years of service he had strived to step out of the shadow cast by medical personnel who do not focus on their duties as a soldier and had sought command twice.  He further explained that he and his wife had previously decided to seek surface transportation at their own expense and were doing research on the issue when officials at the travel section informed them that another officer had already done the research and got it approved.  By coincidence, that officer came by the travel office for his own business and travel officials introduced them.  Subsequently, the travel officials provided the applicant with a copy of the other officer's request. He continued by stating that he prepared the draft medical statement for his daughter's physician and she made some changes which added parental fatigue as a reason.  He also states that the trip his family made was an entitlement they received as a result of serving consecutive overseas tours (COT) and in each instance it was planned out so that there would be someone available to assist his wife when she arrived at her destination in an exhausted condition due to caring for his daughter.  Additionally, the same officials who processed his COT travel, also processed his request for surface travel.  He asserted that at no time did he ever suggest that his daughter could not fly, but instead that it was medically warranted.  He also stated that he had no control over his daughter's physician, that he violated no orders, that he was not told not to talk to his chief nurse regarding the investigation, and that he terminated the conversation when he learned that she was involved.  He asked that the GOMOR be rescinded or placed in the local files but adamantly denied that he used command influence, professional influence, chicanery or that he had violated his commander's orders.  He requested to be exonerated.

9.  On 16 September 1999, the applicant's OER for the period of 16 June 1998 to 15 June 1999 was forwarded/referred to the applicant for signature and comment.  The OER was an annual report evaluating him as the commander of two separate health clinics in Germany.

10.  In Part IV, under performance and professionalism, the rater gave him a "No' rating under "Integrity - possesses high personal moral standards; honest in word and deed."  Under Part V, performance and potential evaluation, he gave the applicant a "Satisfactory Performance – Promote" rating.  The rater commented that the applicant's command tour had been overshadowed by some highly questionable actions, that his case was under general officer review, that in his opinion the applicant used his position to gain approval of surface transportation, he disregarded a directive not to talk with anyone involved with the official investigation and that his integrity had been compromised.

11.  In part VII, the senior rater (SR) rated the applicant as "Fully Qualified" and placed him in the third block under potential, which placed the applicant below center of mass (BCOM) in the SR's profile.  He indicated in his comments that he too questioned the applicant's judgment in the incident described by the rater and his personal involvement in the official investigation, despite directives to avoid personal involvement, was inexcusable.  He contended that the applicant's actions in that incident greatly limited his potential to serve as a senior leader or commander.  The report was signed on 8 November 1999. 

12.  On 15 October 1999, the applicant initiated a request for a commander's inquiry regarding the contested OER.  He asserted that the OER contained numerous violations of the applicable regulation, which included the use of unverified derogatory information, inclusion of reference to an ongoing investigation, and inclusion of derogatory opinions.  He contended that the blatant attempt to hold the OER until the conclusion of the investigation was an attempt to justify the opinions and that the events, writing, and the OER itself outline a complete lack of objectivity, fairness, appropriateness and loyalty from his chain of command.  He contended that his performance as commander of two clinics was "top block" and not "bottom of the barrel" as it is written and the only reason was because of an anonymous allegation made against him and his family, which he denied and responded to.

13.  On 16 November 1999, the commanding general (CG) directed that the GOMOR not be filed.

14.  On 29 November 1999, a commander's inquiry was conducted which concluded, in effect, that the chain of command violated the applicable regulation by referring to an ongoing investigation.  The chain of command stated that they believed that the OER accurately reflects his performance and accomplishments. Both the rater and SR stated that they believed he was a good doctor; however, his performance as commander was denigrated by his behavior during the investigation.  Neither the rater nor the SR would change their ratings.  The investigating officer opined that since the OER contains at least two breaches of the regulation and was technically incomplete, the investigation results should be forwarded for inclusion with the OER and the applicant should be advised to appeal the report.   

15.  On 20 December 1999, the applicant was awarded the Army Commendation Medal (ARCOM) for outstanding service and dedication to duty as commander of two health clinics during the period of 12 August 1998 to 22 June 1999.

16.  On 25 December 1999, the applicant submitted a request for reconsideration for Residency in Aerospace Medicine (RAM).  He indicated in his request that he had been removed from the selection list because of the GOMOR and the contested OER; however, the GOMOR had been withdrawn and a commander's inquiry confirmed his assertion that the OER was incorrect.  The applicant's request was not favorably considered because he had not appealed the OER.

17.  On 6 March 2000, in response to a request from the applicant for a letter of support for his OER appeal, the CG who initially imposed the GOMOR, sent the applicant a memorandum in which he elected to decline the opportunity to submit a letter of support.  He informed the applicant that he had withdrawn the GOMOR when he determined that insufficient evidence existed to substantiate the allegations; however, he could not support the representation that he was exonerated.

18.  The applicant appealed the OER to the OSRB on 27 April 2000, contending that it was administratively flawed, substantially inaccurate, and that rating officials erred in their assessment of his demonstrated performance and potential during the rated period.  After an extensive review, the OSRB opined that the decision not to file the GOMOR was not an act of exoneration, as claimed by the applicant, that his integrity had been compromised and that the "no" rating in that area was appropriate.  The OSRB also opined that the phrase "His case is currently under General Officer review" should be deleted and the phrases "with this official investigation" should be changed to "in the official investigation" and the phrase "with an official investigation" should be changed to "in an official investigation."  No other changes were recommended and promotion reconsideration was not warranted.

19.  A review of the supporting documents submitted by the applicant shows that the Deputy Commander for Outlying Clinics was responsible for the overall supervision and support of nine outlying primary care clinics comprised of 42 primary care providers and over 300 ancillary support personnel.  A copy of his OER was provided to substantiate his role in relation to the applicant.

20.  A memorandum to the CG from the Deputy Commander for Outlying Clinics dated 6 August 1999, regarding the GOMOR given to the applicant informs the CG that the applicant fell under his responsibility.  He also stated, in effect, that he found no fault with the applicant making a request for surface travel for his daughter if he felt it would benefit her and noted that even if the request had been denied, it did not mean that he was doing something fraudulent.  He went on to state that it is not uncommon for an individual to prepare a memorandum for someone else to sign and he believed that the applicant did so to expedite the process and help the doctor, who did not fall under his command.  He also stated that he was aware that the applicant's dependents were flying to the United States because the applicant discussed it with him and explained that his wife's family would meet them on their arrival and assist in the care of his daughter and that he would take leave to do the same on their return.  However, no one bothered to interview him and ascertain the truth.  He recommended that the GOMOR be rescinded.

21.  A review of the supporting statement from his military counsel at the time reveals that the applicant was initially told not to discuss the investigation with anyone, but was later given permission to inform a few key members of his clinic staff that he was under investigation so that they would be aware and able to   fill-in or perform duties as needed.  He followed that directive and was unaware at the time, that his chief nurse was involved in the investigation.  Additionally, his counsel provides that the applicant was accused of not rendering an OER to his chief nurse after he discovered that she was his accuser and that he was retaliating against her.  However, the fact of the matter is that he as counsel to the applicant advised him against rating the chief nurse because he did not want the applicant to be perceived as being unfair to her.

22.  A review of the statement by the head nurse, the applicant's accuser, indicates that she discussed the situation with a friend who worked in CID and then proceeded to make the complaint that the applicant was involved in fraud, waste and abuse.  When asked by the applicant if she knew who had turned him in, the head nurse indicated that she did not know.

23.  An electronic mail (e-mail) message dated 23 June 1999, from a pediatric endocrinologist in Heidelberg, Germany to medical officials at Landstuhl Medical Center, regarding a re-evaluation of the request for surface travel for the applicant's daughter, indicates that his daughter was re-evaluated and that there was insufficient basis to overturn the previous recommendation that the request for surface travel be overturned.  The recommendation was that surface travel was again recommended for approval after the third evaluation. 

24.  The applicant also provides a copy of a 18 May 1999 memorandum from his commander ordering him not to remove his daughter's medical records from their current location and not to communicate with the civilian contract physician (daughter's pediatrician) or two officials in the Official Travel Office, except in the presence of his defense counsel.

25.  A review of the applicant's OER history shows that with the exception of the contested OER, he has always been rated above center of mass or center of mass.  His previous command OER in Germany was above center of mass. 

26.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 3-57 and 6-6 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.  Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports.  Paragraph 3-27a provides that no reference will be made to an incomplete investigation (formal or informal) and that references will only be made to actions or investigations that have been processed to completion, adjudicated and had final action taken before submitting the report to the Department of the Army.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  Each report must stand alone.

CONCLUSIONS:

1.  After reviewing the extensive documentation in this case, it appears that this is a case that evolved out of jealousy, rather than concern for waste, fraud and abuse, and it snowballed to the point that the facts in the case were either overlooked or distorted to look like the applicant was in fact attempting to defraud the government. 

2.  Although the applicant was not automatically entitled to surface travel upon his permanent change of station from Germany, he was authorized to submit a request for such travel if he qualified under the applicable guidelines.  In the applicant's case, and with the assistance of the command transportation officials, he submitted his request for surface travel using his daughter's medical conditions as the basis for his request.  At no point in the process did he state that his daughter could not fly, in fact, there is evidence to show that she did fly and he acknowledged that she always encountered problems with flying and that he and his wife were usually exhausted when they arrived at their destination.

3.  Regardless of the reason for his request, he was not the approving authority for his request.  The request had to be reviewed by transportation officials and the chain of command to ascertain if the request satisfied the intent of the provision which allowed for such travel.  Not only did the request pass the test the first time, it also passed the test twice more after it was discovered that the applicant's wife and kids had flown round trip to the United States, on COT travel paid for and arranged by the same transportation office that approved his surface travel request.

4.  Unfortunately, by the time his request was finalized, the only cabins available were first class cabins on the Queen Elizabeth II (QEII); cabins that were purchased by the transportation office and not by the applicant.  It is not unreasonable to expect that the applicant was thrilled that his family would be accommodated in such a fashion; however, it is not reasonable to presume, without evidence, that he orchestrated such travel through fraud.  

5.  While many would like to travel first class on the QEII after completing an overseas assignment, very few can and do.  The applicant simply submitted a request for surface travel and through the luck of the draw he got first class accommodations.

6.  In regards to the applicant's violating the commander's order not to discuss the investigation with anyone, the Board finds that the orders were conflicting and set the applicant up for failure.  The written order given to the applicant did not tell him that he could not discuss the investigation with his head nurse, an individual he considered to be one of his most trusted officers.  However, the applicant's counsel confirms he was verbally told not to discuss the investigation with anyone and was subsequently told that he could advise key members of his staff so as not to disrupt the business of the clinic. 

7.  Inasmuch as the investigation was initiated by an anonymous caller, the applicant had no way of knowing that his head nurse, one of his most trusted officers, was his accuser.  However, once he discovered that she was involved in the investigation, he terminated the conversation.

8.  The Board also notes that virtually the entire case centers around accusations made by an accuser who remained anonymous for the most part and further damaged the applicant's career through accusations that were made without proof/evidence to support them.  In other words, her accusations were accepted over the applicant's explanation and evidence and no attempt was made to establish her credibility.

9.  The Board also notes that despite all attempts to discredit the applicant, no charges were filed against the applicant nor was he required to show cause why he should remain on active duty.  In addition, after being given a GOMOR, the CG subsequently withdrew it because there was not sufficiently convincing evidence to substantiate the allegations made.

10.  While the Board concedes that the applicant may have handled the incident a bit differently, it appears that he was unjustly penalized for taking advantage of a benefit that was available to his family.  While his rater and senior rater may not have liked the fact that he obtained surface travel after having sent his family home by air previously, it was not relevant to the issue because the applicant never said that they could not fly, just that it was better for the parents and the daughter when his daughter did not fly.

11.  In regards to the rating chain's assessment that his rating centered on the fact that he discussed the investigation with the head nurse, against orders to do so, the Board finds this to be without merit and unfair to the applicant under the circumstances.  If the chain of command felt that strongly about the issue, they should have preferred charges against him whereby he could have asserted his innocence before a trial by court-martial.  However, they instead chose to include what was then unverified derogatory information in his OER.

12.  Therefore, the Board finds that the contested OER is unjust and should be removed from his OMPF and afforded promotion reconsideration by all boards that viewed the contested OER.  Additionally, the applicant should receive reconsideration/reinstatement for RAM to the same extent that he was being considered at the time he received the contested OER.

13.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by removing from the OMPF of the individual concerned the OER covering the period from 16 June 1998 through 15 June 1999, and all documents related thereto; 

b.  by inserting an appropriate nonprejudicial statement in his OMPF explaining that the period in question is deemed to be non-rated time; and

c.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by all boards that previously reviewed the contested OER (less below the zone consideration) and did not select him.

d.  by reinstating him to RAM to the same extent that he was in at the time he was removed for consideration based on the contested OER, or as close thereof as possible.

2.  That following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:  

__bpi ___  ___js____  ___tl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID | AR2002079446
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2003/04/29
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | GRANT
REVIEW AUTHORITY |
ISSUES         1.  221 | 111.0005/Rem OER
2.  310 | 131.0000/recon promotion
3.  23 | 103.0000/residency medicine
4. |
5. |
6. |