2.  The applicant requests that the Officer Evaluation Report (OER) for the period 940511-941215 be expunged from his official military personnel file (OMPF).  He states that the OER is incorrect and unjust.

3.  The applicant is a captain on active duty serving in aviation.  During the period of the contested OER, he was commander of an aviation company in Germany.  Shortly after his assumption of command, a female soldier was assigned to his unit straight from advanced individual training.  When the applicant met the female soldier at the newcomer’s briefing, he asked her how her in-processing was coming along.  She replied that everything was going well, but that many male soldiers were asking her out on dates and started to go into details of her personal life.  The applicant asked if she was complaining and she said she was not.  Later, the applicant asked the battalion command sergeant major (CSM) to see whether the female soldier was being harassed.  The CSM found no evidence of harassment.

4.  During the next few months, rumors began to circulate concerning the female soldier and sexual liaisons with unit NCO’s.  A rumor also circulated concerning the applicant having asked the female soldier on a date, having given her his home telephone number, and having invited her to his quarters.  At one point, the acting first sergeant had a meeting with the applicant and three other NCO’s.  At the meeting, two of the NCO’s were accused of having had sexual relations with the female soldier and their situation was discussed.  Also, the acting first sergeant confronted the applicant concerning his alleged relationship with the female soldier.  The applicant stated that he denied any relationship and said his only interest in the soldier was professional.

5.  In September 1994, the female soldier was brought before the applicant by her NCO section chief because of disciplinary problems.  On 19 September 1994, the applicant offered the female soldier nonjudicial punishment under Article 15, Uniform Code of Military Justice.  During that hearing, she alleged sexual harassment by her NCO and others.  An equal opportunity (EO) investigation was conducted which uncovered the many rumors evolving around the female soldier and sexual improprieties with unit leaders.  Based upon the EO investigation, the brigade commander ordered a formal investigation under Army Regulation (AR) 15-6.

6.  The AR 15-6 investigation, among other things, looked into the allegation that the applicant had asked the female soldier to go out on a date.  The investigating officer (IO) took statements from a number of people, including the four NCO’s who were present at the above meeting with the applicant.  Two of those NCO’s--including the acting first sergeant--claimed that the applicant had stated that he had asked the female soldier for a date.  One NCO stated that he could not recall such a statement while the fourth NCO emphatically denied that the applicant had ever made such a statement at the meeting.  The applicant also gave a sworn statement that he did not ask the female soldier for a date and never said that he did.  He also told the IO that the two NCO’s who made statements against him had received substandard NCO evaluation reports from him.

7.  The IO concluded his AR 15-6 investigation by stating that he could not confirm beyond a reasonable doubt the allegations against the applicant, but felt the applicant had lost his ability to command due to the perceptions held by his troops that he was involved with a subordinate.  The brigade commander did not accept the IO’s conclusions and changed them to indicate that a preponderance of evidence suggested that the applicant had asked the female soldier for a date and then lied about it in his sworn statement.  He directed the applicant’s relief from company command for cause.

8.  The applicant was relieved of his command and given the contested OER.  In Part IVb, Professional Ethics, the rater stated that the applicant’s “attempt at establishing a personal relationship with a female enlisted subordinate lost for him creditability (sic) and support from subordinate leaders.”  In Part Vb, the rater states that the applicant “often failed requirements” and commented on the improper relationship in Part Vc.  Finally, in Part Ve, the rater states that the applicant “. . . was destined to enjoy success . . .” in his company command except for his poor judgment with the female subordinate.

9.  The senior rater (the brigade commander who ordered the AR 15-6 investigation and then modified the results) rated the applicant in Block 5 of his profile (his lowest rating) and spent the entire narrative portion of Part VIIb in deriding the improper relationship established by the applicant.  In addition to his relief for cause OER, the applicant was given a general officer letter of reprimand (GOLOR).

10.  In November 1995, the applicant was ordered to appear before a show cause board to determine whether he should be eliminated from the Army.  The board convened and heard testimony from many of the individuals involved in the incident which led to the applicant’s relief from command.  The board, after hearing all of the evidence, decided that the applicant had not committed any misconduct and recommended his retention on active duty.

11.  Following his success before the show cause board, the applicant appealed the OER to the Officer Special Review Board (OSRB) and the GOLOR to the DA Suitability Board (DASEB).  The DASEB removed the GOLOR from the applicant’s OMPF, but the OSRB did not remove the OER.  In a previous appeal denial, the OSRB stated the AR 15-6 investigation found the applicant had committed misconduct and the applicant had not successfully refuted that finding in his appeal.  Following the show cause board findings, the OSRB stated that the show cause board was impaneled only to determine whether the applicant should remain on active duty and not to pass judgment on the OER.  The appeal was denied.

CONCLUSIONS:

1.  The only evidence supporting the allegation that the applicant asked the female soldier for a date were statements from the female soldier and two NCO’s who were present at a meeting with the applicant.  The female soldier made her statement after receiving nonjudicial punishment from the applicant.  The two NCO’s had previously received substandard NCOER’s from the applicant.  Two other NCO’s who were present at the same meeting where the applicant is alleged to have acknowledged his wrongdoing, claim that he never said he asked the female for a date.

2.  The AR 15-6 IO could not conclude that the applicant had committed any wrongdoing; his only indictment of the applicant was that he had lost his credibility as a commander.  The brigade commander refused to accept the IO’s finding and unilaterally decided that the applicant had asked for a date, then lied about it; he changed the investigation to “prove” the allegation.

3.  The contested OER is inconsistent in that the rater indicates that the applicant often failed requirements, then says he was destined to enjoy a successful command save for the improper relationship with a subordinate.  It also uses an unproved allegation as the sole basis for the adverse comments of the rater and senior rater.  AR 623-105 provides that no reference may be made to unproved derogatory information.  The AR 15-6 IO could not prove the allegation and the show cause board found the alleged misconduct did not take place.

4.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by expunging the contested OER and any other related documents, to include past OSRB denials, from the OMPF of the individual concerned.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON