MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 February 2001
         DOCKET NUMBER: AR2001052505

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Roger W. Able		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 his relief for cause evaluation report for the period 24 June 1996 through 21 March 1997 be expunged from his Official Military Personnel File (OMPF). In subsequent correspondence to the Board he also asked that an 11 March 1997 memorandum of reprimand be expunged from his OMPF.

APPLICANT STATES: In effect, that in November 1996 he “provided a statement to the Eighth US Army Inspector General (IG) in an investigation concerning” his rater. He contends that his rater was allowed to read his statements and that those statements “contributed to [his] relief for cause….” The applicant indicated that his rater had a reputation of “getting personnel on issues” and that his statement placed him on his rater’s “to get” list. He contends that as a result of his statement to the IG his rater “used the baby-sitting incident” as the basis to “obtain [his] relief.” The applicant states that his previous and subsequent evaluation reports represented a more accurate portrayal of his character and performance.

The applicant states that “the evidence is clear” that his rater “relieved [him] because [he] provided a statement” that the IG requested and that his “honesty” caused his rater “to act out of reprisal, [and] not because [he] asked an off-duty soldier to care for [his] children during a family emergency.” He noted that while he felt “the letter of reprimand is also wrong and needs to be removed” it is “enough of a statement in [his] file to cover the incident.”

In support of the applicant’s petition he provides a copy of his evaluation report appeal submitted to the Officer Special Review Board (OSRB), which included several statements of support, a copy of the Army Regulation 15-6 investigation which served as a the basis for the memorandum of reprimand and relief-for-cause evaluation report, copies of subsequent evaluation reports and a copy of the Meritorious Service Medal he received upon his departure from Korea.

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

He was commissioned as a U.S. Army Reserve Officer in May 1984 and entered his current term of active duty in January 1991. On 1 July 1996 the applicant was promoted to the grade of Major and on 9 July 1996 assumed duties as Team Chief with the U.S. Army Combat Support Coordination Team #3 in Korea. The applicant resided in a military barracks while his family (Korean spouse and two 8 year old daughters) resided some distance away in government quarters.

Included with the applicant’s petition, which he indicates is a copy of the IG statement, is a handwritten, undated, “statement” in which he responds to questions concerning a “25 Oct Alert.” The statement recounts the applicant’s actions during the alert and concludes “all actions on
25 Oct were in accordance with regulations.” He only notes that his rater was the individual who initiated the “muster alert” but the statement does not appear to make any derogatory comments regarding his rater.

On 10 November 1996 the applicant was counseled by his rater concerning the amount of time his children were spending in the military barracks and the amount of time those children were unsupervised. His rater noted in particular that on one occasion the children were “making excessive noise in [the] barracks after 0100.” He also counseled the applicant that he “must not use subordinates as babysitters.”

A 7 March 1997 Army Regulation 15-6 investigation, conducted by the unit’s executive officer, concluded that the applicant misused “his position by keeping [a junior enlisted soldier] from her appointed place of duty on 13 February 1997 for the purpose of baby-sitting his children.” The investigating officer noted that the junior enlisted woman “baby-sat [the applicant’s] children in his room from approximately 0600 to 1400 on 13 February, and did not participate in a unit alert and training exercise which were conducted that day.” He found that although the junior enlisted soldier was “a willing participant” that the applicant’s “actions have undermined the good order and discipline of the unit….” He recommended the applicant receive a “formal memorandum of reprimand” and be “relieved for cause from his position….”

The applicant received a memorandum of reprimand from his rater dated
11 March 1997. The reprimand noted that the applicant’s “actions as a Field Grade Officer fell far below the standards expected of a soldier of your rank and experience.” It indicated that when faced with a “difficult family situation” he had one of his soldiers, a private (E-2), baby-sit his children during a duty day, “causing her to miss important alert training” which, in addition to being improper, was “in direct violation of [the rater’s] specific written orders not to have your subordinates baby-sit your children.” In a 26 March 1997 memorandum to the applicant’s senior rater, a major general, the rater noted that he had considered the applicant’s rebuttal before recommending the reprimand be filed in the applicant’s OMPF.

On 12 March 1997 the applicant was counseled by his rater and informed that he was being suspended from his duties based on the 13 February 1997 baby-sitting incident.

On 9 April 1997 the applicant’s relief-for-cause evaluation report was officially referred to him although he indicated in his 9 April 1997 rebuttal statement that he had received the report on 4 April 1997.



In his rebuttal he acknowledged that he “made an error in judgment as [his rater] stated in his evaluation” but did not believe the “error in judgement adversely affected morale or readiness among [his] soldiers….” He noted that because of a death in his spouse’s family (his spouse was a Korean national) he was “left unexpectedly with [his] two daughters overnight.” He stated that he and his children knew the junior enlisted soldier he asked to baby-sit and that “she was not scheduled to participated” in the alert exercise. He indicated that he took “every step to ensure [the junior enlisted soldier] did not feel coerced into watching [his] daughters.” He noted that in retrospect he should have “taken leave from work” but was “in a difficult situation” and that it “did not have any adverse effect upon [his] soldiers and did not warrant relief for cause.”

In a 20 February 1998 memorandum the applicant appealed the evaluation report to the OSRB “based solely on administrative error” claiming that the report had not been properly referred to him and that “the subject evaluation was changed subsequent to [his] signing the evaluation and subsequent to being signed by [his] rater and [his] senior rater.” The OSRB determined that the evaluation report was administratively correct and that “none of the accusations you have made concerning the processing of the report are supported with any clear and convincing evidence other than your own opinion.”

The applicant subsequently appealed the relief-for-cause evaluation report “based on substantial factual errors and bias.” He essentially argued that his rater rarely observed his daily performance of duty, that his rater resented him, withheld the only “command sponsored” billet in the unit in spite of fact that he had moved his Korean spouse and two children to Korea with him, and that his rater had destroyed the morale of the unit which was evident by the number of IG complaints which were lodged against his rater. He also noted that his rater “executed a surprise alert” after his “spouse had dropped [his] two daughters off at [his] quarters in Yongin (unexpected) to attend a family funeral.” He states that he had “no way to contact [his] spouse, any of her relatives, or any other unit family members to take care of [his] children while [he] responded to the alert [and] was forced by circumstances to ask an off-duty soldier…if [he] could hire her to watch” the children until he could return from the alert. He then commenced to argue the validity of various statements made by his rater on the relief-for-cause report.

On 15 June 1999 the OSRB returned his appeal without action. They noted that “while the appellant provides his own self-authored statements, the referred






contested report with rebuttal, the Commander’s Letter of Reprimand with rebuttal, results of the AR 15-6 investigation conducted by his chain of command, extracts of unsubstantiated EO complaints and numerous third party supporting statements of individuals who have served with the appellant, he has failed to provide substantive evidence to support his claim that the Rater’s assessment was inaccurate or unjust or that the rating officials failed in executing their regulatory duties.”

Included with the applicant’s appeal to this Board were copies of statements rendered in support of his appeal to the OSRB. Those statement, from peers who worked with the applicant and several enlisted soldiers who worked for the applicant during the period in question, attest that the applicant was a good soldier and that there may have been “personality” problems with his rater. However, one of the statements (from the unit’s intelligence officer) concedes that the applicant’s use of a junior enlisted soldier to baby-sit his children “was a bad judgement call by [the applicant].” Another statement, rendered by the unit’s operations officer (a lieutenant colonel) noted that the applicant “did have one large problem, and that was an inability to tactfully communicate with [his rater]. All to often he would raise the issue of soldier morale to [his rater] at an inappropriate time, only to find himself getting a verbal counseling in front of his peers and seniors.”

Statements contained in the applicant’s petition to this Board, which appear to have been part of the Army Regulation 15-6 investigation, indicate the applicant was aware that his unit would undergo an “alert” exercise the night his spouse left his children with him. Additionally those same statements indicate that the junior enlisted woman who baby-sat asked her NCO if he “thought [he] could do without her for the day” and was informed that she had been scheduled to man the phones but that it was “OK with [him]” if she watched the applicant’s children.

The applicant’s prior and subsequent performance evaluation reports indicate he was consistently rated as a center of mass officer with two exceptions when he was rated above center of mass. He was also awarded the Meritorious Service Medal for the period 7 July 1996 through 30 July 1999. The applicant is currently assigned to Fort Leavenworth, Kansas.

Army Regulation 623-105 states that an evaluation report accepted for inclusion in the official record of an officer is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.





Army Regulation 623-105 also states that the officer evaluation report Redress Program, which includes Commander’s Inquiries, appeals to the OSRB and petitions to this Board, protects the Army's interests and ensures fairness to the officer. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.

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. While the applicant maintains that he was relieved of his duties because he was on his senior rater’s “to get” list, the evidence indicates that the relief-for-cause and memorandum of reprimand stemmed solely from his use of a junior enlisted soldier, under his supervision, to baby-sit his two children. The evidence also indicates that the applicant had been previously counseled by his rater concerning the use of soldiers to watch his children.

2. Contrary to the applicant’s contention that the “alert” was a surprise the evidence indicates that he was aware that the “alert” was planned and attempted to secure a baby-sitter for his children prior to execution of the alert. Additionally, the applicant stated that he used an “off-duty” soldier to watch his children although other statements indicate the soldier was “off-duty” only after she asked if her services were required as part of the “alert” exercises.

3. The Board contends, and the applicant admits, that using a junior enlisted soldier to baby-sit his children, particularly after he was counseled not to do so, was inappropriate and, as the applicant also admits, other avenues of relief may have been available to him (such as taking leave). As such the Board concludes that the reprimand and relief-for-cause were appropriate and there is no indication they were issued in retaliation for any IG statement the applicant claims to have rendered.

4. While the applicant may have received positive evaluation reports before and after his relief-for-cause they do not indicate that the relief was neither inappropriate nor unwarranted under the circumstances. Additionally, the Board notes that his award of the Meritorious Service Medal, which recognized more than two years of service in Korea following his March 1997 relief, further supports the conclusion that his relief and reprimand were the result of the isolated baby-sitting incident and not a reflection of his overall performance as an Army officer.





5. The applicant has not shown that the contested report or the memorandum of reprimand contains any serious administrative deficiencies, was not prepared in compliance with applicable regulations, or that they were not valid appraisals of the applicant’s behavior. Therefore, there is no basis for removing either from his OMPF.

6. 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 that requirement.

7. 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

___jns___ ___rwa___ __mhm__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001052505
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010227
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 193	111.01
2.	134.01
3.
4.
5.
6.